Infringement of copyright

Direct infringement

Copyright in a work is infringed by any person who, without the authorisation of the owner, does any of the acts reserved for the owner in terms of sections 6, 7, 8, 9, 10, 11, 11A and 11B (section 23(1)).  These are set out in our section entitled Protection afforded by Copyright. (For further information, please click here).

Indirect infringement

Copyright is infringed indirectly

• by any person who, without the authority of the copyright owner, imports, sells, lets, by way of trade offers or exposes for sale or hire, or distributes for purposes of trade, an article in the Republic if he/she knew that the making of the article constituted an infringement of copyright or would have constituted an infringement if made in the Republic (section 23(2));
  or
• by any person who permits a place of entertainment to be used for a public performance of a literary or musical work, where the performance constitutes an infringement of copyright, unless the person was not aware and had no reasonable grounds to suspect that the performance was an infringement (section 23(3)).

Judicial proceedings can be instituted by the copyright owner to obtain relief in the case of infringement of copyright.  Such proceedings can be instituted either by way of application or by action.  In an application, evidence is by affidavit while in an action evidence is given orally.  Further information regarding the applicability of these procedures can be provided on request.
If infringement is found to have taken place, the plaintiff is entitled to:

• damages;
  
• an interdict;
  
• delivery up of infringing copies or plates used for making infringing copies;
  
• in lieu of damages, at the option of the plaintiff, an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee (section 24(1) and (1A)).

For determining the amount of the damages or the reasonable royalty, the court may direct that an enquiry be held (section 24(1B)).
The court may also, taking into account the flagrancy of the infringement and the benefit shown to have accrued to the defendant, award such additional damages as the court may deem fit (section 24(3)).

Criminal offences

In terms of section 27 of the Act, certain dealings which infringe copyright are stipulated to be criminal offences, and fines and periods of imprisonment are prescribed.

Knowledge

Guilty knowledge on the part of a defendant, ie. knowledge that an infringement was being committed or had been committed, is required in the following cases:

• for recovering damages in cases of direct infringement;
  
• for establishing indirect infringement;
  
• for a conviction on a criminal charge.

In all other cases, ie. to establish direct infringement, and to obtain the relief of an interdict or an order for delivery up, knowledge regarding the infringement on the part of the defendant is not required for the plaintiff to succeed.

Artistic works and reverse engineering

• Artistic works in the form of drawings of a technical nature (such as engineering drawings, flow charts, etc.) and works of craftsmanship (such as prototypes, models, etc.) are eligible for copyright under the Copyright Act.  Furthermore, an indirect copy (ie. a copy made from a copy) of a copyright work by definition constitutes a reproduction of the copyright work, as does a version in three-dimensional form made from an artistic work in two dimensions (and vice versa) (section 1(1), definition of ‘reproduction’).
• Accordingly, copyright owners of engineering drawings and prototypes endeavoured to rely on such copyright to prevent others from making indirect copies of their copyright works by reverse engineering.  This gave rise to the introduction into the Act of section 15(3)(A) in 1983, by Copyright Amendment Act No. 66 of 1983 which came into effect on 17 October 1983.
  
• In terms of section 15(3A), the copyright in an artistic work of which three-dimensional reproductions were made available, whether inside or outside the Republic, to the public with the consent of the copyright owner (referred to as authorised reproductions), is not infringed if any person without the consent of the owner makes three-dimensional reproductions or adaptations of the authorised reproductions, provided that the authorised reproductions primarily have a utilitarian purpose and are made by an industrial process.
• ‘Reverse engineering’ of such authorised reproductions therefore does not constitute an infringement of copyright.
• Non-infringement will only occur in the case of indirect copying, ie. where authorised three-dimensional reproductions are copied.  If the drawings or prototypes themselves are copied, this may constitute an infringement of copyright.

Marking and exceptions from infringement

Marking of copyright works

Marking of a copyright work is not a requirement in terms of the Copyright Act. However, certain advantages can be achieved by marking a copyright work with the internationally recognised copyright sign (namely � copyright), the year in which the work was made or published and the name(s) of the author(s) and copyright owners.

A copyright warning may serve as constructive notice to a potential infringer, to create guilty knowledge on the part of the infringer (for further information on Copyright Infringement, please click here).

Certain presumptions are created in the Act (section 26), eg. that copyright exists in certain works, that the person whose name appears on the work is the author, that the information reflected is sufficient evidence of the facts so stated, etc.

General exceptions from infringement

Certain exceptions are set out in sections 12 to 19, 19A and 19B.  These indicate when dealing with a copyright work will not constitute infringement and when works will not be susceptible to copyright protection.  The concept of fair dealing forms the basis of many of these exceptions. For further information please contact us