Publishers’ association of south africa

INTERNATIONAL TREATIES GOVERNING COPYRIGHT

WORLDWIDE, INTELLECTUAL PROPERTY PROTECTION rests on national, not international legislation. However, an international system is necessary to avoid the conflict of laws. International intellectual property treaties regulate relations between governments and comprise international case law and custom as well as the bilateral and multilateral agreements, or treaties, negotiated by governments and ratified by national legislatures and through which governments develop their legislative frameworks in conformity with global standards.
This system is particularly important in the information age, with the blurring of international boundaries and the explosive growth of trans-border information dissemination, across a multiplicity of national legislations. Such a system is provided by the international treaties, which ensure that member countries’ laws conform to certain, mutually agreed, minimum standards. The most important of these (as far as publishing is concerned), are the Berne Convention and the TRIPS Agreement.
As a member nation of the Berne Union, a member of the World Intellectual Property Organisation (WIPO), and a signatory to the Agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement), South Africa has international obligations concerning the legal environment in which copyright is protected and in which that protection is enforceable. It has to be recognised, too, that many trade relationships and agreements are dependent upon a sound intellectual property framework in a country and, most particularly, preferential trading agreements with the United States for duty-free access to the United States market for South African goods. Investment in South Africa can also be dependent upon the perception that the country provides a sound intellectual property environment.
The importance of this aspect of South Africa’s international obligations is recognised by the South African government as being of key importance in its international trading relationships. The Chief Executive Officer of the Companies and Intellectual Property Registration Office (CIPRO) has articulated this as being a central concern:
As far as intellectual property is concerned South Africa is in a fairly unique situation in that we are leaders in Africa as far as the recognition of these rights are concerned and the feeling is that we should avail ourselves of the situation in order to expand South Africa’s influence in this field in Africa and the rest of the world ... it is our view that much can be done to promote the prestige of South Africa in this regard. I submit that this would also serve to increase international regard for South Africa as a country with refined intellectual property laws and recognition of these rights. This should also increase the international investor confidence in our country.³³

The Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works, adopted in 1886, last revised in Paris in 1971 and amended in 1979, is the principal international treaty regulating copyright protection. In setting the minimum standards for the protection of copyright, it guarantees to authors and publishers the protection of their rights in all countries party to the treaty.³⁴ The principle of national treatment as expressed in Article 3 means that a country’s copyright laws have to grant the same level of protection to creators in other countries of the Berne Union as they do to their own. It does not prescribe how such protection should be provided but, rather, sets out which principles and provisions should and should not be implemented in national laws.
Most importantly for publishers and authors, the Berne Convention, in Article 9(2), provides a number of exclusive rights to the author³⁵ in the economic exploitation of the work. Of these, the most important is the following:
Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form. (Article 9 (1))
The Berne Convention then allows member states to introduce exceptions to the exclusive right of the author, in their national legislations:
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (Article 9 (2))