Publishers’ association of south africa

CONTAINER RAID IN THE WESTERN CAPE UNCOVERS ILLEGAL PHOTOCOPY OPERATION On Friday 28 March 2003 the Criminal Investigation Unit based at Bellville Police Station conducted a raid on shipping containers inside which a company, Budget Copy, was carrying out a photocopy operation seemingly offering students at two higher education institutions in Cape Town the opportunity to purchase photocopied textbooks. One set of containers was situated between the Unibell Station and the back entrance to the University of the Western Cape, ostensibly serving students at the University of the Western Cape, and the other was between Pentech Station and the back entrance to Peninsula Technikon, offering a similar service to students at Peninsula Technikon. The raid was carried out by the police at the request of the legal firm of Spoor & Fisher, acting on behalf of their client the Dramatic, Artistic and Literary Rights Organisation (DALRO). The police confiscated 331 photocopied books awaiting collection by students, fast-feed ‘master copies’ from which the counterfeiters could easily run off duplicates and 8 large-capacity photocopy machines. Although some of the photocopied books had been published abroad, the majority of titles copied were from local publishers such as Juta, Butterworths, Heinemann, Van Schaik Publishers, Nasou and Oxford University Press Southern Africa, and there were multiple copies of many titles, especially law textbooks. When the raid was over, and the containers emptied of both the counterfeit goods and the equipment used to produce them, a crowd of students gathered and demanded refunds. They had, after all, paid for the ‘books’. Some had handed in their friends’ books, or library books, to be copied, and now they were not going to get them back. The number of students in the crowd was a clear indication of how pervasive the practice had become, how good business was for the copyshop and how serious are the losses to the copyright owners – the authors and publishers. Bystanders confirmed that these businesses were ‘gold mines’ and had been running for years; at certain times of the year they were so busy that the machines ran into the night. When the owner of Budget Copy turned up, he pretended to be ignorant of copyright law, yet a hand-drawn poster on one of the containers cautioned students that books were copied at students’ own risk. Other posters advertised popular textbooks – actually listed by name – at special quoted prices. There seemed to be some sympathy for the ‘enterprising’ owner of Budget Copy, as if he was trying to make an honest living, and one can only assume that those who expressed sympathy are ignorant of the law and of the damage caused. Annual losses to the South African publishing industry through copyright infringement are estimated at millions of rands, but it would be short-sighted to imagine that the damage stops there. If students choose to photocopy their prescribed texts instead of buying them the end result will be the failure of the local industry; indigenous scholarly writing will no longer have a local outlet and books will become even more expensive.

Although it has been argued that books are already too expensive and that students, many of whom are financially disadvantaged, cannot afford them, it is surprising that there has been so little condemnation of the copyshop owners who were, after all, making a handsome profit out of the students while supplying them with inferior counterfeit goods at the expense of the legitimate copyright owners. In effect, buying an illegally photocopied book instead of the real thing can be compared to receiving stolen goods.

It is well-known that copyshops operate near almost all the South African higher education institutions and that many students have no compunctions about saving a few rands by buying an unlawful photocopy rather than the book itself. Students and copyshop operators should be warned. They can be certain that the ‘container raid’ was only the beginning and flagrant disregard for copyright will result in further action to root out offenders.
If found guilty, the copyshop owner in the Western Cape ‘container raid’ faces severe penalties, but the students who contributed to his profits will not necessarily be penalised. Students everywhere should realise that the long-term effects of photocopying textbooks will harm them, for it will drive prices up even further. Higher Education institutions should no longer tolerate large-scale copyright infringement operations on their doorsteps and it is hoped they will take note of this incident before they too suffer the embarrassment of a raid on a copyshop serving their students.
The owner of Budget Copy is liable to be charged with criminal activity under either the Counterfeit Goods Act or the Copyright Act. In terms of both these statutes a first conviction will lead to a fine not exceeding R5000 or to imprisonment for a period not exceeding three years, or both, for each article to which the offence relates. In theory, the owner of Budget Copy could face a fine of over a million and a half rands.
The Causes of Student Copying
The causes of students’ failure to buy books have been laid at many doors. One of them is said to be the lack, in many cases, of adequate bookshops on or close to university and technikon campuses for while campuses in urban areas are usually well-served, those outside major urban centres are usually not. However, although it would seem obvious that when students cannot easily buy their prescribed textbooks the first obstacle has been placed in their paths, the results of an informal survey conducted among librarians in nine higher education institutions contradicted the prevailing view that if only books were more easily accessible students would settle for photocopies less often.
More, better-stocked bookshops are therefore not the only answer. University and technikon authorities ascribe the photocopying of textbooks to their high cost and claim that if publishers reduced their prices students would buy more books. But, in researching book-buying for this report, we have found no evidence that cheaper books are bought more often than more expensive ones. Cheaper books are therefore not the only answer either. The call for cheaper books usually goes hand in hand with the cry that ‘students are poor’. However, financially disadvantaged students are by no means the only ones who photocopy books instead of buying them. On the contrary, copyshops in the vicinity of institutions whose student body is substantially middle-class seem to be doing even more healthy business.
Curbing Illegal Copying
The most obvious route for publishers faced with illegal copying is to take offenders to court. However, especially where the offenders are institutions that are important customers of the industry, court action is not always the most effective way of attaining respect for and compliance with copyright.
Pilot studies undertaken in Norway to examine the relationship between blanket licensing, copyright consciousness and book-buying have not as yet thrown up conclusive evidence, but what came out of the studies was that awareness campaigns and licensing together have served to curb piracy and to encourage the sale of more books.
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 publishing industry, while recognising the importance of the availability of information in a society such as South Africa’s, does not believe that it is the role of a private sector industry group to subsidise the education of poorer students by effectively offering them free study material. Nor can it take responsibility for shortcomings in university library budgets. It therefore suggests exploration of the provision of textbooks to disadvantaged students, including ring-fencing bursary funds for books.
RECOMMENDATION

7. 
   If there is to be progress in dealing with the legislative and other policy issues causing conflict between rights holders and users in the tertiary 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:
   

1. 
   The promotion of 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.
   

2. 
   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.
   

3. 
   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.
   

4. 
   Better communications between the DTI and industry stakeholders to ensure a balanced response to the submissions of the different sectors of society.
   

5. 
   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.
   

6. 
   Education and awareness programmes among students and lecturers on the value of intellectual property.
   

7. 
   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.