South Africa: S.A. Copyright – Heading To Be A Dinosaur?

Last Updated: 4 November 2007
Article by Owen O. H. Dean

Copyright in South Africa runs the risk of becoming an endangered species and ultimately suffering the fate of the dinosaur. The reason for this unhappy state of affairs is that, like all species which have faded away into extinction in the past, it is failing to adapt to changed and ever changing circumstances. The blame for this must be laid squarely at the door of the government.

There have been several articles in the press in recent times describing the parlous state of the music and record industries in South Africa as a direct result of piracy and counterfeiting of CDs and tapes. The film industry and the computer software industry are not far behind and are essentially in the same boat. The publishing industry, with illegal photocopying of books being rife, is fast becoming a fellow traveller. The ineffectiveness of our current copyright laws and of their enforcement (the two are related) is the dominant contributing force to this unhappy state of affairs. Matters have reached the stage where there have been reports of vigilantly groups of people in the music industry taking the law into their own hands in order to protect their livelihoods.

Copyright is the branch of the law which has the mission of protecting the rights of creative people. The purport of copyright law is to enable creative people to reap the material fruits that their application of effort and talent warrant as a result of the making of their works. In essence, copyright law grants a monopoly to the copyright owner in the performance of certain acts in relation to his work, which acts are essentially the various manners in which the works in question are capable of economic exploitation. Perhaps the foremost of these rights is the right to restrain, or control, reproduction of the works, hence the term, copyright. The current South African Copyright Act, dating from 1978, is inherently a reasonable piece of legislation. In 1978 it could be said to have been "state of the art". Through the 80s and 90s it was regularly amended and updated in an attempt to keep pace with modern circumstances and in particular technological advances which made copying so much easier and the results of copying of increasingly good and acceptable quality. However, with the dawn of the new millennium this evolutionary adaptation process ground to a halt. One can speculate as to the reasons for this. Whatever they may be, the result is that the law is now outdated and ineffective and is no longer doing its job adequately.

One of the largest obstacles to the enforcement of copyright, and one which is increasingly rendering it impotent, is the practical difficulty of proving subsistence of copyright in a work and the ownership of that copyright. There is no registration system for copyright – it exists automatically provided certain conditions are met. In order to establish copyright in a work, the Act requires that it must be proved by way of admissible evidence (i.e. not hearsay) that the author or maker of the work is a citizen or permanent resident of South Africa or of a country which has been proclaimed under the Act as being a member of the Berne Convention, the international convention which regulates international copyright. Alternatively, it must be shown that the work was first published, i.e. distributed to the public in commercial quantities, in South Africa or in a Berne Convention country. Furthermore, it must be shown that the work is original, namely that it is the author’s own independent product and is not simply copied from an earlier work. This all sounds simple enough, but regrettably it is not so, at least not in practice. This will be illustrated by way of an example.

South African Music Rights Organisation (SAMRO) is an organisation which represents musical copyright owners as far as the control of the public performance of their works are concerned. SAMRO has reciprocal relations with the equivalent organisations throughout the world. In terms of these arrangements SAMRO will, for instance, collect royalties for performances of American musical works in South Africa and conversely its equivalent organisation in the United States will collect royalties for performances of South African musical works. The way in which these organisations work is that composers in their respective countries become members of the organisation and at the same time they assign or transfer that part of their copyright which relates to performance of musical works to the organisation. This enables the organisation to act for the composer, both in collecting royalties and in conducting litigation in the event of infringement. So far so good. A very practical and logical arrangement.

However, let us suppose that SAMRO wishes to bring a copyright infringement case for an unauthorised performance of a work of American origin. SAMRO must adduce admissible evidence by, say, the famous composer John Williams (who has written the musical scores for many famous movies) testifying that he indeed wrote the work in question and did not copy it from elsewhere and that he is an American citizen or permanent resident. If the court proceedings for which the evidence is required is a civil trial or a criminal prosecution, John Williams would have to appear in person before the South African court. One can surmise that this may be difficult to procure. In the event that the proceedings are an application before the High Court an affidavit must be secured from John Williams. This can also apply in exceptional instances in civil trials and criminal prosecutions. It may be difficult to persuade John Williams, who doubtless has many better things to do, to go to the trouble of deposing to an affidavit before a Commissioner of Oaths in the United States of America so that court proceedings can be brought in far flung South Africa because of peculiarities of the South African law which do not apply in most other countries.

