From Stage to Statute: The Historical Development of Performers’ Rights in South Africa

by | Feb 21, 2026 | FUND, FUND V31I2

From Stage to Statute: The Historical Development of Performers’ Rights in South Africa

Author Gretchen Jansen

ISSN: 2411-7870
Affiliations: Lecturer, Faculty of Law, Stellenbosch University. LLB LLM LLD (Stellenbosch University)
Source: Fundamina, Volume 31 Issue 2, p. 104-155
https://doi.org/10.47348/FUND/v31/i2a3

Abstract

This contribution traces the historical development of performers’ rights, with a particular focus on the South African legal context. Beginning with the first statutory recognition of performers’ rights in early twentieth-century Germany, it follows the gradual emergence of international instruments, from the Rome Convention to the Beijing Treaty, before examining how these frameworks influenced domestic developments in the United Kingdom, and, later, South Africa. The analysis reveals that while copyright law has historically prioritised the rights of authors and the protection of their works, the legal recognition of performers has remained secondary, often treated as peripheral to the core concerns of the intellectual property regime.
In South Africa, performers’ rights were first introduced by the Performers’ Protection Act 11 of 1967. Although modelled loosely on international norms, the Act provided a fragmented and limited form of protection, reflecting both colonial legal inheritance and a lack of engagement with international instruments. The contribution tracks the evolution of this legislative framework, including the proposed amendments that seek to modernise and expand the rights of performers in response to both technological change and international pressure. Drawing on legal history and comparative analysis, it assesses whether these reforms amount to a substantive shift in how performers’ protection is conceptualised in law.
Ultimately, the contribution argues that recognising the historical marginalisation of performers is essential to understanding the current moment of legal reform. A stronger and more coherent legal regime for performers’ rights in South Africa has the potential not only to correct past omissions, but also to support a more inclusive, equitable and culturally vibrant creative sector.

Jurisdictional Immunity in South Africa: Interpreting Section 2 of the Foreign States Immunities Act in Light of Article 6(2)(B) of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004, and its Drafting History

by | Feb 21, 2026 | FUND, FUND V31I2

Jurisdictional Immunity in South Africa: Interpreting Section 2 of the Foreign States Immunities Act in Light of Article 6(2)(B) of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004, and its Drafting History

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 31 Issue 2, p. 156-206
https://doi.org/10.47348/FUND/v31/i2a4

Abstract

In East Asian Consortium BV v MTN Group Limited the applicant sued the respondent in a South African court for allegedly bribing Iranian officials to award the latter a tender at the expense of the former. The respondents invoked section 2 of the Foreign States Immunities Act, 1981, to argue that South African courts did not have jurisdiction over the matter because the action was indirectly against the Iranian government which enjoyed jurisdictional immunity under article 6(2)(b) of the Immunities Convention, 2004. The majority of the court declined to interpret section 2 of the Foreign States Immunities Act in light of article 6(2)(b) of the Immunities Convention. In reaching this conclusion, the court relied on the United Kingdom Supreme Court’s decision in Belhaj v Straw, which held that the drafting history of article 6(2)(b), as well as state practices, showed that it is not customary international law, and that in the United Kingdom the Immunities Convention was not regarded as international law. In this article, the author argues to the contrary. By undertaking an in-depth analysis of the drafting history of article 6(2)(b) of the Immunities Convention and current state practices, the author argues that article 6(2)(b) of the Immunities Convention is international law (as understood by the South African Constitutional Court). Consequently, the court should have relied on it in interpreting section 2 of the Foreign States Immunities Act. It is also argued that a combined reading of the drafting history of article 6(2)(b) of the Immunities Convention and section 2(2) of the Foreign States Immunities Act shows that the court should have held that it did not have jurisdiction in the case. It is argued, further, that article 6(2)(b) is not limited to cases where a foreign state has legal interest in property but that it is applicable to interests, rights, property and activities. Furthermore, since the alleged bribery took place in Iran and the acts in question were juri imperii, South African courts did not have jurisdiction.

