Publishers’ association of south africa

Australia – A Case Study
Australia has recently, as a result of the negotiation of trade agreements with the US, tabled amendments to its digital copyright legislation – and Australia is some ten years ahead of South Africa in the formation of policy and the implementation of legislation for digital copyright.
It is worth noting in some detail the issues that Australia has identified, as these are likely to confront South Africa in its trade negotiations with the US: The Australian government’s Fact Sheet first emphasises the importance of IPR issues in trade negotiations. The IP chapter in the treaty, it says:

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  Reinforces Australia's reputation as one of the world's leading countries in protecting and enforcing intellectual property rights.
  

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  Harmonises our intellectual property laws more closely with the largest intellectual property market in the world, which is recognised as a global leader in innovation and creative products.
  

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  At the same time it allows Australia considerable flexibility to implement the Agreement in a way that reflects the interests of our domestic interest groups and Australia's legal and regulatory environment.
  

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  Demonstrates to our trading partners our commitment to strong intellectual property laws.¹⁰⁴
  

The document then goes on to list the measures that Australia has had to address in the negotiation of the treaty. Most of them relate to digital copyright. The treaty negotiations required:

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  Stronger protection for copyright owners, including:
  

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  Agreement to implement the WIPO Internet Treaties by entry into force of the Free Trade Agreement: these being world intellectual property standards on treatment of digital copyright material.
  

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  An expeditious process that allows for copyright owners to engage with Internet Service Providers and subscribers to deal with allegedly infringing copyright material on the Internet.
  

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  Tighter controls on circumventing technological protection of copyright material together with a mechanism for examining and as necessary introducing public interest exceptions in relation to technological protection measures, along with a transition period to provide the opportunity for public submissions in this area, as well as other measures in relation to circumvention tools.
  

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  Agreement on standards of copyright protection.
  

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  An increased term of protection for copyright material.
  

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  Enhanced intellectual property enforcement, including:
  

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  increased criminal and civil protection against the unlawful decoding of encrypted program carrying satellite TV signals – which will assist the Pay TV industry enforce its rights;
  

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  agreed criminal standards for copyright infringement and on remedies and penalties; and
  

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  reinforcement of Australia's existing framework for industrial property protection.
  

COPYRIGHT AND DEVELOPMENT IN DIGITAL MEDIA

THERE HAS BEEN MUCH DEBATE INTERNATIONALLY about the relationship between copyright and development and the limits on exceptions to the author’s right in electronic media. In South Africa, this is particularly the case in the universities, where scholars and librarians face the paradox of easier access to a bewildering array of free resources and licences to journal databases that they complain are prohibitively expensive.
Opportunities are offered through the increasing number of electronic journals that are offered on an open access basis, including a number of commercial medical and scientific journals that are provided free of charge in Africa.
While university librarians in South Africa are demanding generous exceptions for the copying of digital journals and other online materials, publishers argue that in many cases the remedies available are not legislative, but contractual – the negotiation of differential pricing and terms for digital licences. In this they would have the support of the UK CIPR and the UK government, which has proposed differential pricing as a way of remedying disadvantage in access to research information in developing countries.¹⁰⁵
There is a need for discussion and research on the best ways of addressing development needs and digital media, particularly, but not only, in the Higher Education sector in South Africa. This discussion should include the identification of contractual and business solutions to digital information needs, as well as legislative issues.
The Legislative Process – Resolving Differences
The disagreements between the SAUVCA Copyright Committee and the publishing industry in South Africa over the extent of fair dealing in electronic media is by no means an isolated case. Internationally the debates between rights owners and rights users on digital copyright have been heated and sometimes acrimonious. It is clear that there is a gap between what rights owners perceive as the necessary means to encourage further cultural expression and knowledge production, and what the users desire to access freely in the interests of information provision. The tension between these two positions is not unique to South Africa; it is common worldwide.
In some contexts, it is possible to reach an acceptable situation for mutually agreed practice within the parameters of the law if the stakeholders put their minds to it, and where satisfactory arrangements have been set in place they are the result of negotiations made in good faith and which involve some compromise from both sides. Such compromises also require the existence of a sound basis in national copyright legislation for the print medium.