Publishers’ association of south africa

Illegal Copying in Tertiary Institutions

Course Packs
In the recent history of copyright infringement in South Africa, levels of copying in the universities and technikons have been of particular concern to publishers. Infringement takes two forms. The first is the unlawful (that is, unlicensed) dissemination of supplementary reading material by the institution to the students. This typically takes the form of the ‘course pack’, a compilation of, say, one chapter from each of three or four books, two or three journal articles, and lecturers’ own notes. The course pack may be photocopied in the institution’s ‘print room’, or in the library, or on departmental photocopiers. In some institutions, a few loose-leaf copies will be placed on the reserve shelf in the library’s short-loan collection for on-copying by students. This is a neat arrangement because the students pay the photocopy costs upfront with coins or ‘smart-cards’ (instead of the lecturer or departmental secretary having to collect money from them) and the high levels of use on the leased machines result in a discount to the institution. The drawback to the lecturers is that making the copies is at the students’ discretion and the lecturer cannot ever be sure that they are acquiring the necessary material.
The drawback to the publishers is that they receive no recompense. The argument for legalising course packs (through a statutory amendment permitting compilations) is usually that since only small portions of the books were required, the whole book would not have been bought anyway, so the work has been normally exploited and there has been no unreasonable prejudice to rights owners. This is wrong. A book may be exploited in many ways through the kinds of rights deals mentioned above, and the income publishers expect to receive from licensing is often essential since it is ploughed back into the development of more titles, contributing to the creation of new works.
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 and the extension of blanket licences to more higher education institutions would improve the situation even further.
Student Copying in Copyshops
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 (for this is what it is – the production of counterfeit copies of published works) takes place off-campus, in copyshops usually strategically situated near the gates of the university or technikon. The practice is of course not licensable. It will remain a serious problem, unlikely to improve until the higher education institutions ‘conscientise’ their lecturing and student bodies into re-evaluating the role of the book as against that of the photocopy.
It is almost impossible to quantify the losses to publishers from students photocopying their prescribed textbooks instead of buying them. Even when the number of books sold nowhere matches the number of students in a class it is dangerous to make assumptions, for one has to consider that students often buy their books second hand, or work in a group with one student buying the book and the others sharing it. Nevertheless, reports often reach PASA and DALRO of students lining up at copyshops to purchase photocopies, and there are even copyshops which display notices advertising their cheaper ‘versions’ of the prescribed texts – cheaper, that is, than the genuine articles on sale in bookshops.
Case Studies
One of the authors of this report was contacted by a bookseller serving one of the technikons. She was concerned that although she had ordered sufficient books to supply only half of a certain class, she had still not sold a single copy, and so she asked the lecturer whether he realised that none of his students possessed the required textbook. He undertook to make enquiries, and came back the next day to say that on the contrary, every student in the class had the textbook – it transpired that every student was in possession of a photocopy.
In 2000, it came to the attention of a Kwa-Zulu Natal publisher that a copyshop in Empangeni was copying large volumes of school, college and academic textbooks. It appears that this copyshop was supplying schools and other educational institutions across the province with pirated, photocopied books. An Anton Pillar order was obtained and the multiple copies of pirated books were seized. A group of publishers laid charges of criminal copyright violation and the copyshop owner was successfully prosecuted. The case took a considerable time to get to court and the publishers concerned made a major contribution in assisting the prosecutor in assembling expert evidence to lead the case. In spite of the fact that costs were awarded against the defendant, the publishers concerned nevertheless landed up substantially out of pocket. Although they considered the deterrent effect worthwhile, they nevertheless got no recompense for their losses, nor for the time and effort put into ensuring that the case was effectively prosecuted.
Late in 2002, it was reported to DALRO that a copyshop was operating right outside two higher education institutions in the Western Cape, supplying counterfeit photocopied books to students on a massive scale. Although the police were informed immediately, and took the information seriously, it was not possible to collect evidence and take action as the academic year was drawing to an end. Illegal activities started up again, however, with the opening of the 2003 academic year.