Stealing a song is like stealing a car – let’s treat music rights as real property

Section 25 of the South African Constitution- Known as the Property Clause, it explicitly states that “property is not limited to land.”  This was a deliberate inclusion to ensure that intangible assets, like copyright in music, are equally protected.

Under the South African Copyright Act, a song is considered property. The case of Gallo Africa Ltd v Sting Music (Pty) Ltd confirmed copyright as movable property, much like a house. This means a musician can sell or license their song or pass it on to their heirs.

The Constitutional Court undoubtedly considered whether IP rights needed separate mention.  The Court concluded that IP is inherently covered under Section 25, reinforcing that artists' rights are as fundamental as landowners’ rights.  A composer’s intellectual creations deserve the same legal respect as a homeowner’s land.

South African courts consistently uphold that IP is property. The Laugh It Off Promotions CC v SAB International (2005) case recognised trademarks as a property right deserving constitutional protection.  Justice Albie Sachs highlighted the equal constitutional importance of IP rights.

The Supreme Court of Appeal ruled that trademarks, copyrights, and other IP forms constitute property for the purposes of Section 25. This means unfair removal or limitation of an artist’s copyright can invoke their constitutional property rights for protection.

South Africa’s approach aligns with international norms.  The Universal Declaration of Human Rights (UDHR) in Article 27(2) affirms creators’ rights over their works.

Reinforced by treaties:

• The International Covenant on Economic, Social, and Cultural Rights (1966), ratified by South Africa.
• The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) under the World Trade Organisation, mandates minimum standards for IP protection.

Recognising music copyright as property has significant implications:

Protection Against Theft & Exploitation: Unauthorised use, like sampling without permission or piracy, equates to theft.

Prevention of Unfair Laws: Drastic copyright limitations face constitutional scrutiny; protecting artists against unfair loss of copyrights as landowners are against unfair expropriation.

Monetization & Legacy: IP rights allow artists to license, sell, and transfer their music, supporting generational wealth.

Balance with Free Speech & Fair Use: IP rights are subject to reasonable limitations, such as fair use, balancing with free speech.

For too long, discussions on property rights have focused narrowly on land, overlooking the economic significance of intellectual property. In the digital economy, we now all need to be aware of our IP rights.

South Africa’s legal framework has affirmed copyright as property, but enforcement must be strengthened. Collaboration among music organisations, policymakers, and the creative sector is essential to equip musicians to enforce their rights.

To all South African musicians, composers, and creatives: Your music is not just a passion—it’s your property, protected under our Constitution like any other valuable asset.

As creators, we must ensure stronger enforcement of copyright laws, better royalty collection mechanisms, and resist any unfair legal challenges to our ownership. When thinking of property rights, picture your songs, your melodies, your hard work. In South Africa, your music is your property, and the law supports you.   

Nicholas Maweni is chairperson of SAMRO, chairperson of Valued Citizens Initiative, former chairperson of Amnesty International South Africa and Doctoral Law student, who writes in his personal capacity.