Copyright Law Flashcards

Learning Outcomes

• LO9: Analyze copyright with reference to its historical development.
• LO10: Discuss the impact and consequences of digital technology on copyright law.
• LO11: Explain why digital can be said to be entirely different in the copyright context.
• LO12: Discuss how copyright law developed regarding computer programs in South Africa.
• LO13: Analyze “linking”, “framing,” and “caching” as forms of copyright infringement on the internet.
• LO14: Discuss legislative responses to the digital agenda.
• LO15: Analyze the various principles and concepts that govern topics of Copyright Law:
  • Exclusive rights
  • Enforcement and management of rights
  • Liability for infringement
  • Limitation of service-provider liability
  • Fair Dealing
• LO16: Analyze how electronic databases are legally protected and protected in terms of copyright law.
• LO17: Discuss relevant aspects of the EU Database Directive as an international initiative to protect electronic databases.
• LO18: Assess copyright protection of electronic databases in the South African context.
• LO19: Apply various concepts and principles of copyright law to a given scenario

Introduction

• Copyright Overview

Copyright

• Historical development of copyright law (Refer to pages 297-298).

Impact of Digital Technology on Copyright Law

• Digitization Issue: Copyright law has not dealt with mixtures of different kinds of multimedia or digital information (0’s and 1’s).
• Effects of Digitization:
  • Creation of a homogeneous medium for storing and transmitting works.
  • 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.
  • Alteration of traditional use of copyright works by digitization and networking.

Copyright Protection of Computer Programs in SA

• Computer programs are not static and change continuously.
• Limited case law exists; British case law is considered persuasive.
• Copyright Amendment Act of 1992 aimed to apply copyright laws to the digital world. Computers were excluded from literary works.
• The SA Copyright Act defines a computer program and amends the definition of “author” to “the person who first made or created the work”.
• Section 21(d) states that the author of the program is the first person to whom the copyright belongs.
• Section 19(2) allows a copy to be made for back-up purposes or when intended exclusively for personal or private purposes.
• Potential issue: Only the final form of the work would be protected as a “computer program”.
• The Copyright Amendment Bill was passed to avoid this issue. It implements international treaties but 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

• Linking: 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 via a hypertext link.
• Creating a link does not infringe copyright; the underlined descriptive words are typically too few to constitute a work.
• Clicking the link downloads a full copy of the material, creating a copy in the RAM of the 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.
• Scope of implied license 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: Including large parts from another’s website in your own, making them appear part of your website.
• It is the creation of a frame or window within a web page, displaying content from a different web page.
• Frames can legitimately define a single content-provider’s web pages, but using frames to present third-party material can raise copyright and trademark concerns.
• Copyright issues: A copy of the material is made in the computer’s memory, and the user sees the original website content framed by a different website with a different URL.
• Trade-mark issues: It can potentially mislead or confuse viewers about the true origin of the framed site.

Copyright Infringement: Caching

• Caching: Storing copies of material from an original source site for later use when the same material is requested again, avoiding the need to consult the original source.
• 4 types of caching. (See pages 330 – 331).

The Digital Agenda

• The internet's contribution to creating, reproducing, and using artistic works and recordings has the potential to undermine copyright and related rights.
• This led to adopting WIPO'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 providers.

Principles of Copyright Law: Exclusive Rights

• Copyright recognizes the author’s economic and moral rights to their works.
• Infringement 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 copyright owner's permission.
  • 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 Organization.
  • A digitized literary work meets the inherent requirements for copyright protection because section 2(2) of the Copyright Act states that a work “represented in digital data or signals” complies with the requirement of material embodiment.
  • 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 affect 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 the owner of the copyright to distribute their work by broadcasting it, excluding mobile-communication protocols, wired and wireless systems. For example, a podcast via the web is not covered. An exclusive right had to be devised to provide for these types of communications.
  • Article 8 of WCT granted copyright owners the right to control the 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 is a real concern, and authors are increasingly using technology to protect their intellectual property, such as anti-copying devices, access control, electronic envelopes, proprietary viewer software, encryption, passwords, watermarking, fingerprinting, metering, and monitoring of usage.

• Rights management: WCT protects information identifying the work, author, and owner, mandating legal protection and remedies against its removal or alteration, and against circumvention of effective technological measures.

• Anti-circumvention: SA follows treaties and forbids 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. Section 86 of the ECTA constructed a new cyber-offense relating to interception and interference of data (an anti-circumvention prohibition).
• Unlawful access is dealt with by Section 2(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 determining the liability of an online service provider (OSP), the law of delict and copyright law must be considered.
• Liability can arise from acts or omissions, including contributory damages, vicarious damages, and inducement liabilities (inducing a violation of copyright).
• An OSP’s liability depends on the role they played. For instance, if an OSP makes unauthorized reproductions of a protected work for technical reasons like caching, it may be liable for direct infringement. If it transmits or facilitates access to copyright-infringing material, it could be held liable for contributory infringement.

Limitation of Service-Provider Liability

• 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 offense if the provider fails to fulfill these obligations (Fine of R50k!)

Fair Dealing

• Copyright law balances the interests of the creator and society's cultural and economic development.
• "The public interest" may be a reason copyright material is obtained without prior permission or payment due to social, economic, cultural, and practical reasons.
• This is recognized as “fair dealing” in Section 12 of the Copyrights Act.
• Licence 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
• 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.

Fair Dealing impact

• 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).

New Proposed Bill

• A new bill has been proposed to address gaps in existing laws. (Proposed bill video available at: https://www.youtube.com/watch?v=wzZLL4B43BM&ab_channel=Goethe-InstitutSubsaharanAfrica).