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It is the belief of the print industries sector that the conflict between some users and rights owners in the sector is unlikely to be resolved through mutual agreement on legislative reform without government mediation. Moreover, the impact of this kind of conflict is destructive and should be resolved as quickly as possible through the intervention of government to review stakeholders’ submissions, resolve short-term legislative needs and put on track a regulated environment for collective licensing.
This would involve a three-pronged approach: amending the Copyright Act, revising the regulations and promulgating regulations for a supervisory mechanism applicable to all collecting societies.
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The print industry sector needs to play a more active role, on its own account and in concert with other rights holders, to interact with government to ensure the implementation of a sound legislative regime.
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There is a clear set of requirements for legislative reform, agreed by South African industries and their international partners. These 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.
These need to be addressed by government.
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The legislative impasse that has been reached concerning amendments to the Copyright Act and to the Regulations needs to be resolved through active participation and expert intervention by the DTI to ensure that the South African copyright environment is conducive to local and international trading and developmental needs. This is a matter of some urgency, as it is clear that deficiencies in legislation are impeding the growth and development of the copyright industries.
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The industry does not believe that demands for multiple copying for educational use can be met by resorting to fair dealing provisions in copyright legislation without causing serious harm to the publishing industry and other copyright industries. Rather, it recommends the use of collective licensing agreements, priced to suit local conditions, with regulatory backing to ensure maximum participation.
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It is vitally important that these issues are cleared up in the print domain before South Africa can move towards legislating for digital media, where the issues are more complex and the problems more acute.
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The print industry urges the creation of a transparent consultative process as a necessary part of legislative reform. This consultation should include representatives of all the relevant industry organisations with a stake in copyright.
The DTI’s initiative to set in motion a process to create copyright policy is an admirable one. However, international examples show very clearly the value of consultative processes built into the development of such policy initiatives.
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While comprehensive legislative reform should await such a policy initiative, the print and publishing industries feel that legislative review has been stalled for too long and should not be delayed any longer. Legislative inadequacies are impacting negatively not only on the print industries, but on software developers and other IP stakeholders. Industry developments in strategic areas of crucial importance to the country are being hampered by inadequacies in copyright legislation; these are clearly recognised and agreed to by national and international stakeholders; and the print industries sector sees no reason for the process of implementing amendments to be delayed any longer.
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The print industries sector needs to formulate its own objectives more clearly, spelling out for government the economic impact of a failure to amend the law at this stage. It is also recommended that rights owners in the print industries sector from alliances with other rights holders, to ensure a concerted approach to the formulation of copyright policy.
4COPYRIGHT ENFORCEMENT
LEGISLATION, TO BE EFFECTIVE, MUST BE ENFORCEABLE. In the case of copyright legislation, we have already seen the importance of enforcement in international trading relationships, as embodied in the TRIPS Agreement (see Chapter 3 above, et passim).
The legislative problems with copyright enforcement in South African legislation have already been identified in the context of this Report’s discussion of copyright and economic growth (see Chapter 2). However, this is a vitally important issue, one that rights holders in South Africa regard as probably the most serious impediment to print industry growth and development in South Africa. In addition, enforcement is not only a matter of legislation – the best legislation can fail if the criminal justice system in which it operates is dysfunctional.
AN INTERNATIONAL CASE STUDY – AUSTRALIA
A COMPREHENSIVE REVIEW OF IP ENFORCEMENT ISSUES in an international context is provided by the report on copyright enforcement by the Australian House of Representatives’ Standing Committee on Legal and Constitutional Affairs, Cracking Down on Copycats: Enforcement of Copyright in Australia.63 This report provides a comprehensive review of the major issues facing national legislatures, enforcement agencies and rights owners in enforcing copyright effectively.
The Australian report acts as a useful case study for South Africa, not only because it identifies the issues relating to enforcement with great clarity, but also because it provides a model of how stakeholders and government can work together in an informed way to reach an effective copyright regime. The fact that a parliamentary committee produced the report shows the seriousness with which the Australian government tackles copyright as an essential underpinning of its economy in the information age.
Given the importance of enforcement in South Africa, this report offers a detailed comparison with the Australian experience, as a way of illuminating the issues that need to be dealt with in South Africa, in an industry not that different in size to the Australian publishing industry.
The Australian report identifies the following requirements for effective enforcement:
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An effective (TRIPS-compliant) legislative system that minimises the obstacles in the way of the prosecution of copyright offenders and provides sufficient deterrents to prevent recurring infringement;
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A section of the police force that specialises in the enforcement of Intellectual Property Rights; has sufficient capacity to enforce a wide range of IP rights; has an understanding of the importance of intellectual property to the country’s social and economic well-being; and is provided with regular training to allow them to be up-to-date and informed on IP issues and intellectual property enforcement;
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An effective court system with the capacity to prosecute cases of infringement, with an understanding of copyright and its importance, and armed with sufficient remedies in law to allow for penalties against infringers to act as an effective deterrent;
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