4.2 Analysis of the Copyright Act
4.2.3 Infringement of Copyright
The scope of the application of other forms of communication as contained in the Copyright Act to the digital age is also questionable.548 Further, it is submitted that cognizance must be taken of the fact that these communication rights are drafted in terms of an analogue environment. It is therefore argued that they do not specifically address development of and advances in technology. For example, they do not comply with the second part of the right contained in the WCT, which is the interactive element of making the work available to the public. Ithas been established that this right relates specifically to digital transmissions and use of works549 over the Internet. It is therefore submitted that the Copyright Act should be amended accordingly to comply with the provisions of Article 8 of the WCT. Contracting parties, are in terms of Article 8, given a choice as to whether to include the right within an existing exclusive right or in terms of the enactment of a new right.550Itis agreed that South Africa should, when implementing the WCT, introduce a new right of communication to the public that specifically addresses all categories of work and the interactive transmissions of the Internet.551 Itis submitted that this would involve a simplistic approach that would evade any difficulties of including the right within the scope of an existing right and would guarantee the copyright owner with an understandable, unambiguous and exclusive right of communication to the public that would protect him against unauthorized transmissions of his work over the Internet.
The next section considers the provisions of the Copyright Act relating to infringement of the exclusive rights of the copyright owner in a digital context.
4.2.3.1 Direct Infringement553
Section 23(1) provides that a person who, without the authority of the copyright owner, performs or causes another person to perform any of the exclusive rights shall infringe copyright.554 This is referred to as direct or primary infringement. 555
Ithas been established that the advanced issues of the digital age resulted in substantial copyright infringement by reproduction, which is the most significant means by which works are being commercially exploited over computer networks such as the Internet.556 In the circumstances copyright was in a digital crisis. Ithas been identified in this chapter that a wide interpretation of the right of reproduction in the Copyright Act would include the storage of content in digital form in or on an electronic medium such as the Internet.
In the circumstances the copyright owner would, in terms of section 23(1), be able to pursue infringement proceeding, under the present Copyright Act, against the unauthorized reproduction of his work in the digital environment. A lack of knowledge that one is engaging in unauthorized reproduction or any of the other restricted acts is not a defense to copyright infringement.557
The problem with the scope of the right of reproduction is that, as mentioned above,558 it needs to be refined to address specific technological advances such as the internal workings of the computer. While the copyright owner's right of reproduction is wide enough to cover infringement by reproduction in respect of all copies that are made in the memories of computer networks during the transmission of the work from the host computer to the local computer, it is submitted that it would, for example, be unfair to hold liable for copyright infringement an innocent online service provider which, without knowledge, assists a subscriber in transmitting work by making unauthorized acts of reproduction over networks. It is therefore submitted that the Copyright Act should be
::: This is the first form of copyright infringement in the Copyright Act. See Dean (note 5 above) 1-37.
Section 23(1).
555Dean (note 5 above) 1-37.
556See ChapterI.
557Dean (note 5 above) 1-43.
558See Chapter IV paragraph 4.2.2.1.
amended accordingly to exclude, from the ambit of the protective net, temporary acts of reproduction of the nature discussed above.559
4.2.3.2 Indirect Infringement560
Indirect or secondary infringement561
would occur first when a person, who without the license of the copyright owner, deals with infringing copies of copyrighted works and second when a person permits a place of public entertainment to be used for an infringing
bl·.(:'. 562 pu ICperlormance.
Section 23(2) of the Copyright Act regulates the unauthorized dealing in infringing copies, which includes the trafficking in infringing copies563 and the distribution of infringing copies of a work in the Republic for the purposes of trade or other purposes, to the extent that the copyright owner of the work in question is prejudicially affected. 564 The Copyright Act imposes on the infringer the requirement that he must have had knowledge of the infringing copy. 565 An infringing copy is defined in the Copyright Act as a reproduction or adaptation of a literary, musical or artistic work, a published edition or a cinematographic film in which the making of such copy constitutes an infringement of the work in question.566
Although the Copyright Act does not expressly provide the copyright owner with an exclusive right of distribution as contained in the WCT,567 it does protect him from the unauthorized distribution of infringing copies of works in which copyright subsists.568
559Ibid.
;:~This is the second form of copyright infringement in the Copyright Act. See Dean (note 5 above) 1-37.
Dean (note 5 above) 1-37.
562Ibid 1-43 - 1-46.
563section 23(2)(b) of the Copyright Act.
564section 23(2)(c) of the Copyright Act.
565 section 23(2) of the Copyright Act. See Dean (note 5 above) 1-44 where it is submitted that an infringing article which is made by infringing the copyright in a work is generally referred to as an 'infringing copy'.
566Section 1 of the Copyright Act.
567Article 6 of the WCT.
568Section 23(2)(b) of the Copyright Act.
The question then remains as to how this right of distribution, inclusive of the provisions relating to indirect infringement of copyright, applies to the digital age? Itwould seem that the right as contained in the Copyright Act does correlate to the right as contained in the WCT in so far as the expression 'article' would include 'fixed copies pla~ed into circulation as tangible objects'.569 It has been argued that the scope of the right of distribution of the WCT could be extended to include digital transmissions of electronic copies of works over the Internet.570 Coppenhagen571 argues that the right of distribution should not be extended to include transmissions over the Internet as the right of communication to the public, as contained in the WCT, more appropriately deals with the interactive nature of the Internet.572The copyright owner is in terms of the Copyright Act entitled to damages, an interdict and the delivery of infringing copies in respect of copyright infringement.573