Copyright Infringement

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,

with the knowledge that, had a work been made in RSA, the actions of the infringing-user would have constituted an infringement.

Exceptions

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.

Literary Works:	Artistic Works:	Published Editions:
A work may be used without permission: where it is used for purposes of judicial proceedings or where it is reproduced for a report of judicial proceedings if it is official text of a legislative, administrative or legal nature, speech of a political nature delivered in the course of legal proceedings, or in the news of the day as press information. Provided that the exclusive right of making a collection thereof will remain with the creator subject to fair practice, by way of illustration in any publication, broadcast or sound or visual record for teaching subject to fair practice, for quotation or summary in a newspaper or periodical if a lecture, address or other similar work delivered in public is reproduced or broadcast for information purposes. Provided that the exclusive right of making a collection thereof will remain with the creator subject to fair practice, where it is a work published in a newspaper or periodical, or in a broadcast, on any current economic, political or religious topic is reproduced and it did not expressly reserve the right to reproduction where work is reproduced by a broadcaster using its own facilities for the purposes of lawful broadcasts falls within the exceptions to copyright, provided that the broadcast is destroyed withing six months after the making of the reproduction, or any other period agreed to with the copyright holder. However, if the work is deemed to be of exceptional documentary nature, the broadcast may be preserved in archives, though, without the consent of the copyright holder, it cannot be rebroadcast in good faith to demonstrate that any type of playback equipment, such as a television or radio receiver, is in good working order if a literary work, or a portion thereof, is authorised to be adapted into a cinematographic film, it will be taken that the cinematographic film may be broadcast, in the absence of an agreement to the contrary	A work may be used without permission: if it is included in a cinematograph film or a television broadcast, if such an inclusion is background or incidental to the main focus of the film or broadcast in the case of a work or architecture or in the relevant drawings, if the reconstruction of that work is on the same site in the same style as the original if it is a sculpture or a work of architecture permanently situated in the street, square or a similar public place reproduced in a cinematograph film or a television broadcast if it is an artistic work of which 3D reproductions were made available, inside or outside RSA, to the public by or with the consent of the copyright holder where the public 3D reproductions are made by an industrial process primarily for a utilitarian purpose	A work may be used without permission: if it is official text of a legislative, administrative or legal nature, speech of a political nature delivered in the course of legal proceedings, or in the news of the day as press information. Provided that the exclusive right of making a collection thereof will remain with the creator

Literary Works:

Artistic Works:

Published Editions:

A work may be used without permission:

where it is used for purposes of judicial proceedings or where it is reproduced for a report of judicial proceedings
if it is official text of a legislative, administrative or legal nature, speech of a political nature delivered in the course of legal proceedings, or in the news of the day as press information. Provided that the exclusive right of making a collection thereof will remain with the creator
subject to fair practice, by way of illustration in any publication, broadcast or sound or visual record for teaching
subject to fair practice, for quotation or summary in a newspaper or periodical
if a lecture, address or other similar work delivered in public is reproduced or broadcast for information purposes. Provided that the exclusive right of making a collection thereof will remain with the creator
subject to fair practice, where it is a work published in a newspaper or periodical, or in a broadcast, on any current economic, political or religious topic is reproduced and it did not expressly reserve the right to reproduction
where work is reproduced by a broadcaster using its own facilities for the purposes of lawful broadcasts falls within the exceptions to copyright, provided that the broadcast is destroyed withing six months after the making of the reproduction, or any other period agreed to with the copyright holder. However, if the work is deemed to be of exceptional documentary nature, the broadcast may be preserved in archives, though, without the consent of the copyright holder, it cannot be rebroadcast
in good faith to demonstrate that any type of playback equipment, such as a television or radio receiver, is in good working order
if a literary work, or a portion thereof, is authorised to be adapted into a cinematographic film, it will be taken that the cinematographic film may be broadcast, in the absence of an agreement to the contrary

A work may be used without permission:

if it is included in a cinematograph film or a television broadcast, if such an inclusion is background or incidental to the main focus of the film or broadcast
in the case of a work or architecture or in the relevant drawings, if the reconstruction of that work is on the same site in the same style as the original
if it is a sculpture or a work of architecture permanently situated in the street, square or a similar public place reproduced in a cinematograph film or a television broadcast
if it is an artistic work of which 3D reproductions were made available, inside or outside RSA, to the public by or with the consent of the copyright holder where the public 3D reproductions are made by an industrial process primarily for a utilitarian purpose

A work may be used without permission:

if it is official text of a legislative, administrative or legal nature, speech of a political nature delivered in the course of legal proceedings, or in the news of the day as press information. Provided that the exclusive right of making a collection thereof will remain with the creator

Who may take action

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.

What action may be taken

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.

Consequences – civil

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.

Presumptions – criminal

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.

Consequences – criminal

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