Copyright and trade mark infringements: the digital evolution

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 provide adequate protection to copyright and trade mark proprietors against Internet infringements. Specifically, the study observed when copyright and trade mark protection is violated by Internet conduct. Furthermore, the study observed the influence of both the constitutional right to freedom of speech as well as the constitutional right to privacy on possible copyright and trade mark infringements. The study also made certain recommendations to bring the above-mentioned legislation in line with the aforementioned constitutional rights as well as the Internet. In addition, the study also observed how local courts will apply the common law principles, with specific reference to passing-off and unlawful competition, to specific Internet scenarios. The interaction between the common law and the constitutional right to freedom of speech was also studied. The study specifically observed how American courts applied and extended their own principles to the Internet in order to meet the demands of the twenty-first century. The study made generous use of the vast American jurisprudence to observe how Internet and computer users employ the Internet to infringe third parties' copyright, trade mark and common law rights. Where the relevant American principles correspond with the South African principles, the study made use of these principles to propose how the South African principles should applied to the Internet, in order to reach an answer which not only balances the parties' respective right or interests, but also advances the interests of the South African community. In addition, the study observed relevant international developments such as the European Convention on Cybercrime, the European Copyright Directive, and the WIPO Copyright Treaty. Specific note was also taken of the international Universal Dispute Resolution Procedure as well as panel judgments resolving trade mark infringements in terms thereof. It should also be mentioned that the various technology used by copyright proprietors to protect their rights from electronic infringement, such as digital watermarks, digital rights management and audio fingerprinting, was also studied.