Copyright clampdown coming

The department of trade & industry wants to update SA’s copyright legislation, but a report by the Copyright Review Commission could mean big problems for Internet service providers, operators and consumers. By Craig Wilson.

Internet service providers could be forced to monitor traffic on their networks to ensure their users aren’t infringing copyright and suspend those who are. This is contained in proposals put forward by the Copyright Review Commission.

Service providers, telecommunications operators and other online content distributors may in future also be forced to prove they are contributing the necessary fees to the correct licensing bodies or risk being barred from distributing their content by the minister of communications.

The commission’s proposals, released by trade & industry minister Rob Davies this week, seek to address perceived inadequacies in local copyright law. Mechanisms dealing with digital media and distribution form a big part of the review.

The document proposes sweeping changes, including a suggestion of a three-strikes rule where Service providers will be required to cut off users shown to have repeatedly engaged in copyright infringement.

This could effectively make these companies beholden to content owners and the enforcers of copyright, both local and international, and appears to mean they’d have to police their users’ activity.

There is also the suggestion that mobile network operators and wireless application service providers (Wasps) should be barred by the minister of communications from distributing content unless they are licensed by the relevant “collecting societies”.

According to the commission’s document, only 14% of mobile operators are licensed by the National Organisation for Reproduced Rights in Music (Norm) and only Vodacom has concluded a mechanical rights licence with the SA Music Rights Organisation.

Wasps have been selling ringtones since 2000, with only some paying mechanical royalties to Norm since then. “An overwhelming majority of Wasps have paid no royalties as they are not licensed and have profited 100% from the digital exploitation of authors’ copyright works for almost a decade,” the commission says in its report.

Citing a report from the Recording Industry of SA, the commission says about 3,6m songs are illegally downloaded in SA on a monthly basis, translating into monetary losses of R36m/month and R432m/year.

It says Internet service providers should be required to take punitive steps against consumers that repeatedly engage in copyright infringement.

“The Electronic Communications and Transactions Act … should be amended to require Internet service providers to adopt a graduated response for repeat infringers, culminating in the suspension of access services of an individual.”

It proposes a three-strikes model, of the sort used in the UK, France and New Zealand. However, this raises concerns about extra burdens this would place on service providers and whether their role should include policing of users. Also, such measures can be difficult to implement effectively, says Internet Service Providers’ Association (Ispa) regulatory adviser Dominic Cull.

He says New Zealand, France and the UK shouldn’t necessarily be used as models for SA. “The report says we’ll allow foreign companies to use local Internet service providers to enforce what they allege to be their rights, yet there’s no talk of compensation or models to do so,” says Cull. “It’s asking a service provider to disconnect its customers; if [government] believes such action is justified, it must present a stronger case for it.”

He adds that Ispa will “strongly oppose” any steps to force service providers to implement graduated, punitive approaches. “It’s not justified and no evidence is advanced [in the report] as to why such a system should be applied in SA.”

It would also be “most unfortunate”, he says, if what started as an initiative to promote local content and music “ends up in a process beholden to powerful international foreign lobbying interests”.

Cull says the report does offer one positive suggestion: that updates are required to the laws governing private use, specifically a suggestion that consumers should be allowed to change the format of content they own. For example, they should be able to convert CDs to digital MP3s.

The Copyright Review Commission’s report comes ahead of a meeting Jacob Zuma will hold with the creative industry in November.  — (c) 2012 NewsCentral Media

• Image: Olivier Bruchez/Flickr