Last month South Africa released its draft Cybercrimes and Cybersecurity Bill for public comment; the latest in a wave of such laws that has been sweeping the continent and beyond. EFF is currently reviewing the Bill with a view to sending a submission by the deadline of November 30, and we'll have more to say about it before then. But there is one provision that deserves immediate comment: a clause that would criminalize essentially any infringement of copyright. This provision is oddly timed, given that South Africa is also separately considering amendments to its Copyright Act. But it's more than just the timing that's odd. Here's the relevant part of the clause:
20. (1) Any person who unlawfully and intentionally, at a time when copyright exists in respect of any work, without the authority of the owner of the copyright, by means of a computer network or an electronic communications network—
any work, which the person knows is subject to copyright and that the actions contemplated in paragraphs (a), (b), (c) or (d) will be prejudicial to the owner of the copyright, is guilty of an offence. (2) Any person who contravenes the provisions of subsection (1), is liable on conviction to a fine or imprisonment not exceeding three years or to both such fine and imprisonment.
- offers for download;
- distributes; or
- otherwise makes available,
So let's break that down. To sell, offer for download, distribute or otherwise make available a copyright work online basically covers just about anything that you could possibly do with a copyright work online, other than up or downloading it for your own personal use. The offense requires that you know that the work is subject to copyright, and that you don't have the copyright owner's authority to put it online—however there so many instances in which copyright owners tolerate their works being published online that this could criminalize an entire generation of fans and remixers.
The clause does impose a further condition: that the offender knows that putting the work online "will be prejudicial to the owner of the copyright." But how is "prejudice" measured? If we were to listen to the copyright lobby, every time a work is downloaded without authorization, the owner loses a sale (which is, of course, nonsense). Are users expected to believe these exaggerated claims? Or, conversely, if the user doesn't believe that the copyright owner suffered any material prejudice, would a court accept that at face value? If you were considering uploading a TV clip to a video sharing site, the possibility that a court might assume you should have known this would "prejudice" the rightsholder might well give you second thoughts.
You would be right to be cautious, since the offense calls for a penalty of up to three years imprisonment. Criminal penalties for copyright infringement are not new. But until recently, most countries have limited these to large scale, for-profit infringement, such as the production of pirated CDs or DVDs. The Trans-Pacific Partnership stretches this by including an elastic definition of "commercial scale" infringement that encompasses non-profit activities, but even those still have to be undertaken on a large scale. Under the South African proposal, even this isn't required. Potentially uploading a single file is criminalized, so long as the user can be found to have known that this would prejudice the copyright owner.
The drafters of this South African Bill need to take it down a notch. The right place for copyright enforcement measures is not in a cybercrime law, it's in the copyright law—which is already under review. And the copyright law already contains comprehensive criminal enforcement measures, to which this latest proposal would add nothing—other than newly criminalizing individual users for isolated and small-scale infringements. Criminal liability for copyright infringement is already extensive enough, without branding small-scale bedroom infringers as cybercriminals.