Publishers’ association of south africa

Fair Dealing and Legislative Reform
On 10 May 2001, there unexpectedly appeared in the Government Gazette a proposal to revise the expression of fair dealing and to introduce five factors⁵⁶ that a court should consider in determining whether the dealing has been fair. These amendments appeared to be the product of deliberations undertaken by the former Advisory Committee on Trade Marks, Patents, Copyright and Designs designed to clarify legislative ambiguities, strengthen enforcement and ensure South Africa’s compliance with its TRIPS obligations.
Supported by PASA, DALRO, the Intellectual Property Action Group (IPACT) and the international bodies IPA and IFRRO, the proposed amendments were opposed by the SAUVCA/CTP Electronic Task Team on the basis that they did not relate to the requirements of the WIPO Internet Treaties or ‘address e-commerce, electronic media, distance education or exemptions for the disabled’ and that it would be ‘short-sighted’ to attempt to amend the Act ‘piecemeal’.
As a result of the university protests, and pressure exerted through the Department of Education, the DTI discarded the proposed amendment to Section 12 (apart from a proposed amendment to Section 9 which introduced ‘needle time’), as well as proposals to amend sections of the Act dealing with evidentiary presumptions in court proceedings and with the introduction of statutory damages (see below).
Protests at the abandonment of this legislation by local and international publishers’ associations were not responded to and their submissions were apparently ignored.⁵⁷ Why the DTI jettisoned its own proposals without explanation in the face of strong support from the copyright industries is not clear to the publishing industry.
Statutory Damages and Presumption of Copyright
South African rights holders complain that unnecessary barriers to enforcement of the rights in the courts are set up by the failure of South African legislation to allow for the presumption of the subsistence of copyright, which involves plaintiffs in unnecessarily burdensome and expensive procedures in proving their ownership of copyright in civil and criminal cases (see Chapter 3, above, and Chapter 4, Copyright Enforcement, below).
Such presumption of copyright would go a long way to resolving other problems of enforcement, copyright expert Owen Dean argues. Right now, Dean claims, SA legislation requires the copyright owner to prove ownership from the ground up, something that is out of line with international practice and poses serious problems of enforcement.⁵⁸
Moreover, the penalties that can be awarded are inadequate to compensate plaintiffs, resulting in a reluctance to prosecute cases in South Africa’s courts. Local and international associations have argued for some time for the introduction of stiffer penalties for copyright infringement, in particular for statutory damages as a way of compensating rights owners and providing a deterrent against copyright violations.
In the proposed amendments introduced by the DTI in 2001, one of the provisions would have introduced statutory damages amounting to R10 000 for each article to which the infringement relates⁵⁹ as a deterrent to copyright infringement.
Two new subsections were also introduced to deal with the onus of proof in proceedings, and another proposed amendment is concerned with the distribution of infringing articles by way of trade. These proposed amendments met with the unanimous approval of local and international publishing industry associations.
These proposed amendments were withdrawn, along with provisions for the clarification of fair dealing, as a result of protests from the university sector, as described above.
PASA, DALRO and their international partners objected to the withdrawal of these amendments. DALRO submitted a detailed refutation of the arguments put forward by SAUVCA (see Appendix 3). Opinion from overseas experts, too, was strong in its rejection of the withdrawal of the proposed amendments, rejecting the arguments against them as lacking in substance and in an understanding of international copyright law and practice.⁶⁰
In short, all attempts at legislative reform in print copyright have been stalled, presumably as a result of protests from the university sector, and have remained in limbo for a number of years. The print industry sector sees these reforms as necessary for the effective functioning of what is after all a strategic industry sector. The print industries argue that it is the role of government to intervene in the resolution of conflicts around legislative needs and to ensure that a strong and effective copyright regime exists in the country as an enabling environment for authors and content creators; for industry players; and for the consumers of information and knowledge.
Legislative Reform – Policy Considerations and Collective Licensing
Following the Canadian and Australian examples, it is clear that the kind of impasse that has been reached in South Africa can be resolved by using pricing mechanisms in the negotiation of a collective licensing regime, to ensure that the information needs of the education sector are met without compromising the viability of the copyright industries. As Canadian copyright expert Andrew Martin has argued, such developments need not be ad hoc but should be linked in a coherent policy with the objective of creating an environment in which legal provisions and voluntary negotiated arrangements are satisfactorily balanced. In other words, exceptions in the law should be minimal and the balance should be provided by licensing with the cost properly negotiated between the stakeholders.
Moreover, as Andrew Martin argues, and as will be elaborated in more detail in the chapter on Copyright and Development below, legislation is a problematic vehicle for enacting measures to meet the particular needs of copyright in a developing country. The development status of a country can change and this in turn would require the revision of measures incorporated into legislation. Where there are commercial and contractual ways of meeting development needs, therefore, this should be the preferred route.⁶¹
The Government has, at the time of writing (April 2004), introduced proposals for the introduction of a regulatory framework for the collecting licensing in the music sector. The print industries urge the government to address the issue of collective licensing in the print sector in a similar fashion.
Legislative Process – An Endnote
In view of the conflict that has arisen between some stakeholders over the question of legislative reform, it is worthwhile reviewing the possible future legislative process in the context of South African copyright legislation.
The DTI appears to have taken the stance that the stakeholders concerned must resolve their differences and agree to mutually acceptable terms for new regulations and for fair dealing, before legislative amendments can be enacted. However, the print industries fear this simply will not work because the degree of polarisation is too great for copyright legislation to be drafted by stakeholders after thrashing out agreement on its terms.
US copyright expert Jessica Litman warns against this approach⁶², particularly in the digital era, saying that it tends to favour the most powerful at the expense of emerging players and that it will almost inevitably tend towards entrenching further the existing tendencies of the law. This could well be at odds with national policy and with national and international trading needs. Most importantly, no established stakeholders, she argues, will negotiate a position that will leave them worse off than they perceive themselves to be currently (the resolution of this dichotomy depends of course on how they perceive themselves currently and on whether that perception is based on a sound interpretation of the law).
An analysis of international legislative practice demonstrates that consultation with rights owners and users is an important part of the process. The Canadian and Australian approach to legislative reform involves the convening of standing committees and the creation of task teams. Consultation takes place through the submission of position papers and presentations to the relevant committee from industry and rights users associations (rather than encouraging individual submissions). As a result, much expert information is generated about the copyright environment in these countries. In contrast, the South African legislative process, as it has been manifested thus far, seems fragmented and lacking in clear direction.
If the DTI is set on extending the consultative process before embarking on legislative reform, then that process should ensure the dispassionate evaluation of stakeholder positions with a view to moving the process forward through the intervention of departmental experts. To assist in this, and in order to set out clearly the respective positions of the publishers and authors, on one side, and the SAUVCA sub-committee, on the other, a framework has been drawn up showing current legislative provisions, the desired provisions of each side, and possible compromise provisions.