“(1) Subject to the provisions of this Act, infringements of copyright shall be actionable at the suit of the owner of the copyright, and in any action for such an infringement all such relief by way of damages, interdict, [accounts,] delivery of infringing copies or plates used or intended to be used for infringing copies or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringements of other proprietary rights.”;
(b)
by the insertion of the following subsections after subsection (1):
“(1A) Damages contemplated in subsection (1) may, at the option of the plaintiff, be calculated on the basis of the amount of a reasonable royalty which would have been payable under the circumstances by a licensee or sub-licensee in respect of the copyright concerned.
(1B) In the determination of the amount of damages referred to in subsection (1A) the court shall, in addition to all other material considerations, take the following factors into account:
(a)
The extent and nature of the infringement of copyright; and
(b)
the amount which could be payable to the owner in respect of the exercise of copyright by some other person.
(1C) If a plaintiff intends to exercise the option contemplated in subsection (1A), he shall give notice in writing to the exclusive licensee or sub-licensee of the copyright concerned of such intention.”; and
(c)
by the substitution for subsection (2) of the following subsection:
“(2) Where in an action for infringement of copyright it is proved or admitted that an infringement was committed but that at the time of the infringement the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement [but shall be entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not].”.
Amendment of section 25 of Act 98 of 1978, as substituted by section 1 of Act 39 of 1986
22.Section 25 of the principal Act is hereby amended by the addition of the following subsection, the existing section becoming subsection (1) thereof:
“(2) If an exclusive licensee or sub-licensee intends to exercise the option contemplated in section 24 (1A) he shall give notice in writing to the owner of the copyright concerned of his intention.”.
Substitution of section 26 of Act 98 of 1978, as amended by section 3 of Act 66 of 1983, section 10 of Act 52 of 1984 and section 3 of Act 13 of 1988
23. The following section is hereby substituted for section 26 of the principal Act:
“Onus of proof in proceedings
26. (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 [action]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
