South African Cybercrime Bill Would Throw the Book at Copyright Infringers

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South African Cybercrime Bill Would Throw the Book at Copyright Infringers

Last month South Africa released its draft Cybercrimes and Cybersecurity Bill for public comment; the latest in a wave of such laws that has been sweeping the continent and beyond. EFF is currently reviewing the Bill with a view to sending a submission by the deadline of November 30, and we'll have more to say about it before then.
 
The drafters of this South African Bill need to take it down a notch. The right place for copyright enforcement measures is not in a cybercrime law, it's in the copyright law—which is already under review. And the copyright law already contains comprehensive criminal enforcement measures, to which this latest proposal would add nothing—other than newly criminalizing individual users for isolated and small-scale infringements. Criminal liability for copyright infringement is already extensive enough, without branding small-scale bedroom infringers as cybercriminals.
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could not agree more
but unfortunately this comes (mostly) from the Budapest Cybercrime Convention where the EU and US entrenched a copyright infringement crime

itle 4 – Offences related to infringements of copyright
and related rights

Article 10 – Offences related to infringements of copyright and related rights

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of copyright, as defined under the law of that Party, pursuant to the obligations it has undertaken under the Paris Act of 24 July 1971 revising the Bern Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright Treaty, with the exception of any moral rights conferred by such conventions, where such acts are committed wilfully, on a commercial scale and by means of a computer system.

2 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of related rights, as defined under the law of that Party, pursuant to the obligations it has undertaken under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention), the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Performances and Phonograms Treaty, with the exception of any moral rights conferred by such conventions, where such acts are committed wilfully, on a commercial scale and by means of a computer system.

3 A Party may reserve the right not to impose criminal liability under paragraphs 1 and 2 of this article in limited circumstances, provided that other effective remedies are available and that such reservation does not derogate from the Party’s international obligations set forth in the international instruments referred to in paragraphs 1 and 2 of this article.
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the clause in the Cybercrime and Cybersecurity Bill will be enthusiatically opposed and there seems to be some wiggle room
 
Surely they mean thowing the Kindle at copyright infringers..? :erm:
 
Of course, this puts downloading by torrents into a different ball-game - for a certain period of time you ARE actually uploading content too.
 
Pythonista said:
Of course, this puts downloading by torrents into a different ball-game - for a certain period of time you ARE actually uploading content too.
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It could be argued though, that...

1) that is an unavoidable feature of the BitTorrent software
2) many novice users are unaware that they are actually sharing the file
3) there was no criminal or malicious intent on the user's part to make the file available
4) it is not a complete portion of the file, and therefore technically unusable to the other downloader.
5) there was no intent to profit from the action
 
What I find more interesting in this is that it creates a disconnect between an offence in the physical world and that in the digital/online domain, e.g. if I sell rip-off t-shirts out of my car boot at the Saturday flea market, I'm violation the original owners' copyright as well as trafficing in fraudulent goods. The former is a civil case and the copyright owner has to the right to sue me for damages/lost income/etc. The latter is a criminal case, as far I believe, and I can be locked up and/or fined for that.

With the new bill, if I were to sell those same t-shirts online, both would be criminal offences with significant harsher penalties just because the digital domain was involved. This, as far as the law goes, sounds patently not right. IANAL and would love to have others' more informed opinions on it.

PS: Another thing to ponder is that criminal cases are investigated/prosecuted at the state's expensive. After all, the state acts as agent for the greater society in that sense. The change implies the state's resources would now be employed to prosecute what used to be civil cases. The US courts, as an example, are inundated with these ostensibly civil prosecutions.
 
fuzzieza said:
PS: Another thing to ponder is that criminal cases are investigated/prosecuted at the state's expensive. After all, the state acts as agent for the greater society in that sense. The change implies the state's resources would now be employed to prosecute what used to be civil cases. The US courts, as an example, are inundated with these ostensibly civil prosecutions.
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I think a copyright holder has to initiate the case though. So if you're sharing Korean doramas and there is no such holder in SA, you won't be prosecuted, unless prosecutors here contact the Koreans first and ask their permission to act on their behalf.
 
Space_Chief said:
I think a copyright holder has to initiate the case though. So if you're sharing Korean doramas and there is no such holder in SA, you won't be prosecuted, unless prosecutors here contact the Koreans first and ask their permission to act on their behalf.
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I imagine all the international copyright enforcement agencies would have a field day if all it takes is to open a case at the local police station and it becomes the state's prerogative to investigate and prosecute. Australia's followed an interesting route by levying an administrative fee for each such "snitch", to prevent abuse by these agencies. There are also some attempts in the USA to punish abusers of DMCA take-down notices so address similar abuses by the copyright owners' agencies.
 
criminalizing individual users for isolated and small-scale infringements.
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oh that will go well with the excess jail capacity. Gotta get those music downloaders into jail. They're way more dangerous than murderers & rapists anyway. :rolleyes:

Another retarded law #ProudlyBroughtByANC
 
So I take it if someone shares a ringtone or similar over Bluetooth, that counts as an electronic network and could be worth up to three years?
 
km2 said:
So I take it if someone shares a ringtone or similar over Bluetooth, that counts as an electronic network and could be worth up to three years?
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Yup. Youtube revenue will plummet if this becomes implemented worldwide.
 
Well I gotta say that I'm glad Julius Malema's outfit is looking out for us by reviewing this bill. Thanks EFF. They have my vote, for sure.
 
For a country that has its leaders make many tirades against the dangers of neo-colonialism, when push comes to shove and the West comes wanting the implementation of laws that benefit their large multinationals, we really are first in line to get down and pleasure them.
 
If I have DSTV and I download whats on DSTV that's already seasons ahead, is that illegal?
 
evilstebunny said:
Surely they mean thowing the Kindle at copyright infringers..? :erm:
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If said Kindle contained any copyrighted material could it be considered as illegal distribution?
 
Rickster said:
If I have DSTV and I download whats on DSTV that's already seasons ahead, is that illegal?
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I believe the issue is with UPLOADING. Do you upload? If it's your own pornoz then you may be charged with medical bills for damages to vision of those who watched them. If it's other stuff, then these guys may want your behind. :)
 
So if a person pleads ignorance of the infringement, can they be excused? This is a bit confusing to me :confused:
 
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