Publishers’ association of south africa

Eve Gray

Publishing Strategy Consultants

14 Mathew Road
Claremont
Cape Town 7700
South Africa
Telephone: [phone]
Mobile: [phone]
email: [e-mail]

© PASA 2001, ALL RIGHTS RESERVED

1 Betty Mould-Iddrisu, Chief State Attorney in the Internal Legal Division of the Ministry of Justice, Ghana.

2 Print Industries Cluster Council, If it is not on the page, it is not on the stage. Business Plan 2002/3. March 2002.

3 Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy. London 2002.

http://www.iprcommission.org/papers/word/final_report/reportwordfinal.doc

4 Print Industries Cluster Council, If it is not on the page, it is not on the stage. Business Plan 2002/3. March 2002.

5 Australian Society of Authors.

http://www.asauthors.org/cgi-bin/asa/information.cgi/MenuItem?menu=level:asa

6 http://www.iipa.com/aboutiipa.html

7 www.copyright.org.au

8 See the Keynote Paper, Third UNESCO Congress on Ethical, Legal and Societal Challenges of Cyberspace (Infoethics 2000).

9 Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy. London 2002.

http://www.iprcommission.org/papers/word/final_report/reportwordfinal.doc

10 Severine Dusollier et al., Copyright and Access to Information in the Digital Environment. A study prepared for the Third UNESCO Congress on Ethical, Legal and Societal Challenges of Cyberspace (Infoethics 2000).

11 United Nations, Universal Declaration of Human Rights, Article 27. UN, Geneva 1948.

http://www.unhchr.ch/Huridoca/Huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2001.12.En?Opendocument

12 Presentation at the PICC Copyright Workshop, March 2004.

13 The US could put pressure on SA to extend its copyright duration during trade negotiations, as has happened in the case of Australia.

14 Tsheko Rathsheko, then Deputy Registrar in the Patents, Designs, Trade Marks and Copyright Office, at a workshop in 2001.

15 IIPA 2003 Special 301 Report: South Africa; correspondence and consultation between PASA and the Association of American Publishers and the International Publishers’ Association; 1994 Trade Delegation report from the UK Publishers Association; anecdotal reports from PASA and SABA members on infringement levels in their markets.

16 PICC Development Strategy/Policy presentation, December 2002.

17 See http://www.org.copyright.au/

18 See, for example, the Australian House of Representatives, Federal Government, Standing Committee of Legal and Constitutional Affairs, Cracking Down on Copycats: A report on the enforcement of copyright in Australia, 2001 and the Government response, 2003.

http://www.aph.gov.au/house/committee/laca/copyrightenforcement/reportscript.pdf

19 PICC Copyright Workshop, March 2004.

20 See, for example, the DTI’s central vision statement which stresses ‘A high degree of knowledge and technology capacity’ as one of the seven core components of its vision for 2014 (http://www.dti.gov.za/thedti/vision.htm) and the DTI’s Medium Term Strategic Plan, which, while identifying the need to ‘advise the public about registration and protection of their trademarks and copyrights’ (p. 29), does not discuss the value of IP protection for international trade and local innovation.

21 The PICC has commissioned the creation of an information database and the collection of statistics on the publishing sector form the Department of Publishing Studies at the University of Pretoria.

22 People in Publishing: Developing the Teams of the Future. London, 2004. VNU Business Media.

23 International Publishers Association. http://www.ipa-uie.org/

24 The Allen Consulting Group, the Australian Copyright Council, and the Centre for Copyright Studies, The Economic Contribution of Australia’s Copyright Industries. 2001.

25 MSN Encarta.

26 Ivan Hoffman. http://www.ivanhoffman.com/

27 Ivan Hoffman. http://www.ivanhoffman.com/

28 With, initially, the encouragement of the departments of education when, at the onset of the implementation of Curriculum 2005, there was a move away from published learning support materials.

29 An official of the KwaZulu-Natal Department of Education told the author of this Report that when schools in that province were asked what they needed most, the most common answer received was ‘a photocopier’.

30 In reply to a letter stating the problem and seeking comment, Vivian Davids replied: ‘It is GDE policy (through its circulars and memos) not only to encourage educators to operate within the letter and spirit of the law ... but also to support schools to procure LSM (through its monetary allocation for LSM to each public school in Gauteng) and also to develop educators so that they develop their own LSM (through workshops that it coordinates on a regular basis with educators).’ The publishing industry feels, however, that this still undermines book sales.

