South Africa

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? Yes
Except photographs (50 years instead of 25)
s3(2) CA
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? In part
Generally, compulsory licensing is not provided for; however the Copyright Tribunal is given the power to amend licence schemes. Further, s21 of the Competition Act 89 of 1998 arguably permits the Competition Tribunal to grant compulsory licenses in circumstances of anti-competitive behaviour. The Competition Tribunal may for instance negotiate agreements with any regulatory authority to co-ordinate and harmonise the exercise of jurisdiction over competition matters within the relevant industry or sector and to ensure the consistent application of the principles of the Competition Act.
ss31, 32 CA, s21 Competition Act
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? No
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
Databases as such qualify as “literary works” under the Copyright Act. While they must therefore fulfill the requirement of “originality” for copyright protection, this requirement does not necessarily extend to the content of the database.
ss1(xxix)(g), 2(1) CA
Are rights holders prohibited from excluding user rights under copyright law? No
No prohibition or penalty in respect of rights holders excluding user rights under copyright.
Is computer software excluded from the scope of patentable subject matter? Yes
The Patents Act specifically excludes computer programs as inventions and as such they are not patentable. There is also no definition for software in the Patent Act.
S25(2)

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? Yes
South African copyright law follows the "fair dealing" approach towards copyright exceptions and limitations.
ss12 et seq. CA
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
Not specifically. But depending on the kind of work and the purpose of the use in question, time, space and format shifting may fall within the scope of one of the more general copyright exceptions and limitations such as fair dealing
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
Backup copies can be made of computer programs. Otherwise, reproductions by consumers may be permitted under the general copyright exceptions and limitations such as fair dealing for personal and private use. It must be noted, however, that copies of entire works seldom fulfill the requirements of these general exceptions & limitations.
ss19B(2), 12 CA
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? No
For EducationMay students copy works for private research or study? Yes
The fair dealing exception for research and private study applies to literary and musical works, artistic works, broadcasts and published editions and requires (a) the mentioning of the source and (b) that the name of the author appears on the work.
ss12(1), 15(4), 18, 19A CA
Does any such research and study provision cover distance and online education? No
Not specific reference to distance or online education but educational exceptions and limitations can apply.
May translations of works be made for educational purposes? In part
The SA Copyright Act specifically states that the teaching exception in s12(4) (see above) embraces (a) the right to use the work in another language than the original and (b) the right to translation.
ss12(4), 12(11) CA
May educators copy works for use in the classroom? In part
The Copyright Regulations allow the creation of copies for teachers as well as multiple copies for classroom use (not exceeding one copy per pupil per course). Yet, such reproductions are subject to certain requirements. Most importantly, copying is limited to “reasonable portions” of a work. It should also be noted that regulation 9 further restricts copying for teachers and classroom use by, inter alia, stating that copying may not be used as a substitute for the purchase of books and may not be repeated in respect of the same material by the same teacher from term to term.
s13 CA, regs2, 7-9 CR
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? No
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
An ISP is regarded as a “mere conduit” and on this basis the liability of an ISP is limited subject to certain conditions such as: the ISP must perform its functions in an automatic, technical manner without selection of the data. Notwithstanding such provision however, the ECT Act provides that a competent court may order a service provider to terminate or prevent unlawful activity in terms of any other law.
s73 ECT
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? In part
The ISP has no general obligation to monitor the date which it transmits or stores; or actively seek facts or circumstances indicating an unlawful activity.
s78 ECT
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? In part
Not specifically. But such behaviour may fall within the scope of other copyright exceptions and limitations, depending on the circumstances.
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? No
s19B CA
Is the incidental inclusion of a work in other material permitted? In part
The copyright in an artistic work is not infringed by its incidental inclusion in a cinematograph film, television broadcast or transmission in a diffusion service.
s15(1) CA
Is there are copyright exception for parody or satire? No
But an exception exists for "criticism or review" and that would arguably cover some cases of parody and satire.
By the pressIs there a copyright exception for the news of the day? Yes
Apart from the fair dealing exception for the reporting of current events contained in s12(1)(c) of the Copyright Act, s12(8) stipulates that no copyright subsists in “news of the day that are mere items of press information”. The fair dealing provision for the reporting of current events applies to literary, musical and artistic works, cinematograph films, sound recordings, broadcasts, published editions and computer programs.
s12(1)(c) CA
May copyright material be reproduced for the purposes of review and criticism? Yes
The fair dealing provision for criticism and review applies to literary, musical and artistic works, cinematograph films, sound recordings, broadcasts, published editions and computer programs.
s12(1)(b) CA
May quotations be used for any purpose? Yes
But only to the “extent justified by the purpose”.
s12(4) CA
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? In part
A library or archive depot may copy a published work for replacement purposes if an unused replacement cannot be obtained at a fair price. Also, an entire work or a substantial portion thereof may be copied for a user for the purposes of private study or personal or private use if an used copy of the copyright protected work cannot be obtained at a fair price. Certain restrictions for multiple copies are contained in s5 of the Copyright Regulations.
s13 CA, regs3(e),(h), 5 CR
May librarians copy works for users for the purpose of research or study? In part
An entire work or a substantial portion thereof may be copied for a user for the purposes of private study or personal or private use if an used copy of the copyright protected work cannot be obtained at a fair price. Certain restrictions for multiple copies are contained in s5 of the Copyright Regulations.
s13 CA, regs3(h), 5 CR
Are libraries allowed to make preservation or archive copies of materials in their collections? In part
Regulations 3(d) and 3(e) allow copying in facsimile form of unpublished and published works for preservation and replacement purposes.
s13 CA, regs3(d), (e) CR
Can lending libraries operate without incurring public lending rights fees to copyright owners?
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? No
Not specifically.
In public affairsAre laws excluded from copyright? Yes
s12(8) CA
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? In part
The Copyright Act stipulates in s12(8) that no copyright subsists in official texts of a legislative, administrative or legal nature, or in official translations of such texts, or in speeches of a political nature or in speeches delivered in the course of legal proceedings, or in news of the day that are mere items of press information. For all other material, copyright vests in the state and provision for such material is made in s5 of the Copyright Act. In this context the new IPR form Publicly Financed Research and Development Act of 2008 should also be considered.
ss5, 12(8) CA
Are the results of publicly funded research required to be published under an open access licence? No
The IPR from publicly financed research and development act of 2008 contains no such requirement.
IPR from publicly financed research and development act of 2008

