E-mail: Roadblock warning [Archive]

Myrrdin

25-02-2004, 02:16 PM

Hi there.

There are several inconsistancies in this story and is probably a hoax related to several things working together.

1. The concept of searching the car instead of just checking licences is in response to the following statement by the AA on IOL

http://www.iol.co.za/index.php?sf=13&click_id=13&art_id=ct20030418211205849P430451&set_id=1

Roadblock arrests are 'illegal'- AA

April 18 2003 at 09:12PM

By Lumka Oliphant

Arrests for outstanding traffic fines, carried out at roadblocks, are illegal. The Automobile Association, confirming a chain email allegedly written by a lawyer, said the widespread action by Metro Police in Johannesburg was in violation of the law. Another lawyer, who works for the Road Accident Fund, concurred with the AA.

The email is entitled: "Know your rights, this was sent out by an attorney who was recently in the same situation."

According to the lawyer: "The Joburg Metro Police and other traffic cops have recently developed the nasty habit of locking people up for unpaid fines.

An elderly woman was locked up for a weekend
"They can only do this if:

They have the original warrant for your arrest there with them. A copy isn't good enough, saying it's at the station isn't good enough either - they have to show it to you there and then.

They can prove that you received the summons. It either had to be delivered to you in person or you had to collect a registered letter from the post office.

"If you do get stopped and they want to arrest you, demand to see the warrant and proof you received the summons. If they don't have it, the arrest is illegal. Refuse to go. If they still arrest you, inform them there and then you will press charges against them for illegal arrest. When you are released, go to the SAPS (South African Police Service) immediately and lay a charge against them".

Confirming claims made in the email, AA spokesperson Gary Ronald said that this was an issue that had been cropping up from time to time.

'We don't just simply arrest'
"It is true that traffic officers are acting illegally," he said.

Ronald said traffic officers throughout the country were doing it. He said, however, that it was a very difficult issue to contest because the traffic officers always found some reason to arrest motorists.

"It is almost guaranteed that you will be arrested for something else," said Ronald.

He said most of the time traffic officers were not empathetic towards motorists and quoted a case where an elderly woman was locked up for a weekend.

His views were echoed by an attorney who works for the Road Accident Fund. "Traffic officers are acting outside the law because they are supposed to show you the original warrant for your arrest," she said.

Wayne Minaar, spokesperson for the Johannesburg Metro Police, dismissed the claims of illegality as "utter nonsense" and said the process they were following gave them the right to arrest an offending driver.

"We don't just simply arrest.

"A person is first given a notice for the offence, followed by a summons to appear in court which is served," said Minaar.

He said if a person ignored the summons, a warrant of arrest was authorised by a magistrate for contempt of court.

"If a traffic officer stops an offending driver and can confirm that there's a warrant issued, the officer can arrest the offender for contempt of court and for having failed to pay a fine on a set date as determined by the court," he said.

He said an offending driver would only be released if both the fine for contempt of court and traffic offence had been paid.

2. As for the amounts indicated by the post see the following extracts from copyright law.

INFRINGEMENT

The Act provides for two types of infringement, that is, primary or direct infringement on the one hand and secondary or indirect infringement on the other.

Primary or direct infringement occurs when any person, not being the owner of the copyright in the work, and without the licence of the owner, does, or causes to be done, any of the acts which the owner of the copyright is authorised to perform, i.e. the so-called "restricted acts". Lack of knowledge or intention on the part of the infringer is no defence to such an action. Copyright is infringed when any of the restricted acts are performed in relation to the whole work or any substantial part of the work. What in any given situation constitutes any substantial part of a work depends on the circumstances. The courts have held that the test as to what constitutes a substantial part of a work is a qualitative and not a quantitative one. Taking a small but essential part of a work can constitute taking a substantial part of that work.

For infringement by means of reproduction to occur actual copying must take place. Making a similar work or even an identical work does not constitute infringement if the later work is not produced by copying the earlier work but is produced independently.

Secondary or indirect infringement occurs when any person, without the licence of the owner of the copyright, imports an article into the Republic of South Africa for a purpose other than his private and domestic use, sells, lets or by way of trade offers or exposes for sale or hire in the Republic any article, or distributes in the Republic of South Africa, any article for the purposes of trade or any other purpose, to such an extent that the owner of the copyright in question is prejudicially affected thereby, if, to his knowledge, the article is an infringing copy, i.e. the making of that article constitutes an infringement of the copyright or would have constituted such an infringement if the article had been made in the Republic; in the case of a computer program a further secondary act of infringement can occur when someone acquires an article relating to a computer program which is an infringing copy. So-called "guilty knowledge" is a prerequisite for an indirect copyright infringement. Importing and trading in so-called parallel imports can constitute an indirect act of copyright infringement. In either case, the copyright owner is entitled to an interdict and delivery-up of infringing copies or plates.

