Unlawfully downloading copyrighted videos and other content in South Africa would not legally be considered theft, three technology law experts have told MyBroadband.
This is despite a clause in the new Cybercrimes Act which states that theft of non-physical property should be treated the same as regular, common law theft.
“The common law offence of theft must be interpreted so as not to exclude the theft of incorporeal property,” Section 12 of the Cybercrimes Act reads.
While some legal professionals are of the view that this section of the Cybercrimes Act effectively criminalises unlawful downloading, or casual piracy, many others do not.
Preeta Bhagattjee, the director and sector head at Cliffe Dekker Hofmeyr for technology, media, and telecommunications explained that there is some nuance involved in interpreting clauses like Section 12.
Referring to the textbook definition of theft contained in Criminal Law by CR Snyman, Bhagattjee said that there are two important factors to consider — intent, and whether the property was truly appropriated.
This is because the definition reads, “A person commits theft if he unlawfully and intentionally appropriates moveable, corporeal property…”
The Cybercrimes Act allows you to apply this definition to incorporeal property. The debate therefore becomes about what the intent was of a person downloading the latest episode of their favourite TV show, and whether they truly appropriated it.
“According to Snyman, an act of appropriation has two elements in that the thief deprives the lawful owner or possessor of his property and then himself exercises the rights of an owner in respect of the property,” said Bhagattjee.
When downloading a copy of a movie, the actual owner of that movie is still technically in possession of it and is not deprived of the original copy.
“It can possibly be argued that the owner has been deprived of his exclusive right to the incorporeal property and that his incorporeal property right has been diminished by the unlawful copy, however, this point has not been developed in our law as yet,” Bhagattjee stated.
She also noted that under the Copyright Act, it likely won’t be an offence to simply download something.
This is unless it is subsequently distributed for purposes of trade or to the extent that it is distributed such that it “prejudicially affected” the owner, said Bhagattjee.
Downloading alone may therefore not technically be unlawful appropriation, and would not trigger the provisions of the Cybercrimes Act.
“The general definitions of unlawfulness and intention in the context of a crime would need to be considered — for intention, there must be clear intention where there is knowledge of wrongfulness,” said Bhagattjee.
There is also the issue that the Cybercrimes Act requires ISPs to report crimes committed using their networks to the relevant authorities within 72 hours.
Bhagattjee said that this provision in the Act may require that ISPs report incidents of piracy that they are notified of by copyright holders.
Dominic Cull, a telecommunications regulatory lawyer at Cape Town-based Ellipsis Regulatory Solutions provided feedback that broadly agreed with Bhagattjee, but he disagreed on the obligation of ISPs to report piracy.
He said that the Cybercrimes Act does not automatically require ISPs to report all categories of offences to the South African Police Service (SAPS).
Instead, the Minister of Justice and the Minister of Police must announce in the Government Gazette which categories of cybercrimes ISPs must report to the SAPS.
Another important issue to note, Cull said, is that the Cybercrimes Act specifically states that ISPs and financial institutions are not required to monitor clients’ communication over their networks. This is in-line with the provisions of the Electronic Communications and Transactions Act.
Cull also noted that the Cybercrimes Act is not yet in force.
While President Cyril Ramaphosa has signed it into law, he has not yet announced its commencement date.
Technology law specialist Nerushka Bowan came to similar conclusions as Bhagattjee and Cull, and stated categorically that copyright infringement was not theft.
“When downloading copyrighted material — for example, songs or series — you are not intending to deprive the owner permanently of the property, but you are rather creating an illegal copy of the material,” said Bowan.
Therefore, when downloading copyrighted material the requirements of theft are not met, though it is still copyright infringement.
Bowan added that the definition of common law theft on the SAPS website also specifically requires unlawful appropriation, and the intent to deprive the owners permanently of the property.
“ISPs do not have to actively monitor for copyright infringement, but if they do receive a valid take down notice in terms of Section 77 of the ECT Act requiring the removal of infringing content, they should investigate and comply if it is a valid complaint,” she said.
Bowan argued that since copyright infringement does not trigger Section 12 of the Cybercrimes Act, it means that ISPs will not be required to report it to the SAPS.