Copyright Law Notes

Learning Outcomes

Copyright

• Read about the historic development of copyright law on page 297 - 298.

Impact of Digital Technology on Copyright Law

• Digitization created an issue: Copyright law has not experience of dealing with mixtures of different kind of multimedia or digital information (0’s and 1’s).

• The digitization of works caused:

  • The creation of a homogeneous medium of storing and transmitting works

  • The merging of previously distinct classes of work into multimedia products

  • Difficulty in classifying multimedia products

  • Difficulty determining exclusive rights for each category of work when they are combined together (a musical work, a computer program and literary work for example)

  • Alteration of traditional use of copyright works by the process of digitization and networking.

Copyright Protection of Computer Programs in SA

• Computer programs are not static – they change continuously

• Case law on this is rather limited but we regard British case law as persuasive.

• Copyright Amendment Act of 1992 tried to bring copyright laws to be applicable to the digital world. Computers are thus excluded from “literary works” (where they are in included in other countries).

• Our SA Copyright Act specifically defines a computer program and amendment the definition of “author” to “the person who first made or created the work” – which would allow for a computer program as well.

• S21(d) states that the author of the program is the first person to whom the copyright belongs

• S19(2) allows a copy to be made for back-up purposes or when intended exclusively for personal or private purposes.

• A potential issue is that only the final form of the work would be protected as a “computer program” – whereas if it was included under literary works specification sheets, flow charts etc would have been protected as well.

• In order to avoid this issue, the Copyright Amendment Bill was passed. This bill implements a variety of international treaties but the bill is yet to be finalized. This bill also includes controversial clauses like state ownership of orphan works to be protected in perpetuity.

Copyright Infringement: Linking

• A method of using third-party content (available on the internet) to enhance a web page or CD-ROM.

• It is the practice of creating a link from one web page to another by means of a hypertext link.

• The mere created of a link itself does not infringe copyright – the underlined descriptive words on a web page that indicate a link is normally too few to constitute “a work”.

• But when a person clicks on the link his internet browser will download a full copy of the material, creating a copy in the RAM of his computer.

• Permission to download material via the link must be part of an implied license granted by the person who made the material available on the web in the first place.

• The scope of this implied license is the issue: there is no reason to assume that by putting copyright material on the Internet the copyright owner is by implication permitting surfers to re-use the material for commercial purposes.

• Linking could also have trade-mark infringement issues – in that it may explicitly or implicitly suggest an unwarranted association between the linked sites and lead a user to believe that a non-associated web page is affiliated by the trademark owner.

Copyright Infringement: Framing

• Framing is the practice of including large parts from another’s website in your own in such a way that those other parts look as though they are part of your website.

• It is the creation of a frame or window within a web page, and in this frame/window the content of a different web page is displayed.

• Frames can legitimately be used to help define a single content-provider’s web pages. But if frames are used to present third-party material from commercial sites, framing can have an effect similar to deep hyperlinking and copyright and trade-mark concerns will be evident.

• Copyright issues: a copy of the material is made in the computer’s memory and the use sees the original website content which may be copyright protected, framed by a different website with a different URL (and usually different logos and advertising).

• Trade-mark issues: it can potentially mislead or confuse viewers about the true origin of the framed site.

Copyright Infringement: Caching

• Caching is a form of copyright infringement – it is the storing of copies of material from an original source site (like a web page) for later use when the same material is requested again. (So you do not need to consult the original source again).

• There are 4 types of caching. For your own record, summarise the 4 types of caching that we get. (See page 330 – 331 of your TB)

The Digital Agenda

• The contribution of the internet in the creation and reproduction and use of artistic works and recordings has the potential to undermine the basis of copyright and related rights.

• This led to the adoption of WIPO (World Intellectual Property Organisation)’s treaties (WCT and WPPT – together named the “internet treaties”).

• The “Digital Agenda” was adopted by WIPO in 1999. It is 10 guidelines and goals that aim to provide solutions for the issues that come with this new digital age.

• The Digital Agenda enforces the internet treaties and aims to promote the adjustment of the international legislative framework.

• It aims to develop appropriate rules to determine the intellectual property liability of online service provides.

• Also read the African Digital Agenda on Learn!

Principles of Copyright Law: Exclusive Rights

• Copyright recognizes the author’s economic and moral rights to his works.

• Infringement of copyright may be direct or indirect:

  • Direct = a person does any of the actions specifically listed in the Copyright Act as being that of the copyright owner, without the permission of the copyright owner.

  • Indirect = a person knowingly and without consent, imports into SA (NOT for private and domestic use) an infringing copy that is already in existence.

• The right to make a reproduction: Only the owner of the copyright may make a reproduction. This includes the reproduction in digital formats. The word “reproduction” should be interpreted widely. Doesn’t matter whether the reproduction is temporary or permanent.

• The WCT does not address the reproduction rights. But they’ve incorporated that Berne Convention’s broad formulation of the right and this is wide enough to cover forms of copying.

• Publication:

  • The work must either have been made by a qualified person, or first published in a member country of the World Trade Organisation.

