Attorneys from Chetty Law (who have since been absorbed into PricewaterhouseCoopers), and Michalsons previously told MyBroadband that while downloading copyrighted material isn\u2019t criminal, uploading or otherwise distributing such content is.<\/p>\n
The implication of this is that piracy over peer-to-peer technologies such as BitTorrent is a crime in South Africa<\/a> as it typically requires that you \u201cseed\u201d or upload files to other users while you download them.<\/p>\n The criminal penalty for copyright infringement in South Africa<\/a> is as follows:<\/p>\n Downloading content is not criminal, but Nicholas Hall from Michalsons Attorneys previously told MyBroadband that copyright owners would have a claim against you for damages. These damages will usually amount to the purchase price of the goods in question, Hall said.<\/p>\n Similarly, making a copy of a movie or game for personal use could also be used as grounds for civil action by the copyright owner against you.<\/p>\n Hall explained that this is because movies, referred to as \u201ccinematographic films\u201d in copyright law, specifically aren\u2019t allowed to be copied for personal use.<\/p>\n Games, on the other hand, have been considered \u201ccinematicographic films\u201d for the purposes of copyright after a supreme court ruling in 1996. This is despite video games better fitting the definition of \u201ccomputer programs\u201d in South African copyright law, Hall said.<\/p>\n Nicholas Hall<\/p><\/div>\n To understand the limitation of \u201cfair dealing\u201d in South Africa with regards to movies and games, Hall said that one needs to look at copyright law a bit more generally.<\/p>\n Hall explained that \u201cfair dealing\u201d is South Africa\u2019s take on \u201cfair use\u201d. The most important thing to remember, Hall added, is that the the nature of the work will alter what copyright law applies to it.<\/p>\n For example, movies (cinematographic films) have different copyright laws to paintings (artistic works), which are different from the copyright laws that apply to software (computer programs).<\/p>\n \u201cThe vast majority of the law is the same for all works, regardless of the nature of the work, but there are important differences,\u201d Hall said. \u201cOne of these important differences relates to when and how fair dealing applies to copies of those works.\u201d<\/p>\n The \u201cbasic\u201d fair dealing clause in terms of personal copies is found in Section 12 (1) (a) of the Copyright Act which lets people to make copies of literary or musical works for \u201cresearch or private study [\u2026], or the personal or private use of, the person using the work\u201d provided that such copying is \u201cfair\u201d.<\/p>\n \u201cHere we come across the first problem with fair dealing in SA law,\u201d Hall said. \u201cWe don\u2019t actually know how much copying and what circumstances makes a copy \u2018fair\u2019 in these instances since we have had next to no case law dealing with the matter, and the act doesn\u2019t define \u2018fair dealing\u2019 or \u2018fair\u2019 any further.\u201d<\/p>\n The second issue, Hall explained, is that while nearly all other types of works make reference to this section to determine when one can fairly make copies of a work, cinematographic films are specifically excluded.<\/p>\n \u201cThis means you cannot make copies of movies for personal use that would be considered as \u2018fair dealing\u2019,\u201d Hall said.<\/p>\n Sound recordings are another example of content that specifically exclude this fair dealing provision. This means it is illegal (but not criminal) to rip your CDs to a file format such as MP3.<\/p>\n Software programs also exclude this fair dealing provision, but the law does allow you to make copies of a computer program for backup purposes, Hall explained.<\/p>\n However, Hall went on to point out that in the only court case in South Africa that deals with copyright infringement of video games (Golden China TV Game Centre and Others v Nintendo Co Ltd), the court said that video games have the copyright protection of \u201ccinematographic films\u201d and not \u201ccomputer programs\u201d.<\/p>\n \u201cSo in terms of our copyright law, video games are treated the same as movies,\u201d Hall said.<\/p>\n \u201cIn short, in terms of South African copyright law, one cannot make copies of movies or games for personal use, even under our \u2018fair dealing\u2019 exceptions.\u201d<\/p>\n Piracy and digital music: SA copyright law \u201cwholly inadequate\u201d<\/strong><\/a><\/p>\n Music piracy in SA may lead to bloodbath: CWUSA<\/strong><\/a><\/p>\n Warning: Piracy over P2P a crime<\/strong><\/a><\/p>\n CD to MP3: Format shifting allowed, but pirates beware!<\/strong><\/a><\/p>\n\n
Fair dealing explained<\/h3>\n
![\"Nicholas](\"http:\/\/mybroadband.co.za\/news\/wp-content\/uploads\/2012\/07\/Nicholas-Hall-portrait.jpg\" "\\"Nicholas")
Games are movies, not software<\/h3>\n
Related articles<\/h3>\n