Whether or not “improper” content (which may include pornography) is copyrightable in South Africa is not very clear. This is according to information and communications technology lawyer Tobias Schonwetter.
The question of whether pornography can be copyrighted in the United States was raised again recently, with eyes on a case between an accused BitTorrent downloader and Malibu Media.
A similar case between Hard Drive Productions and nearly 1,500 defendants also raised this question, with some commentators saying that the legal argument was thin.
Schonwetter said that in some countries, immoral or improper content is not copyrightable, but added that he finds this problematic as he’s not sure who should and is qualified to make the call on whether content is “proper”.
“I am therefore glad that under South African copyright law no distinction is made between ‘good’ and ‘bad’ content,” Schonwetter said.
However, there is at least one South African case in which the court appeared to believe that no copyright subsists in improper content, Schonwetter said.
Schonwetter believes that this is the wrong approach. “Rather than denying copyright protection altogether for improper content, courts could deny enforcing the copyright in the work if content is found to be improper.”
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