South Africa: Introduction To The Law Of Copyright

Last Updated: 6 December 2005
Article by Eric Levenstein and Ryan Tucker

The term "Copyright" is usually used to denote the right that an author vests in his work. The entitlements conferred to the holder of copyright or a person authorised by such holder, entitles him/her to exclusively control, use and adapt the work.

The recognition of Copyright means that an author is granted a restricted monopoly to exploit his original work provided that such work is part of a recognised category. In the first place, this enables an author to be rewarded or compensated for his labour, creativity, effort, skill and talent. Secondly, it serves as an incentive to the author to create more and better works. The monopoly is of a restricted duration. After the expiry of the relevant applicable period, the author’s work passes into the public domain and may then be used freely by others. In this way a balance is struck between the interests of the individual and that of society.

Copyright is a right separate from that of the personality of the author. As long as the author’s activity does not extend beyond that author’s personality, it will not attract protection. Once such activity assumes an individual and independent character wherein it is reduced to some outwardly perceptible form, it acquires an economic value and becomes in itself a suitable object of legal protection under copyright law. In the case of Video Parktown North (Proprietary) Limited vs Paramount Pictures Corporation 1986 2 SA 623 (T), the Court described the nature of copyright in the following terms:

"When he who harbours an idea, by dint of his imagination, skill or labour, or some or all of them, brings it into being in tactile, visible or audible form, capable thereby of being communicated to others as a meaningful conception or apprehension of his mind, a right or property in that idea immediately comes into existence. The proprietary interest in that object of knowledge is the ownership of it, and is called "copyright".’

Copyright has been described as a bundle of rights granting the holder thereof the right to do or authorise others to do any of the restricted acts described in sections 6 to 11 of the Copyright Act 98 of 1978 ("the Act"). In Chiadzwa v S [2004] JOL 12871 (Zimbabwe), the Court stated that ‘copyright must be understood, therefore, as a legal term which describes the rights given to creators for their artistic and literary works… The creators of the original works are protected by copyright and they or their assigns, have the basic right to the exclusive use or authorisation to others to use their works on agreed terms.’

Works eligible for copyright protection

It is to be noted that no registration is required for copyright to subsist in a work. However, this creates a higher burden of proof when endeavouring to establish the subsistence of copyright. Therefore, we always advise clients to keep accurate and detailed records as to how, when and by whom the work was created, to ensure that the author or creator of a work is clearly identified.

There are six basic requirements for copyright to vest:

  1. there must be a work;
  2. the work must fall within one of the categories listed in section 21 of the Act;
  3. the categorised work must be original;
  4. the work must exist in material form or be reduced to a material form;
  5. the work must not be immoral;
  6. the work must be made by a qualified person;
  7. or if not a "qualified person", there must exist circumstances of first publication.

The subject matter must be a work

For copyright to subsist the subject matter in question must have sufficient substance to warrant the protection of the Copyright Act. When assessing whether the subject matter warrants categorisation as a "work", one applies primarily an objective test but subjective considerations may also be taken into account, such as the amount of effort and ingenuity which went into making the subject matter. Additionally, the subject matter must not be too commonplace, otherwise its endowment with copyright will place undue restrictions on others. Subject matter is regarded by the courts as commonplace if it is trite, trivial, common or garden, hackneyed or of the type which would excite no peculiar attent in those of the relevant art.

The subject matter will be assessed as a work if it has achieved its final form. In Payen Components v Bovic Gaskets 1995 (4) SA 441 (A), the Court asserted that a work is the final complete version when it is ready for utilisation or commercial exploitation. Features like effort, labour, skill and ingenuity must be taken into account.

Categories of work

Section 21 of the Act lists works that qualify for protection. A work must fall within one of these categories for it to qualify for protection. These are literary works; artistic works; musical works; cinematograph films; sound recordings; broadcasts; programme-carrying signals; published editions; computer programs.

The work must be original

For copyright to subsist in a work, it must be original. This does not mean, as it does in patent law, that the work must be inventive or novel, but rather it should be the product of the author’s effort and labour and should not be copied from other sources.

In Appleton v Harnischfeger Corporation 1995 (2) SA 247 (A), the court emphasized that for there to be copyright in a work there is no need for novelty or inventive thought.

‘…Originality refers to original skill or labour in execution... It demands that the work should emanate from the author and should not be copied from other sources. This does not mean that a work will be regarded as original only where it is made without reference to existing subject-matter. An author may make use of existing material and yet achieve originality in respect of the work which he produces. In that event the produced work must be more than a slavish copy… It must in some measure be due to the application of the author’s own skill or labour.’

