Publishers’ association of south africa

Author and professional associations
The presence of strong author organisations, working to protect the rights of authors, is an important feature of a strong national copyright regime. In fact, the presence of author organisations in national lobbies on copyright issues is an important measure of credibility. Authors need to have knowledge of copyright and contractual issues if they are to protect their rights and grow their financial stake in the industry sector.
Collective licensing
In the countries studied collective licencing often plays an important role in balancing the rights of rights owners and rights users and combating seemingly inevitable illegal photocopying.
Research and information dissemination
The dissemination of information and research on copyright and the active participation of rights owners in discussions with government on legislative issues are striking features of the countries reviewed.
Government initiatives
In order to create a copyright regime in line with national policy issues and international obligations, international experience suggests that the best approach to legislative reform, particularly in view of the changes being brought about by the advent of digital media, lies in Government-driven consultation with rights owners and users on copyright legislative matters.
COPYRIGHT IN SOUTH AFRICA: AN OVERVIEW
South Africa has a well-established publishing industry sector. However, it is generally believed that there are high levels of copyright infringement. The situation is possibly not as bad as it is made out to be. There is still cause for concern at the very high levels of student copying in off-campus copy shops, increasing levels of illegal copying in schools, the losses this is incurring for publishers and the negative impact that this has on book prices.
Any efforts to grow the contribution of the print industries sector to the national economy will have to be accompanied by sustained efforts to bring illegal copying under control through educational initiatives among educators and learners and effective prosecution of offenders.
Other shortcomings regarding intellectual property rights in South Africa include:
 South Africa lacks compliance with TRIPS and needs to improve legislation to allow for more effective copyright enforcement;
 Enforcement is too difficult;
 The legislative environment is inadequate to stimulate industry growth;
 There are low levels of appreciation of the value of reading and of intellectual property rights; and
 There is no viable writers’ organization yet.
If there is to be genuine growth and development for authors and publishers the creation of a culture of respect for creative and intellectual products will need to be accompanied by an effective legislative environment in which creative effort can be rewarded, copyright violations can be curtailed and piracy brought under control.
This should in turn lead to greater economies of scale for local publishing and resultant lower prices for consumers.
However, the legislative context is only one facet of the intellectual property regime in the country and this Report looks at the cultural, social and developmental context in which IPRs operate in the country.
COPYRIGHT INDUSTRIES AND ECONOMIC GROWTH
Local and international trade issues cannot be divorced from one another. Economic growth in copyright industries depends upon the basis of a strong national copyright regime which is compliant with international treaties. A weak copyright regime will impact negatively on local industry growth and risks affecting international trading partnerships across a wide range of key export industries. Compliance with trade agreements is also important in positioning African industries in global markets and thus supporting cultural diversity.
The Report describes the nature of intellectual property rights and reviews a number of key issues in the international context, looking at countries like African countries, Australia and Canada, and not only the UK and USA, for examples of best practice in copyright legislation and management. It also reviews international treaties and their impact on local copyright regimes.
If the protection of intellectual property is to work in favour of the development of local industries, then this development cannot be divorced from the international context.
Compliance with the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) and other trade agreements is also important in positioning African industries in global markets and thus supporting cultural diversity.
The Report reviews the size and makeup of the print and publishing industry sector in South Africa and its contribution to the national economy. The conclusions are that South Africa has a well-established publishing industry sector, turning over around R2 to R2.5 billion a year. The industry compares with Australia in the number of books produced per year and the number of employees in the industry. However, South Africa produces a much larger proportion of school textbooks as opposed to other publishing sectors, in common with the pattern in most developing countries. This has the added feature of crating a market in which the government, in the form of the Department of Education is one of the biggest consumers of books in the country. In the general trade market, there is a concentration of markets and distribution outlets in middle class urban areas.
Given that expansion is needed if these wider markets are to be reached, there is a need to explore ways of supporting new business development and, in particular, providing training in the management of copyright and contracts.
The Report makes the following general conclusions in relation to the publishing sector:
 If the South African book publishing industry is to increase its contribution to the economy, it will need to explore growth in the industry sub-sectors currently under-represented in relation to international indicators. In particular, local trade publishing seems to be seriously under-represented and the level of indigenous language publishing in the trade sector is very low; and
 This would also have implications for author development.
The role of owners of creative content also needs to be addressed:
 Training is needed for authors in copyright and contractual ways in which their work can be exploited. Writers, illustrators, translators and photographers need to be more explicitly recognised as contributors to the creative industries and their associations included in initiatives for industry sector growth.
 The print industries sector needs to create rights alliances with all rights holder in the sector to provide a united front for the development of strategies and policies for the development and growth of the sector.
 Because of the interconnectedness of print and digital media and the opportunities that digital media offer for the development of new products and new markets, it is important that issues relating to digital copyright be included in any discussion of potential growth in the contribution of the print industries sector.
 Any efforts undertaken to grow the contribution of the print industries sector to the national economy will have to be accompanied by sustained efforts to bring illegal copying under control, through educational initiatives among educators and learners and effective prosecution of offenders.
Shortcomings in South African legislation that impede effective prosecution of offenders need to be addressed, if there are to be satisfactory growth rates in the sector.
FACTORS INHIBITING ECONOMIC GROWTH
The issues that face rights holders in the PICC, from authors through to booksellers, include the lack of a reading culture; the lack of respect for copyright; a failure to realise the value of knowledge products; and a sense of entitlement which assumes that information should be available free of charge.
That the provisions of the Copyright Act are often ignored in educational institutions, in administrative offices, in companies and, indeed, throughout society, is not unique to South Africa, or even unusual. The ideal situation, from the point of view of authors and publishers, would be an effective legal system and a mature licensing system operating in all these spheres, such as exist, for example, in the Scandinavian countries, Canada and Australia, where intellectual property is respected and public awareness is high. That situation, however, is a long-term objective. In the meantime, rights owners’ main concern is with the education and academic sectors, for that is where their heaviest losses are incurred.
While the introduction of blanket licences and campaigns for transactional licensing in universities has improved the levels of copyright observance, the university sector has lobbied for generous exceptions in South African legislation and has effectively stalled legislative reform.
The burning question is whether the balance between the conflicting needs and interests of creators and users should be accommodated in the law or by voluntary contractual arrangements between the parties. This Report takes the view that exceptions to the exclusive right in the law itself should be confined to the minimum and that the balance should be provided by voluntary contractual arrangements. This is what has worked in other countries and there is no reason to believe that South Africa is different. The voluntary system is entrenched in our law and is in line with the constitutional right to property whereas compulsory exceptions in the law usurp personal rights and are thus arguably unconstitutional.
The Report recommends that:
If there is to be progress in dealing with the legislative and other policy issues causing conflict between rights holders and users in the Higher Education sector, and spilling over damagingly into other sectors, there is a need for government involvement in creating a conducive environment for an understanding to be reached on the desirable balance in South African legislation and practice. This can readily be achieved by:

