Copyright Review Commission Report - ICT Law and Regulation ...

The WCT and WPPT oblige members to adopt legislation to prohibit users from removing or deactivating datathat is necessary for the management of copyright, i.e. collection and distribution of royalties.4.2.8. A new right of communication to the public was created in Article 8 of the WCT. Copyright owners obtained anadditional and new exclusive right, namely the right to communicate a work to the public interactively and ondemand at a time and place chosen by the user. The uploading of a work to a server and the streaming ofmusic works on the Internet will fall under the communication of the work. This new right has been adopted inthe copyright laws of most other jurisdictions.4.2.9. A new right of ‘making available’ was created in Articles 10 and 14 of the WPPT, under which performers andproducers of phonograms respectively enjoy the exclusive right to authorise the ‘making available’ to the publictheir performances and phonograms by wire or wireless means in such a way that members of the public mayaccess them from a place and time individually chosen by them.4.2.9. Although South Africa was one of the signatories of the WCT and WPPT and the treaties have been in force foralmost a decade, an overall impact study has not been completed, and the country has not ratified them (thisstudy should be completed as soon as possible). Furthermore, the Copyright Act and Performers’ Protection Acthave not been amended to grant copyright owners and performers the right to control the communication oftheir works on networks. The Copyright Act grants the copyright owner of music, literary work and soundrecording the exclusive right to distribute his or her work by broadcasting and transmitting it in a diffusionservice. The copyright owners of sound recording and the performers have the additional right to communicatethe sound recording or fixed performance to the public.4.2.10. Broadcasts and programme-carrying signals are technologically specific. Section 1 of the Copyright Act definesa broadcast as:a telecommunication service of transmissions consisting of sounds, images, signs or signals which (a) takes place bymeans of electro-magnetic waves of frequencies of lower than 3 000 GHz transmitted in space without an artificialconductor; and (b) is intended for reception by the public or sections of the public, and includes the emitting ofprogramme-carrying signals to a satellite.A programme-carrying signal is defined as ‘a signal embodying a programme which is emitted and passesthrough a satellite’. During the ‘up-leg’ of a transmission, a programme-carrying signal is a broadcast. Once thebroadcast passes through a satellite, it is transformed from a broadcast to a programme-carrying signal. Mobilecommunication protocols, combinations of wired and wireless communication systems and convergedcommunication platforms fall outside their realm. Webcasting and interactive on-demand systems cannot becharacterised as relying on either broadcasts or programme-carrying signals.4.2.11. A diffusion service is defined in Section 1 of the Copyright Act as “a telecommunication service of transmissionsconsisting of sounds, images, signs or signals, which takes place over wires or other paths provided by materialsubstance and intended for reception by specific members of the public”. One may thus argue that thestreaming of a work to mobile subscribers could amount to the ‘making available’ of a work in a diffusion serviceif wireless communication could by analogy be extended to other paths provided by material substances. Atbest, the definition of a diffusion service should be amended by the inclusion of wireless transmissions.- 30 -