31 Although the GDE would prefer to ascribe excessive paper purchase to teachers developing and disseminating their own materials (which was discovered through the retrieval process when some schools replied that they had no books to hand back because they didn’t distribute any, having bought paper instead), the Department is enquiring into the reasons.

32 Gauteng and Mpumalanga.

33 DTI website: www.dti.gov.za

34 The text of the Berne Convention is available on the CIPRO website: http://www.cipro.co.za/info_library/acts_treaties.asp

35 The term ‘author’ is taken to refer to the maker of a work, and is not limited to authors in the commonly-used sense of the word. Publishers, therefore, can also be the ‘authors’ of their works where they hold rights over those works.

36 Jessica Litman, Digital Copyright. Prometheus Books, Amherst 2001, p. 84; Lessig, passim on the similar concepts lying behind the UK system of Fair Use.

37 See the Australian Copyright Council Fact Sheet on Fair Dealing, www.copyright.org.au

38 See the Australian Copyright Council Fact Sheet on Fair Dealing, above, and the UK Government on fair dealing exceptions, www.intellectual-property.gov.uk

39 US Government Copyright information website: www.gov.copyright+fair+use

40 http://www.wipo.int/edocs/trtdocs/en/wo/wo033en.htm

41 Copies of the Copyright Act and the Regulations can be found on the CIPRO website:

http://www.cipro.co.za/info_library/acts_treaties.asp

42 This is an integral part of the aforementioned balance, qualifying and limiting the copyright owner’s monopoly over his or her creation.

43 The Section 13 regulations offer neither clarity nor definition (as anyone who has tried to make sense of them can confirm) and therefore fail utterly in the purpose for which they were intended.

44 Appendix 3 contains detailed references to the regulations.

45 Only a court can determine what is ‘fair’ depending on the facts and circumstances of each individual case, and thus the law cannot presume to set out the limits to be observed. Those limits that have arisen have done so through case law and international acceptance.

46 The text of the Act can be found on the CIPRO website: http://www.cipro.co.za/info_library/acts_treaties.asp

47 www.cipro.co.za

48 Owen Dean, PICC Copyright Workshop, March 2004.

49 Ibid.

50 Regulations: Establishment of Collecting Societies. Government Gazette No. 26167, March 2004.

51 Discussions with MacDonald Netshitenzhe, Registrar of Copyright.

52 It would appear that the main reason for rejection of the copyright regulations is that consultation took place after the event so to speak. In future, legislative amendments must have been subjected to consultation before they appear in the Government Gazette. What this appears to mean in practice is that any new set of regulations should have been agreed upon by PASA, DALRO and SAUVCA.

53 www.copyright.org.au

54 These arguments have been rejected by stakeholders from authors’ associations and libraries who have argued that the rights of disadvantaged South Africans would be better met by a strong copyright regime that protects local authors; the existence of a collective licensing system; and a strong local publishing industry. (PICC Copyright Workshop, March 2004)

55 Letters from PASA and the IPA requesting clarity on the state of legislative amendments and phone calls to the DTI department responsible for the management of copyright legislation have gone unanswered.

56 Four from the US Copyright Act and one from the Australian. The South African publishers and their international advisers supported the re-worded Section 12 because they appreciated the need for clarity and certainty. The writers of this Report, however, have some doubts about the wisdom of attempting to lay a definition on what is, strictly speaking, a statutory defence to a charge of copyright infringement, and the striking similarity to the fair use provision in Section 107 of the United States Copyright Act raises questions regarding the respective applications of fair use and fair dealing.

57 Correspondence on file from PASA, DALRO, the IPA and IFFRO.

58 PICC Copyright Workshop, March 2004.

59 It should more properly have been R10 000 for each infringing act or each article to which the infringement relates.

60 Correspondence between PASA and the AAP, 2001.

61 Andrew Martin, PICC Copyright Workshop, March 2004.

62 Jessica Litman, Digital Copyright. Prometheus Books, Amherst 2001, p. 20.

63 The House of Representatives, Legal and Constitutional Affairs Committee, Government of Australia Cracking Down on Copycats: Enforcement of Copyright in Australia. 2000.

http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm

Contents page: http://www.aph.gov.au/house/committee/laca/copyrightenforcement/cover.pdf

64 The House of Representatives, Legal and Constitutional Affairs Committee, Government of Australia Cracking Down on Copycats: Enforcement of Copyright in Australia. 2000. Pp. 24-5.

http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm

65 Ibid., p. 25.

66 Owen Dean, ‘Taking Action against Copyshops: Guidelines for Publishers on what to do’. DALRO, 2003. Available from PASA.

