School of Law (ETDs)

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A legal approach to whether ai generated content should be protected under copyright
(University of the Witswatersrand, Johannesburg, 2023-10) Stransky, Caitlin
Currently, there is no clear answer for whether AI-generated content should be protected under copyright law in South Africa and if so, who is the author and who owns the copyright. As AI is growing more advanced and widely used, the potential for confusion grows and thus clarity on the law’s position is important. In this paper, I will examine how AI generates works and compare this to the purpose of copyright law. I will then determine whether granting AI- generated works copyright protection aligns with the purpose of copyright law. Further, I will conduct an analysis on how different countries have dealt with the question of whether AI-generated content should be protected under copyright. This will help pinpoint the factors to consider when answering this question such as the requirement of human authorship, legal or juristic person ownership of the copyright and whether the works are copyrightable. It is important to consider how South Africa’s legal system should approach issues surrounding AI-generated content and copyright. In examining the South African legal position on this question, I will conduct an analysis on the approaches taken by the US, the UK, Germany, Australia, China, and South Africa in relation to AI-generated works and copyright. This range of countries will allow for a greater understanding of the issues, complexities, and factors to consider while answering this question
Legal challenges of establishing jurisdiction over cloud data: addressing the gaps in South Africa’s cybercrime legislative framework
(University of the Witwatersrand, Johannesburg, 2023) Musoni, Melody; Klaaren, Jonathan
This thesis discusses the problems presented by the emerging technology of cloud computing during cybercrime investigations. One of the main challenges with cloud computing technologies is the lack of clarity on jurisdiction and whether law enforcement agents can exercise unilateral enforcement jurisdiction over remote cloud data. The thesis signifies the challenge by demonstrating how remote access to cloud data can potentially infringe on the sovereignty of foreign states, violate international law, and infringe on people’s privacy rights. The underlying concern with cybercrime investigations in the cloud context is that the current laws are not only territorial, but they are also outdated and lacking the ability to complement and address technological advancements. The central question discussed is whether the jurisdictional principles need to be revised to address innovative technological advancements or if the traditional principles suffice and can continue to be of application. At present, there are diverging views and approaches to dealing with cloud data jurisdiction for criminal investigation purposes. Some scholars, judges and law officers still rely on traditional jurisdictional principles and apply them to cyberspace and cloud environments. They do not see the justification to have separate laws to address activities in cyberspace. However, others advocate for the acclimatisation of new laws to meet the technological changes. Compounding this difference in opinion is the uncertainty in legal frameworks on cybercrime. Such uncertainty has left the topic vacillating between the views of territorialists and those of data exceptionalists. Similarly, South Africa’s position on this issue is unequivocal as various pieces of legislation address the issue of cloud jurisdiction differently. This makes this study of utmost importance. This thesis argues that law should be developed to address the technological changes presented by cloud computing technologies. Traditional jurisdictional principles which emphasise on geographical territory are not sufficient to address the unique features of cloud data. Pre-internet based jurisdictional principles should not be directly applied in cyberspace or cyber-environments. It is important for law to be developed in a manner which allows it to adequately address technological developments. One way of achieving this is by reformulating jurisdictional principles to conform with the emerging technologies. Apart from law, lawyers and law makers should leverage the use of other regulatory modalities such as code to regulate online conduct. Code can play the role of law which can effectively regulate cyberspaces as well as solve the data jurisdictional problem. This thesis supports the notion of reformulation of jurisdictional principles to address these challenges. In addition, it also points out the importance of reinforcing the current measures in place to address jurisdictional challenges
Social media content moderation and limitations on freedom of expression: the role of the state
(University of the Witwatersrand, Johannesburg, 2022-10-30) Davis, Tara; Badeva-Bright, Franziska Sucker an Mariya
