Beware! Personal copying can get you sued

Copying a movie or game for which you own a license, even if only for personal use, can get you sued according to the Southern African Federation Against Copyright Theft (SAFACT).

SAFACT outlines the various degrees of illegality of copying movies and games on its PiracySucks.co.za website, noting that uploading, and distributing copies are criminal offences.

Attorneys from Chetty Law (who have since been absorbed into PricewaterhouseCoopers), and Michalsons previously told MyBroadband that while downloading copyrighted material isn’t criminal, uploading or otherwise distributing such content is.

The implication of this is that piracy over peer-to-peer technologies such as BitTorrent is a crime in South Africa as it typically requires that you “seed” or upload files to other users while you download them.

The criminal penalty for copyright infringement in South Africa is as follows:

• R5,000 and/or 3 years imprisonment for each copyrighted item distributed in the case of a first conviction.
• R10,000 and/or up to 5 years jail time per copyrighted item otherwise.

Downloading content is not criminal, but Nicholas Hall from Michalsons Attorneys previously told MyBroadband that copyright owners would have a claim against you for damages. These damages will usually amount to the purchase price of the goods in question, Hall said.

Similarly, making a copy of a movie or game for personal use could also be used as grounds for civil action by the copyright owner against you.

Hall explained that this is because movies, referred to as “cinematographic films” in copyright law, specifically aren’t allowed to be copied for personal use.

Games, on the other hand, have been considered “cinematicographic films” for the purposes of copyright after a supreme court ruling in 1996. This is despite video games better fitting the definition of “computer programs” in South African copyright law, Hall said.

Fair dealing explained

To understand the limitation of “fair dealing” in South Africa with regards to movies and games, Hall said that one needs to look at copyright law a bit more generally.

Hall explained that “fair dealing” is South Africa’s take on “fair use”. The most important thing to remember, Hall added, is that the the nature of the work will alter what copyright law applies to it.

For example, movies (cinematographic films) have different copyright laws to paintings (artistic works), which are different from the copyright laws that apply to software (computer programs).

“The vast majority of the law is the same for all works, regardless of the nature of the work, but there are important differences,” Hall said. “One of these important differences relates to when and how fair dealing applies to copies of those works.”

The “basic” fair dealing clause in terms of personal copies is found in Section 12 (1) (a) of the Copyright Act which lets people to make copies of literary or musical works for “research or private study […], or the personal or private use of, the person using the work” provided that such copying is “fair”.

“Here we come across the first problem with fair dealing in SA law,” Hall said. “We don’t actually know how much copying and what circumstances makes a copy ‘fair’ in these instances since we have had next to no case law dealing with the matter, and the act doesn’t define ‘fair dealing’ or ‘fair’ any further.”

The second issue, Hall explained, is that while nearly all other types of works make reference to this section to determine when one can fairly make copies of a work, cinematographic films are specifically excluded.

“This means you cannot make copies of movies for personal use that would be considered as ‘fair dealing’,” Hall said.

Sound recordings are another example of content that specifically exclude this fair dealing provision. This means it is illegal (but not criminal) to rip your CDs to a file format such as MP3.

Games are movies, not software

Software programs also exclude this fair dealing provision, but the law does allow you to make copies of a computer program for backup purposes, Hall explained.

However, Hall went on to point out that in the only court case in South Africa that deals with copyright infringement of video games (Golden China TV Game Centre and Others v Nintendo Co Ltd), the court said that video games have the copyright protection of “cinematographic films” and not “computer programs”.

“So in terms of our copyright law, video games are treated the same as movies,” Hall said.

“In short, in terms of South African copyright law, one cannot make copies of movies or games for personal use, even under our ‘fair dealing’ exceptions.”

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