67 PICC Copyright Workshop, March 2004.

68 The House of Representatives, Legal and Constitutional Affairs Committee, Government of Australia Cracking Down on Copycats: Enforcement of Copyright in Australia. 2000. P. 64.

http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm

69 The House of Representatives, Legal and Constitutional Affairs Committee, Government of Australia Cracking Down on Copycats: Enforcement of Copyright in Australia. 2000. Pp. 37-39.

http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm

70 The House of Representatives, Legal and Constitutional Affairs Committee, Government of Australia Cracking Down on Copycats: Enforcement of Copyright in Australia. 2000. P. 73.

http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm

71 Op. cit.

72 Conversation with Ian Taylor, International Director of the UK Publishers’ association, March 2003.

73 The worldwide interest in Indigenous Knowledge Systems (IKS) has been instrumental in creating awareness of a country’s culture, not only as heritage but also as a living, growing, source of cultural and economic development.

74 Cited by Brian Wafawarowa (APNET representative) "Legal Exception to Copyright and the Development of the African and Developing Countries’ Information Sector". Intervention at the UNESCO Infoethics Conference. Pp. 13-15.

75 See the UNECO Information and Communications website for links to a range of papers and discussion on development issues and digital media, including links to the Infoethics 2000 Conference.

http://www.unesco.org/webworld/index.shtml

76 Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy. London 2002. www.iprcommission.org.uk

77 It is telling, however, that the investigative visit to South Africa by the author of the chapter on copyright did not include any interviews with any informants from the publishing sector.

78 The UK Government Response to the Report of the Commission on Inellectual Property Rights, Integrating Intellectual Property Rights and Development Policy.

79 Cited by Brian Wafawarowa (APNET representative) "Legal Exception to Copyright and the Development of the African and Developing Countries’ Information Sector". Intervention at the UNESCO Infoethics Conference. Pp. 13-15.

80 Cited by Brian Wafawarowa (APNET representative) "Legal Exception to Copyright and the Development of the African and Developing Countries’ Information Sector". Intervention at the UNESCO Infoethics Conference. Pp. 13-15.

81 For the UNESCO Universal Declaration on Cultural Diversity, see

http://unesdoc.unesco.org/images/0012/001271/127160m.pdf

For a more general discussion of Cultural Diversity policies and actions, see www.unesco.org/culture

82 PICC Development Strategy/Policy Presentation, December 2002. The formulation of the strategy goals was the result of consultation and discussion among the various industry participants in the cluster.

83 Ibid.

84 Comments made by author and library representatives, industry participants and the SACOB representative at the PICC Copyright Workshop, March 2004.

85 Comments made at the PICC Copyright Workshop, March 2004.

86 Section 10(1)(a) and 10(1)(b)(i) and (ii).

87 Presentation at the PICC Copyright Workshop, March 2004.

88 Ibid.

89 Speaking at the 2001 DTI workshop on the regulation of collecting societies.

90 Where the law allows the Minister to place excluded publishers into the collective’s repertoire in certain circumstances.

91 PICC Copyright Workshop, March 2004.

92 As has been noticed outside South Africa as well as domestically: '... indications are ... that educational institutions are becoming more copyright-conscious.’ From the website of the International Intellectual Property Alliance (IIPA), 2003 Special 301 Report.

93 The initial eight were all Historically Disadvantaged Institutions (HDIs) and their decisions to accede were almost certainly due in large part to the generous subsidies offered to blanket licensees in the first three years by the Department of Education/European Union Higher Education Libraries Programme.

94 What does ‘properly compliant’ mean? On the basis of its record-keeping over a five-year period, DALRO calculated that the average number of licensable photocopied pages received by a student in a South African university is 200. A university which licences, through DALRO, an average of 190 pages per student per year is properly compliant. A university which licences an average of 100 to 190 pages per student per year is satisfactorily compliant. The next band, ‘some reasonable extent’, includes universities licensing an average of between 30 and 100 pages per student, while ‘little or nothing’ at all categorises universities licensing an average of less than 30 pages per student.

