Prosecuting and punishing copyright infringements in South Africa: A comment on the Copyright Amendment Bill, B13B-2017

• Citation: (2020) 33 SACJ 730
• Pages: 703-750
• DOI: https://doi.org/10.47348/SACJ/v33/i3a11
• Date: 04 March 2021
• Author: Mujuzi, J.D.
• Published date: 04 March 2021

Prosecuting and punishing

copyright infringements in

South Africa: A comment on the

Copyright Amendment Bill,

B13B-2017

JAMIL DDAMULIRA MUJUZI*

ABSTRACT

Section 27(6) of the Copyright Act provides for penalties to b e imposed on

those convicted of infr inging copyright. In ter ms of s 27(6), a person who

infringes copyr ight is liable to be sentenced to a ne or to impri sonment

or to both a ne and imprison ment. The Copyright Ame ndment Bill (which

was passed by parliament i n early 2019), introduces, amongst other things,

minimum sentences for jur istic persons convicted of i nfringi ng copyright.

The purposes of th is article are: to high light high court deci sions dealing

with the prosecution of people who have in fringed copyright; recom mend

ways in which copyright owners may invoke their r ight to institute a private

prosecution as one of the mean s to protect their rights; hig hlight the

limitations of t he right to institute a pri vate prosecution; and to highlight

the challenges that are l ikely to be faced in the implementation of the

minimum sentences i ntroduced by the Copyright A mendment Bill.

1 Introduction

Section 27(6) of the Copyright Act1 provides for penalties to be

imposed on those convicted of infri nging copyright. In terms of s 27(6),

a person who infringes copyright is liable to be sentenced to a ne

or to imprisonment or to both a ne and imprisonment.2 There have

* LLB (Makerere) LLM (Preto ria) LLM (Free State) LLD (Wester n Cape), Professor of

Law, Faculty of Law, University of the Western C ape.

1 Copyright Act 98 of 1978.

2 It should be noted that there i s a distinction b etween civil copyr ight infri ngement

(governed by s 23 of the Act) and cr iminal copyr ight infri ngements (governed by

s 27). However, there is an overlap between the two sec tions in the sense t hat

some of the acts which a re prohibited under s 23 are a lso covered under s 27. The

remedies for civil copyr ight infri ngement are provided for under s 24 of t he Act. It

has been argued t hat ‘The crim inal provisions o f the Copyright Act are e mbodied

in s 27. Not all acts of civil law copyr ight infringement constit ute criminal copyright

infringeme nt. On the other hand, a ll acts of cri minal copyrigh t infringement a lso

constitute civi l law copyright infringement.’ See OH Dean, ‘C opyright infringement

730

https://doi.org/10.47348/SACJ/v33/i3a11

(2020) 33 SACJ 730

© Juta and Company (Pty) Ltd

been cases where people have been convicted and sentenced under

s 27(6). In all the cases discussed under this ar ticle, the prosecutions

were conducted by public prosecutors. South Africa has embarked

on the process of amending the 1978 Copyright Act and in order to

achieve this objective, the Copyright Amendment Bill was introduced

in 2 017.3 This Bill was passed by the National Council of Provinces

on 28 March 2019 and was forwarded to the president for his assent.4

Since its introduction, some people have criticised it argui ng inter

alia, that it will encourage people to infringe copyright with impunity

whereas others have supported it arguing, inter ali a, that it will

increase access to copyrighted works.5 Some of the amendments the

Bill introduces relate to the prosecution and punishment of copyright

infringement. The pur poses of this article are: to highlight high court

decisions dealing with the prosecution of people who have infringed

copyright; suggest ways in which copyright owners may invoke their

right to institute a private prosecution as one of the means to protect

their rights; to highlight the limitations of the right to instit ute a

private prosecution; and to discuss the new sentences introduced by

the amendment under s 27(6). The author will start with the discussion

of the issue of prosecuting those who have infri nged copyright.

2 Prosecution for infringing copyright

Section 27 of the Copyright Act provides for the offences and penalties

for infringing copyright. It is to the effect t hat:

as a crimin al offence’ (1988) March De Rebu s 203 at 204.

3 Copyright Amendment Bi ll [B 13B–2017].

4 L Ensor ‘NCOP in na l dash to conclude its business’ Business Day, 28 March 2019,

available at https://www.businesslive.co.za/bd/national/2019-03-28-ncop-in-nal-

dash-to-conclude-its-business/, accessed on 19 March 2020.

5 M Radinku ‘Copy right Amendment B ill will unde rmine the Presid ent’s SONA

promises’ Daily Maverick, 25 Februa ry 2019, available at https://www.dailymaverick.

co.za/article/2019-02-25-copyright-ame ndment-bill-w ill-undermine- the-

presidents-sona-promises/, accessed on 19 March 2020; M van der Mer we ‘Davies

warned that “devastat ing” Copyright A mendment Bill could co st SA jobs’ Fin24,

18 March 2019, available at https://www.n24.com/Economy/davies-warned-that-

devastating-copy right-amendment- bill-could-cost- sa-jobs-20190318, accessed

on 19 March 2020. The Bill w as also opposed by the Int ernational Intel lectual

Property A lliance. See, Sout h Africa: Inte rnational Intel lectual Proper ty Alli ance

‘IIPA 2019 Special 301 Report on Copyr ight Protection and En forcement’, available

at https://iipa.org/les/uploads/2019/02/2019SPEC301SOUTHAF RICA.pdf, accessed

on 19 March 2020. However, there are many people a nd organisations i n South

Africa which s upported the Bil l. See L Daniels, ‘Copyr ight bill: Protester s picket

outside US embassy ’ Daily Maverick, 24 Febru ary 2020, availa ble at https://www.

dailymaverick.co.za/article/2020-02-24-copyright-bill-protesters-picket-outside-us-

em ba ss y/, accessed 19March 2020.

Prosecuting and punishing copyright infringements in SA:

A comment on the Copyright Amendment Bill, B13B-2017 731

https://doi.org/10.47348/SACJ/v33/i3a11

© Juta and Company (Pty) Ltd