Publishers’ association of south africa

SOUTH AFRICAN COPYRIGHT LEGISLATION

INTERNATIONAL TREATIES such as Berne, TRIPS and the WCT require national legislatures to meet certain minimum standards in their national legislation.
One of the primary objectives of this Report is a comprehensive evaluation of the entire copyright legislative environment in which the South African print industries sector operates, identifying deficiencies where they exist. Only then can the industry even begin to contemplate solutions. Many publishers perceive that copyright is a ‘problem’. Does the problem lie with the law itself, with enforcement of the law or with ignorance of the law? Or is it a matter of divergent needs in the industry sector? Or even of the social and cultural context in which the copyright regime exists?
The Copyright Act
Copyright in South Africa is regulated by the Copyright Act, No 98 of 1978 as amended, and the Regulations promulgated in terms of Section 13 of the Act.⁴¹ Under the Act, literary works are protected, as are musical works, artistic works, sound recordings, cinematograph films, sound and television broadcasts, programme-carrying signals, published editions and computer programmes. Without authorisation from the copyright owner, no-one may perform certain restricted acts in respect of these protected works, such as reproducing them, adapting them, publishing them, performing them in public or broadcasting them. Copyright is of limited duration, after which works enter the public domain.⁴² In South Africa the duration of copyright is the life of the author plus 50 years after the author has died.
The Regulations – Exceptions For Educational And Library Use
The copyright regulations promulgated in terms of Section 13 of the Copyright Act came into effect in 1978. They appear to have been in part prompted by the impact of the anti-apartheid academic and cultural boycotts in place at the time and were an attempt to mitigate the impact of the boycotts on education. Almost since their promulgation, they have been seen as problematic. Not only are they poorly expressed and ambiguous, but they are arguably in contravention of the three step test and ultra vires the Act itself.
They follow the lines of the United States Voluntary Classroom Guidelines – though they lack the requirements of brevity and of spontaneity – which are formulated in terms of Section 107 of the United States Copyright Act, the so-called ‘fair use’ provision (for a more detailed explanation, see p. XXX, above). Regulations are intended to add clarity and certainty to an Act⁴³, but since fair use and fair dealing are not identical doctrines the indiscriminate grafting of an explanatory instrument from one onto the other has led to confusion.
Moreover, the words of Section 13, which echo those of Article 9 (2) of Berne, explicitly prohibit uses that would conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interest of the rights owner. Since the detailed provisions of the regulations formulated under Section 13 could indeed conflict with a normal exploitation of the work or conflict with the copyright owner’s legitimate interests, they are arguably ultra vires the Act as well as in contravention of Berne.⁴⁴
For example, while the list of permissible copyright levels spelled out in the regulations, taken in isolation, might lead educators to believe that multiple copying is permissible, the framing text, which applies the Berne Convention three-step test as an overall limitation governing classroom exceptions, contradicts this perception. For the publishing industry, litigating against infringement on the basis of these regulations would therefore be likely to be difficult and expensive.
PASA has long seen the regulations as problematic and has been pressing for their amendment for more than a decade. While it could be argued that they do not in fact, in their strict interpretation, confer the right to cumulative multiple copying, their very ambiguity has undermined the effectiveness of the law. As a result, publishers wishing to take action against infringements in educational institutions or libraries would be faced with lengthy and expensive legal arguments about the interpretation of these regulations.
The Provisions of the Regulations
The copyright regulations which offer certain concessions to educational institutions and libraries have been promulgated under Section 13 of the Act.
A reasonable portion of a work ('reasonable' having regard to the totality and meaning of the work and as both a qualitative and quantitative judgement) may be reproduced if the cumulative effect of the reproduction does not conflict with the normal exploitation of the work to the unreasonable prejudice of the legal and moral rights of the author. 'Cumulative effect' is defined as not more than one short poem, article, story or essay, or two excerpts, copied from the same author, or more than three short poems, articles, stories or essays from the same collective work or periodical volume, for the purpose of instructing a particular class during any one term, and not more than nine instances of such multiple copying for one course of instruction to a particular class during any one term.
Multiple copies may not exceed in number one copy per pupil per course; they may not be used to create or replace anthologies, compilations or collective works; they may not include works intended to be ephemeral such as workbooks, exercises, standardised tests and answer sheets; they (the same materials) may not be used for the same class from term to term; and they may not be used as a substitute for the purchase of books or periodicals.
By stating that the cumulative effect must not conflict with the normal exploitation of the work, the legislator has not given a green light for the reproduction of the amounts listed above. A further test must be used, and that is that those amounts must not be used as a substitute for the purchase of books or periodicals. It is a mistake, therefore, for educators to assume that multiple copies not exceeding the amounts set out in the definition of 'cumulative effect' are automatically permissible.
The library privileges permit the making of a copy, by an employee of a prescribed library, of one article from a collection or a periodical, or a reasonable part of a work, provided that it is made for the person requesting the copy, and the library has had no notice that it is to be used for anything but that person's private use or study. The whole work, or a substantial part of it, may be copied only if the library has determined, on the basis of a reasonable investigation, that another copy cannot be obtained at a fair price, further conditions attached to this being that the copy becomes the property of the user and is intended only for his/her private study and that the copyright warning is displayed next to the photocopying machine.
A single copy, made under the above conditions, may be made on separate occasions, but not if the library employee is aware, or has substantial reason to believe, that multiple copies of the same material (whether made all at once or over a period of time) are intended for aggregate use by more than one person or intended for separate use by the individual members of a group. A library or its employee may not, therefore, engage in the systematic reproduction of single copies, or make multiple copies, other than of periodical articles of a scientific nature.
Sometimes, educational and library privileges are confused with the free use permitted under the fair dealing principle. South African law, by dealing with the latter under Section 12 of the Act, and the former under the Section 13 regulations, clearly and unambiguously separates them.