Publishers’ association of south africa

The Presumption of Ownership Of Copyright
In Australian law, as in many other legislative systems, subsistence of ownership of copyright will be assumed by the court. However, in spite of such a presumption, copyright owners argued that the defendant can still challenge ownership, often as a diversionary tactic that can put the plaintiff to considerable trouble and expense. As a result, the Standing Committee recommended amendments to the Australian Copyright Act to strengthen presumption of copyright ownership, as well as the introduction of discretionary penalties for defendants who abuse the presumptions of ownership. ⁶⁸
The Cost of Litigation
The high cost of litigation, along with long delays in hearing civil cases, provides barriers to effective enforcement. This is particularly onerous for small companies needing to enforce their rights. As a result of such difficulties, many rights holders are reduced to writing letters asking infringers to desist, rather than having any real remedies against offenders.
In Australia, the Standing Committee investigating copyright enforcement recommended the creation of small claims courts for minor copyright violations.
Anton Pillar Orders and Seizure Orders
Obtaining evidence in cases of piracy can be very problematic. As has been the case in a number of South African cases of book piracy, the offender can hide evidence when there is a threat of legal action. Anton Pillar orders, or ex parte civil search orders, are only granted under restricted circumstances and can be very expensive to obtain. Search and seizure orders need to be made easily available in order to allow copyright owners to take effective action against pirates.
Statutory Damages
Plaintiffs need to be able to get compensation for the damage that they have suffered through copyright violations. For this reason, many countries, including Australia, have provisions for statutory damages, calculated on the number and flagrancy of the offences concerned. Statutory damages are damages that can be granted by the court when the rights owner has suffered considerable financial prejudice, irrespective of the actual damage suffered.
Civil Remedies – South Africa
The Presumption of Ownership Of Copyright
This has already been identified as a serious deficiency in South Africa. In South African cases, the plaintiff has to prove ownership of copyright, a burdensome and expensive process. Because of the impact this has on the cost of litigation, it is a real barrier to effective enforcement, and one that the print industries would like to see dealt with as a matter of urgency.
Statutory Damages
As has been already identified, there is a need in South Africa for a stronger system of damages, to act as a deterrent and to afford compensation for victims of copyright infringement and piracy. Right now, the high cost of pursuing a case (even in the event of a criminal prosecution) and the lack of effective damages, act to discourage South African rights holders from pursuing cases.
The Justice System in South Africa
A real problem experienced with enforcement in South Africa is the current state of the criminal justice system.
Particularly given the high levels of violent crime in South Africa, rights owners often find it difficult to persuade grossly overburdened prosecutors to press charges of criminal copyright infringement. Moreover, even when charges are pressed, all too often the case is withdrawn, or a derisory fine offered against a guilty plea.