Publishers’ association of south africa

Fair Dealing in South African Law
It is true that where the law allows of more than one interpretation⁴⁵ of fair dealing, arguments are bound to arise. It has been asserted in a number of forums that fair dealing is a ‘contentious issue’ in South Africa. In the case of fair dealing rather a good deal is at stake since some voices in higher education believe that it may be possible to meet students’ informational needs under this exception – either by each and every student making for himself or herself a fair dealing copy, or for the institution to make the copies on behalf of its students. Those were the voices that objected when an attempt was made to confine the person making the copy, in Section 12(1)(a) of the Act, to a ‘natural person’.
In brief, the points of contention relating to fair dealing in South African law are whether or not copying can be carried out by a third party; and whether multiple copying can be allowed under fair dealing provisions.
The effect of and objections to the proposed changes to Section 12 as they affect fair dealing, are dealt with in the Appendix B, "Fair Dealing and Literary Works", appended to this report. In short, the publishing industry, locally and internationally, supported the amendments proposed by the government, as providing much-needed clarity, making it clear that fair dealing is a matter of personal, and not institutional copying. The right to make multiple copies, as has been argued for by the SAUVCA Copyright Committee, is not appropriately dealt with through fair dealing provisions, but should be dealt with through regulations for classroom use, or through collective licensing.
The Counterfeit Goods Act
The Counterfeit Goods Act No. 37 of 1997 introduced measures against the trade in counterfeit goods so as to protect owners of copyrights and trademarks. The Act confers powers of search and seizure upon the police so that, for example, in cases of book piracy premises could be raided and infringing copies, as well as copying or printing machinery, could be seized, pending the outcome of civil or criminal proceedings.⁴⁶
The Act also provides for the seizure by the Department of Customs and Excise of counterfeit goods entering the country.
The Counterfeit Goods Act has recently been used in a case of illegal photocopying of academic textbooks in the Western Cape (see The Container Raid, above, p. XXX)
The Legislative Context
The government department responsible for intellectual property is the Department of Trade and Industry (DTI), where copyright legislation is handled by the Director for Commercial Law and Policy (formerly, before DTI reorganisation, the Registrar for Copyright in SAPTO – see below). The Companies and Intellectual Property Registration Office (CIPRO), a recent merger between the former South African Patents and Trade Marks Office (SAPTO) and the Company Registration Office, manages company registration and intellectual property registration and management.⁴⁷ CIPRO is set up as a self-funding company, providing services to the business community and the DTI. The Registrar for Intellectual Property in CIPRO manages copyright affairs.
Traditionally, the Registrars for the different branches of IP in South Africa have been supported by Advisory Committees consisting of legal and industry experts. It has, in the past, been the Copyright Advisory Subcommittee that has provided expert advice on legislative needs as well as being responsible for the drafting of legislative amendments.
In recent years, at least in the case of copyright, the Advisory Committee structure appears to have all but collapsed. Industry commentators see this collapse as a contributing factor to the state of paralysis in copyright legislative reform.⁴⁸ In the late 1990s the Registrar of Copyright dissolved the Copyright Advisory Committee and there was a long hiatus before a new Committee was constituted in 2002. However, this Committee has not met and indications are that the department responsible for formulating copyright legislation does not intend to use it at all in its traditional role as an advisory body on legislative reform.⁴⁹

Legislative Reform

The main legislative weaknesses identified by local and international publishers over the last decade (see the discussion of the IIPA report above, p. XXX) include:

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  The regulations governing exceptions for educational and library use;
  

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  The lack of a presumption of ownership of copyright in South African law;
  

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  Difficulties in securing evidence in the case of copyright infringement (in part dealt with by the promulgation of the Counterfeit Goods Act of 1997 that confers powers of seizure upon inspectors and certain members of the police);
  

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  Inadequate penalties for copyright infringements;
  

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  Ambiguities in the interpretation of fair dealing;
  

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  The lack of provisions for digital copyright; and
  

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  The creation of a regulatory framework for collecting societies.