What is a copyright licence agreement?
Is a copyright licence agreement legally binding in South Africa?
“Section 22(3): “No assignment of copyright and no exclusive licence to do an act which is subject to copyright shall have effect unless it is in writing signed by or on behalf of the assignor, the licenser or, in the case of an exclusive sublicence, the exclusive sublicenser, as the case may be.” Section 22(4): “A non-exclusive licence to do an act which is subject to copyright may be written or oral, or may be inferred from conduct, and may be revoked at any time…””
“Section 20(1): “Notwithstanding the transfer of the copyright in a literary, musical or artistic work or in a cinematograph film, the author shall have the right to claim authorship in the work, subject to the provisions of this Act, and to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to the honour or reputation of the author.””
“Section 22(1): “Subject to the provisions of this section, copyright shall be transmissible as movable property by assignment, testamentary disposition or operation of law.” Section 22(2) allows an assignment or licence to be limited to some only of the acts the owner may control, to part only of the term, or to a specified country or geographical area.”
When you need a Copyright Licence
- When you let a customer, distributor or platform use software, an app, a database or other copyright work you have developed — a software licence is a copyright licence, and the scope of permitted use needs to be defined in writing.
- When you commission or supply creative work — logos, brand artwork, photographs, illustrations, marketing copy, video or music — and need to set out exactly who may use it, how, where and for how long, rather than leaving ownership and use to be implied.
- When you want to grant an exclusive right (for example a sole distributor, publisher or licensee for a territory): section 22(3) means the exclusive licence must be in a signed writing or it has no effect, so an exclusive deal cannot safely be done on a handshake.
- When you are licensing content for a fee or royalty — stock images, music, written works, courseware, franchised brand materials — and need clear payment, reporting and audit terms tied to the permitted uses.
- When raising investment, selling a business or doing due diligence, where a buyer or investor needs a clean, written record of which works the company may use and on what terms, especially for any software or brand assets it depends on.
What a Copyright Licence should contain
Licence grant: exclusive vs non-exclusive
A precise statement of whether the licence is exclusive, sole or non-exclusive, and exactly which acts it covers (copy, adapt, distribute, publish, perform, communicate to the public). This matters because an exclusive licence must be in writing and signed under section 22(3) of the Copyright Act to have any effect, while a non-exclusive one can be informal — so the grant should be unambiguous on the page.
Identification of the work and the owner
A clear description of the copyright work or works being licensed and confirmation that the licensor owns or controls the copyright in them. Because copyright arises automatically and is not registered in South Africa, the agreement (and any warranties of ownership and chain of title) is the practical proof of who may grant the licence.
Scope, territory and term
The permitted uses, the geographical area and the duration of the licence, mirroring section 22(2), which lets a licence be limited to some only of the owner’s exclusive acts, to part only of the copyright term, or to a specified country or region. Tightly defined scope, territory and term keep the licensee inside its permission and any use beyond them is infringement.
Royalties, fees and reporting
How the licensor is paid — a once-off fee, periodic licence fees, or royalties as a percentage of sales or per use — together with reporting, statement and audit rights so the owner can verify royalty calculations. For royalty-bearing licences, clear definitions of “net sales” or the royalty base, and the timing of payments, prevent the most common licensing disputes.
Sub-licensing and assignment
Whether the licensee may sub-license or transfer its rights, and on what conditions. The Copyright Act recognises exclusive sub-licences (which also need a signed writing under section 22(3)), so the agreement should state expressly whether sub-licensing is permitted, and require the licensor’s prior written consent where it is not freely allowed.
Moral rights and attribution
Acknowledgement of the author’s moral rights under section 20 — the right to be credited as author (paternity) and to object to derogatory treatment of the work (integrity) — which survive the licence. Where the licensee will modify or adapt the work, the agreement should address credit and any consent or waiver of moral rights to the extent the law allows, rather than assuming the licence overrides them.
Warranties, indemnities and infringement
Warranties that the licensor owns the rights and that the work does not infringe third-party copyright, an indemnity for breach, and a clear allocation of who may sue infringers. An exclusive licensee has the same rights and remedies as an owner and can sue in its own name, so the clause should record how owner and licensee co-operate on enforcement.
Term, termination and consequences
The events that end the licence (expiry, breach, insolvency, change of control) and what happens on termination — the licensee must stop using the work, return or destroy copies, and any continuing-use or sell-off period must be spelled out. For non-exclusive licences granted by contract, section 22(4) ties revocation to what the contract provides, so the termination terms control whether and how the licence can be withdrawn.
Copyright licence vs copyright assignment vs exclusive licence
| Feature | Non-exclusive licence | Exclusive licence | Assignment |
|---|---|---|---|
| What it does | Permission to use, owner keeps copyright and can license others | Sole permission to use, even excluding the owner; copyright still owned by licensor | Transfers ownership of the copyright |
| Formalities (Copyright Act) | s 22(4): may be written, oral or inferred from conduct | s 22(3): must be in writing and signed by the licensor | s 22(3): must be in writing and signed by the assignor |
| Who can sue infringers | Generally the owner; licensee usually cannot sue alone | Exclusive licensee has owner-equivalent rights and can sue in its own name | The new owner (assignee) |
| Can be limited | Yes — by act, term or territory (s 22(2)) | Yes — by act, term or territory (s 22(2)) | Yes — by act, term or territory (s 22(2)) |
| Moral rights (s 20) | Stay with the author | Stay with the author | Stay with the author despite transfer |
Common South African pitfalls
- Trying to grant an exclusive licence orally or by email without signature: section 22(3) of the Copyright Act says an exclusive licence (or assignment) “shall have effect” only if it is in writing signed by the licensor. An unsigned exclusive deal is not just risky — it has no legal effect, so the “exclusive licensee” has nothing it can enforce and cannot sue infringers.