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  The promotion of a collective licensing priced to offer affordability and access to rights users as the most effective mechanism for addressing the problems faced by the Higher Education sector.
  

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  Attention to the proposed regulations, along the lines of those gazetted for the music industry, which will define the government’s approach to the accountability of collecting societies and will introduce and clearly delineate a regulatory mechanism by which the collecting society’s activities will be transparently exposed and at the same time legitimised.
  

 Urgent attention to the legislative amendments needed to remove ambiguity on the limits of photocopying for personal use and in the educational context; the strengthening of enforcement measures; the provision of a stable basis for policy-making on copyright for digital media. These would constitute a necessary first step preceding any of the issues listed below.

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  Better communications between the DTI and industry stakeholders to ensure a balanced response to the submissions of the different sectors of society.
  

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  Support for ANFASA to ensure balance in proposed legislation and policy, as probably the majority of authors writing non-fiction in South Africa are active in higher education. It is recommended that academic authors become more active in protecting their rights as authors and that educational campaigns on copyright and contract be provided for authors.
  

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  Education and awareness programmes among students and lecturers on the value of intellectual property.
  

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  High-level discussions between industry associations and SAUVCA on the most desirable policy environment for the development of academic publishing in South Africa and the creation of the best possible environment for access to knowledge and research information. (recommendation 7)
  

A decade ago, publishers would have pointed to the proliferation of course packs in higher education institutions as the major problem. This is now coming under control as a result of the negotiation of blanket and transactional licensing through DALRO. There is a much greater awareness in higher education institutions of the need for copyright compliance and the risks of infringement. Although there are still gaps and there are undoubtedly still institutions and departments who do produce illegal course packs, this is no longer the major problem it once was.

