THE INTERNET AND PROTECTION OF INTELLECTUAL PROPERTY

THE INTERNET AND PROTECTION OF INTELLECTUAL PROPERTYBY Frank Joffe

The Internet has provided a remarkable medium for communication and access to information. But, as with any new technology, the initial stages of development appear to be unstructured and uncoordinated, if not chaotic. In the process, the Internet has raised a variety of legal questions, particularly in the area of copyright, which is the traditional form of protection for literary and artistic works and computer programs. Some of the legal issues that have arisen relate to file sharing and to news cutting services.

Downloading and sharing video and music files on the Internet is commonplace, but is not always lawful. Downloading involves copying a relevant work, as does sharing a music or video file with a friend. Clearly, downloading a music track or video without the authorisation of the copyright owner is an act of copyright infringement. A further act of infringement takes place whenever the file is shared with another person. South African law recognises that it may be unlawful to contribute to the infringement of a right such as copyright by aiding or abetting another person to commit an act of infringement. This raises the question of potential liability for the providers of software for ripping music and video files and for sharing these files, either on a peer-to-peer basis or on a one-to-many basis. There are no decided cases in South Africa on the liability for copyright infringement of such a software provider. In the US the issue was decided in the well-known Grokster case. In that case, Grokster was held to have distributed file sharing software with the object of promoting its use to infringe copyright. In Australia, a court faced with similar facts came to a similar conclusion. The court found against the operator of the Kazaa file sharing system, which is a free peer-to-peer file sharing system, on the basis that the operator had "authorised" the infringing acts of copyright infringement. The Kazaa website has now been taken down in Australia.

In both the US and Australian cases infringement of copyright by file sharing had taken place on a very large scale. The provision of warnings to avoid copyright infringement was not held to go far enough to avoid liability. In both the Grokster and Kazaa cases, the courts found that the infringer had actively advertised their product and had virtually encouraged the infringement of copyright by the sharing of protected files. Although means were available to the software provider to at least limit the extent of copyright infringement, no steps had been taken to do so. In both cases, the infringer benefited commercially from increased advertising revenue. The tendency of the US and Australian courts to find in favour of copyright holders in such circumstances will most probably be followed by South African courts.

News cutting services provide brief summaries of news events and circulate these summaries to subscribers to the service or to the general public. The news snippets usually include a link to the relevant page of the newspaper from which the cutting is taken and by clicking on the link a reader can access the full article. Of course, where this is done with the authority of the original news provider, it is perfectly legal. The problem arises where the authority of the news provider has not been sought.

A news cutting service clearly contains and reproduces literary and/or artistic works as defined by the Copyright Act. The unauthorised adaptation or reproduction of any such works constitutes an act of infringement. There is case law to the effect that the mere display of a work on a computer screen comprises a reproduction of an original work. It is also trite law that a literary work may comprise a relatively small number of words, such as a sentence or slogan. It follows that it is probable that copyright subsists in the headline of a news article as well as the body of the article. Infringement of copyright may comprise the adaptation or reproduction of a substantial portion of a work and need not necessarily involve the copying of the entire work. The test is qualitative rather than quantitative.

There are so-called "fair dealing" exemptions to copyright infringement provided in the Act. Some of these exemptions relate to the reporting of current events in a newspaper, magazine or similar periodical and to the quotation from articles in newspapers or periodicals in the form of summaries of the articles. The concept of fair dealing is not defined in our Act. However, the US Copyright Act uses the term "fair use", and factors considered for the purpose of determining whether the use made of a work in a particular case is fair are specified in the US Act, namely: the purpose and character of the use; the nature of the copyright work; the amount and substantiality of the portion used; and the effect on the plaintiff’s potential market. In addition, a further criterion, namely whether the work can be obtained within a reasonable time at a normal commercial price may also be considered. Our courts, faced with the problem of defining fair dealing, will probably use similar criteria.

Notwithstanding the provision of a link to the source of a quoted article, a UK court in the Shetland Times case found that the practice of providing unauthorised news cuttings is prima facie unlawful, at least for the purposes of interim relief, and our courts may well follow the line of reasoning taken by the court in that case. Recently, it has been reported that US news services and newspapers have indicated that they will take steps to enforce their copyright against Internet content providers, who provide news cutting services as an added value feature of their search engines.