In 2007 the Electronic Law Consultancy revealed “the big secret” that piracy in South Africa wasn’t a crime.
This isn’t always true, explains Lance Michalson from Michalson’s Attorneys.
Referring to Section 27 of the Copyright Act of 1978, Michalson points out that “acquiring pirated material from the internet is not per se a criminal offence, if you acquire it for personal use.”
So downloading or buying pirated material can’t result in criminal charges being laid against you, though copyright holders can claim damages from you if they want.
“Distributing those materials, even for free, is a crime,” Michalson stated.
“Over and above the damages you would have to pay the copyright holders and you would face criminal penalties as well,” he added. Michalson indicated that the criminal penalty can include a fine as well as some time in jail.
Those that use BitTorrent to download files over the Internet know that it’s usually impossible to download without uploading (or seeding) as well.
Michalson argues that under South African law the nature of the peer-to-peer (P2P) protocols like BitTorrent automatically makes downloaders distributors too, and hence criminals.
Some might argue that for private use the small portions of copyrighted works uploaded would constitute “fair dealing,” said Michalson.
“Fair dealing” is a concept in South African copyright law similar to the Fair Use provisions in US law, but with more limitations, Tobias Schönwetter, legal lead of Creative Commons South Africa, has explained.
Michalson agrees with Schonwetter that the “fair dealing” concept isn’t well defined and that no South African case law exists to help make it clearer. He believes, however that a “fair dealing” defence would fail.
While poorly defined, it is clear that “fair dealing” only applies to private use and doesn’t apply to all forms of copyright (such as sound recordings), explained Michalson.
“Because of these limitations on fair dealing I would imagine that the ‘fair dealing’ defence for digital piracy, where the user distributes works would fail,” concluded Michalson.
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