COPYRIGHT INFRINGEMENT, REMEDIES & DEFENCES
Copyright infringement is regulated by S23 of the Copyright Act
• Copyright is infringement by any person other than the owner irrelevant of whether there was
knowledge or not (good faith or not) – s23(1).
o Haupt case - Infringement is copying any substantial part of a work.
▪ “Substantial” is a question of quality (not quantity).
o Jacana Education case - one must focus on the original aspects of the alleged copied
work when assessing infringement.
o Galago Publishers - Infringement by reproduction occurs when ((1) There is objective
similarity between the 2 works, AND (2) there is a casual connection between 2 works
• Copyright occurs when a person with knowledge distribute work to the extent of prejudicing the
copyright owner – Frank & Hirsch case – knowledge on infringement is required.
o The plaintiff must prove (1) an act of infringing & (2) defendant had knowledge.
• To establish infringement, there must (s23(3):
o It must be a literary or musical work
o A person (infringer) must (knowingly and without authorization) permit the performance
of the work to be used in a place of public entertainment
o Such performance must constitute infringement of the copyright in the work
When infringement happen, Remedies become available to the copyright owner
• The copyright must identify (1) work infringed (2) rights infringed in that work.
• The Defenses become available to the alleged infringer
3 TYPES OF COPYRIGHT INFRINGEMENT
Direct Infringement It is an infringement that take place within the scope of copyright owner`s bundle of exclusive rights by a
person not the copyright owner or authorized by the owner.
It happens from the copyright work itself
It also takes place when someone (x) cause another person (y) to infringement copyright
• X is liable and not Y – This is called Vicarious Liability
▪ Vicarious liability is established when: X has power/control over Y & X gives instruction to Y
Indirect Infringement It is where copying takes place from a reproduction of the copyright work (not actual copyright work itself)
E.g., Copying a photograph of a painting
Requirement: Guilty knowledge on the part of the infringer
Criminal Infringement A person is guilty of a criminal offence if (s27):
• Makes or has in his possession a plate + knows it is to be used for making infringing copies of work
• Causes a literary or musical work to be performed in public + knows that it is infringement
• Causes a broadcast to be rebroadcast/transmitted in a diffusion service + knows it`s infringement
• Causes a program-carrying signal to be distributed + knows it`s infringement
Liability:
• If they are a first-time offender: Fine not exceeding R5000, or 3 years imprisonment or both
• If they have offended before: Fine not exceeding R10 000 or 5 years imprisonment or both
, Plagiarism (Academic theft)
• Copyright infringement and plagiarism are NOT the same thing
• It is the presenting someone else’s work as one’s own work OR appropriating the work of others
without properly acknowledging the source
• Plagiarism is not a legal principle; it has broader scope & it applies to both protected &
unprotected work.
• It`s an infringement of the moral right to claim authorship
• Intention is not a requirement for plagiarism but it plays a role when imposing penalties for
plagiarism.
Remedies available to Copyright
S24(1) - Copyright owner must institute infringement proceedings – damages, royalties or interdict.
S24(1C) - Copyright owner must give notice (in writing) to exclusive licensee or sub-licensee that he intends to institute.
S25 - exclusive licensees & sub-licensees must notify copyright owner before instituting infringement proceedings
Reasonable royalties S24(1A) - plaintiff may choose to be awarded a reasonable royalty amount instead of damage.
• Remedies are damages OR reasonable royalty – NOT both
• Plaintiff can also choose an interdict or delivery of the infringing copies/plates
Damages It is the loss suffered as a result of the wrongful and culpable conduct. E.g., Bad faith.
S24(2) - damages is not available to plaintiff if the defendant can prove lack of knowledge and no
reasonable grounds for suspecting copyright subsistence.
• © means work is protected and therefore a defense of awareness
Interdict It`s a court order that enforce a party's rights that have been disregarded by another party
Copyright infringement is regulated by S23 of the Copyright Act
• Copyright is infringement by any person other than the owner irrelevant of whether there was
knowledge or not (good faith or not) – s23(1).
o Haupt case - Infringement is copying any substantial part of a work.
▪ “Substantial” is a question of quality (not quantity).
o Jacana Education case - one must focus on the original aspects of the alleged copied
work when assessing infringement.
o Galago Publishers - Infringement by reproduction occurs when ((1) There is objective
similarity between the 2 works, AND (2) there is a casual connection between 2 works
• Copyright occurs when a person with knowledge distribute work to the extent of prejudicing the
copyright owner – Frank & Hirsch case – knowledge on infringement is required.
o The plaintiff must prove (1) an act of infringing & (2) defendant had knowledge.
• To establish infringement, there must (s23(3):
o It must be a literary or musical work
o A person (infringer) must (knowingly and without authorization) permit the performance
of the work to be used in a place of public entertainment
o Such performance must constitute infringement of the copyright in the work
When infringement happen, Remedies become available to the copyright owner
• The copyright must identify (1) work infringed (2) rights infringed in that work.
• The Defenses become available to the alleged infringer
3 TYPES OF COPYRIGHT INFRINGEMENT
Direct Infringement It is an infringement that take place within the scope of copyright owner`s bundle of exclusive rights by a
person not the copyright owner or authorized by the owner.
It happens from the copyright work itself
It also takes place when someone (x) cause another person (y) to infringement copyright
• X is liable and not Y – This is called Vicarious Liability
▪ Vicarious liability is established when: X has power/control over Y & X gives instruction to Y
Indirect Infringement It is where copying takes place from a reproduction of the copyright work (not actual copyright work itself)
E.g., Copying a photograph of a painting
Requirement: Guilty knowledge on the part of the infringer
Criminal Infringement A person is guilty of a criminal offence if (s27):
• Makes or has in his possession a plate + knows it is to be used for making infringing copies of work
• Causes a literary or musical work to be performed in public + knows that it is infringement
• Causes a broadcast to be rebroadcast/transmitted in a diffusion service + knows it`s infringement
• Causes a program-carrying signal to be distributed + knows it`s infringement
Liability:
• If they are a first-time offender: Fine not exceeding R5000, or 3 years imprisonment or both
• If they have offended before: Fine not exceeding R10 000 or 5 years imprisonment or both
, Plagiarism (Academic theft)
• Copyright infringement and plagiarism are NOT the same thing
• It is the presenting someone else’s work as one’s own work OR appropriating the work of others
without properly acknowledging the source
• Plagiarism is not a legal principle; it has broader scope & it applies to both protected &
unprotected work.
• It`s an infringement of the moral right to claim authorship
• Intention is not a requirement for plagiarism but it plays a role when imposing penalties for
plagiarism.
Remedies available to Copyright
S24(1) - Copyright owner must institute infringement proceedings – damages, royalties or interdict.
S24(1C) - Copyright owner must give notice (in writing) to exclusive licensee or sub-licensee that he intends to institute.
S25 - exclusive licensees & sub-licensees must notify copyright owner before instituting infringement proceedings
Reasonable royalties S24(1A) - plaintiff may choose to be awarded a reasonable royalty amount instead of damage.
• Remedies are damages OR reasonable royalty – NOT both
• Plaintiff can also choose an interdict or delivery of the infringing copies/plates
Damages It is the loss suffered as a result of the wrongful and culpable conduct. E.g., Bad faith.
S24(2) - damages is not available to plaintiff if the defendant can prove lack of knowledge and no
reasonable grounds for suspecting copyright subsistence.
• © means work is protected and therefore a defense of awareness
Interdict It`s a court order that enforce a party's rights that have been disregarded by another party