95 These subsequently became law with the passing of the Copyright Amendment Act 9 of 2002.

96 PASA Report on the DTI Workshop on Collecting Societies, April 2001.

97 The document incorrectly included the rights of publishers in the definition of neighbouring rights. Publishers’ rights are, in fact, the rights of copyright.

98 In Germany the law permits limited reprographic reproduction of extracts in multiples for teaching purposes. However, the levy system in that country provides for an equipment levy, paid by manufacturers, and an operator levy paid by users. The levies are administered by the national RRO, VG Wort. The SAPTO document made reference to lenient photocopying under the Dutch legal régime but this was not quite correct as in The Netherlands private use is limited to small sections of books and may only be used by the person copying them, while educational institutions and libraries may issue photocopies for internal use to students only provided fair compensation is paid to the Dutch RRO, Stichting Reprorecht – this is a form of statutory licence (or, more accurately, a limitation on the exclusive right) authorising copying in return for payment. Kopinor, the Norwegian RRO, operates under voluntary collective licensing based on the Extended Collective Licence, a system highly favourable to the collective administration of rights; Kopinor’s collection per head is the highest in the world. Source: IFRRO country Status Reports, October 2002.

99 This document can be consulted on

http://www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/pubs/collective/index_e.cfm

100 A highly informative analysis by Professor Daniel Gervais on collective administration in Canada, contemplating the introduction of the extended collective licence (characteristic of the Nordic countries) could be instructive in South Africa where a number of scenarios are being contemplated. Collective Management of Copyright and Neighbouring Rights in Canada: An International Perspective. (Report prepared for The Department of Canadian Heritage.) 2001.

http://www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/pubs/collective/index_e.cfm

101 For a detailed discussion of these issues, see Jessica Litman, Digital Copyright. Prometheus Books, Amherst 2003; Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Commercial World, Random House, New York, 2001; and Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Contain Creativity. The Penguin Press, New York 2004.

102 Intellectual Property on the Internet: A Survey of Issues.

http://ecommerce.wipo.int/survey/html/3.html#_ftn72

103 The Centre for Copyright Studies, for the Australian Copyright Council: Copyright in the new Communications Environment: Balancing Protection and Access. Sydney 1999.

www.copyright.org.au

104 Australia-United States Free Trade Agreement – Australian Government Fact Sheet on Intellectual Property

http://www.dfat.gov.au/trade/negotiations/us_fta/outcomes/08_intellectual_property.html

105 www.iprcommission.org/papers/word/govt-response.doc

106 Joint Information Systems Committee (JISC), Guidelines for Fair Dealing in an Electronic Environment. London 1998.

www.ukoln.ac.uk/services/elib/papers/pa/fair/intro/html

107 The Australian Copyright Council is a non-profit organisation established in 1968. It receives substantial funding from the Federal Council, the Australian Federal Government’s arts funding and advisory body. The Council’s objectives are ‘to assist creators and other copyright owners to exercise their rights effectively, raise awareness in the community about the importance of copyright, identify and research areas of copyright law which are inadequate or unfair, seek changes in law and practice to enhance the effectiveness and fairness of copyright, and to foster co-operation amongst bodies representing creators and owners of copyright’. It provides information about copyright, via publications, training and its website; provides free legal advice about copyright and conducts research.

108 This is an interesting example of the contribution that can be made to copyright affairs by a collecting society owned by and firmly backed by rights holders.

109 Fact sheets on the Copyright Amendment (Digital Agenda) Act 2000.

www.law.gov.au

110 Jessica Litman, Digital Copyright. Prometheus Books, Amherst 2001,. Cited by Pamela Samuleson, ‘Toward a New Deal for an Information Age’, Michigan Law Review, 2002.

111 Betty Mould-Iddrisu, Chief State Attorney in the Internal Legal Division of the Ministry of Justice, Ghana.

112 This Appendix was authored by Monica Seeber.

113 This Appendix was authored by Monica Seeber.

114 It has not gone unnoticed by commentators in the university sector that whereas Section 13 speaks of ‘[unreasonable prejudice to the]