Addressing the role of internet intermediaries and other stakeholders in the online counterfeit market in South Africa : lessons from selected jurisdictions

Abstract

In recent times, the need to protect intellectual property rights (IPR) against infringement on the internet is increasing. The surge in commercial transactions on the internet continues to popularize the advertisement and sales of counterfeit goods. Such negative development has continued to engender the infringement of IPR, particularly trademark rights. Section 76 of the Electronic Communications and Transactions Act (ECTA) requires that internet service providers (ISP) only be held liable for infringing data or activities where they know such infringement emanating from their users exists. IPR holders have argued that the protection offered by section 76 of ECTA is enabling ISP to contribute to infringe content on the internet as the response to their complaints are not met with the urgency they deem is required simply because they benefit financially from their users. This continuous challenge prompts the need to research on the role of internet intermediaries and other stake holders on the internet counterfeit market in South Africa. Enforcement efforts observed in the USA and Europe to curb the internet counterfeit tide has necessitated that a comparative analysis takes place which has resulted in important lessons to be learnt and implemented. A qualitative research approach has shown that there has been instances wherein ISPs and consumers are guilty of secondary infringement of trademark rights on the internet and as such collaborative efforts are required from all stakeholders in eliminating such infringement so as to eventually curb the counterfeit tide significantly.