Prelims

AI copyright policy considerations for Botswana and South Africa – Compensation for starving artists feeding generative AI

by | Feb 16, 2026 | SAIPLJ, SAIPLJ 2025 SE

AI copyright policy considerations for Botswana and South Africa – Compensation for starving artists feeding generative AI

Author Setso Dennis Mareka

ISSN: 2521-2591
Affiliations: Associate at Ramalepa Attorneys, Gaborone, Botswana
Source: South African Intellectual Property Law Journal, 2025, p. 3-21
https://doi.org/10.47348/SAIPL/v13/i2a1

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Setso Dennis Mareka
AI copyright policy considerations for Botswana and South Africa – Compensation for starving artists feeding generative AI
South African Intellectual Property Law Journal, Volume 13 Issue 2, p. 3-21
https://doi.org/10.47348/SAIPL/v13/i2a1

Abstract

The balancing act which domestic intellectual property policy is now challenged to strike is between fostering growth in technological innovation and incentivising creative labour. Ordinarily, these two considerations should not be mutually exclusive, but generative artificial intelligence (Gen AI) has led to a line being drawn in the sand. On one hand, AI undeniably has the potential to exert a profound societal impact, an outcome which shouldn’t be unnecessarily stifled, as onerous barriers to data access would undermine the ideal objectives of copyright policy. On the other hand, creative labourers are still subject to the inherent peculiarities of their industry, which faces further disruption despite their works forming part of Gen AI training data. A few cases worldwide illustrate this standoff, wherein artists contend that automation threatens to disrupt an already precarious creative industry and seek, inter alia, compensation for the use of their works.
In light of these polarised viewpoints, a socio-legal and tech-neutral approach is required to analyse whether a balance could be struck in light of Botswana and South Africa’s copyright policies and whether artists could be compensated for this type of use. The legal basis for a claim of compensation will be ascertained first and shall entail determining the manner in which Gen AI infringes upon artists’ exclusive rights, and utilise protected works in a manner which would ordinarily warrant remuneration. This analysis shall be informed by a discussion on the polarising interests involved, the normative justifications for said copyright protection, and the corresponding rationales for its limitations.
Before concluding, this article shall evaluate the feasibility of recommendations for fair remuneration frameworks in the context of Botswana and South Africa. It will be suggested that, ideally, CMOs ought to utilise metadata and watermarking measures to trace their members’ works across training data sets and ultimately claim compensation on their behalf. However, it is ultimately found that said CMOs in these countries ought to drastically increase their technical ability to monitor online acts of infringement.

Prelims

Convergence of intellectual property and competition law objectives for Africa: A TWAIL reconsideration of the copyright issues arising from the Sixth Amendment of the Nigerian Broadcasting Code

by | Feb 16, 2026 | SAIPLJ, SAIPLJ 2025 SE

Convergence of intellectual property and competition law objectives for Africa: A TWAIL reconsideration of the copyright issues arising from the Sixth Amendment of the Nigerian Broadcasting Code

Author Damola Adediji

ISSN: 2521-2591
Affiliations: Doctoral Researcher, Center for Law, Technology & Society, Faculty of Law, University of Ottawa
Source: South African Intellectual Property Law Journal, 2025, p. 22-44
https://doi.org/10.47348/SAIPL/v13/i2a2

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Damola Adediji
Convergence of intellectual property and competition law objectives for Africa: A TWAIL reconsideration of the copyright issues arising from the Sixth Amendment of the Nigerian Broadcasting Code
South African Intellectual Property Law Journal, Volume 13 Issue 2, p. 22-44
https://doi.org/10.47348/SAIPL/v13/i2a2

Abstract

Enacting the sixth amendment of the Nigerian Broadcasting Corporation Code (NBC Code) in January 2020, Nigerian policymakers arguably had an opportunity for the first time to purposefully grapple with the complex and rigorous interaction between intellectual property rights and competition law. However, they missed this chance. In 2022, the Lagos Judicial Division of the Federal High Court struck down the sixth amendment to the NBC Code, finding that it had been improperly developed through a stakeholder consultation process dominated by copyright-intensive industries, which failed to engage the competition authority, and that the Code was in apparent conflict with the rights conferred under the Copyright Act. Before being struck down, the Code had attracted significant criticism from Nigerian intellectual property scholars and practitioners, primarily due to its inconsistencies with copyright law. By the Court’s ruling, the NBC Code and the copyright issues it generated could rightly be considered dead. However, the lessons learned in ‘how not to apply competition law principles in IP’ and the Euro-American ideology underpinning both IP and competition law remain. Therefore, this paper undertakes a critical and reflective mission by revisiting the copyright issues generated by the defunct code and exploring how a Euro-colonial copyright ideology should be confronted through a purposeful convergence of copyright and competition law in an African country like Nigeria.
The paper considers this mission necessary for several reasons. First, the issues present Nigerian policymakers with an opportunity to creatively and purposefully engage with the complex complementarity of IP and antitrust or competition law in the context of a developing nation. Second, the arguments raised in opposition to the Code, which ultimately led to its demise in court, aptly demonstrate the ideological stronghold of Eurocentric and colonial IP orthodoxy, as well as the recent influence of competition law in Nigeria. Third, global experiences, particularly in Europe and the Americas, demonstrate that IP and competition law issues frequently interact purposefully and progressively, specifically to achieve developmental objectives such as access to cultural and copyrighted content. Therefore, Nigeria and Africa must understand how to navigate this interaction by devising a customised strategy that works for them, rather than dismissing one in favour of the other, and which does not necessarily rely on Euro-American intellectual property or competition law orthodoxy.

