18 December 2015Jurisdiction reportsThomas Schmidt and Izaan van der Merwe

The IP implications of the new South African cyber bill

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.

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