  • A digitized literary work meet the inherent requirements for copyright protection because s2(2) of the Copyright Act states that a work “represented in digital data or signals” complies with the requirement of material embodiment.

  • So the making available to the public reproductions of such work in digital format – is the same as making copies of the work.

  • Courts should interpret the law in a purposive manner – the fact that work can be accessed online as opposed to in printed format, should not have any effect on the copyright protection of the work.

• Communication to the public:

  • The control of the communication of digital works is as important as the control of copying.

  • The Copyright Act allows for the owner of the copyright may distribute his word by broadcasting it. But this excluded mobile-communication protocols, wired and wireless systems. Ex. Podcast via the web is not covered. So an exclusive right had to be devised to provide for these types of communications.

  • Article 8 of WCT granted copyright owner the right to control transmission of their works over the internet, including where the public may access it on demand interactively. It includes tv, radio, internet tv, simulcasting, webcasting, streaming, near-video=on-demand, pay-per-view, near-on-demand-pay tv, podcasting and online transmissions in general.

Principles of Copyright Law: Enforcement and Management of Rights

• Piracy of works is a real concern and authors are increasingly taking advantage of tech to protect their intellectual property – ex anti-copying devices, access control, electronic envelopes, proprietary viewer software, encryption, passwords, watermarking, fingerprinting, metering and monitoring of usage.

• Rights management: In terms of the WCT information which identifies the work, the author of the work and the owner of any right in the work is protected and contracting parties must provide adequate legal protection and effective legal remedies against the removal or alteration of such info and the dissemination of the works. It must also ensure that adequate legal protection and effective legal remedies are provided against the circumvention of effective technological measures.

• Anti-circumvention: In SA we follow the treaties and other countries and forbid the circumvention of technologies designed to protect copyright works.

• The EU: Copyright Directive – members must provide adequate legal protection against dealing in products and services that are designed for circumvention.

• In US: DMCA (Digital Millennium Copyright Act) takes this even a step further: both the circumvention-enabling acts and circumvention enabling devices are prohibited. There are a number of case studies in textbook p 340 - 342

Principles of Copyright Law: Enforcement and Management of Rights – Developing Countries

• SA was one of the signatories to the WCT but it took us some time to implement it in our own country.

• First partially introduced in 2002. S 86 of the ECTA constructed a new cyber-offence relating to interception and interference of data. (This is a anti-circumvention prohibition).

• Unlawful access is dealt with by S2(2) of the Cybercrimes Act.

• Copyright Amendment Bill 2015 has introduced the implementation of the wCT and WPPT (but remember not yet in action).

Liability for Infringement

• When we try to determine the liability of an online service provider (OSP) we must keep the law of delict and copyright law in mind.

• As such, there can be liability for acts or for omissions. There can be contributory damages, vicarious damages and inducement liabilities (inducement liability = inducing violation of copyright)

• An OSP’s liability will therefore depend on what role it played. Ex. If OSP makes unauthorized reproductions of a protected work (for technical reasons like caching) it may be liable for direct infringement of copyright. Or if it transmits or facilitates access to copyright-infringing material, it could be held liable for contributory infringement.

Limitation of Service-Provider Liability

• In contrast to the ECTA where “service provider” is “any person providing information system services, the Cybercrimes Act specifically uses “electronic communications service provider”.

• Section 54 of the Cybercrimes Act imposes reporting duties on such a provider: they have to report incidents within 72 hours and they have to a duty to preserve possible relevant evidence.

• It is a criminal offence if the provider fails to fulfill these obligations (Fine of $R50k$!).

Fair Dealing

• Copyright law does not give the author of a work an all- inclusive perpetual right against all imitators. Rather we seek to balance what is fair to both the creator and the cultural and economic development of society.

• Copyright law protects and balances the interest of an individual against those of the public – so “the public interest” may be your “get our of jail free” card.

• Social, economic, cultural and practical reasons (under public interest) may be reasons why the copyright material may be obtained without prior permission and even sometimes without payment to the author. This is “fair dealings” and is recognized in S12 of the Copyrights Act.

• The impact of contractual limitations

  • Pay-per-view is increasingly popular

  • We no longer buy our books/cassettes like we use to

  • License agreements often override copyright exceptions.

  • Licensors are not obliged to consider public policy regarding fair use and exceptions.

  • Licensors can also suspend your current and past resources if you do not pay/subscribe any longer

  • So works that are within the public domain or not subject to copyright, may not be accessible because they are “stuck” behind a technological protection measure (like payment of subscription).

  • Instituting pay-per use mechanisms without any exceptions for research and teaching will lockout most citizens of developing countries.

• Given that there are a number of laws that would prevent free flowing access to information, what do you think is the impact on developing countries? P363 in TB

So What About the New Proposed Bill?

• A new bill has been proposed to deal with many of the gaps left in our existing laws. Have a look at this video that will explain the proposed bill:

• https://www.youtube.com/watch?v=wzZLL4B43BM&ab_channel=Goethe-InstitutSubsaharanAfrica