Today’s ruling that the first person to be convicted of online copyright infringement in South Africa must serve a three year jail sentence, s fully suspended for five years, has been slammed as “draconian” by a leading academic in the field of intellectual property.

The court passed judgement on a man from the Cape Flats earlier today, who pleaded guilty to uploading a torrent link to The Pirate Bay and a digital file containing South African gangster movie Four Corners. The offender said that he was relieved with the verdict as it meant he could walk free from the court.

Dr Tobias Schonwetter, director of the Intellectual Property Unit at the University of Cape Town, says that he is “surprised by the harshness” of the sentence.

“On the face of it, the sentence of three years imprisonment fully suspended appears draconically harsh,” Schonwetter says, “And reminds me of the heavy punishments in other countries that have been widely criticised for not tackling the underlying reasons for online piracy; and for not achieving the objective of reducing piracy either. However, Mr Norton may actually prefer this sentence to being fined thousands of Rands.”

Schonwetter says that the final judgement may show a lack of understanding of the current entertainment market.

“What we really need in South Africa and elsewhere right now is to constructively discuss ways of making our copyright laws fit for the 21st century,” he explains, “So that they can appropriately deal with the challenges brought about by digital technologies. We need to accept that copying is rife on the Internet and difficult to restrain, and we should embrace the new opportunities for collaboration and knowledge sharing. And then we can identify the instances in which we believe that stronger protection or better enforcement is nevertheless necessary to protect truly justified interests of rights holders.

“I am pretty confident that in the present case not a single Rand was lost in revenue because of Mr. Norton’s actions – and when there is no harm done really a sentence of five years imprisonment is utterly unreasonable.”

Schonwetter’s views echo those of the film’s director, Ian Gabriel, who recently called on those who had seen illegally produced copies of the film to consider supporting it at theatres if they had enjoyed it.

The distributors of Four Corners, Indigenous Films, released a statement a few days ago saying that it believed copyright infringement had affected ticket sales in the opening weekend, but “We have no idea of the impact of the internet downloads and the extent to which these downloads may have contributed”.

While the South African Federation Against Copyright Theft (SAFACT) was initially keen to use the Four Corners case as a precedent-setting test of law, Schonwetter believes that that today’s conviction may put others off pursuing copyright infringers through the courts.

“Without a doubt, copyright lobbyists such as SAFACT will use this judgement to further threaten the general public through intimidating anti-piracy campaigns.” Schonwetter says, “However, enforcement of online piracy will remain tedious, costly and very time consuming. It is still impossible to police the internet. This case was quite exceptional in that it dealt with a South African production, that the infringer was based in South Africa and that it was very simple to identify the infringer because he used the same username on the P2P platform and on twitter. There are simply not many cases that are so simple to prosecute.”

Lawyer Paul Jacobson, of Web•Tech•Law and regular columnist here on htxt.africa, agrees that the judgement may not have been strong enough for SAFACT.

“They’ll certainly portray it as a victory for their cause and a warning to all pirates,” Jacobson says, “The reality is that it is a compromise he probably agreed to because the costs of fighting this are beyond his means, not because they argued a convincing case. What he did is probably copyright infringement but a stronger precedent would be a court ruling one way or another.”

SAFACT has not yet responded to requests for comment.

[Image – cc Fabliaux]