Copyright and the

Internet
Lecture 9
What is a copyright?
• Copyright is an unregistered protection offered to a certain number of
works which are products of intellectual activity to protect these
works from infringement through the grant of a number of economic
and non-economic rights.
What is eligible for copyright?
• Literary works
• Musical works
• Artistic works
• Sound recordings
• Cinematograph films
• Sound and television broadcast
• Programme carrying signals
• Published editions
• Computer programs
• Traditional works
What are the Requirements for
Copyright?
A copyright does not have to be registered for it to be protected. The
basic requirements are:
• Originality
• Morality
• Materiality
• Author
• A qualified person- South African citizen or domiciled in South Africa or a
body incorporated in South Africa.
• Publication-Works issued to the public with consent of the copyright owner in
sufficient quantities to meet the needs of the public.
 Assignment and Licences
• Copyright is movable property and can be passed by testamentary
disposition testamentary disposition and operation of law
• Assignments and licences are crucial to third party engagement with
copyright
• Copyright Act gives sound recording copyright owners the right to
authorise or control the use of a sound recording in broadcasts and
public performances
• Collective Management Organisations licence third parties on behalf
of copyright owners.
Infringement of Copyright
• Performing exclusive acts
• Copying
Defences against claims of
Copyright Infringement
• Use for research , study, private use, criticism, review and the reporting of current events
• Judicial proceedings
• Quotations
• Illustration
• Reproduction and archiving by broadcasters
• Lectures and similar works
• Articles on current economic, political or religious topics
• Official texts
• Adaptations
• Fair Use?
• A New York federal judge ruled that Hip-Hop Artist Drake was protected by copyright’s fair use doctrine when he sampled a
spoken-word jazz track on his 2013 song “Pound Cake,” saying the artist had transformed the purpose of the clip. Drake
used 35 seconds of Jimmy Smith’s 1982 “Jimmy Smith Rap” without clearing the clip, but Judge William H. Pauley said
Drake’s purpose in doing so was sharply different from the original artist’s goals in creating it.
Cont…
• Demonstrations
• Broadcasting films
• records of musical works
• Incidental use of artistic works
• Reconstruction of work of architecture
• Three-dimensional reproduction of utilitarian works
• Sound tracks associated with cinematograph films
• Backup copies on computer programme
• Reasonable reproductions
Rights Granted by Copyright
• The Copyright Act lists the exclusive rights that attach to a copyright owner
(Rights of each copyright work is listed) to do or authorise the doing of the
following:
• Reproduction
• Publishing
• Performing the work
• Broadcasting the work
• Adaptation
• Including the work in a cinematograph film
• Causing the work to be transmitted in a diffusion service
Remedies for copyright infringement
• Interdict
• Damages
• Reasonable royalties
• Delivery
Cyberspace and copyright
Effect of digital technology
• The development of digital technology has produced unique challenges insofar as the impact that it
has had on the implementation of copyright
• Copyright has, up to this day, managed to adapt to the introduction of technology such as computers
and photography.
• Digitization wok to be effortlessly copied, distributed, transmitted, manipulated, combined, edited
and stored. It also allows convergence of copyrighted works into a single work in digital form and its
immediate dissemination to millions of users
• Its no longer possible to clearly distinguish the act of digital copying from the distribution of a work ,
nor is it possible to identify a digital copy from its quality which makes it difficult to to enforce
copyright in the digital domain.
• What makes digitized content different is that the core products are infinitely renewable and reusable
making the roles of the user and the user interchangeable.
•.
Cont …
• The digitization of works has, among others, the following consequences :
• -it creates a homogeneous medium for the storage and transmission of
works
• -it allows the merging of previously distinct copyrightable works into
multimedia works
• -classification of multimedia works becomes difficult.
• It is virtually impossible to detect who actually infringed the relevant
copyright because of the manner in which digital media operates
• Not withstanding the influence of digital technology, copyright continues to
subsist irrespective of the form in which the work is stored
Infringement in cyberspace
1. Typical infringing conduct
2. Copying and reproducing
3. Publication and communication to the public
 Computer programs
• The Copyright Act of 1978 (as amended) recognizes a computer program
as a separate copyright work in both source code object code form
• A computer program is defined in s1 of the Act as a set of instructions
fixed or stored in any manner and which when used directly or indirectly
in a computer, directs its operation to bring about a result
• A computer program will qualify for copyright protection only if it is
translated into material form, ie either source code, object code or both
• An infringement exists when the similarity is qualitative and not
quantitative
 Electronic databases
• As a general rule, copyright protects the expression of ideas but not
the ideas themselves, so facts or raw data will probably not be
protected by copyright
• however, where these facts or data are selected and arranged, the
resulting work may be protected
• An electronic database is an organized collection of recorded data or
information in electronic form which facilitates access to and use of
such data or information
• According to Van der Merwe (2008), electronic databases form the
cornerstone of information technology
Copyright protection
• Irrespective of the format of a database (physical or digital), it has to
comply with the requirements of the copyright Act in order to qualify
for copyright protection
• In this context, databases are categorized as literary works and the
requirement of originality plays an important role before copyright
can subsist in terms of the Act
• In order to be original the database has to be the product of some
judgment , labor and skill
• Other jurisdictions adopt varying tests for originality
Other protection
In the US – non-copyrightable databases can be protected using the principles of
unfair competition
EU database directive
• The EU has adopted a Directive to process copyrightable databases in order to
stimulate investment in databases
• In order to qualify for protection, a copyrightable database should display the
following requirements:
-a collection of independent works
-it must be systematically or methodically arranged
-the works or data must be individually accessible by electronic or other means
Websites
• To avoid confusion, a distinction must be made between pre-existing works and
developed work, which is the work that is specifically developed by the website
developer for the website owner.