Assuming that the co-operation of John Williams can be secured to the extent that he is prepared to travel to South Africa to give evidence in the South African court or is prepared to depose to an affidavit, SAMRO must then show how the American collecting society secured ownership of the performing rights of the musical work in question. In all probability this was done by way of an agreement which would have to be proved before the South African court by a signatory. The next step is to show how SAMRO acquired these rights from the American collecting society. A further agreement would have to be produced and identified by a signatory. The witnesses identifying the agreements would have to appear in person as witnesses in a trial, or alternatively, in the case of application proceedings, would have to make affidavits. Having lined up all of the aforegoing, SAMRO is at last in a position to instigate the court proceedings. This situation as described is but an example of the problems which all copyright owners face in bringing court proceedings to enforce their copyright.

The logistics of putting together all this evidence, and the costs of doing so in view of the complexity of the situation, are nightmarish. It can be done, and has been done in the past, but at what cost and effort? This unhappy situation has been described primarily with reference to civil copyright infringement proceedings. How much greater is the problem when it comes to criminal enforcement of copyright? In this instance the State, namely investigating officers of the South African Police Services and harassed and overworked prosecutors, must put the evidence together. The mind boggles. Imagine that the State, or the copyright owner in civil proceedings for that matter, is faced with the situation where hundreds of pirate CDs have been seized in a raid and it becomes necessary to prove the copyright in the same way in respect of each and every one of the works involved. This virtually defies contemplation. Small wonder that effective enforcement of copyright is very sparse and copyright industries are in their present plight.

Other countries, and notably the United Kingdom, the genesis of our copyright law, have overcome this problem in a very simple manner. The law contains a provision which basically says that where assertions of fact relating to the subsistence and ownership of copyright are made in copyright infringement proceedings, these facts will stand unless they are properly placed in dispute by the alleged infringer. The logistics of proving subsistence and ownership of copyright becomes a relatively simple and swift process thus enabling easy and effective institution of enforcement measures. This system works well in other countries, and notably in the United Kingdom.

The Copyright Act makes provision for the Minister of Trade and Industry, the responsible Minister, to be assisted by an advisory committee. Such a committee is, and has been since 1978, in existence. In the 20th century the advisory committee was very largely responsible for the regular amendments of the Copyright Act during that period and for keeping the law abreast of the times. The Chairman of the advisory committee is required to be, and has over the years been, a judge of the High Court. There have been various judges over the years who have fulfilled this function and these have included eminent members of the bench of the Supreme Court of Appeal, including Mr Justice L Harms, and Mr Justice C Plewman, who are intellectual property law experts. The latter’s term of office expired at the dawn of the new millennium.

During the term of Judge Plewman’s committee various amendments to the Copyright Act aimed at dealing inter alia with the electronic media and the internet, but most pertinently with the introduction of a measure along the lines of the provision in the United Kingdom Copyright Act for simplifying proof of subsistence and ownership of copyright as described above, were put to it. The provision said that statements of fact regarding proof of copyright would stand in court proceedings unless placed in issue by the alleged infringer and this meant adducing evidence which suggested that the facts on which reliance were placed were not correct; a mere denial was insufficient to place the issue in dispute. It is believed that this proposal, along with the others, was submitted to the government with the recommendation that they be adopted but they have simply disappeared in the abyss. Seven years later there is no trace of them, let alone any amendments to the law. Enquiries about the fate of the proposals have been fruitless. Indeed, while prior to the new millennium the Copyright Act was amended virtually on an annual basis, amendments in this millennium have been few and far between, and pressing issues have not been addressed. This is simply not good enough if the law is to remain relevant.

Another example of how copyright law has fallen into dangerous neglect is the question of South Africa keeping up to date with its obligations under the Berne Convention. In terms of the convention, members are required to grant reciprocal protection to the works of all other members. When new countries join the Convention it is required that the works of those new members should become protected works. In order for this to be achieved under our legislation it is necessary that new member counties must be proclaimed as being additions to the list of countries whose works are granted protected status. The list of protected countries has not been updated since 1996. In the meantime, at the last count some 43 additional countries have become members of the Berne Convention. As matters currently stand, works originating from these countries do not enjoy protection in South Africa in clear contravention of South Africa’s obligations under the Berne Convention.

It is time for a serious wake-up call and it is hoped that this article may assist in this regard.

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 Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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