SOUTH AFRICA Law and Practice Contributed by: Roberto Barreiro, André du Plessis, Sarah Suleman and Shaawn Phooko, KISCH IP
11. Appeal 11.1 Appellate Procedure
ed for persuasive value only and it is not set that the courts will follow them (ie, no stare decisis). South Africa does not have any specific laws (in respect of either trade marks or copyright) that address works created by AI and so the law is, to date, unclear/uncertain on who would be the author of works generated by AI. There are more questions than there are answers on this topic and arguments can be made for either side of the coin. For instance, the Copyright Act 98 of 1978 defines “author” as including crea - tors of “computer-generated works”. Given that AI-generated works have no human interven - tion (ie, creators), one can argue that they do not fall within the scope of “author” as intended by the Copyright Act 98 of 1978. However, the Copyright Act 98 of 1978 also provides that the “author” – for the purposes of “computer-gen - erated work” – includes the person responsible for making arrangements for the creation of the work. The meaning behind “making arrange - ments for the creation of the work” is open for debate and, on this point, one can argue that it covers AI-generated works. There are currently no landmark trade mark or copyright cases concerning AI. 12.2 Trade Mark and Copyright Use on the Internet In South Africa, where third parties (ie, service providers) make unauthorised use of a trade mark, they can be approached with a letter of demand to have the offending use removed. Service providers usually do require proof of registration before compliance. However, where service providers are not persuaded by a letter of demand (coupled with proof of registration), the trade mark/copyright owner can approach the court for relief and then use the court order to force them into compliance.
Trade mark infringement proceedings can be appealed to a full bench of the High Court of the Supreme Court of Appeal. A statement request - ing a leave to appeal needs to be filed. If leave is granted, then a notice of appeal must be served on all relevant parties within 20 days. Any party may then file a notice of cross-appeal within ten days of the notice of appeal being served. Copyright infringement proceedings are also appealed to the Supreme Court of Appeal. 11.2 Timeframes for Appealing Trial Court Decisions A trade mark infringement decision can be appealed in the High Court within three months following receipt of written reasons from the Registrar. The decision may be handed down between 18 and 24 months after filing an appeal, depending on where the roll at court is. A party must file a notice of appeal with the Reg - istrar of the Supreme Court of Appeal within one month following the granting of the judgment in copyright infringement proceedings. A deci - sion may be handed down between 12 and 18 months after filing and appeal. 12. Additional Considerations 12.1 Emerging Issues There are currently no emerging issues concern - ing trade marks and copyright in South Africa. When it comes to emerging issues, South Afri - can courts generally refer to decisions of those foreign jurisdictions that share the same com - mon law approach. Even then, these can be cit -
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