What is copyright infringement?
Copyright is infringed when an infringing-user without the permission of a copyright holder or CMO reproduces (exercises the exclusive rights of the copyright holder) or causes to be reproduced, a substantial part of a work, or if such reproduction does not fall within the exceptions to copyright. Substantial is determined on a case-by-case basis in relation to whether an integral part of the work was reproduced, rather than the quantity.
In the case of primary infringement (where the infringing-user reproduced a work), the infringing-user cannot use ignorance of the fact that a particular act constitutes copyright infringement as a defence to the infringement.
In relation to literary works, an infringement includes when an infringing-user, without the permission of the copyright holder, allows a public place to perform a work, provided that the infringing-user was aware and had no reasonable grounds for suspecting that permitting such a performance would constitute a copyright infringement.
Some examples of infringement include an infringing-user knowingly:
- importing a work into RSA for a purpose other than for private or domestic use
- selling, lettings, or making any work available in RSA
- distributing any work in RSA in such a way that prejudicially affected the copyright holder, or
with the knowledge that, had a work been made in RSA, the actions of the infringing-user would have constituted an infringement.
Generally, the reproduction of a work is permitted if:
- it relates to one copy of a reasonable portion of a work
- regard is made to the meaning and totality of the work as a whole
- the cumulative effects of the reproduction do not adversely affect the rights of the copyright holder.
The fair dealing exception provides that a work may be used without permission provided the source of a work and the name of the creator are mentioned and the reproduction:
- is for the research or private use of the copyright user
- is for the purposes of criticism or review of a work
- is for the purpose of reporting on current events.
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A work may be used without permission:
A work may be used without permission:
A work may be used without permission:
The copyright holder may take action, should the copyright in their work be infringed. Should the rights of an exclusive licensee or exclusive sub-licensee be infringed by another party, it is important to note that the same rights of action are enjoyed by both the exclusive licensee and exclusive sub-licensee. Both parties are entitled to remedies, as if the license was an assignment, which means that those rights and remedies are the same as those belonging to the copyright holder who has granted the exclusive license or the exclusive sub-license.
Should the exclusive licensee or exclusive sub-licensee wish to institute proceedings regarding an infringement, they are required to make the copyright holder aware of their intention to do so with a written notice. In such a case, the copyright holder may step in to recover damages, as a result of the infringement, or a royalty, to which they may be due.
To enforce remedies, the first action to take is to stop the infringement from proceeding any further by issuing the infringing party with a Letter of Demand instructing them to stop the infringement.
A criminal complaint may be lodged by the copyright holder with the South African Police Service (SAPS). This will initiate the opening of a case, allowing the police’s commercial crimes unit to investigate the case and the prosecuting authorities to determine if the case will be prosecuted.
Relief may take the form of damages, interdict and delivery of infringing copies and any article used or intended for use in the infringement.
Should the copyright holder so choose, they may request to be awarded an amount based on the calculation of a reasonable royalty which would have been payable by a copyright user in respect of the work, in place of damages.
The court may direct that an enquiry be held in order to determine the amount of damages or the reasonable royalty to be awarded to the copyright holder.
Should the copyright holder wish to institute proceedings against the infringing-user, they must give written notice to the exclusive licensee or exclusive sub-licensee of the work concerned of their intention. The exclusive licensee or exclusive sub-licensee can then intervene in the proceedings to recover any damages, or a reasonable royalty related to damages they may have suffered.
Should the infringing-user admit that an infringement was committed, or an infringement be proved, the copyright holder may not be entitled to damages if at the time of the infringement, the infringing-user was not aware and had no reasonable grounds to suspect that copyright subsisted in the work.
Should copyright infringement be proved or admitted, the court may consider all other material considerations and the following:
- the scope of the infringement
- the benefit enjoyed by the infringing-user as a result of the infringement
- the lack of availability of other relief to the copyright holder,
to determine the effective relief to be awarded to the copyright holder and may award additional damages as it deems fit.
If it is proven that a copyright user, who allegedly committed a copyright infringement, did so without the authority of the exclusive licensee, it will be presumed that the alleged infringing action was also done without the authority of the copyright holder. In the case of infringement proceedings, an affidavit will suffice as prima facie proof:
- that copyright subsists in the work in question
- of the title of any person relating to the copyright of the work, either as copyright holder or licensee.
In the case of a literary work or artistic work:
- where the name of the creator(s) appears on published works or on the work when it was first made, the person whose name appears is presumed to be the creator of the work, unless the contrary is proven
- in any proceedings concerning anonymous or pseudonymous if it is found that:
- work was first published in RSA, within the period of 50 years ending with the beginning of the calendar year in which the proceedings were brought
- the name that is on copies of the work appears to be the publisher of the work,
then it is presumed that copyright subsists in the work, unless proven otherwise. The copyright holder is presumed to be the person whose name appears on the publication.
A work will be presumed to be original:
- in the case of a literary work or published editions if, during the proceedings, it is proven that the creator of the literary work in question is deceased
- in the case of a published editions if, during the proceedings, it is proven that the publication was anonymous or under a pseudonym, and it is not shown that the work has ever been published under the author’s true name, or that it is possible for a person without previous knowledge of the facts to ascertain the identity of the creator by reasonable inquiry.
The following infringements are criminal offenses:
- making a work available for hire or sale
- selling or allowing a work to be for hire by way of trade offers, or exposing a work for sale or hire
- making a work available to the public by way of trade exhibits
- importing a work into South Africa for purposes other than private or domestic use
- distributing a work for the purposes of trade
- distributing the work, which the copyright user knows is an infringement, in a way that negatively affects the copyright holder
- if copyright subsists in a work and any person makes or has in their possession a plate (any article/s used or intended for use to make copies), knowing that the intended use of such a plate is to make infringing copies
- in relation to a literary work, causing a literary work to be performed in public, knowing that copyright subsists in the work and that performance constitutes an infringement of the copyright
The penalties that can be imposed upon an infringing-user found guilty of any of the abovementioned offenses will be:
- in the case of a first conviction, a maximum fine of R5000 or imprisonment for a maximum period of 3 years, or both, in relation to each work linked to the offence
- in any other case, a maximum fine of R10 000 or imprisonment for a maximum period of 5 years, or both, in relation to each work linked to the offence