Work must be reduced to material form

It has often been stated by the courts that there is no copyright in ideas only in the form in which they are presented (Northern Office Micro Computers v Rosenstein 1981 (4) SA 123 at129B-E). Therefore, for copyright to subsist in some subject matter, it must at least exist in material form. Consequently, the condition of material form becomes the lower threshold for the subsistence of copyright. Section 2(2) of the Act states that ‘a work, except a broadcast or programme-carrying signal, shall not be eligible for copyright unless the work has been written down, recorded, represented in digital data or signals or otherwise reduced to a material form’.

Work must not be immoral

It is widely accepted that the courts will not protect works considered to be ‘improper, indecent or lacking in propriety’. (Goeie Hoop Uitgewers (Eiendoms) Bpk v Central News Agency 1953 (2) SA 843 (W)). However, with the changes to the boni mores that constantly take place within a society, and especially since South Africa is under transition, it is unlikely that the concept of "propriety" is a condition for the subsistence of copyright at present. Dean, an authority on Copyright Law and the author of ‘Handbook of South African Copyright Law’ (1987), is of the view that propriety is not a condition for the subsistence of copyright but is rather a condition for its enforcement i.e. copyright will subsist whether or not the work is considered to be immoral, but depending on the prevailing boni mores of society at the time, the courts will not come to the assistance of an owner of copyright if it is of the view that the work is lacking in propriety.

The author must be a qualified person

The Act specifies that a qualified person is an individual who is a South African citizen or is domiciled or resident in the Republic of South Africa and in the case of a juristic person, is a body incorporated under the laws of South Africa. Additionally, the Act has been extended to include persons domiciled or resident in a Berne Convention country or a body incorporated under the laws of a Berne convention country. A Berne convention country is a country that accedes to the Berne convention. South Africa is a party to the Berne Convention and the Act complies with the requirements of the Convention. The Berne Convention prescribes minimum standards for the protection of copyright and provides for the international recognition of copyright.

Circumstances of first publication

If the author is not a qualified person, the court looks to the circumstances of first publication. The Act defines ‘publication’ as the issue of copies of the work to the public, with the consent of the copyright holder, in sufficient quantities to satisfy the needs of the public.


There are two types of infringement – direct and indirect infringement.

Direct infringement

S23(1) of the Act states that ‘Copyright shall be infringed by any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive right to do or to authorize.’ In other words, infringement occurs where a person performs any of the restricted acts which the owner has exclusive rights to do. This amounts to the unauthorised copying of the work or its commercial exploitation. Infringement not only occurs where the entire work is copied or misused but can also occur where there is copying or misuse of a substantial part of it. A substantial part refers to quality and not quantity. Therefore, the unauthorised copying of a small but vital part of a work constitutes infringement.

Reproduction and Adaptation

S1(1) of the Act defines "reproduction" in relation to the various categories of work protected by the Act. With respect to artistic works, a reproduction includes ‘a version produced by converting the work into three-dimensional form or if it is in three-dimensions, by converting it into two-dimensional form.’ A reproduction includes a reproduction made from a reproduction.

Reproduction is given a wide meaning in the Act. It protects against infringement in material and non-material form. This has significance in today’s age of computers, internet and e-commerce. Some examples of what would qualify as reproductions are: loading software and data into a computer; operating a computer program; downloading material from the internet; displaying material on a computer screen, including material sourced from the internet; and incorporating material in a website.

With respect to reproductions of artistic works, and in particular technical drawings, infringement can take place where one copies the drawing itself or copies the three-dimensional actualisation of the drawing, the latter being an indirect copying of the original drawing.

S 1(1) of the Act defines what would constitute an adaptation. For example, adaptations of literary works would, for non-dramatic works, be conversion of that work into a dramatic work; for dramatic works, the conversion of that work into a non-dramatic work. Translations would also constitute adaptations.

There can be no infringement by reproduction or adaptation unless there is copying. One must prove a link between the two works for there to be an adaptation or reproduction. Firstly, the courts objectively enquire as to whether there is a substantial similarity between the works. Secondly, the courts assess whether there is a causal connection between the plaintiff’s original work and the defendant’s alleged infringing copy. If either of these tests brings a negative conclusion, then there can be said to be no copying.

Indirect Infringement

Indirect infringement occurs when certain acts are done without the consent of the copyright holder in relation to direct infringements. There are two forms of indirect infringement: unauthorised dealing in infringing copies of a work and permitting a public performance of a work to take place.

Guilty knowledge is required on the part of the person committing the alleged indirect infringement before the act in question can constitute indirect infringement. In Gramophone Co Ltd v Music Machine (Pty) Ltd & Others 1973 (3) SA 188 (W), the court held that guilty knowledge of the infringing nature of an article entails notice of facts such as would suggest to a reasonable man that a breach of copyright law was being committed.