Social media platforms are an important space for the exercise of freedom of expression. However, their operation poses a concomitant risk to the right. The right is both protected by and undermined by content moderation - a mechanism that enables platforms to determine the bounds of permissible speech, and what expression to highlight or suppress. This has significant implications for the right to freedom of expression but has been left largely to the private sector to regulate. This raises important questions about the role of the state in protecting and enabling the right to freedom of expression online. In this paper I discuss the need for content moderation, how it operates and the ways in which it undermines the right to freedom of expression in South Africa. I further explore the role of the state and analyses South Africa’s current regulatory response. In so doing, I contend that South Africa’s approach does not adequately respect, protect and promote the right to freedom of expression
Social media posts and memes: a South African perspective on the intersection of copyright law, internet use and privacy
(University of the Witwatersrand, Johannesburg, 2023-07) Mpipa, Simamkele Kuhle; Andanda, Pamela
This research report is a reflection on the intersection of social media, privacy, dignity, and copyright law. With a click of a button, social media platforms, and the Internet at large, reveal personal information belonging to millions of individuals around the world, the digital environment has changed life as we once knew it. Legal scholars and legal practitioners must now face the novel legal issues which have been brought about the digital age. Due to the law’s reactive nature, privacy and data protection have been put at the forefront of new legislation. The subject of this paper is not data protection, rather this paper analyses the common law protection of privacy and copyright law in South Africa within the context of social media. In light of the changes brought about by the digital age, the position that I put forward in this paper is: to effectively address the challenges created by the digital environment, we must strive to adopt innovative and creative ways to use existing law rather than create new law. The paper discusses how internet memes can be harmful to the privacy and dignity of the individuals whose works they are derived from. I also examine the common law protection of privacy within this context and whether it is appropriate for addressing related issues in the digital age. Lastly, I put forward remedies in copyright law, particularly the protection of moral rights of an author, as a possible recourse that can be used by authors whose works have been made into internet memes
South Africa's capability to regulate and enforce the sale of digital goods
(University of the Witwatersrand, Johannesburg, 2023) Stockigt, David Henry
There are several challenges to regulating digital goods in South Africa. Firstly, the classification of digital goods can be found in the Films and Publication Amendment Act (FPAA), which seeks to bring the Films and Publications Act in line with new technologies and digital goods. The changes made within the FPAA raise other issues and questions of who is bound to the FPAA regulations, whether it only applies to publishers in South Africa and whether the regulations will be binding on individual publishers. Secondly, copyright enforcement has become more complex as the ability to replicate and reproduce copyright protected works has become easier. The Copyright Amendment Act (CAA) now offers greater protection of copyrighted works in the art, music, film, and video game industries through royalty agreements, allowing a copyright infringer to escape liability by paying an agreed amount for the use of the digital goods. Finally, the sale of a non-physical, digital good is governed by the Consumer Protection Act (CPA); it only provides general protections when entering into end-user licence agreements. Access to the digital good will find protection under the traditional law of contract principles. South Africa has made great progress in regulating the sale of digital goods however, many gaps remain within South Africa's law. Drawing from the analysis of foreign jurisdictions, such as the United States of America (USA) and the European Union (EU). The USA, unlike South Africa, has created specific laws to govern problems that directly result from the increase in the sale of digital goods. The USA has focused their efforts on regulating password sharing, the legal principle of first sale through the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act. Finally, the USA has also allowed for specific copyright protection within the video game industry, protection that is not available in South Africa. On the other hand, the EU offers more generalised protection as the EU's Copyright provides broad solutions instead of individual laws addressing individual issues. The EU’s solutions include a strike system and the transfer of copyright infringement liability to the providers of the infringing material, allowing for adequate and efficient enforcement of copyright protections across multiple jurisdictions within the EU. South Africa would need to consider creating regulations that address live streaming, increasing video game copyright protection, and implementing the strike action through newly focused regulations rather than existing film and copyrights laws. By extending existing liability regulations to include those who provide access to the infringing material, it would enhance and encourage more well-rounded and sufficient protections in South Africa
Taxing Facebook: user data and participation as taxable assets
(University of the Witwatersrand, Johannesburg, 2023-02-12) Novazi, Zinhle; Gutuza, T.
