The lower/Magistrate Courts and the High Court have jurisdiction in respect of criminal acts involving infringement of intellectual property rights.
Criminal procedures and penalties are available in the case of copyright infringement. Section 27 of the Copyright Act reads as follows:
"27(1) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright:
(a) makes for sale or hire;
(b) sells or lets for hire or by way of trade offers or exposes for sale or hire;
(c) by way of trade exhibits in public;
(d) imports into the Republic otherwise than for his private or domestic use;
(e) distributes for purposes of trade; or
(f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected,
articles which he knows to be infringed copies of the work, shall be guilty of an offence.
"(2) Any person who at a time when copyright subsists in a work makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work, shall be guilty of an offence.
"(3) Any person who causes a literary or musical work to be performed in public knowing that copyright subsists in the work and that performance constitutes an infringement of the copyright, shall be guilty of an offence.
"(4) Any person who causes a broadcast to be rebroadcast or transmitted in a diffusion service knowing that copyright subsists in the broadcast and that such broadcast or transmission constitutes an infringement of the copyright, shall be guilty of an offence.
"(5) Any person who causes programme-carrying signals to be distributed by a distributor for whom they were not intended knowing that copyright subsists in the signals and that such distribution constitutes an infringement of the copyright, shall be guilty of an offence.
"(6) A person convicted of an offence under this section shall be liable:
(a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates;
(b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates."
Any inspector, i.e. any person so appointed in terms of the Counterfeit Goods Act; a police official; Commissioner of Customs and Excise may initiate criminal proceedings. Any of these officers may act on their own initiative as well as in response to a complaint from a person entitled to lay such a complaint.
However, where an officer has acted of his own initiative, he must procure a complainant otherwise the goods must be released.
In terms of the Counterfeit Goods Act, private persons do have standing to initiate criminal proceedings. The Act grants such right to any person having an interest in the protected goods, either as an owner/licensee of the intellectual property rights; importer; exporter/distributor and any authorized agent or attorney of such person.
Conviction on a charge of criminal copyright infringement can lead to the imposition of both imprisonment and monetary fines. In the case of a first offence, the Copyright Act imposes a maximum prison sentence of three years or a penalty of R 5,000.00, or both for each infringing article; in the case of a subsequent conviction these maxima are increased to five years imprisonment and R 10,000.00 per infringing article.
