Online copyright infringement, techno-cultural creations and the copyright-technology nexus

Abstract

This paper considers how the principle of technology neutrality could be applied in copyright law to inform legislative provisions and court decisions on infringement in the digital environment. It specifically examines Canadian and South African legislative and judicial approaches to user generated content (UGC) and to news aggregation. This discussion encompasses the use of exceptions and limitations to cater for these, and other, online practices. It finds that the Canadian UGC exception was necessitated by the fact that the enumerated purposes of the fair dealing exception do not extend to UGC. Therefore, it recommends the introduction of a UGC exception to South African law, if the current fair dealing exception is retained. In contrast, jurisdictions that have the broader and more flexible fair use exception do not require a specific UGC exception. News aggregation is covered by enumerated fair dealing purposes in South Africa, therefore no legislative amendments are recommended.