Dealing in infringing copies of a work

An infringing copy is an article which is an unauthorised reproduction or adaptation of a work in which copyright subsists where the making of that copy infringes the copyright of that work.

Indirect infringement is committed by:

  • importing into South Africa for a purpose other than private use;
  • selling, letting or by way of trade offering or exposing for sale or hire;
  • distributing for the purposes of trade, or for any other purpose, to such an extent that the holder of the copyright is prejudicially affected;
  • acquiring an article relating to a computer program in South Africa, being an infringing copy of a protected work with the knowledge that the item concerned is an infringing copy (s23(2) of the Act).

Permitting Public Performance

Indirect infringement is committed by allowing a place of public entertainment to be used for the public performance of a protected literary or musical work in circumstances where such public performance is itself an infringement, with the knowledge that such public performance is an infringement (s23(3) of the Act).

Exemptions from Infringement - "Fair Dealing"

Any fair dealing with a literary, musical, or artistic work, or with a broadcast or a published edition, does not infringe that copyright when it is -

  • for purposes of research or private study by, or the personal private use of, the person using the work (s12(1)(a) of the Act).
  • for purposes of criticism or review of that work or another work (s12(1)(b) of the Act).
  • for purposes of reporting current events –

- in a newspaper, magazine or similar periodical; or
- by means of broadcasting or in a cinematograph film (s12(1)(c) of the Act).

  • for purposes of judicial proceedings or reporting on judicial proceedings (s12(2) of the Act).
  • for purposes of quoting from the work (s12(3) of the Act ).
  • for purposes of illustration for teaching (s12(4) of the Act ).

What constitutes "fair dealing"?

There is no definition of fair dealing in the Act, and English case law is just as unhelpful as fair dealing is decided on a case-by-case basis. Therefore, we need to look at the American approach. s107 of the United States’ Copyright Act lists a set of criteria to be taken into account when assessing fair use of a work:

  • the purpose and character of the use;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used;
  • the effect upon the copyright holder’s potential market.

These criteria have also been used in Australia with the addition of a fifth criterion – whether the work can be obtained within a reasonable time at a normal commercial price.

There should however be a balance maintained between the interests of the author or copyright holder to inhibit reproductions of his work and the rights of the public to use the works for the purposes specified.

Remedies for copyright infringment

  • delictual damages
  • reasonable royalty
  • interdict
  • delivery up of infringing copies or plates
  • additional damages
  • Anton Piller orders
  • criminal law provision
  • other common law remedies

The Act allows for the following special remedies -

Reasonable Royalty

In order to circumvent the requirement for patrimonial loss in an action for infringement, the Act introduces a second remedy called "reasonable royalty". At the option of the plaintiff, an amount of damages may be calculated on the basis of a reasonable royalty which would have been payable under the circumstances by a licensee or sub-licensee in respect of the copyright concerned. The Act goes on to state that in calculating the reasonable royalty, the court must take into account in addition to all material considerations, the extent and nature of the infringement and the amount which could be payable to the owner in respect of the exercise of copyright by some other person. To base a claim on this remedy, the plaintiff must give notice in writing to any exclusive licensee or sublicensee of his intention to proceed in this way. There is no requirement for fault in a claim for a reasonable royalty. In Metro Goldwyn Meyer Inc & others v Ackerman & another 558 JOC (SEC), [1996] 1 All SA 584 (SE), the court held that when determining a reasonable royalty, the court exercises a value judgment. In exercising such judgment the court felt it necessary to assess the nature and extent of the infringement as well as the amount that the copyright holder usually charged for use of the copyright.

Delivery up of infringing copies or plates

This remedy allows the court to demand that the infringing copies or plates (used in the copying process) be delivered to the plaintiff. One may sue for damages along with this remedy.

Additional damages

These damages are additional to the damages claimed by the plaintiff. These damages are in the nature of penal or exemplary damages. The court takes cognisance of all relevant factors including:

  • the flagrancy of the infringement;
  • any benefit shown to have accrued to the defendant by reason of the infringement and whether the court is satisfied that effective relief would not otherwise be available to the plaintiff. The amount is purely within the court’s discretion and is likely to be fixed more easily in some cases over others.

In summation, the Copyright Act provides clients with a myriad of different statutory protection options for intellectual property which might be in the process of being infringed. Many clients place significant value to the copyright owned by them and will in many instances be left withno option but to use the provisions of the Copyright Act to dissuade parties from infringing their copyright.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions