Online piracy: Crime and punishment in SA

The word “piracy” conjures up different meanings depending on who you ask.

Some might immediately think of the activities around the horn of Africa that are constantly in the headlines. Others have more romantic notions involving a charismatic Captain Sparrow.

Piracy can take on a very different meaning when it comes to software, videos and music.

According to a guide to digital music written by Michalsons Attorneys, “[Piracy] is usually associated with the specific copyright infringement of distributing and receiving copyright protected works without the author’s permission.”

Piracy not theft

The South African Copyright Act of 1978 has attracted criticism for the way in which sound recordings are handled.

As reported previously by MyBroadband, the act essentially makes it illegal to “format shift” music you may already own a license to. That is, you’re technically not allowed to rip your CDs into digital format for the purpose of playback through a digital media player.

Criticisms aside, Michalsons explains that section 27 of the Act clearly lays out which acts of so-called piracy constitute a criminal offence.

“Despite what the music and recording industry would have you believe copyright infringement is not the crime of theft (at least legally speaking),” Michalsons states.

Crimes of online piracy

According to Michalsons, simply downloading copyrighted content from the Internet isn’t a crime, but distributing it is. Regardless of whether you charge for said distribution (i.e. sell the pirated content) or give it away for free, the infringement remains criminal.

This means that using peer-to-peer protocols such as BitTorrent to download music or other copyrighted works is theoretically a criminal offence.


A first time offence can cost a criminal copyright infringer a fine of up to R5,000 per pirated item or three years in prison, Michalsons wrote in their guide on the topic.

Repeat offenders could be looking at fines of up to R10,000 per item or a jail sentence of five years.

Piracy is still illegal

Even though not all forms of digital piracy are necessarily criminal, Michalsons warns that it remains illegal.

Michalsons explains that possessing pirated materials is enough to infringe copyright, even if the pirated content isn’t distributed. The owner of the copyright would be entitled to sue for damages in the case of such an infringement.

“Damages for these sorts of claims are usually restricted to whatever you would have usually paid for the goods had you not pirated it,” Michalsons elaborates.

This means that copyright holders could technically sue South Africans for format shifting.

However, the Recording Industry of South Africa (RiSA), a body that represents copyright holders in South Africa, has indicated that they aren’t interested in pursuing such legal action.

According to Michalsons guide to digital music, RiSA is basically choosing to ignore the restrictions on format shifting.

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Online piracy: Crime and punishment in SA