14
(a)
the flagrancy of the infringement; and
(b)
any benefit shown to have accrued to the defendant by reason of the infringement,
is satisfied that effective relief would not otherwise be available to the plaintiff, the court shall in assessing damages for the
infringement have power to award such additional damages as the court may deem fit.
(4) In an action for infringement of copyright in respect of the construction of a building, no interdict or other
order shall be made(a)
after the construction of the building has been begun so as to prevent it from being completed; or
(b)
so as to require the building, in so far as it has been constructed, to be demolished.
25
Rights of action and remedies of exclusive licensee and exclusive sub-licensee
(1) An exclusive licensee and an exclusive sub-licensee shall have the same rights of action and be entitled to the
same remedies as if the licence were an assignment, and those rights and remedies shall be concurrent with the rights and
remedies of the owner of the copyright under which the licence and sub-licence were granted.
(2) Before an exclusive licensee or sub-licensee institutes proceedings under subsection (1), he or she shall give
notice in writing to the owner of the copyright concerned of the intention to do so, and the owner may intervene in such
proceedings and recover any damages he or she may have suffered as a result of the infringement concerned or a reasonable
royalty to which he or she may be entitled.
[Sub-s. (2) added by s. 22 of Act 125 of 1992 and substituted by s. 56 of Act 38 of 1997.]
[S. 25 substituted by s. 1 of Act 39 of 1986.]
26
Onus of proof in proceedings
(1) Where in the case of a literary, musical or artistic work or a computer program a name purporting to be that of
the author appeared on copies of the said work or program as published or, in the case of an artistic work, appeared on the
work when it was made, the person whose name so appeared shall, if it was his true name or a name by which he was
commonly known, in any proceedings brought by virtue of this Chapter be presumed, unless the contrary is proved, to be
the author of the work or program.
(2) In the case of a work or program alleged to be a work or program of joint authorship, subsection (1) shall apply
in relation to each person alleged to be one of the authors of the work or program as if references in that subsection to the
author were references to one of the authors.
(3) Where in any proceedings brought by virtue of this Chapter with respect to a literary, musical or artistic work
or a computer program which is anonymous or pseudonymous it is established(a)
that the work or program was first published in the Republic and was so published within the period of
fifty years ending with the beginning of the calendar year in which the proceedings were brought; and
(b)
that a name purporting to be that of the publisher appeared on copies of the work or program as first
published,
then, unless the contrary is shown, copyright shall be presumed to subsist in the work or program and the person whose
name so appeared shall be presumed to have been the owner of that copyright at the time of the publication: Provided that
this subsection shall not apply if the actual name of the author of a pseudonymous work is commonly known.
(4) Where in any proceedings brought by virtue of this Chapter with respect to a literary, musical or artistic work
or a computer program it is proved or admitted that the author of the work or program is dead, the work or program shall be
presumed to be an original work or program unless the contrary is proved.
(5) Subsection (4) shall also apply where a work or program has been published and(a)
the publication was anonymous or under a name alleged by the plaintiff or the State to be a pseudonym;
and
(b)
it is not shown that the work or program has ever been published under the true name of the author or
under a name by which he was commonly known or that it is possible for a person without previous
knowledge of the facts to ascertain the identity of the author by reasonable inquiry.
(6) Where in any proceedings brought by virtue of this Chapter with respect to the alleged infringement of
copyright in a cinematograph film it is proved that the name purporting to be the name of the author of that film appears
thereon in the prescribed manner, the person whose name so appears shall be presumed to be the author of that film, unless
the contrary is proved.
(7) Where in any proceedings brought by virtue of this Chapter with respect to the alleged infringement of
copyright in a sound recording it is proved that records embodying that recording or part thereof have been issued to the
public and that at the time when those records were so issued the following claims appeared on a label or any other printed
matter affixed to such records or in or on anything in which they were contained, that is to say(a)
that a person named on the label or printed matter is the author of the sound recording; or
(b)
that the recording was first published in a year and at a place specified on the label or printed matter,
that label or printed matter shall be sufficient evidence of the facts so stated, except in so far as the contrary is proved.
(7A) A claim contemplated in paragraph (a) of subsection (7) may be made by means of the symbol 'C' in
conjunction with the name of the person concerned, and a claim contemplated in paragraph (b) of that subsection may be