Damages are available except where the defendant can show that he was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work.

Depending on the extent of the infringing activity, damages could be significant. The quantum of damages must be based on normal delictual principles or can be based on the amount of a reasonable royalty. In the former case the damages must be established on the basis of the actual damages suffered by the patentee i.e. his loss of profits. These damages are aimed at awarding the copyright owner such compensation as will restore him to the position he would have been in had the infringement not taken place. It is important to note that the copyright owner's loss of profit is not necessarily equivalent to the profit made by the infringer. Furthermore, there is no automatic inference that the copyright owner would have himself effected all the infringing sales but for the infringement. In the circumstances, while the legal principles on which a damages claim are based are simple, the factual proof thereof can often be extremely complicated. In short, the enquiry usually is whether, on all the evidence as to use, the plaintiff has proved on a balance of probabilities

a) The extent of the infringement, i.e. the quantity of infringing articles sold by the defendant,
b) The proportion of them the plaintiff could and would himself have sold but for the infringement and
c) The profit the plaintiff would have made on selling them.

In many cases the quantum of damages which should in fairness be paid by the infringer is what he would have paid, by way of royalties, had he been a licensee. The Copyright Amendment Act, 1992 introduced this alternative means of damages by specifically including a reference in the Copyright Act to the effect that damages in infringement matters may be calculated on the basis of the amount of a reasonable royalty which would have been payable by a licensee or sub-licensee in respect of the exercise of the relevant rights of copyright by some other person.

The Act also provides for an award of punitive or additional damages in circumstances where the court, having regard to all considerations including the flagrancy of the infringement and any benefit shown to have accrued to the defendant by reason of the infringement, is satisfied that effective relief would not otherwise be available to the plaintiff.

CRIMINAL PROVISIONS

It is a criminal offence, when copyright subsists in a work, to make articles by way of trade, or to import, sell, hire, distribute or trade in articles with knowledge that such articles are infringing copies of the work. The Act also makes provision for certain other forms of criminal copyright infringement.

EXEMPTIONS FROM INFRINGEMENT

The Act provides for a number of exceptions to the rights granted to copyright owners. The exceptions or exemptions include use for research, private study and reporting current events, provided that the source is mentioned and provided that a substantial part of the work is not copied, use for purposes of judicial proceedings, use for teaching, etcetera.

A very important exception relating to artistic works is that the copyright in an artistic work, of which three-dimensional reproductions have been made available, whether inside or outside the Republic of South Africa, to the public, by or with the consent of the copyright owner, shall not be infringed by any person who, without the consent of the owner, makes or makes available to the public, three-dimensional reproductions or adaptations of the authorised reproductions, provided that the authorised reproductions primarily have a utilitarian purpose and are made by an industrial process. This exception was introduced by the Copyright Amendment Act of 1988 and came into operation with retrospective effect from 25 September 1987. The effect of this exception is that the protection granted to technical drawings and works of craftsmanship of a technical nature is for all practical purposes, negligible.

In the case of a computer program there is a special exemption which enables the licensee of a computer program to make back-up copies of that program to an extent reasonably necessary and provided those back-up copies are intended exclusively for his personal private purposes. The back-up copies must, however, be destroyed when the licence in respect of the computer program terminates.

In addition to that :

An infringer of copyright is liable for the copyright owner's actual damage and profits of the infringer, or statutory damages under Section 504. Because the infringer is only reproducing the pirated digital audio copied recordings and not actually distributing them, there would not be any profits and at R7 per song very little actual damage. In fact, the actual damages would be so low that taking the case to trial may cost more than it is worth.

Finally, under Section 505, if the copyright owner takes a case to trial they can receive attorney's fees and costs if they are victorious at trial. (But, if the copyright owner would lose, they could be held responsible for the defendant's attorney's fees and costs.)

So my assesment would be that if you know the law dont be fooled by the cops if they stop you. I dont put it beyond them to once again use the SA citizens lack of knowledge of the law to make some quick bucks. So they would rather persue people who actually reproduce music and sell it.

Swonk taht eno ylno eht si nidrrym.