- Confusing a licence with an assignment: a licence is permission to use; an assignment transfers ownership. Calling a transfer of ownership a “licence” (or vice versa) can leave a business thinking it owns a work it has only been allowed to use, or thinking it can re-license something it has actually given away. Get the label and the operative wording right.
- Leaving scope, territory and term undefined: section 22(2) lets a licence be limited to particular acts, a part of the copyright term, or a specified territory — but if the agreement is silent, the parties end up arguing about what was permitted. Vague grants invite disputes over whether a particular use, market or format was ever licensed.
- Assuming the licence wipes out the author’s moral rights: section 20 keeps the author’s rights to be credited and to object to derogatory treatment, even after the copyright is licensed or assigned. A licensee that modifies, crops or re-purposes the work without addressing attribution and integrity can breach those moral rights regardless of the licence.
- Forgetting ownership and chain of title: copyright in South Africa is unregistered and arises automatically, often vesting in an employer (s 21(1)(d)) or a commissioner of certain works (s 21(1)(c)). A licensor who does not actually own the rights cannot grant a valid licence, so warranties of ownership and a clear chain of title — especially for contractor-created or commissioned work — are essential.
- Ignoring sub-licensing and revocation terms: if the agreement does not say whether the licensee may sub-license, the position can be uncertain — and an exclusive sub-licence also needs a signed writing. Likewise, under section 22(4) a contractual non-exclusive licence can only be revoked as the contract provides, so a licensor who wants to be able to pull the licence must build that right into the contract.
Frequently asked questions
What is the difference between a copyright licence and a copyright assignment in South Africa?
A copyright licence is permission to use a work while the owner keeps the copyright; an assignment transfers ownership of the copyright to someone else. Under section 22 of the Copyright Act 98 of 1978, both an assignment and an exclusive licence must be in writing and signed, but a licence leaves the work in the owner’s hands while an assignment hands it over.
Does a copyright licence have to be in writing in South Africa?
It depends on the type. Section 22(3) of the Copyright Act 98 of 1978 says an exclusive licence has no effect unless it is in writing and signed by the licensor. But section 22(4) allows a non-exclusive licence to be written, oral, or even inferred from the parties’ conduct. So only exclusive licences need a signed writing; non-exclusive permissions can be informal.
Can a copyright licence be granted verbally or implied from conduct?
A non-exclusive licence can. Section 22(4) of the Copyright Act expressly says a non-exclusive licence may be written or oral, or may be inferred from conduct. So allowing a client to use a logo you designed, or a publisher to print your article, can create a non-exclusive licence even without a formal contract. An exclusive licence, however, must be in a signed writing.
What is the difference between an exclusive and a non-exclusive copyright licence?
An exclusive licence gives the licensee the sole right to do the licensed act — even the owner cannot do it or license others to — and the exclusive licensee can sue infringers in its own name. A non-exclusive licence lets the owner grant the same rights to as many people as it wants. An exclusive licence must be in writing and signed; a non-exclusive one need not be.
Can an exclusive licensee sue for copyright infringement?
Yes. Under the Copyright Act, an exclusive licensee has the same rights of action and remedies as if it were the owner, and can sue infringers in its own name, with those rights running concurrently with the owner’s. That standing depends on the exclusive licence being validly granted in writing and signed under section 22(3) — without that, the licence has no effect and no standing follows.
Do I keep my moral rights if I license my work?
Yes. Section 20 of the Copyright Act preserves the author’s moral rights — the right to claim authorship (paternity) and to object to distortion or derogatory treatment of the work (integrity) — even after the copyright is licensed or assigned. A licence does not automatically strip those rights, so a licensee who adapts or re-purposes the work should address attribution and any consent in the agreement.
Can a copyright licence be limited to a particular country, period or use?
Yes. Section 22(2) of the Copyright Act allows a licence (like an assignment) to be limited to some only of the acts the owner may control, to part only of the copyright term, or to a specified country or geographical area. This is exactly how scope, territory and term are set — and any use outside those limits falls outside the licence and can be infringement.
Who owns the copyright in commissioned or contractor work I want to license?
Not always the person who paid. For certain commissioned works — photographs, portraits, gravures, films and sound recordings — section 21(1)(c) of the Copyright Act gives ownership to the commissioner. For most other contractor-created work, the freelancer keeps the copyright unless they assign it in writing. Before licensing a work, confirm you actually own or control the copyright, or your licence may be worthless.
Sources & authority
- Copyright Act 98 of 1978, s 22 (assignment and licences in respect of copyright)
- Copyright Act 98 of 1978, s 20 (moral rights of the author)
- Copyright Act 98 of 1978, s 21 (ownership of copyright; s 21(1)(c) commissioned works)
- Copyright Act 98 of 1978 (full Act, lawlibrary.org.za)
This guide is general information, not legal advice. It reflects the law as at June 2026.