Facebook is said to have 2.93 billion active users and it is estimated that by 2026 the number of Facebook users in South Africa will reach 35.92 million. Facebook is said to generate 98.5% of its revenue from digital advertising in the form of targeted advertisements on Facebook and Instagram. A plausible case can be made about the contribution of user data to the profitability of a highly digitalised company such as Meta Platforms Incoporated. This research report has identified three fundamental problems. First, Meta Platforms Incoporated extracts data from users and generate profits through targeted advertising at the location of the user without paying sufficient income tax in the user jurisdiction. Secondly, there is a fundamental problem with how South Africa deals with the income taxation of companies such as Meta Platforms Incoporated. Thirdly, the current tax rules do not allow for taxation to take place at the location of the user and therefore need to be revised. This research report therefore provides five potential solutions that South Africa can adopt to impose income tax on Meta Platforms Incoporated. The solutions include first, the use of the South African source rules (source being at the location of the server); secondly the use of the South African source rules (source being atthe location of the Internet Service Provider); thirdly a tax akin to the mineral royalty tax in the form of a data royalty tax; fourthly the OECD’s Two Pillar Proposal; and fifthly unilateral legislative solutions (using Nigeria and India as a case study)
The effectiveness of detection and prosecution of cybercrime threats against companies in South Africa
(niversity of the Witwatersrand, Johannesburg, 2023) Naidoo, Shanine; Starosta, Alina
The rise of digital technology has brought about many benefits to modern society. However, this advancement has also led to an increase in cybercrime activities, which has become a significant threat to individuals and organizations worldwide. In South Africa, cybercrime attacks against companies have become increasingly rampant, posing significant risks to their operations and even their existence. As a result, there is a growing concern about the effectiveness of the measures put in place to detect and prosecute cybercrime threats against companies. The purpose of this report is to investigate the efficiency of detecting and prosecuting cybercrime attacks against South African companies. While the term "cybercrime" encompasses a broad range of activities, this research will focus primarily on evaluating cybercrime threats that specifically target companies and their cybersecurity. The reason for this is that such attacks can have dire consequences on companies' operations and existence, ranging from financial losses to reputational damage. To achieve this objective, the study will pursue a twofold approach. Firstly, it will evaluate the effectiveness of South Africa's legislation in detecting and prosecuting cybercrime threats against companies. This includes a comprehensive examination of the legal frameworks and policies currently in place to combat cybercrime activities in the commercial sphere. Secondly, it will evaluate whether companies can rely on law enforcement agencies in South Africa to provide adequate protection against such threats. This will involve a critical analysis of the capacity and capability of law enforcement agencies to respond to cybercrime attacks against companies. The findings of this report will contribute significantly to the understanding of the effectiveness of detecting and prosecuting cybercrime attacks against South African companies. The recommendations made will provide valuable insights into how to improve the detection and prosecution of cybercrime threats in the commercial sphere. This study will be beneficial to policymakers, law enforcement agencies, and companies operating in South Africa, as it will help to enhance their understanding of the threats posed by cybercrime and the measures needed to mitigate them
The sufficiency of protection in light of the increasing number of cybercrime and cyber harassment cases
(University of the Witwatersrand, Johannesburg, 2022-10-31) Witz, Daniel Joseph
This research examines how the South African Police Services, the National Prosecuting Authority, current and new legislation and Criminal Law address harassment in light of the increased threat and technological advancements of cyberbullying and cyber harassment. This research assignment will critically reflect on whether the Protection from Harassment Act, supported by recent additions to South African legislation, affords an applicant sufficient protection considering the increasing number of cybercrime and cyber harassment cases, and whether or not the reliance on the South African Police Services and South African Courts negates any protection that the legislation affords. In conclusion, this research report will make certain recommendations regarding how the complex issues of harassment can be addressed to focus on the protection of South Africa's Constitutional Value

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