Podcasts illegal?

I heard a rumour that the Recording Industry of South Africa (RiSA) recently took the view that podcasts are illegal.

When I looked into the origin of this rumour, I came across this article on IOL titled "5FM’s podcasts not on, say music firms" which took a look at an offering by the popular radio station, 5fm, called BlogJockeys which enables users of the service to publish their content on the site:

BlogJockey offers you a platform to publish a hybrid of personal thoughts (in written, audio and graphic format). 5FM BlogJockey is an automated mechanic and will rely only on your unique creativity in the form of the words you write, the images you capture and the sounds you record, all of which will be accessible by the internet community. You can choose whether you want to remain anonymous or not – the choice is yours.
Getting started couldn’t be easier. Just click on this link and follow the easy step-by-step instruction. In less than a couple of minutes, you’ll have your very own presence on the internet.
Before you get started, just a few formalities. As with everything else in life, there are rules! Nothing too serious. 5FM BlogJockeys is a platform to make yourself heard. We’re all for freedom of speech, but keep it clean. NO RACISM. NO PORNOGRAPHY. NO HATE. NO COPYRIGHT MATERIAL.
5FM holds a "three-strikes and you’re out" policy. Should you upload content that contravenes the above rules, your content will be removed and you will receive a warning via email. Should this happen three times, you will automatically be banned from the BlogJockey system.
Go on, make yourself known.

I thought I’d find out whether this is the case and I contacted David du Plessis, the General Manager of RiSA. David explained to me that RiSA is certainly not of the view that podcasts are illegal, per se. Rather, RiSA’s concern is that users of the service are publishing content that is subject to copyright using the BlogJockey service. The problem with this, of course, is that reproduction of content protected by copyright without the permission of the copyright holder is illegal so users who publish protected content like music or images on the site are infringing on the rights of the copyright holders (for a primer on copyright law in South Africa, take a look here).

To the extent users are sharing protected content on the BlogJockey site, 5fm could find itself on the hook for indirect infringements of the Copyright Act if 5fm is found to be facilitating the transmission of that protected content. The Electronic Communications and Transactions Act does contain provisions designed to protect service providers from liability for illicit acts committed on their networks. These provisions include so-called "safe harbour" provisions that protect a service provider in certain circumstances. One of the ways a service provider can protect itself from claims for copyright violations is if that service provider responds timeously to a take down notice in terms of the ECT Act to remove protected content. Should a copyright owner discover that a service provider is hosting his/her content, the copyright owner can require the service provider to remove that content using this tool.

I’m not sure whether the dispute between RiSA and 5fm has been resolved. From the terms of use of the BlogJockey service it seems clear that 5fm is aware of the dangers of unauthorised reproduction of protected content.

I would like to thank David du Plessis for taking the time to chat to me about this issue.

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