• Its also vital to consider public domain works (works used in the development of the
website, but are not copyrighted, such as works where the copyright has expired)
• The author of a website is the person who exercises control over the making of the
website.
• where literary, musical or artistic work forms part of the website then the author would
the person creating such works
• The identity of the author of a website is a question to be determined on the facts of
each situation.
• The author could be a person other than the owner.
 Websites cont …
• Where the owner doesn’t also own the copyright but would like to assume ownership of the website ,
its advisable that he takes assignment of the copyright in every component of the website
• such should be dealt with in the website development agreement to avoid dispute
• Sometimes the website developer, in creating the website, may wish to use information that belongs
to a third party
• To the extent that the party on whose behalf a website is created relies on content provide by a third
party , so called pre-existing works, he should ensure that the 3rd party owns the material provided
• If the website developer is not is not the copyright holder of the material used, the copyright holder
should be required to provide suitable warranties , backed by indemnities to the effect that the
developer has obtained a licence from the owners of the Intellectual property in the works
authorizing the developer to use such works in the website
• The same applies when the website owner directly contracts with any other third party to provide
material to be put on the website
 Internet Copyright infringement
Modes of infringement
• Linking
• Framing of online content
• Caching
 Linking and framing
• The software that enables the internet to function allows information to be hyperlinked, which is
also the key characteristic of the World Wide Web
• A hyperlink is a cross reference (in a distinctive font or color) appearing on a webpage which when
activated by pointing or clicking with a mouse, brings onto the computer screen another webpage
• A link has 2 ends and a direction which starts at the source end and points to the destination point
which could be an image, a video clip, a sound bite etc
• There are at least 3 kinds of links that can be made with HTML:
-simple Hypertext Reference links (merely directs user to the next linked webpage)
-In-lined image (IMG) links (enables graphics to be visible on the screen as part of the main
body of a web document even though they originate from elsewhere)
-Framing (enables website developers to create links between webpages so that documents
can be represented in multiple views or frames, each of which can act independently)
Linking and framing cont …
• it is unlikely that the mere creation of a basic link can constitute a copyright infringement because copyright would
probably not subsist in a URL.
• Only copyrightable linked material can give rise to possible copyright infringement
• When browsing, a complete copy of hyperlinked copyrightable material is copied to the computer’s temporary
memory ( the copy being made possible by the publication of the link) which indicates a possible indirect copyright
infringement.
• There are two counter arguments to this potential infringement:
• -The material is placed on the internet for use and the author must have reasonably foreseen that it would be
susceptible to use and copying within the digital domain and that thereby a limited implied license is created, unless
the material is used for commercial purposes
• -an HREF link to another website does not cause a copy of the linked page to be created on the web server of the
person who created the link
• An implied license can only be inferred if the parties had a license in mind but did not express the terms of such
license but would have done so if the matter was raised
• It can also be implied if it is fair or in the interests of the rule of law or policy , thus it could be argued that
hyperlinking can be in the public interest and therefore lawful
Peer-to-peer file-sharing cases
• eg the sharing of music and video files
• Read:
-Sony Corp of America v Universal City Studios, Inc
-Napster case
-MGM v Grokster
Caching
• Caching consists of storing of copies of material from an original source or site for later use thereby making the repeated retrieval
of the relevant material unnecessary
• Examples:
-mirror caching
-Web caching
-proxy caching
- User caching
• Caching has the potential of infringing on copyright by virtue of copying, distributing and publicly displaying copyright material
• Caching infringes a copyright holder’s entitlements to reproduction and communication where the material is cached and
displayed on another website other than the website where the cached material originated
• Many countries have legislated to allow temporary and ephemeral reproduction and caching as part of the normal use of digital
technology
• The internet would not function without information location tools or search engines as they are critical to accessing the
knowledge and information on the internet
• Search engines organize and provide access to material by reproducing copyrighted content that is made available by third
parties which raises issues of infringement
Liability for Intellectual property
rights infringement and unlawful
acts
Bases of liability
• Cyberspace has created a new environment which impacts on liability
for the infringement of IP rights and unlawful conduct
• Its not only the wrongdoer who maybe liable but also an online
service provider (OSP)
• The normal legal principles of private and criminal law apply
undiminished
Contributory and vicarious liability
for copyright infringement
• Contributory liability arises where copyright infringement is not directly
committed by a person but where it is considered equitable to hold such a
person liable for the actions of another
• There should be knowledge of the infringing activity and that the conduct of
a person induces, causes or materially contributes to the infringing conduct
of another
• In the case of vicarious liability an employer-employee relationship needs not
exist (deviation from what is recognized as vicarious liability in RSA)
• In order to be vicariously liable, the party being held vicariously liable must
have supervisory authority and a financial interest, but actual knowledge of
the infringement is not a requirement
Inducement liability
• Arises where a party intentionally induces violation of a copyright eg
by distributing a device which promotes copyright infringing conduct
RSA law
• In addition to an infringer being held liable, a person who participates
in, assists or promotes damaging causing conduct may be held
delictually liable
Liability of Online Service Providers
(OSPs)
• such liability needs to be judged on its own conduct and the role it
plays in a possible infringement or unlawful act
• If it actively engages in infringing conduct , it may be held directly
liable
Creative Commons
• A way of avoiding disputes over rights in digital products is offered in
open access licensing systems such as Copyleft and creative commons
• The Creative Commons system gives everyone a standardized way to
keep their copyright while allowing certain uses of their work which
makes their creative, educational and scientific content instantly more
compatible with the full potential of the internet.
conclusion
• Copyright law faces new and unique challenges created by new
technology and in this regard innovative adaptation of current legal
principles and augmentation of existing law is required.