Publishers’ association of south africa

The Right of Reproduction

The right of reproduction should be extended to the electronic environment. However, where any electronic reproduction is not in conflict with the normal exploitation of the rights holders’ right, an exception should be allowed.

WCT
We suggest that the guidelines that were set in the WIPO Copyright Treaty, the Digital Millennium Copyright Act and the European Commission be followed by the legislature in South Africa in such a way that it will act as an incentive for content creators to distribute their material electronically and at lower cost to more South Africans.

Digital Rights Management

The provisions proposed by the WIPO Treaty for the protection of digital rights management information need to be dealt with in South African legislation.

Territorial Rights
Territorial rights, exhaustion of rights and parallel importation are all areas in need of discussion and review in South Africa, in order to determine the regime that would be in the best interests of the country, both for rights owners and consumers. The global reach of electronic media and their capacity to transcend national boundaries means that these issues have now become urgent, and the country needs to decide if it will continue to observe the territorial limitations imposed by rights holders in the UK in particular, or legislate for the right to parallel importation into South Africa.
If parallel importation is allowed, it poses risks in relation to counterfeit goods and pirate editions and the print industries sector would argue that parallel importation would only be feasible if it could only take place in an environment in which copyright and other IPRs are effectively protected and enforceable.
Technological Measures
The use of technological measures to protect copyright is already used by many companies in South Africa and it is suggested that the protections offered by the WIPO Copyright Treaty should be incorporated into our law as a matter of urgency. As was stated above the international experience could be introduced into South Africa. However, the urgency of introducing these measures could not be overstressed, if not, South Africa will become a haven for copyright infringement and other forms of piracy. On the other hand, South Africa should avoid enacting legislation that is too sweeping and results in absurd prohibitions of legitimate exploitation of intellectual property.
The print industries are concerned at the lack of national initiatives to set in motion policy and legislative decisions relating to digital copyright in South Africa. It urges the creation of a broadly constituted Working Group on Digital Media that includes all industry stakeholders, including new ventures.
The print industries need to identify stakeholders within the sector with an interest in digital copyright to set up an industry-wide focus group on digital copyright that can interact with stakeholders in other industry sectors.
Electronic copyright legal expert Reinhard Buys has identified a further list of legislative issues needing attention. These are spelled out in more detail in a legal opinion provided by Buys for the purposes of this report, which is appended in Appendix F.
IPR AND DIGITAL MEDIA – THE INTERNATIONAL CONTEXT
IN SOUTH AFRICA, DEVELOPMENTS IN DIGITAL MEDIA are taking place in an environment in which the issues relating to electronic copyright have still not been addressed in national policy and legislation, so that those working in this domain are operating with an outdated and often inappropriate Copyright Act. If urgent attention is not given to these matters, content creators will be discouraged from moving their products online, as the risks would be too high. This will result in an environment where South Africans will not have access to affordable and quality local content on the Internet and South African initiatives to make the country’s voice heard globally will be impeded.

There is a preliminary step that needs to be taken before the development of policy and legislation in digital copyright. Given the ease of copying in an electronic environment, it will only be possible to regulate electronic content dissemination effectively on the basis of a strong and effective South African Copyright Act. If print and broadcast rights are not adequately protected, South Africa has little chance of developing local electronic industries or participating effectively in international electronic commerce.

National Legislations – Approaches to Legislative Change in Relation to Digital Copyright
The challenges posed by digital media in the copyright arena have led to intense legislative discussions and activity worldwide. Given that South Africa has been slow in responding to the question of digital copyright, it might be instructive to consider how this has been handled in a range of other countries. The implementation of legislation to deal with the digital environment has been the subject of long processes of consultation and discussion, leading to legislative amendment.
In the United States, discussions around the impact of technology on copying started early, with the National Commission on New Technological Uses of Copyrighted Material (CONTU) in 1976. From 1993-5 the Working Group on Intellectual Property Rights, part of the Information Infrastructure Task Group, produced a Green Paper and then a White Paper and convened a Conference on Fair Use (CONFU) to develop guidelines for fair use of digital content. CONFU’s final report was submitted in 1998.
The Digital Millennium Copyright Act (2000) provided, in large measure, the basis for other legislations around the world, including the European Community’s Directive on Copyright and Certain Neighbouring Rights, adopted in 2001 and due to be reflected in national legislations (including the UK) in the next few years.
The United Kingdom Copyright Act was last updated in 1989 and includes some generic recognition of media other than print. The UK Publishers’ Association has also used negotiation with key rights users, particularly in the university sector, to agree common approaches to issues of fair dealing in the digital domain, in anticipation of the introduction of legislation on digital copyright. Discussion around digital copyright has been framed by the participation of the UK in the drafting of the EU Directive on Digital Copyright and EU countries are now in the process of harmonisation of their laws to meet the requirements of the EU Directive.
Australia began the process of discussion and consultation on digital copyright in 1997. The government published a Discussion Paper in 1997, followed by government proposals on Digital Agenda reforms in 1998, and the convening of Working Groups in 1999.The Digital Agenda Bill was introduced into Parliament in September 1999 and, after written submissions and public hearings, the Act was passed in September 2000.
In Canada, treatment of digital copyright issues was built on the foundation of an earlier discussion, in the early 1970s, by the Economic Council of Canada, which emphasised the crucial economic importance of information. Interestingly, the approach was that the rise of sophisticated reprographic technologies should lead to a situation where the publishing industries responded to the need for faster information delivery, meeting consumer demand for customised and rapid-delivery products. And so in an interesting variation to other countries, Canada moved towards blanket licensing as a solution for the needs of libraries and educational institutions, rejecting demands for broader exceptions under copyright law. The Canadian Advisory Council on the Information Highway set up by the Ministry of Industry produced a report in 1995, which resulted in legislative amendments in 1999. Noting that these amendments had taken ten years of negotiations, and given the high rate of technological change, the Canadian government undertook five-yearly review of copyright legislation. Much of the copying in Canadian libraries is undertaken under licence, rather than falling under fair dealing provisions.
Electronic Copyright and International Trade
Even if the first step in developing an appropriate copyright environment for digital media in South Africa lies in ensuring that copyright in the print media is sound, there is nevertheless great urgency in the need for South Africa to address legislative and policy issues in electronic media if it is to meet its international trade obligations. As can be seen form the above comparison, the country has fallen badly behind its international trading partners in the implementation of digital copyright legislation and, given the high profile of digital copyright issues in North America, Europe and Australia, this is likely to become a serious issue in the negotiation of trade treaties.