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4.4.6. In exchange for the above limitations, OSPs have agreed to an injunctive procedure commonly known as ‘noticeand take-down’, covered by Section 77 of the ECT Act. In terms of this procedure, when someone becomesaware of unlawful material residing on or unlawful action taking place on an OSP system or network, he or shemay notify the OSP of the infringement and require it to remove or disable access to the unlawful material oractivity.4.4.7. The Act further provides in Section 77(3) that a “service provider is not liable for wrongful take-down in responseto a notification”. Strangely, this sweeping exemption does not require the OSP to have acted in good faith. Norare OSPs under a general obligation to monitor the data they transmit or store, or actively to seek facts orcircumstances that indicate unlawful activity.4.5 DEVELOPMENT OF THE ‘3 STRIKES’ INTERNATIONALLY4.5.1. Countries such as France, the UK and New Zealand have introduced a system of graduated responses toinfringements that culminates in the suspension of access services to individuals.4.5.2. In France, this is commonly known as the HADOPI system.4.5.2.1. HADOPI is an acronym of the French government agency created to administer the system – HauteAutorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet.4.5.2.2. This law was introduced during 2009 as a means to control and regulate Internet access and encouragecompliance with copyright law (Loi 2009-669 du 12 juin 2009 favorisant la diffusion et la protection de lacreation sur internet [Law 2009-669 of June 12 2009 on Promoting the Distribution and Protection ofCreative Works on the Internet]).4.5.2.3. Billboard.biz reports that it is unknown how many file sharers receive warnings from France's new P2Pinfringement authority, but French labels are sending 25 000 complaints a day to HADOPI.4.5.3. In the United Kingdom:4.5.3.1. The Digital Economy Act, which regulates digital media, came into force on 8 June 2010.4.5.3.2. The Act inter alia adopted measures to curb the online infringement of copyright. The Act provides that theOffice of Communications (Ofcom) must take responsibility for putting in place: Technical measures – which may limit Internet access, including suspending access entirely; Appeals process – a tribunal providing for an independent appeal; An obligation on ISPs and copyright owners – a fine of up to £250 000 levied on those incontravention; and Blocking Internet locations from which a substantial amount of material has been, is being or is likelyto be made available in infringement of copyright.4.5.3.3. Internet service providers in the UK are currently challenging the constitutionality of certain provisions ofthis law.- 36 -
4.5.3. In New Zealand, the situation is as follows:4.5.3.1. The Copyright (Infringing File Sharing) Amendment Act 2011 of New Zealand amends the Copyright Act1994 to provide owners of copyrighted works with a chance to address peer-to-peer file sharing. This Actcame into force on 1 September 2011.4.5.3.2. The ‘3 strikes’ rule comes in the form of detection notice, warning notice and enforcement notice. Penaltiesrange from NZ$275 to NZ$15 000 and/or the suspension of a user’s Internet account for up to six months(suspension is only expected to come into force in 2013).4.5.3.3. The holder of the Internet account is liable, even if he or she was not the person who broke the law, andthe penalty is paid to the copyright owner.4.5.3.4. The law will apply to infringements on mobile networks from 1 October 2013.4.6 THE ROLE OF THE INTERNET SERVICE PROVIDERS ASSOCIATION (ISPA)4.6.1. ISPA, which has been in existence for almost a decade, has more than 100 members and represents networkand service licensees. Vodacom, MTN and Telkom are not members of ISPA, but Cell C is. Numerous ISPs arenot licensed.4.6.2. The ISPA representative who addressed the CRC mentioned that a specific take-down notice was created forRiSA members (see http://ispa.org.za/code-of-conduct/lodge-a-risa-specific-takedown/) and SAMRO, but thatISPA had not received a single take-down notice from SAMRO.4.6.3. On a question regarding the feasibility of adopting a provision similar to the ‘3 strikes’ law (for example, theHADOPI law of France), the ISPA representative noted that:Just before EG8 in Paris, which I think was April this year, the French came out and very embarrassingly indicated thatactually technically it was not operational.4.6.4. A contrary opinion has been expressed in the PwC South African Entertainment and Media Outlook: 2010-2014report, which notes that digital piracy is a reality that is inhibiting growth in the legitimate digital market. Thereport states:Internet service providers in a number of countries have managed to slow digital piracy and in some cases graduatedresponse measures have been introduced to warn consumers of suspected infringements.4.7 CONCLUSIONSouth African copyright owners do not share the same optimism regarding digital opportunities for a variety of reasons:1) The CRC has found that the growth of the digital music industry in South Africa has been hampered by a lack ofcompliance by mobile service providers. According to evidence provided to the CRC, only 14% of all mobile- 37 -
Page 2 and 3: TABLE OF CONTENTSLIST OF ABBREVIATI
Page 4 and 5: 11.8 RECOMMENDATIONS ..............
