The IP implications of the new South African cyber bill

18-12-2015

Thomas Schmidt and Izaan van der Merwe

The new Cybercrimes and Cybersecurity Bill 2015 has now been published for public comment by the minister of justice and correctional services.

Although covering a wide range of topics and activities, the bill signposts a number of significant developments in the cybersphere and carries with it important implications for intellectual property law in South Africa.

The purpose of the bill is to create offences and impose penalties relating to cyber crime. The means for doing this contemplated in the bill are numerous, wide-ranging and somewhat convoluted. Accordingly, we will limit ourselves to discussing only those sections that directly concern IP.

Our legal approach to copyright has recently become the recipient of many proposed amendments—not only from the bill in question, but also from the earlier Copyright Amendment Bill 2015. The first and foremost of these is the introduction of criminal sanctions for the sale, offer for download, distribution or ‘making available’ of copyrighted material by the bill in question. These sanctions include a fine and/or imprisonment of up to three years.

The aforementioned sanctions are further extended to anyone convicted of harbouring or concealing the offender, with a fine and/or imprisonment of up to two years. As ‘distribute’ is not defined within the bill itself the ordinary meaning thereof, ie, ‘to hand or share out to a number of recipients’ is read into the bill.

The Copyright Amendment Bill does not address copyright infringement in the cybersphere in such explicit terms as in the bill in question. Rather, it addresses the issue by creating provisions relating to technological protection measures of copyrighted work. The bill thus supplements the existing Copyright Act No. 98 1978 with a criminalising provision catering specifically for the infringement of copyright via the internet and the tools it provides to would-be copyright infringers.

The penalty provision in the existing Copyright Act is a general provision relating to the dealing of works protected by copyright which are infringed. This umbrella provision is couched in terms that possibly allow for the reading-in of cyber crime-related offences. This may accordingly, in our view, create an untenable tension between multiple pieces of legislation, as the bill is fraught with contradictions not only with regard to other sections but also to other core legislation.

"Section 6 of the bill further makes it an offence to use, manufacture or deal in “software or hardware tools” for the purpose of engaging in cyber crime."

Moving to other forms of IP; the proposed section 13(3)(b) of the bill (Computer-Related Appropriation) includes a definition of “rights in property” which includes all forms of IP currently recognised in South Africa. This definition, when read with the rest of the section, effectively empowers the courts to apply section 276 of the South African Criminal Procedure Act 51 1977; which provides for a range of criminal punishments to be applied at the court’s discretion in cases where actual or potential rights in property may be deprived.

The proposed section 13 of the bill, if implemented, would radically change the punitive nature of IP law in South Africa by making it possible to apply a wider range of criminal sanctions applicable to any act of infringement.

Section 6 of the bill further makes it an offence to use, manufacture or deal in “software or hardware tools” for the purpose of engaging in cyber crime. This provision could readily be interpreted as reading into section 36(2) of South Africa’s Patents Act; which grants to the registrar the power to refuse an application which might be used in any way contrary to law. When combined with the very broad nature of the provision as currently formulated, this would effectively provide grounds for the refusal of any application even remotely connected to electronic devices.

This is not the final draft of the bill in question and stakeholders will undoubtedly raise their voices. The interplay between the bill, existing legislation and other draft legislation (especially those that are IP-related) has to be reconsidered in order to provide legislative certainty in the cybersphere. The vast amount of provisions dealing with prosecuting authorities, jurisdiction and territoriality, and the proper delineation of powers and responsibilities vested in authorities will undoubtedly be at the centre of the debates to come.

Thomas Schmidt is a candidate attorney at Kisch IP. He can be contacted at: thomass@kisch-ip.com

Izaan van der Merwe is a patent candidate attorney at Kisch IP. She can be contacted at: izaanv@kisch-ip.com

Thomas Schmidt, Izaan van der Merwe, IP,

WIPR