Analyses: The Writing Requirement for the Assignment of Copyright: Constitutive or Probative?

• Jurisdiction: South Africa
• Pages: 360-367
• Date: 16 August 2019
• Author: Coenraad Visser
• Published date: 16 August 2019

360 (2005) 17 SA Merc LJ

The Writing Requirement for the Assignment

of Copyright: Constitutive or Probative?

COENRAAD VISSER

University of South Africa

1 Introduction

Copyright can be assigned as movable property (s 22(1) of the Copyright

Act 98 of 1978). By assignment, the assignor divests herself entirely of the

copyright, which then vests in the assignee. The assignor accordingly no

longer has any claim to such copyright, and can no longer perform any of the

restricted acts without the authority of the assignee (Galago Publishers (Pty)

Ltd & Another v Erasmus 1989 (1) SA 276 (A); Frank & Hirsch (Pty) Ltd v

A Roopanand Brothers (Pty) Ltd 1993 (4) SA 279 (A)).

Section 22(3) of the Copyright Act states that ‘[n]o assignment of copyright

... shall have effect unless it is in writing signed by or on behalf of the

assignor’. This provision raises the question – is the writing requirement

constitutive or probative? Put differently, does writing affect the validity of a

copyright assignment, or does it relate merely to proving and enforcing such

assignment?

The author of the leading textbook on South African copyright law, OH

Dean (Handbook of South African Copyright Law (looseleaf, revision service

12, 2004) 1-83), states, without authority, that a verbal or tacit agreement

purporting to assign copyright is ‘ineffective and invalid’. (Compare AJ Smith

‘Copyright’ in: WA Joubert (founding ed) The Law of South Africa vol 5 part

2 1st reissue (1994) in par 66 at 62, where the author merely paraphrases the

legislative provision without expressing a view as to whether non-compliance

renders the purported assignment invalid.)

In this analysis I shall challenge the second part of Dr Dean’s bland

statement. I shall argue that his assertion of ineffectiveness is in line with the

wording of s 22(3) (see also Alan Smith Copyright Companion (1995) at 13:

‘Any assignment of copyright will only be effective if it is in writing’), but

that his assertion of invalidity is not, and conf‌l icts with the weight of judicial

sentiment.

2 Copyright Jurisprudence

Rajhshree Films v Oriental Film Distributors & Others ((1979) 24 JOC

(D)) concerned an exclusive copyright licence, which is subject to the same

writing requirement as a copyright assignment (s 22(3) of the Copyright Act).

Friedman J stated that ‘for there to be a valid assignment of a copyright or the

valid conclusion of an agreement of exclusive license [sic] a written agreement

is required’ (at 26H, emphasis added). In this decision, then, the judge was of

the view that the writing requirement concerned the validity of an assignment

(2005) 17 SA Merc LJ 360

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