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? Yes
Can public domain works be used without the need for any payment or registration of the use? Yes
There are no formalities to be complied with for the use of public domain works.
Does the law make special provision for the legal use of orphaned works? No
Is parallel importation of copyright works permitted? In part
Parallel importation constitutes copyright infringement if the requirements of sec 23(2)(a) of the Copyright Act are met. Parallel importation is only permitted for the purpose of private and domestic use. In all other situations, courts in SA are required under the Act to hypothesise the making of the imported article in South Africa and determine whether such making would have constituted a copyright infringement.
ss23, 27 CA
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? Yes
South Africa has adopted an official policy in 2007 entitled the Policy on Free and Open Source Software [FOSS] Use for South African Government “FOSS Policy” which provides that the South African government will implement FOSS unless proprietary software is demonstrated to be significantly superior. Further the South African government shall migrate current proprietary software to FOSS whenever comparable software exists. In addition new software developed for or by the South African government will be based on open standards, adherent to FOSS principles, and licensed using a FOSS licence where applicable.
FOSS Policy
Are there national programmes or policies that specify or promote the use of open document formats? Yes
The FOSS policy states that the South African government shall encourage the use of open content and open standards in South Africa.
FOSS Policy

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? $1300 [(criminal sanctions:) ZAR 10,000 (first time infringer: ZAR 5,000) or up to 5 years imprisonment (first time infringer: 3 years) for each infringing article] s27 CA
What is the maximum penalty for copyright infringement for a corporation? $1300 [(criminal sanctions:) ZAR 10,000 (first time infringer: ZAR 5,000) or up to 5 years imprisonment (first time infringer: 3 years) for each infringing article] s27 CA
Is innocent infringement of IP treated differently by the law? Yes
In general, only commercial uses carry criminal sanctions (as opposed to civil sanctions).
s27 CA
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? In part
Unclear. Section 86(3) of the ECT Act criminalises production, selling, offer to sell, procuring for use, design, adaptation for use, distribution or possession of devices which are designed primarily to overcome data protection measures. It appears the underlying purpose, ie enabling uses permitted by copyright exceptions & limitations, is irrelevant.
s86(3) ECT
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? In part
Unclear. Section 86(4) of the ECT stipulates that a person who uses anti-circumvention devices “in order to unlawfully overcome” TPMs is guilty of an offence. It could be argued, however, that a person who uses anti-circumvention devices to merely make use of his rights under established copyright exceptions & limitations does not utilise such devices to unlawfully overcome TPMs.
s86(4) ECT
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? In part
The Copyright Act does speak about injunctive relief (known as an interdict) as one of the remedies available to a party whose copyright is infringed. There is possibly a public policy consideration for interdicts contained in s24(4) and public policy considerations also play a role in the context of s24(3). To our knowledge there have been no cases in this regard.
s24(3) - 24(4) CA
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? No
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? In part
Criminal sanctions are limited to cases of commercial counterfeiting but such counterfeiting does not necessarily need to be "large-scale".
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? Yes
Instead of damages, the plaintiff may ask for a reasonable royalty to be awarded.
s24(1)-(1B) CA
Is there provision to penalise the wrongful allegation of copyright infringement? No
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
Does the patent system allow for pre-grant opposition?

Recent or upcoming changes

Summary of position

The South African Copyright Act of 1978 makes little use of access-enabling copyright flexibilities for the benefit of consumers available under the relevant international copyright treaties and agreements, particularly the Berne Convention and TRIPs. Such flexibilities pertain to the duration of copyright protection, the scope of copyright protection and especially the utilisation of copyright exceptions and limitations. The current set of copyright exceptions and limitations appear vague and fragmentary and are, in many instances, outdated. The use of modern technologies, for example in distance education, remains largely unconsidered. Some legislative and policy advancements in South Africa of late have had an enabling and progressive tone. Yet, when applied in the context of the Copyright Act, these advancements fail to cohesively deal with the relevant subject. To illustrate, despite forays into electronic communications access in South Africa, the Electronic Communications and Transactions Act may serve to override copyright exceptions and limitations, including fair dealing provisions contained in the Copyright Act, and may attach criminal liability for use of a work that is legitimated by the Copyright Act. Thus, it is concluded that the South African Copyright Act must be updated to keep pace with technological advancements and recent surrounding policy and legislative advancements related to access to knowledge. Recently-revised copyright laws in other countries, e.g., Australia, could provide a basis for a revision process in South Africa that enhances and clarifies access possibilities.

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