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

4.3.22. It is of the utmost importance that the Copyright Act and the Performers’ Protection Act be amended toeffectively govern the digital exploitation of copyright works. There is room for the improvement of themanagement of rights in the digital environment. The CRC agrees with the statement made by therepresentative from WASPA:Digital is the future and delivering it over mobile handsets is the future ... we have got to find the right way forward andeverybody has got to sit around the table and make it work.4.4 LIABILITY OF SERVICE PROVIDERS4.4.1. Technology is changing the way that copyright goods can be illegally copied and distributed. In the electronicenvironment, it is a relatively simple matter to infringe intellectual property rights. Monitoring copyright violations,on the other hand, is far from simple, particularly when content exists in the electronic, not physical, form andcan be distributed instantaneously, cheaply and easily in the form of digital copies, the quality of which isindistinguishable from that of the original. The liability of Online Service Providers (OSPs) for the infringement ofintellectual property rights remains controversial in intellectual property law.4.4.2. When the liability of a particular OSP is to be determined, one should remember that the law of delict andcopyright impose liability for acts or omissions in a specific instance. So an OSP’s liability will depend on therole it plays in a particular transaction. Where an OSP makes unauthorised reproductions of a protected work(for example, for technical reasons such as caching) it may be liable for direct infringement of copyright. Butwhere it merely transmits or facilitates access to copyright infringing material, it may be liable for ‘contributoryinfringement’ at common law.4.4.3. Although the principle of ‘contributory infringement’ has not been established in any reported decision on SouthAfrican copyright law, there are indications that our courts may be prepared to accept it.4.4.4. A ‘service provider’ can be defined as “any person providing information system services”. This compounddefinition encompasses the basic functions and services needed by users to access the Internet and enjoy itsbenefits. It does not encompass everyone using the Internet, only those who perform the functions that makethe Internet available to users.4.4.5. The availability of delictual remedies against an OSP is limited to cases where the OSP satisfies the twothreshold requirements (see “Guidelines for Recognition of Industry Representative Bodies of InformationSystem Service Providers” (Government Notice 1283 in Government Gazette 29474 of 14 December 2006) andperforms certain stated functions or acts:4.4.5.1. Transmission, routing and provision of connections to unlawful material (the ‘mere conduit’ limitation);4.4.5.2. System caching and storing, infringing material at the direction of a user (the ‘hosting’ limitation); or4.4.5.3. Linking or referring users to infringing material (the ‘linking’ limitation).- 35 -