As I mentioned yesterday, I am publishing a series of posts about content protection on my Jacobson Attorneys blog. I have just uploaded the first post in the series titled "Protecting your content … part 1". Here is an excerpt:
The Copyright Act does not protect ideas so copyright only comes into being when the ideas are recorded, written down or transmitted. Given the provisions of the Electronic Communications and Transactions Act ("ECT Act"), digital versions or representations of these "works" would also qualify for copyright protection. To qualify for copyright protection under the Copyright Act a person (human or a legal person such as a company or close corporation) must be the author of the work or otherwise the owner of copyright in that work and must be either resident or domiciled in South Africa.
The way the Copyright Act works is that it sets out which forms of distribution and reproduction are reserved for the copyright owner and then takes a look at what is permissable without the owner’s permission. These provisions are pretty detailed so it is worth taking a few minutes to review sections 6 to 9 of the Copyright Act. Essentially (and except where the Copyright Act allows for it), users are not permitted to reproduce or distribute content protected by copyright without the permission of the copyright owner and without paying a royalty (although the payment of a royalty can be waived by the owner).
The ECT Act introduces a new dimension of copyright protection designed to cater for the nature of the Web and services like search engines and content sharing sites. Questions have arisen about the liability of service providers for copyright infringement committed directly by users of their services and even indirectly where the service provider can be said to have facilitated copyright infringement. Examples of this include the almost defunct Napster and services like YouTube.
So one question is whether a service provider like YouTube should be held liable for copyright infringement that occurs on the site by users who upload video that is subject to copyright. The Digital Millennium Copyright Act applies to copyright infringements in the United States and will probably govern copyright infringements on YouTube. In South African law we look to the ECT Act which would apply to a similar service in South Africa.
This is a particularly important set of issues for content creators and publishers and worth checking out the series as it goes up.