Publishers’ association of south africa

Spreading ideas: copyright is an instrument of cultural policy that is also designed to support the spread and movement of ideas and of culture. So considered, authors’ rights and the limitations on these rights are the two levers of this policy.⁸ And so, at the same time as copyright confers rights upon authors, it places limitations on those rights in the interests of due access to information and knowledge. Copyright is not designed to prevent the dissemination of creative works and knowledge products; on the contrary, it is copyright legislation that ensures that these works are available, but in a way that protects the rights of their creators.

Lying behind copyright law is the recognition of the intrinsic difference between intellectual products and other products. The report by the UK Commission on Intellectual Property Rights sums up that difference as follows:

A characteristic of knowledge is that one person’s use does not diminish another’s (for example, reading this report). Moreover, the extra cost of extending use to another person is often very low or nil (for example, lending a book or copying an electronic file). From the point of view of society, the more people who use knowledge, the better because each user gains something from it at low or no cost, and society is in some sense better off. Economists therefore say that knowledge has the character of a non-rival public good.
The other aspect of knowledge, or products embodying knowledge, is the difficulty – often intrinsic – of preventing others from using or copying it. Many products incorporating new knowledge can be easily copied. Probably most products, with sufficient effort, can be copied at a fraction (albeit not necessarily small) of the cost it took to invent and market them. Economists refer to this characteristic as contributing to market failure. If a product takes a considerable effort, ingenuity and research, but can be copied easily, there is unlikely to be sufficient financial incentive from society’s point of view to devote resources to invention.⁹

Copyright as a Human Right

The creator’s monopoly is based on a compromise between creators’ interests and the interests of society at large, which demands the open movement of ideas, information and commercial exchange.¹⁰ That compromise is a delicate balance, and one which will be kept in mind throughout this Report. If copyright can be viewed principally as a set of economic and commercial rights, it is also important to recognise that it also has political and social implications, for according to the United Nations, it is a fundamental human right. In 1948 the General Assembly of the United Nations passed the Universal Declaration of Human Rights. According to Article 27(2), ‘Everyone has a right to the protection of the moral and material interest resulting from any scientific, literary or artistic production of which he is the author’, balanced by the right of the community ‘to share in scientific advancement and its benefits’. ¹¹

This balance, between the author’s moral and economic interests and the requirements of society, provides an ongoing tension, which lies at the heart of nearly all the controversies regarding copyright. The role of the legislator is to fine-tune opposing – and often conflicting – positions, always maintaining the balance.
It is worth noting that, although South Africa has one of the most advanced and enlightened constitutions in the world, intellectual property rights are not recognised in the constitution as a fundamental right. The Constitutional Court has ruled that intellectual property rights are subsumed in the general property provisions of the Constitution. This is problematic, according to leading copyright lawyer, Owen Dean, given the essential differences between intellectual property rights and other property rights.¹² It is arguable that a real commitment to the importance of intellectual property rights to South Africa’s development should be reflected in the Constitution.

Moral Rights

Moral rights are different from the economic rights that ensure the copyright owners’ right to control the exploitation of the work.

Moral rights and rights of paternity are infringed if the author is not identified as the creator, and they are also infringed by someone distorting, materially altering or mutilating the work to the extent that the author’s reputation is tarnished. In practical terms, a publisher needs to protect the integrity of the work in the publication process and not allow it to be changed in such a way as to harm the author’s integrity or reputation.
Duration of Copyright
The author’s monopoly over the exploitation of the work is of limited duration. In the United States, the recent extension of the duration of copyright from 50 to 70 years after the author has died, generated controversy. Rights owners – more particularly the large corporations owning the lucrative rights in Walt Disney creations such as Mickey Mouse – were in favour of the extension. Members of the public, seeking for themselves the rights to such economic exploitation, were against it. The duration of copyright, however, is not an issue considered in detail in this Report. We raise it merely to demonstrate the delicacy of the balance which always has to be maintained taking into account the legitimate demands of the various sectors of society. ¹³ In South Africa the term of copyright is 50 years from the death of the author.
THE STATE OF COPYRIGHT IN SOUTH AFRICA –

A BACKGROUND

WHILE IT IS GENERALLY RECOGNISED nationally and internationally that South Africa’s copyright legislation is reasonably sound, there are nevertheless issues that cause concern. There is consensus in government and among rights owners and some rights users that the position in South Africa is not satisfactory.¹⁴

The South African Copyright Regime

Copyright in South Africa is governed by the Copyright Act No. 98 of 1978, and the regulations promulgated in terms of Section 13 of the Act. Legislation follows broadly the United Kingdom and Commonwealth copyright traditions.