What are the Penalties for Copyright Infringement?

Most people learn about the evils of copying work at a very young age. The kid sitting next to you leans over and begins to write down your answers, the teacher reprimands him and the whole class learns a valuable lesson. Sadly, not everyone takes it to heart. Even in their adult lives, many people find themselves copying and selling the work of others without permission, and sadly, the things they copy tend to be more valuable than the answers to this week’s spelling test. So what can be done? What are the penalties for copyright infringement and when do they apply?

There are many aspects that determine each individual instance of copyright infringement and its related penalties. In particularly serious cases, criminal charges can be levied against the guilty party which could result in either fines, imprisonment or both.

The severity of the fine or sentence is based (amongst other things) on whether or not this is the first such conviction of the guilty party. According to the amended Copyright Act, initial convictions can lead to fines of up to R5 000 per infringement and/or up to 3 years imprisonment.

Repeated convictions can increase fines to up to R10 000 per infringement and/or 5 years imprisonment. Other actions may also be taken such as the seizure of infringing material and the issuing of an interdict to prevent further infringements.

It’s important to remember, however, that criminal convictions are seldomly the first choice when dealing with instances of copyright infringement.

What are the Steps in Copyright Infringement Cases?

Generally speaking, accusations of copyright infringement should proceed like this –

• Establish Contact – The first step is to reach out to the infringing group and inform them of the issue. It is often the case that infringement is taking place due to a misunderstanding of the rules or simply because the accused party does not realise that they are engaging in illegal activity. Sometimes, the guilty party will agree to cease their actions without legal action becoming necessary.
• Hire a lawyer – If possible, it is advisable to hire an IP attorney who can verify that infringement has taken place and take charge of any further proceedings as unjustified warnings and legal actions can make you liable for damages. Likewise, there are many copyright collectives that can be contacted which protect the rights of certain creators.
• Legal Action – In the event that negotiations break down and the accused party continues to engage in their actions, legal action may be taken to stop their activities, award damages and prevent further infringements.

Legal advice is always recommended in these cases as there are certain standards that must be met when deciding if infringement has taken place.

How is Copyright Infringement Determined?

Broadly speaking, copyright infringement has occurred when a copy, adaptation or publication of a work is made without the authorisation of the copyright holder, although it should be noted that, generally, copies can be made for personal use so long as no commercial gain is made, with some exceptions.

There are two primary types of infringement that are prosecutable, namely, Direct and Indirect Infringement, and each has its own methods of determination.

Direct Infringement – This form shares the definition of generalised copyright infringement. When some kind of unauthorised action such as copying or publication is made, direct infringement has usually taken place. When determining cases of direct infringement, the following prerequisites must be considered – 

• Is there a clear and objective level of similarity between the two works?
• Is there a link between the original work and the supposed copy? Is there some type of causal connection between them?
• Has infringement taken place?

Indirect Infringement – Sometimes, even though the accused has not committed some sort of copyright infringement themselves, they are still guilty of committing unauthorised acts to some degree. The most obvious example of this would be somebody who sells copyrighted goods that they have not made themselves. Although they did not copy the work themselves, they are still selling unauthorised copies.

Additionally, when dealing with cases of potential copyright infringement, it must be mentioned that the exclusive rights granted to the creator can be transferred to other parties, either in their entirety or in a piecemeal fashion. In these cases, the authority over the copyrighted material may lie with someone other than the creator or partly with the creator and partly with another individual or group.

What is a Causal Connection/Link?

As mentioned, some sort of causal link needs to be proven in cases of copyright infringement. This means that some sort of reasonable connection or influence can be found between the two works which form the basis of the argument that the second work in some way copied the first. The need for this kind of proof is most evident in cases of alleged copyright infringement in music.

For example, while two different songs may sound very similar, there are certain melodies and tempos that humans tend to prefer, as such, one may argue that with billions of humans on the planet, similar songs will eventually be created by pure coincidence. In light of this argument, it must be proven that the first work somehow influenced and/or led to the creation of the second and that the similarity was not just a coincidence.

Are Copyrights Automatically Applied?

Yes, in South Africa, most works that can be seen or heard are automatically copyrighted upon their creation. This means that you do not need to register for some sort of copyright protection to safeguard your work. That said, most forms of cinema such as movies, videos, etc, must be formally copyrighted by applying to the Registrar of Copyright.

Most creations can be personally copyrighted by simply adding the internationally recognised copyright symbol or by adding terms such as ‘copyright’ or copyright reserved’.

Are Copyrights Valid Internationally?

Technically speaking, there is no international copyright that would prevent your works from being copied by someone in a foreign country, however, most countries do have their own copyright protections which would still safeguard against infringements, although these laws do vary depending on the country in question.

Is Copyright Infringement Theft?

While copyright infringements are illegal, most experts would not consider them to be a form of theft.

This is because theft normally refers to the act of taking something from another person which thus deprives the owner of the object, for example, if your car is stolen, the thief now has the car and you do not. Infringement is different as the original owner still possesses the copyrighted works, for example, if you make a movie and it is copied by another person, you are still in possession of the movie.

It’s important to remember that copyright infringement is not seen as the stealing of any kind of property but should rather be viewed from the position of exclusive rights. Simply put, when a copyright is established, the owner of the copyright is given exclusive rights which allow them to determine things such as when the work may be copied, distributed, etc. Copyright infringement should thus be viewed as an invasion and co-opting of these rights rather than as a form of thievery. 

What does Fair Dealing mean?

Fair dealing (sometimes referred to as fair use) refers to slight expectations to the rules of infringement that somewhat relax the exclusivity of the rights of the original owner.

This is most easily understood when we consider the nature of news reporting. If, for example, a new and controversial movie is released, the news media will most likely cover the story. During this coverage, pictures or video clips from the film may be shown. Although the news agency is technically publishing part of the copyrighted material for commercial purposes, they would not be liable for damages as it is understood that they are using the material for the purpose of reporting current affairs.

There are others examples in which material may be used and still be considered Fair Dealing, although it should be noted that the material is generally expected to be shown in a limited and transformational manner. In other words, you could not show a full movie on a news channel and then claim that it was just a news report.

In Conclusion – What is Copyright Infringement and what are the Related Penalties?

Copyright refers to the exclusive authority a person or group holds over a specific creation or work, for example, when a piece of art is made by an artist, only the person who owns the copyright to that art is entitled to sell it or to make copies and sell them instead. These rights can be transferred to other parties, but regardless of who owns the copyright, the work cannot be replicated and used for commercial gain without the express permission of the copyright holder.

In South Africa, most works are automatically copyrighted to the creator upon their creation with the exception of film and video which must be registered for copyright. If copyright infringement takes place, it is suggested that the copyright holder contact the accused party and inform them of the situation as most cases can be resolved through negotiation. If, however, the accused party continues in their actions, the copyright holder may begin legal proceedings to halt the action, receive payment for damages and/or income lost, and prevent further instances of infringement.

Copyright infringement can result in fines of up to R5 000 per infringement alongside a prison sentence of up to 3 years if it is the first such infringement made by the guilty party. If the infringement is committed again by the same party, the fines can increase in severity to up to R10 000 per infringement and those found guilty may face up to 5 years imprisonment.

Sometimes, copyrighted works can be used without an infringement taking place, for example, if the material is used with the purpose of reporting the news or if it is copied for personal use, it is generally considered that infringement has not taken place. Lastly, there is no international copyright that protects works across borders, however, most countries have various laws which will safeguard the exclusive rights of the creator or copyright holder.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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