Page 6 and 7: LIST OF TABLESTable 1: Cases of Non
Page 8 and 9: NORMOSPsPOSAPPLPPL (India)ProLitter
Page 10 and 11: These problems are addressed in the
Page 12 and 13: xxi.The report considers developmen
Page 14 and 15: 1.3.8. Determine whether all money
Page 16 and 17: 1.4.9. The CRC derived considerable
Page 18 and 19: 2.3 SUBMISSION BY THE DEPARTMENT OF
Page 20 and 21: Aspects of Intellectual Property Ri
Page 22 and 23: (1) Subject to the provisions of th
Page 24 and 25: Copyright Tribunal or an arbitrator
Page 26 and 27: society, the South African Recordin
Page 28 and 29: 3.2.14. With the liquidation of SAR
Page 30 and 31: the final rate or rates to be appli
Page 32 and 33: (a)that payment is to be made to th
Page 34 and 35: information as to their use to enab
Page 36 and 37: The WCT and WPPT oblige members to
Page 38 and 39: Once the handset technology changed
Page 40 and 41: 4.3.16. In 2009, in what was coined
Page 44 and 45: operators are licensed by NORM to p
Page 46 and 47: 5.2 FUNCTIONING OF COLLECTING SOCIE
Page 48 and 49: the grant of licences. Article 17 o
Page 50 and 51: 6.1.3. The CRC’s assessment of th
Page 52 and 53: 6.3.3. SAMPRA should be given one y
Page 54 and 55: Corporate Governance GapsKing II Re
Page 56 and 57: King IIIPrincipleKing IIIRequiremen
Page 58 and 59: King IIIPrincipleKing IIIRequiremen
Page 60 and 61: 8 COLLECTION OF MUSIC ROYALTIES8.1
Page 62 and 63: 8.1.4.2. Needletime royalties are n
Page 64 and 65: 8.1.7.4. For the past five years, V
Page 66 and 67: PRS (UK)SPRE (FRANCE)SUISA(SWITZERL
Page 68 and 69: DetailsPerformance RightsSound Reco
Page 70 and 71: 8.2.7 Comparative Study Performed b
Page 72 and 73: y a collecting society. A rights ho
Page 74 and 75: agency, its rights being derived fr
Page 76 and 77: Mr Robinson said DALRO assumed the
Page 78 and 79: 10.1.6. The distribution to publish
Page 80 and 81: 10.4.4. Most of the other collectin
Page 82 and 83: 10.6.3.4. South African English-lis
Page 84 and 85: 10.10 CONTRACTUAL RELATIONSHIPS BET
Page 86 and 87: 10.12.2. The Regulations should rec
Page 88 and 89: licence that the licensee comply wi
Page 90 and 91: 11.4.6. The details of ICASA’s ta
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RecommendationsTimelines for Recomm
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enterprises. There was a suggestion
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Copyright as it relates to copyrigh
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13.4 DEPARTMENT OF ARTS AND CULTURE
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Table 28: Comparative Study’s Key
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KEY ITEMS BRAZIL FRANCE INDIA NORWA
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KEY ITEMS BRAZIL FRANCE INDIA NORWA
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about 30%, which is the highest amo
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15.1.3. The Copyright Tribunal’s
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15.1.20. Local music content requir
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for the selected artists. The outco
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King III Report by Institute of Dir
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Paranagua Pedro, “Strategies to I
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Copyright Amendment Act of 1984Copy
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APPENDIX 1(B): SUMMARY OF ORAL REPR
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Due to the fact that the existing c
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Mr BrottelProtection of copyright m
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1.1.3. LIST OF ENTITIES VISITED AND
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In the 2009 Annual Report of ABRAMU
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The implementation of this law led
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ecordings. In respect of audio-visu
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In 1995, ECAD distributed 72% of it
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niches in the market to ensure fair
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Proprietary rights allow authors to
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International royalty distribution
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3.2. Relevant LegislationsThe prese
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IPRS uses the standard tariffs in r
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Ad-hoc workshops on copyright are c
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meaningful living out of their crea
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4.1.3. LICENSING AND LEGAL REGIMESI
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Ballet teachers; Teachers in the fi
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It was founded in 1928 by the Norwe
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6.2. STRUCTURE OF COLLECTING SOCIET
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6.5. COLLECTION OF MUSIC ROYALTIEST
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1957, when the Managing Director of
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16.4.14 SWISSPERFORM: CHF4 millionI
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Cross-border licensing of digital r
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algorithm could be used to determin
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Collecting societies in the UK all
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APPENDIX 3: RECOMMENDATIONS BY MITT
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1.PREAMBLEThe Music Industry Task T
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The environment in which the music
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3.1.3 IMPLEMENTATION AND ACCESSION
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In this regard, the Minister should
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3.5.6 OMBUDSMANThe music industry s
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RECOMMENDATION 23:The MITT recommen
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The MITT further recommends that DA
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APPENDIX 4A: EXTRACTS FROM COPYRIGH
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(f)(g)doing, in relation to an adap
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(i)requiring notice of any intended
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(b)any organization claiming to be
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PERFORMERS’ PROTECTION ACTNO. 11
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the parties may agree to refer the
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ANNEXURE 5: COPY OF SARRAL’S CONT
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ANNEXURE 6: SARRAL’S AUDIT REPORT
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TERMS OF REFERENCESNO’SREQUIREMEN
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