New “TV licence” court fight in South Africa

The Federated Hospitality Assocation of Southern Africa (Fedhasa) has taken the South African Music Rights Organisation (Samro) to court over a new fee for in-room TVs in accommodation establishments.

Fedhasa national chairperson Rosemary Anderson said the fee was separate from the long-standing common area annual fee that hotels and guesthouses have been paying Samro for over 30 years.

That fee only applies to cases where an establishment plays music in public areas like restaurants, foyers, lobbies, conference rooms, and poolside areas.

However, in the 2022/23 financial year, Samro introduced an additional licencing fee for every TV set in a hotel room, over and above the common area licencing fee.

This new fee applies to any TV in an accommodation establishment, regardless of whether it provides access to music channels or music streaming apps.

While Fedhasa had engaged with Samro for several years to explore a resolution, the parties could not come to a mutually acceptable position on the issue.

Fedhasa has subsequently approached the High Court for declaratory relief to obtain judicial clarity on the legality and scope of these additional licensing fees.

In addition, the association wants the court to confirm the respective rights and obligations of accommodation providers and Samro under the relevant statutory and contractual framework.

Fedhasa said it acknowledged the vital role of Samro in supporting South African music
creators and remained committed to upholding the legal and ethical use of music within the
hospitality sector.

Anderson said Fedhasa hopes the outcome of the court process would provide certainty to the hospitality industry and Samro.

In an interview with 702’s Money Show, Anderson said that accommodation establishments had already seen their input costs surge in recent years.

She said that one of the big problems Fedhasa’s members had with the fee was that there was no consultation, and the rationale for the fee was never discussed with the industry.

“The hospitality industry has got more questions than answers and is really looking forward to this declaratory order coming through,” Anderson said.

Samro fails to explain key issues

Fedhasa first announced it was seeking legal advice over the fee in February 2024.

In a series of scathing questions directed to Samro, Fedhasa questioned why the organisation felt it had a right to charge a fee per in-room TV after many years without the charge.

“What has changed that Samro now feels they can charge per hotel room, when it was not done in the past?” Fedhasa asked.

“The Samro website does not include any reference to the hotel rooms category being included in Samro fees.”

Fedhasa also explained that accommodation providers were already paying the SABC for an annual licence per TV in each guest’s room.

In addition, some were paying a monthly fee to MultiChoice for the use of DStv’s music channels and TV channels.

“Wouldn’t this idea of charging per room be ‘double dipping’ or ‘triple dipping’?” Fedhasa asked.

“Accommodation providers are already being charged by service providers for music content and films in their broadcasts and presumably MultiChoice and SABC are paying you.”

In addition, Fedhasa argued that watching TV or listening to music in a hotel room could not be considered public viewing of a film or music like public viewing in a cinema, pub, or restaurant.

“Your website refers to your fees when there is ‘public’ viewing,” Fedhasa said. “One or two people viewing or listening to something in their hotel room is not public.”

“It is a private viewing of something that the accommodation provider has paid for via the SABC or MultiChoice for them to watch or listen to. How are these facts not accurate?”

Furthermore, Fedhasa argued that the use of TV and music streaming services on smart TVs also did not provide public access to content.

“It is personal access by one or two people to a streamed TV service to access a film,” Fedhasa said.