If course pack copying is progressively being brought under control, the same cannot be said about the other prevailing form of infringement – the unlawful copying by students of whole books as a substitute for buying them. Most piracy takes place off-campus, in copy shops usually strategically situated near the gates of the university or technikon.
Further research is urgently needed to quantify the levels of illegal copying and the impact that this has on the industry and on its contribution to the national economy.
The levels of copying taking place in schools in South Africa are giving increasing cause for concern. Publishers are aware of schools in which entire textbooks are being copied and sold by teachers and cases taken up by publishers have revealed wholesale production of pirated, photocopied textbooks being supplied to state schools.
The print industries sector is concerned that such practices not only undermine the most important book market in South Africa and contribute to higher costs for school textbooks, but also that a pattern which undermines respect for the value of books in education is being established very early on in the education system.
In the first instance, the remedy for this kind of copying lies in educational campaigns, undertaken in conjunction with departments of education. In the longer run, when there is a better climate of observance in the schools sector, the introduction of blanket licensing, as is practiced in a number of other countries, might be researched as a possible answer.
Problems in the schools sector include high levels of classroom copying of compilations, anthologies and even of whole books. It should be noted that in those cases where educators are copying published books and selling them to learners, whether at cost or for profit, they could be found guilty of criminal copyright violation in a court of law and, if found guilty, would have a criminal record.
Factors that have inadvertently led to higher levels of copying in classrooms include:
 The emphasis on the development of resources by classroom teachers, in the absence of well-stocked libraries and the availability of other resource materials for educators to draw on;

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  Misguided statements in the early days of the new curriculum by Educational Department officials that textbooks were redundant in OBE; and
  

 Unealistic deadlines for the development of guides to the new curriculum developed by education departments that left developers with little option but to copy existing published materials.

The Report recommends that:
 Rising levels of illegal copying in schools can and should be addressed, in the first instance, through awareness and educational campaigns in schools. The positive levels of communication and understanding that now exist between the Department of Education and the publishing industry are encouraging and should help address the situation; (recommendation 8)
 Factors in the educational system aggravating the trend towards copying should be addressed with the national and provincial departments of education and departmental cooperation sought in combating illegal copying; (recommendation 9)

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  Eucation departments and educators should be made aware of the risks attached to gross copyright violation; and (recommendation 10)
  

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  Following on policy initiatives on the ownership and accountability of collecting societies in South Africa, and in the wake of copyright awareness campaigns in schools, there needs to be an investigation, with the print industries sector, DALRO and the Department of Education of the desirability of introducing blanket licensing in schools for print and digital copying of resource materials. (recommendation 11)
  

INTELLECTUAL PROPERTY RIGHTS AND INTERNATIONAL TRADE

As a signatory to international copyright treaties South Africa has international obligations to legislate within the required parameters. By implication, it acknowledges the need to balance the rights of copyright owners and users in the best interests of society as a whole.
South Africa is a signatory to the Berne Convention and the TRIPS Agreement. It has also signed but not ratified the WIPO Copyright Treaty (WCT) of 1996. The South African print industries sector, with government, need to examine whether South African legislation, in particular the Regulations promulgated under Section 13 of the Act, are in contravention of the Berne Convention’s three-step test. It is recommended that future legislative change conforms to those obligations.
There is a common view internationally that South Africa is in violation of its TRIPS obligations as a result of a failure to address relatively minor legislative issues that nevertheless have a major impact on the ability of the country to enforce the protection of IPRs.
Among the TRIPS incompatibilities listed by the Intellectual Property Alliance in the USA (IIPA) are:
 The South African Act includes no presumption of copyright. In other words, South African copyright holders have to prove copyright subsistence and ownership before they can pursue a case for infringement. This is regarded in TRIPS as an unnecessary burden on the rights holder and a barrier to enforcement of rights;
 Some overly broad exceptions to protection (a reference to the regulations for library and educational use);
 In addition, the IIPA recommends that ex parte searches (Anton Pillar orders) be made easier. These allow rights holder who have preliminary evidence that an infringement has taken place, to get an order for a search of the premises concerned. The IIPA believes that South Africa is not tough enough on the criminalisation of end-user piracy and that enforcement is inhibited by the fact that search orders are too difficult to obtain; and
 Finally, it recommends that, in order to be fully TRIPS compliant, South Africa needs to strengthen the penalties against copyright infringement in order to act as a sufficient deterrent.