oa Comparative and International Law Journal of Southern Africa - The protection of copyright works on the internet - an overview

Volume 38, Issue 3
  • ISSN : 0010-4051



Digitisation lead to wide-spread, cross-border and virtually uncontrollable copyright infringement because of the simplicity of digital reproduction, the ease and speed of digital transmission and the ease of digital manipulation. Authors protect their digital works against copyright infringement through contractual conditions and technological protections. Technological protection measures are vulnerable to hacking (circumvention). The international community accordingly concluded the WIPO Copyright Treaty (the 'WCT') in 1996 . Article 11 requires of its member states that they should adopt legislation that would provide adequate legal protection against the circumvention of technological protection measures. The provisions of Article 11 have been implemented into national legislation by member states. Only two pieces of implementing legislation will be discussed: the Digital Millennium Copyright Act of 1998 (DMCA) which implemented Article 11 in US copyright law and the EC Directive on the harmonisation of certain aspects of copyright and related rights in the information society which implemented it into EC legislation (Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001) The provisions in the DMCA create a new form of liability, separate and distinct from copyright infringement. By prohibiting the devices necessary to circumvent protection measures for non-infringing purposes, it will be impossible to perform non-infringing acts. Although the EC Directive does not prohibit the devices necessary to circumvent for legitimate purposes, it does not really make provision for exceptions to the prohibition on circumvention since only one of the exceptions listed in the Directive is mandatory. Copyright works on the internet enjoy a three layered protection: the work is protected by law of copyright, then by the technological protection measures applied by the author, and the protection measure itself is once again protected by law (by the prohibition on Circumvention). The manner in which the prohibition on circumvention has been implemented in national legislation, threatens legitimate uses.

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