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 be imposed on

those convicted of infringing 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. The Copyright Amendment Bill (which

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

minimum sentences for juristic persons convicted of infringing copyright.

The purposes of this article are: to highlight high court decisions dealing

with the prosecution of people who have infringed copyright; recommend

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

prosecution as one of the means to protect their rights; highlight the

limitations of the right to institute a private prosecution; and to highlight

the challenges that are likely to be faced in the implementation of the

minimum sentences introduced by the Copyright Amendment 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 (Pretoria) LLM (Free State) LLD (Western 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 is a distinction between civil copyright infringement

(governed by s 23 of the Act) and criminal copyright infringements (governed by

s 27). However, there is an overlap between the two sections in the sense that

some of the acts which are prohibited under s 23 are also covered under s 27. The

remedies for civil copyr ight infringement are provided for under s 24 of the Act. It

has been argued that ‘The criminal provisions of the Copyright Act are embodied

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

infringement. On the other hand, all acts of criminal copyright infringement also

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 article, 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 2017.3 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 arguing inter

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

whereas others have supported it arguing, inter alia, 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 purposes 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 institute 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 infringed 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 that:

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 ‘Copyright Amendment Bill will undermine the President’s SONA

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

co.za/article/2019-02-25-copyright-amendment-bill-will-undermine-the-

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

warned that “devastating” Copyright Amendment Bill could cost SA jobs’ Fin24,

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

devastating-copyright-amendment-bill-could-cost-sa-jobs-20190318, accessed

on 19 March 2020. The Bill was also opposed by the International Intellectual

Property Alliance. See, South Africa: International Intellectual Property Alliance

‘IIPA 2019 Special 301 Report on Copyright Protection and Enforcement’, available

at https://iipa.org/les/uploads/2019/02/2019SPEC301SOUTHAFRICA.pdf, accessed

on 19 March 2020. However, there are many people and organisations in South

Africa which supported the Bill. See L Daniels, ‘Copyright bill: Protesters picket

outside US embassy’ Daily Maverick, 24 February 2020, available athttps://www.

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

embassy/, 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