The South African government plans to introduce legislation that places responsibilities on Internet service providers (ISPs) to help fight copyright infringement online.
These plans were revealed in a draft white paper which was published by Minister of Communications and Digital Technologies Stella Ndabeni-Abrahams on 9 October in the Government Gazette.
Titled “A New Vision for South Africa 2020“, the paper proposes a complete overhaul of the regulations that govern South Africa’s broadcasting industry, including issues around online piracy.
“There is a critical need for legislation that will impose requirements on ISPs to cooperate with rightsholders and government to police illegal file-sharing or streaming websites. Neither the Electronic Communications Act, nor copyright law currently cover this aspect,” the draft white paper stated.
“Piracy is damaging the South African creative industries and the economic contribution of sport events. Steps need to be taken to protect South African content and intellectual property rightsholders,” the paper said.
“Service providers, producers and performers in developing countries are harmed the most by piracy as they don’t have the economies of scale of international providers or distributors and are heavily reliant on the revenue generated by sale and the exploitation of their intellectual property rights.”
The white paper also proposed that the Electronic Communications and Transactions Act be amended to strengthen protection against signal piracy.
“There should be cooperation between government departments to ensure that statutory prohibitions against piracy and circumvention of technological protection measures are regularly reviewed to ensure they remain effective against the evolving technology solutions employed by persons engaging in the piracy of South African audio and audiovisual content,” the paper said.
According to the draft white paper, piracy results in revenue losses across the entire content distribution chain – whether it is the pirating of broadcasting signals or of content.
“Artists, performers, writers and producers of that content earn their living by being creative and charging service providers for the right to broadcast or stream their content,” the paper stated.
Another victim of piracy are the broadcasters and other content distributors in South Africa, it said.
“Licensed service providers in South Africa make significant investments in the acquisition or licensing of programming from third parties, which they arrange and package with their own content in creating their programme schedule,” said the draft white paper.
“If financial returns divert to signal and content pirates, it becomes difficult for service providers to continue to make these significant investments.”
The Cybercrimes Bill places an obligation on ISPs to report instances of piracy and preserve any information related to the incident which may be useful to authorities.
However, the Internet Service Providers’ Association of South Africa (ISPA) has stated that ISPs cannot be put under any obligation to monitor the traffic if their subscribers, in accordance with the Electronic Communications Act.
“ISPA does not believe that this is a correct interpretation of the Bill as it currently stands: rather it is an explicit provision of the Electronic Communications Act that ISPs are under no general obligation to monitor electronic communications conveyed over or stored on their networks – and they may be liable of a criminal offence if they do,” the organisation argued.
Another legal opinion is that although ISPs may not monitor the traffic of their clients, should they become aware through different means of copyright infringement being done on their network, they will need to report it to the police and preserve any evidence which may help the investigating officer.
The Bill requires that ISPs report such offences to the SAPS without any undue delay. Where feasible, ISPs must report offences within 72 hours of becoming aware of them.
The Cybercrimes Bill was recently passed by the National Council of Provinces and only awaits President Cyril Ramaphosa’s signature to become law.
The white paper, “A New Vision for South Africa 2020”, is currently in draft and the Minister has invited members of the public to submit comments on the policy by 30 November 2020.