Wednesday, 23 April 2014

RSA: Criminal conviction for sharing local movie on Pirate Bay

Source: (c) NuMetro
In December 2013 (possibly) the first arrest for copyright infringing file-sharing online was made in South Africa (see report here).  IOL News reported yesterday that the arrested Capetonian man was convicted of criminal copyright infringement  for posting a copy of a local movie, Four Corners, (currently showing at Nu Metro cinemas) on Pirate Bay. The file-sharing site reportedly 'processed its ten millionth torrent upload' on 21 April (see report here). According to the IOL News report, the Bellville Specialised Commercial Crimes Court sentenced the man to a three-year suspended sentence for contravening the Copyright Act, 98 of 1978 and  fined him R3 000 or a six-month suspended sentence for contravening the Films and Publications Act 65 of 1996.


The news report does not specify which sections of the legislation the man was charged under and what follows are this Leo's best guesses. The man would have been charged under section 27 of the Copyright Act which provides for the following offences:
(1)  Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright—
(a) makes for sale or hire;
(b) sells or lets for hire or by way of trade offers or exposes for sale or hire;
(c) by way of trade exhibits in public;
(d) imports into the Republic otherwise than for his private or domestic use;
(e) distributes for purposes of trade; or
( f ) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringing copies of the work, shall be guilty of an offence. 
(2)  Any person who at a time when copyright subsists in a work makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work, shall be guilty of an offence.
(3)  Any person who causes a literary or musical work to be performed in public knowing that copyright subsists in the work and that performance constitutes an infringement of the copyright, shall be guilty of an offence.
(4)  Any person who causes a broadcast to be rebroadcast or transmitted in a diffusion service knowing that copyright subsists in the broadcast and that such rebroadcast or transmission constitutes an infringement of the copyright, shall be guilty of an offence.
(5)  Any person who causes programme-carrying signals to be distributed by a distributor for whom they were not intended knowing that copyright subsists in the signals and that such distribution constitutes an infringement of the copyright, shall be guilty of an offence.

It would seem that the man was convicted of the offence  in s 27(1)(f) as the other offences are not directly applicable. Section 27(6) provides that the penalty for the first conviction under section 27 is a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates. The fact that the penalties attach to each infringing article mean that they can be quite harsh where one is convicted in relation to numerous articles. The court selected the sentence of imprisonment but suspended it because, according to the IOL News report, he acknowledged his guilt  and 'had helped with the removal of the film from Pirate Bay and had co-operated with investigators' and 'was remorseful for his actions and had apologised to the court and the filmmakers'.

In relation to the Film and Publications Act, it seems that the man was prosecuted for distribution or exhibition of a film without prior registration under section 24A(1) (1) which provides:
Any person who knowingly distributes or exhibits in public a film or game without first having been registered with the Board as a distributor or exhibitor of films or games shall be guilty of an offence and liable, upon conviction, to a fine or to imprisonment for a period not exceeding six months or to both a fine and such imprisonment.

This conviction raises the vexed question of whether criminal prosecution is an appropriate way to sanction copyright infringing file-sharing on the internet. A question Adam Oxford grapples with eloquently in his piece entitled 'Three years for Four Corners: How will South Africa choose to punish filesharing?' (available here).

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Four Corners piracy sentence “draconian” [commentary on the sentence by Adam Oxford of htxt.africa based on an interview with Dr Tobias Schonwetter] 

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