Publishers’ association of south africa

Negotiating Copyright Practices – JISC in the UK
For instance, in the United Kingdom, in 1996, the Publishers’ association (PA) and the Joint Information Systems Committee (JISC) established five joint working parties to seek agreed solutions to differences between the university and publishing communities on the use of copyright-protected information in higher education and academic research. Each working party investigated a different area: standard licensing agreements, clearance mechanisms, fair dealing in the electronic context, the provision of and access to networks, and the retention of electronic materials.¹⁰⁶
Where such agreements have succeeded, they have required compromise, an understanding of the other side’s position and a willingness to accommodate it, and a commitment to devising a scenario to benefit society as a whole
Stakeholder Consultation and the Legislative Process – Australia
In Australia, much of the discussion about copyright issues is driven through the Australian Copyright Council¹⁰⁷ and the Centre for Copyright Studies, which is funded by the Copyright Agency Limited, the copyright collecting agency representing authors and publishers.¹⁰⁸ This has resulted in the availability of a number of papers and publications on copyright issues and an informed level of debate. In Australia, legislative reform around issues of fair dealing have been the outcome of discussion conducted through committees set up to examine the need for legislative reform, notably the Spicer Committee and the Frankl Committee. In August 2000, the Copyright Amendment (Digital Agenda) Act was passed, after consultations and submissions from stakeholders. The legislative process was eased by the existence of the Copyright Council as a recognized representative of the rights owners, including authors.
Australian discussions on fair dealing and on special provisions for libraries and educational institutions provide a useful point of comparison for South Africa, as Australian commentators and legislators acknowledge the additional difficulties encountered by users when they are geographically at a great distance from the major sources of information and also have to distribute information across widespread yet thinly populated areas in their own country. In the revised Act, fair dealing for purposes of research and library provision, ‘as far as possible replicate[s] the balance struck between the rights of owners and users that has applied in the print environment’. However, there are some changes: only not-for-profit libraries benefit from library exceptions; and ‘a library may only request an article of a portion of a work in electronic form from another library if that portion or article is not available within a reasonable time at an ordinary commercial price. This is to ensure that the exercise of the inter-library loan exceptions will not unreasonably conflict with the emerging markets of copyright owners.’ ¹⁰⁹
Exceptions for educational institutions in Australia carry over exceptions from the print medium into the electronic domain. However, while such uses allow educational institutions to make copies within defined reasonable limits without permission, this is subject to payment of equitable remuneration, negotiated through the collecting society. In effect, the existence of a credible collecting society is being used in Australia to create the balance between the needs of educational institutions to generate copies quickly and affordably and the rights owners’ need for equitable remuneration.
However important the process of stakeholder negotiation might be in forging frameworks for copyright practice during the process of legislative reform, Jessica Litman, an international commentator on the legislative process and copyright policy, warns against the appropriateness of this approach in the digital environment. Given the impasse that has stalled South African legislative reform in the last years, this argument is worth exploring in some detail. As Litman describes the traditional approach to copyright reform in the US, ‘Congress got into the habit of revising copyright law by encouraging representatives of the industries affected by copyright to hash out among themselves what changes needed to be made and then present Congress with the text of appropriate legislation.’
The result, argues Litman, is that established players will not support any legislative move that would leave them, in their perception, any worse off than they are in the current state of legislation. Current law becomes the baseline against which any negotiations will occur. This, she argues, will exaggerate the existing tendencies of the law and ‘make it exceedingly difficult to speak of legislative intent if by legislative intent one means the intent of Congress’. She also draws attention to the fact that such approaches will tend to exclude emerging industries and their concerns, an important consideration in the ever-changing environment of digital media and digital commerce.¹¹⁰
Thus it would seem that, while stakeholder consultation plays a vital role in determining national policy and development needs, in the end it is the government that must take responsibility for the drafting of appropriate legislation that delivers these goals.
In all the countries discussed, legislative reform to bring copyright laws into line with the WCT and national priorities for digital copyright was a high priority national policy issue. The process of legislative reform was the result of government-driven consultation, taking into account the needs of industry and rights users.