Protecting your content: part 1

This post in the first in a series of posts about the various ways you can protect your content. I am going to focus on content that is made available online (shared photos, videos, music as well as content on web sites like blogs) although I will probably deal with offline content to a degree. This topic is quite a broad topic and a proper treatment would require a far more detailed publication than this series so my intention behind this series is to introduce you to a couple concepts and content protection mechanisms and to highlight some of the issues that we, as online publishers, may face in the coming weeks, months and years.

The content protection mechanisms I’ll take a look at will include copyright, creative commons, digital rights management and some alternatives.

The starting point for this post is the Copyright Act of 1978 (as amended). The Copyright Act protects copyright owners from unauthorised use of their content under copyright. It sets out categories of content or media that qualify for copyright and determines what can and can’t be done without permission from the copyright owner. Copyright may exist in the following types of works:

  • Literary works (for example, novels, stories and poetical works; dramatic works, stage directions, cinematographic film, scenarios and broadcasting scripts; text books, treatises, histories, biographies, essays and articles; letters, reports and memoranda; instruction manuals and advertising literature; lectures, addresses and sermons; and written tables and compilations);
  • Computer programs and software (broadly defined as “a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result”);
  • Artistic works (including paintings, sculptures, drawings, engravings and photographs; works of architecture, being either buildings or models of buildings; technical and engineering drawings; or works of artistic craftsmanship);
  • Musical works (consisting of of music, exclusive of any words or action intended to be sung, spoken or performed with the music);
  • Cinematographic films (this means “any fixation or storage by any means whatsoever on film or any other material of data, signals or a sequence of images capable, when used in conjunction with any other mechanical, electronic or other device, of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but shall not include a computer program”)
  • Sound recordings (these are defined as “any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced, but does not include a sound-track associated with a cinematograph film”);
  • Radio and television broadcasts (whether they are transmitted by radio or cable, as are programme-carrying signals).

The Copyright Act does not protect ideas so copyright only comes into being when the ideas are recorded, written down or transmitted. Given the provisions of the Electronic Communications and Transactions Act (“ECT Act”), digital versions or representations of these “works” would also qualify for copyright protection. To qualify for copyright protection under the Copyright Act a person (human or a legal person such as a company or close corporation) must be the author of the work or otherwise the owner of copyright in that work and must be either resident or domiciled in South Africa.

The way the Copyright Act works is that it sets out which forms of distribution and reproduction are reserved for the copyright owner and then takes a look at what is permissable without the owner’s permission. These provisions are pretty detailed so it is worth taking a few minutes to review sections 6 to 9 of the Copyright Act. Essentially (and except where the Copyright Act allows for it), users are not permitted to reproduce or distribute content protected by copyright without the permission of the copyright owner and without paying a royalty (although the payment of a royalty can be waived by the owner).

There are a number of exceptions to this rule in the Copyright Act and can be found in sections 12 to 19 of the Act. These exceptions include making copies of some forms of content solely for personal use, for study purposes or for review purposes.

When you take into account the ECT Act, you begin to appreciate how the Copyright Act impacts on content stored and distributed online. Actually, there is no real magic when it comes to online content. The principles are pretty much the same. If you operate a web site like a blog then it is a good idea to familiarise yourself with copyright law as it applies to you. This includes provisions of the ECT Act which bridge the gap between traditional media and the new media revolution that has been taking place on the Web the last few years.

The ECT Act introduces a new dimension of copyright protection designed to cater for the nature of the Web and services like search engines and content sharing sites. Questions have arisen about the liability of service providers for copyright infringement committed directly by users of their services and even indirectly where the service provider can be said to have facilitated copyright infringement. Examples of this include the almost defunct Napster and services like YouTube.

So one question is whether a service provider like YouTube should be held liable for copyright infringement that occurs on the site by users who upload video that is subject to copyright. The Digital Millennium Copyright Act applies to copyright infringements in the United States and will probably govern copyright infringements on YouTube. In South African law we look to the ECT Act which would apply to a similar service in South Africa. In terms of the ECT Act, a service provider is defined as a party that provides information system services which are, in turn, defined as follows:

“information system services” includes the provision of connections, the operation of facilities for information systems, the provision of access to information systems, the transmission or routing of data messages between or among points specified by a user and the processing and storage of data, at the individual request of the recipient of the service

For starters, a service provider is not liable for copyright infringement where the service provider is a neutral conduit of data over its network. The conditions for this limitation of liability include qualifying for this protection under the Act, not initiating the data transmission in question, selecting the recipient of the data transmission, facilitating the transmission using automated systems and not modifying the data as it flows across the network. A service provider will furthermore not be liable for copyright protection where the service provider is not aware that there is infringing content on its network (either by virtue of “actual” knowledge or facts or circumstances which clearly point to the presence of infringing content) and if it acts expeditiously to remove infringing content from its network on receipt of a so-called “take down notice” requiring it to take that content down. There are similar provisions in the DMCA and are often referred to as “safe harbour” provisions.

There are additional provisions which are also pretty important when it comes to services that cache content or which provide tools to link to potentially infringing content. The caching provisions protect a service provider from liability where the service provider temporarily and automatically stores data for onward transmission to its users under certain circumstances which basically amount to a neutral handling of that content. Another important provision in the ECT Act dealing with service provider liability is the provision dealing with “information local tools”. Section 76 provides that:

A service provider is not liable for damages incurred by a person if the service provider refers or links users to a web page containing an infringing data message or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hyperlink, where the service provider-

  1. does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of that person;
  2. is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent;
  3. does not receive a financial benefit directly attributable to the infringing activity; and
  4. removes, or disables access to, the reference or link to the data message or activity within a reasonable time after being informed that the data message or the activity relating to such data message, infringes the rights of a person.

This clause is particularly relevant to search engines. You may recall instances where Google was taken to court over the fact that it provided links to and cached infringing content. For the most part, the courts hearing those cases found that Google was not liable for copyright infringement and were such a case to go before a South African court, the result may well be the same under section 76 of the ECT Act.

If you take into account the definition of a service provider mentioned above, you will realise that a service provider includes not just services like YouTube and Google but also employers who provide an information system to its employees and companies that provide hosting services to their customers. It is a very good idea to implement terms of use that govern the use of your information systems and which protect you, at least vis a vis your users, from copyright infringement claims and any action you may be required to take to remove offending content from your networks and/or services.

As you can imagine, it would take quite a bit more than this post to give you a more comprehensive overview of copyright law in South Africa. I hope that this post has given you a good starting point and a few ideas about the issues you may be facing.

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