Legislation governing intellectual property (IP) in South Africa has not kept pace with the digital era, a specialist law firm has warned.

Spoor & Fisher partner Herman Blignaut says copyright legislation has fallen behind advances in technology, and copyright holders are not able to enforce their rights online.

This is particularly true for copyright infringement using BitTorrent, he says.

“With the downloading of movies and music through torrents, a rights holder should be able to go to the website from where it is being downloaded and shut it down,” says Blignaut.

“But if the website is not South African, or has an overseas hosting company, there is no recourse in the law.”

The only other option is for the rights holder to approach each individual who has downloaded copyrighted content, which, he says, is simply not financially feasible.

Blignaut says there are no moves to bring existing legislation in line with technological developments.

“We’ve seen great success in combating piracy of physical goods through the Counterfeit Goods Act, Copyright Act and Trade Marks Act. The online environment has proven more difficult to enforce.”

Blignaut says South African artists are not only bearing the brunt of online piracy, but they feel hard done by because of the way rights are typically managed.

“Most artists belong to copyright collecting societies, which act as middlemen,” he explains. But there is a lack of transparency, with artists not informed about what goes on behind the scenes, he says.

“They are unaware of what people may or may not do with their works. For example, if someone uses a couple of words from their song, artists would claim that their copyright is being infringed — but this is not so.”

Artists could choose to deal with licensing issues themselves, which this is difficult because, for one thing, they’re not IP specialists. Collecting societies play an important role, says Blignaut, but many artists worry about a lack of transparency.

“They get a statement and don’t have the knowledge to dispute its contents,” he says.

South Africa has a number of copyright collecting societies, the most prominent of which is the Southern African Music Rights Organisation.