Prelims

The implementation of the fair use exception into South African copyright law in the age of artificial intelligence: A fever dream or a justified reform?

by | Feb 16, 2026 | SAIPLJ, SAIPLJ 2025 SE

The implementation of the fair use exception into South African copyright law in the age of artificial intelligence: A fever dream or a justified reform?

Author Alvizo Miggels

ISSN: 2521-2591
Affiliations: Lecturer, Department of Private Law, University of the Western Cape
Source: South African Intellectual Property Law Journal, 2025, p. 45-72
https://doi.org/10.47348/SAIPL/v13/i2a3

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Alvizo Miggels
The implementation of the fair use exception into South African copyright law in the age of artificial intelligence: A fever dream or a justified reform?
South African Intellectual Property Law Journal, Volume 13 Issue 2, p. 45-72
https://doi.org/10.47348/SAIPL/v13/i2a3

Abstract

The Copyright Amendment Bill (‘the Bill’) seeks to introduce several changes to the copyright system; starting with the controversial introduction of the fair use exception to the South African landscape. This exception is used by jurisdictions such as the United States of America (US), thoroughly interpreted by courts to determine its parameters and allows for a broader list of uses of works ordinarily protected by copyright. Fair use is largely dependent on an array of open-ended factors, which have up until now been applied by courts on a case-by-case basis.
Critics of fair use cite legal uncertainty as the primary basis for their argument that South Africa should retain its fair dealing exception as it is currently formulated in the Copyright Act 98 of 1978. They further argue that fair dealing provides copyright holders with more control over the use of their works and view the list of acceptable uses of protected works under fair dealing as certain. Additionally, critics are of the view that, should fair use be introduced to the South African copyright system, it will be in direct contravention of the country’s obligations under the Berne Convention and the TRIPS Agreement.
There is, however, evidence that the fair use exception has been successfully applied in jurisdictions such as the US and Singapore , and thus judicial guidance and other examples from South Africa’s international counterparts could easily remedy these concerns. This article argues that the critics’ views on fair use are an exaggeration and a tactic to have South Africa remain complacent in the face of global advancements made in respect of technology.
This article argues that fair use should be introduced to the South African copyright system , and will show that while this exception may be new to this jurisdiction, it will not be difficult to implement and for the courts to navigate. It argues further that fair use will serve copyright holders more in a landscape riddled with uncertainty as a result of emerging technology such as artificial intelligence (AI).

Prelims

Aligning Africa’s evolving copyright landscape with Agenda 2063: Lessons from Nigeria, Uganda, South Africa, and Kenya

by | Feb 16, 2026 | SAIPLJ, SAIPLJ 2025 SE

Aligning Africa’s evolving copyright landscape with Agenda 2063: Lessons from Nigeria, Uganda, South Africa, and Kenya

Author Dorcas Chebet Koros

ISSN: 2521-2591
Affiliations: Researcher, Centre for Intellectual Property and Information Technology (CIPIT), Strathmore University
Source: South African Intellectual Property Law Journal, 2025, p. 73-107
https://doi.org/10.47348/SAIPL/v13/i2a4

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Dorcas Chebet Koros
Aligning Africa’s evolving copyright landscape with Agenda 2063: Lessons from Nigeria, Uganda, South Africa, and Kenya
South African Intellectual Property Law Journal, Volume 13 Issue 2, p. 73-107
https://doi.org/10.47348/SAIPL/v13/i2a4

