ONLINE GAMBLING: the dti INPUT
PORTFOLIO COMMITTEE ON TRADE AND
INDUSTRY
MR M NETSHITENZHE: CHIEF DIRECTOR
(THE DTI)
PURPOSE
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To outline a view on how Online Gambling can be approached from a
Perspective of Copyright Regime in Other Jurisdictions
BACKGROUND
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The National Gambling Policy Council approved the creation of the Gambling
Review Commission (GRC) in October 2008
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The GRC was established and its Report is the subject of consideration by the PC,
in particular its Working Group on Gambling
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Submissions from the public hearings amongst others suggest that new forms of
gambling and the technological evolution, i.e. Online gambling and Electronic
Bingo Terminals should be considered.
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This is so notwithstanding the fact that Parliament had already passed the National
Gambling Amendment Act that deals with interactive gambling.
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This presentation seeks to show how Online activities have been regulated in other
jurisdictions in the area of Copyright.
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Conclusions on whether or not to allow Online Gambling can be reached by
analogy.
INTERNATIONAL REGULATORY ENVIRONMENT
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Digital channels account for 29% of global music industry.
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Digital strategy in the music industry in the European Union (EU) level relies on
partnerships forged by record companies, Internet Service Providers (ISP) and
mobile operators.
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Mobile connectivity has greater penetration in South Africa and mobile
downloads are happening at an alarming rate.
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Availability of smart phones and other mobile devices are empowered to perform
high speed connections. Digital content can therefore be accessed with ease
and payment can also be effected through these devices.
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In some jurisdictions, including South Africa, there is a low level of compliance
by majority mobile service providers.
INTERNATIONAL…
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In order to counter effectively with digital acts of exploitation, World Intellectual
Property Organisation (WIPO) produced in 1996 two treaties, namely, WIPO
Copyright Treaty (WCT) and WIPO Performances and Phonogrammes Treaty
(WPPT).
Amongst others, the two treaties provide for the management of rights
information and the anti-circumvention provisions.
INTERNATIONAL…
The WCT and WPPT oblige member states to provide legal remedies against the
circumvention of technological measures to protect the rights of copyright
holders. Technical protection measures (TPMs) include:
• Measures for access control and anti-copy devices
• Proprietary viewer software
• Encryption password
• Watermarking (user-authentication)
• Fingerprinting
• Metering and monitoring of usage
SOUTH AFRICA:E- COMMERCE LEGISLATION
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1.
South Africa has implemented partially the prohibition on the circumvention of
TPMs. Section of Electronic Communications Act 25 of 2002 (ECTA) creates
a cyber offence as relating to the unauthorised access to, interception or
interference with data.
The section prohibits the manufacture or possession of anti-circumvention
device or its use to circumvent security measures.
Note that the anti-circumvention prohibition is not copyright specific and is
applicable to all forms of data.
Role of Mobile Content Providers
The salient point is that these bodies are licensed by collecting societies in
order to operate and use the work of members such as musicians or authors.
SOUTH AFRICAN E-COMMERCE LEGISLATION
2. Liability of Service Providers (Online Service Providers-OSP)
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The law of delict or copyright imposes liability through commissions or omissions
depending on circumstances. Liability attracted depending on the role an OSP
plays.
Where an OSP transmits or facilitates access to copyright infringing material it
may be liable for “contributory infringement” at common law.
The definition of a “service provider” may be broad enough to include “any
person providing information system services”. This encompass only only those
who perform that make the internet available to users.
OSPs have agreed to an injunctive procedure known as “notice and take down”.
This is provided for in terms of section 77 of ECTA.
The service provider is not liable for a wrongful take down in response to a
notification.
OSPs are under no duty to monitor the data they transmit or store even if it may
be unlawful.
FOREIGN LAW (JURISDICTION) ENVIRONMENT
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France, United Kingdom (UK) and New Zealand systems of graduated
responses to infringements that culminated in the suspension/blockage of
access services to individuals.
In France this is referred to as the HADOPI system- French agency
administering the system to control and regulate internet access and encourage
compliance with copyright law- (Acronym) Haute autorite pour la Diffussion des
Oeuvres et la Protection des droits sur Internet. 25000 complaints are reported
per day, it is reported. This system came into force in 2009.
The British introduced the Digital Economy Act that regulate the digital media in
2010. Technical measures to limit/suspend entirely, appeals processes,
blockage of internet locations are in place.
In New Zealand, the practice comes in the form of detection notice, warning
notice, and enforcement notice. The holder of the Internet account is liable, even
if he/she is not the one who broke the law.
Italian law allows Internet gambling but operators must be licensed and
advertisement is linked to legal licensing and consumers are warned about the
risks of participating illegal sites.
ANALYSIS AND RECOMMENDAIONS OF E-COMMERCE
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ECTA provides an overarching for all relevant laws to go “e-commerce” and not
only intellectual property legislation such as trade marks (domain names) and
copyright regime as shown above.
ECTA can be amended to provide that OSPs and ISP as well as Mobile
Operators must have a legal duty to monitor what they store or transmit.
OSPs. ISPs and Mobile operators must be licensed in order to engage in online
gambling activities.
National and Provincial legislation should have norms and standards on TPMs
as inconsistency in one country may cause confusion.
Enforcement capacity of e-commerce legislation, e.g. cyber squatting/cyber
police should be built.
Heavy penalties such as total blockages and suspensions as well as hefty fines
should be imposed.
Minors should be protected against online gambling.
Consumers must be alerted against illegal sites.
THANK YOU