Copyright and trade mark infringements: the digital evolution

[摘要] English:The purpose of this study was to ascertain whether (1) the Copyright Act 98 of 1978,(2) the Trade Marks Act 194 of 1993 and (3) the South African common law provideadequate protection to copyright and trade mark proprietors against Internetinfringements. Specifically, the study observed when copyright and trade markprotection is violated by Internet conduct. Furthermore, the study observed theinfluence of both the constitutional right to freedom of speech as well as theconstitutional right to privacy on possible copyright and trade mark infringements. Thestudy also made certain recommendations to bring the above-mentioned legislation inline with the aforementioned constitutional rights as well as the Internet. In addition, thestudy also observed how local courts will apply the common law principles, withspecific reference to passing-off and unlawful competition, to specific Internetscenarios. The interaction between the common law and the constitutional right tofreedom of speech was also studied. The study specifically observed how American courts applied and extended their ownprinciples to the Internet in order to meet the demands of the twenty-first century. Thestudy made generous use of the vast American jurisprudence to observe how Internetand computer users employ the Internet to infringe third parties' copyright, trade markand common law rights. Where the relevant American principles correspond with theSouth African principles, the study made use of these principles to propose how theSouth African principles should applied to the Internet, in order to reach an answerwhich not only balances the parties' respective right or interests, but also advances theinterests of the South African community.In addition, the study observed relevant international developments such as theEuropean Convention on Cybercrime, the European Copyright Directive, and theWIPO Copyright Treaty. Specific note was also taken of the international UniversalDispute Resolution Procedure as well as panel judgments resolving trade markinfringements in terms thereof.It should also be mentioned that the various technology used by copyright proprietorsto protect their rights from electronic infringement, such as digital watermarks, digitalrights management and audio fingerprinting, was also studied.

[发布机构] University of the Free State