Abstract

African nations collectively face significant imbalances in intellectual property (IP) flows, with most royalties and license fees departing for the Global North. Recent copyright legislative reforms in Nigeria, Uganda, South Africa, and Kenya seek to address these inequities, modernise legal frameworks, and ensure that creators and local industries reap the rewards of their innovations. While Nigeria’s Copyright Act of 2022, Uganda’s ongoing copyright amendments, South Africa’s Copyright Amendment Bill, and Kenya’s incremental reforms each illustrate a commitment to fostering economic growth and cultural preservation, they also highlight persistent challenges, ranging from limited enforcement mechanisms to inadequate public awareness and institutional capacity.
From the standpoint of the AU Agenda 2063, these reforms align with Africa’s broader vision of socio-economic transformation and emphasise the need to balance the rights of creators with the public interest. Equally, the African Continental Free Trade Area presents new opportunities for cross-border trade in creative goods and services, but also underscores the importance of harmonised IP standards to facilitate regional integration. Taken together, these national copyright reforms offer insights into how African governments can safeguard cultural heritage, spur creativity, and enhance business competitiveness; thereby advancing Africa’s economic, social, and technological aspirations under Agenda 2063 and the AfCFTA framework.

Prelims

The clock is ticking for the Sustainable Development Goals: A geographical indications-based intervention in the quest to end poverty

by | Feb 16, 2026 | SAIPLJ, SAIPLJ 2025 SE

The clock is ticking for the Sustainable Development Goals: A geographical indications-based intervention in the quest to end poverty

Author Tendai Mikioni

ISSN: 2521-2591
Affiliations: Doctoral Researcher, South African Research Chair: Intellectual Property, Innovation and Development, University of Cape Town
Source: South African Intellectual Property Law Journal, 2025, p. 108-124
https://doi.org/10.47348/SAIPL/v13/i2a5

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Tendai Mikioni
The clock is ticking for the Sustainable Development Goals: A geographical indications-based intervention in the quest to end poverty
South African Intellectual Property Law Journal, Volume 13 Issue 2, p. 108-124
https://doi.org/10.47348/SAIPL/v13/i2a5

Abstract

With less than five years remaining before the 2030 deadline, the world finds itself significantly off-track, particularly in realising Sustainable Development Goal 1: Ending poverty in all its forms everywhere. This paper investigates how intellectual property (IP) law, specifically geographical indications (GIs), can be leveraged as a strategic tool in the fight against poverty. By focusing on GIs, a unique form of IP that links products to their geographic origin and associated qualities, the paper highlights their developmental potential beyond commercial protection. Through a multi-jurisdictional analysis, including Penja Pepper (Cameroon), Gambian cashews, Darjeeling tea (India), and Karoo Lamb (South Africa), the study demonstrates both the realised and unrealised opportunities of GIs in uplifting communities and fostering local economies. While acknowledging that GIs alone cannot eradicate poverty, the paper argues that they can play a meaningful role in its alleviation by enabling sustainable livelihoods and economic resilience. One highlights the need to harness GIs as part of a broader strategy to meet SDG 1.

Prelims

AfCFTA and the calibration of trade mark post-registration use requirements

by | Feb 16, 2026 | SAIPLJ, SAIPLJ 2025 SE

AfCFTA and the calibration of trade mark post-registration use requirements

Author Thato Moloto

ISSN: 2521-2591
Affiliations: Lecturer, North-West University
Source: South African Intellectual Property Law Journal, 2025, p. 125-138
https://doi.org/10.47348/SAIPL/v13/i2a6

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Thato Moloto
AfCFTA and the calibration of trade mark post-registration use requirements
South African Intellectual Property Law Journal, Volume 13 Issue 2, p. 125-138
https://doi.org/10.47348/SAIPL/v13/i2a6

Abstract

Trade marks, while facilitating brand recognition and consumer trust, may also become trade barriers when unused registrations clutter national registries. Africa’s cluttered registries, dominated by dormant marks (often from non-African individuals or entities), impose disproportionate costs on local traders by raising barriers to market entry and hindering competitiveness. This article examines the proliferation of unused registered trade marks in Africa and their detrimental impact on intra-continental trade under the African Continental Free Trade Area (AfCFTA). Through an analysis of post-registration use requirements across selected states and registry data, the article proposes a harmonised AfCFTA framework that reduces the post-registration use period and automatic expungement for specific high-clutter classes. This calibration aims to purge unused marks, reduce artificial trade barriers, and foster authentic brand competition, thereby advancing the AfCFTA’s goals of economic integration and Agenda 2063.