Publishers’ association of south africa

The Three-step Test
These conditions are often referred to as the three-step test, which is of fundamental importance to rights owners.
Under the three-step test the reproduction must be a special case, and it may not conflict with a normal exploitation of a work, and it may not unreasonably prejudice the legitimate interests of the rights owner. As can be imagined, a number of interpretations can be placed on ‘special cases’, on ‘a normal exploitation of a work’ and on ‘legitimate interests’. International agreement, however, is that ‘special cases’ refer to personal or private copying by an individual, usually for the purposes of scholarship or research or of criticism or review; the ‘normal exploitation of a work’ refers to both sales and exploitation through sub-licensing; and ‘legitimate interests’ are the economic benefits due to the rights owner in respect of his or her work.
The ‘special cases’, therefore, provide society with a safety valve and pertain to copying for personal and private use, for scholarship and research, for criticism and review and for reporting current events. It is also up to national legislatures to provide for exceptions in the case of educational institutions and of libraries, provided that they do not contravene the three-step test. The narrow line copyright law has to tread lies in balancing the rights of the author with the needs of society.
The importance of Article 9 (2) of the Berne Convention to rights owners cannot be over-emphasised. Moreover, South Africa is bound to observe the three-step test in its national legislation, not only by virtue of Article 9 (2) but also in view of having signed the World Trade Organisation TRIPS Agreement, since Article 13 of TRIPS reiterates Article 9 (2) of Berne.
Fair Dealing
This balance between the monopoly for authors and rights owners over the exploitation of their works, and the social goals of wide dissemination of and access to knowledge requires certain limitations on authors’ monopoly in respect of their works. The doctrine of ‘fair dealing’, which provides a safety valve in the interests of society in general, permits a certain amount of copying without the authorisation of the rights owner. This is one of the ‘special cases’ referred to in Article 9 (2) of the Berne Convention.
South African copyright legislation follows broadly the UK system. In the UK system, which applies in other countries, like Canada, Australia, New Zealand, and Hong Kong, fair dealing allows for limited copying, without permission, for:

• 
  Private study;
  

• 
  Research;
  

• 
  Criticism; and
  

• 
  News reporting
  

Such copying should follow the ‘three-step test’ of the Berne Convention (see above). The foundation of the concept depends upon the meaning of the word ‘fair’ and depends as much upon common sense as upon legal definition. In part, it is a deliberately ‘fuzzy’ concept that allows for the kind of small-scale copying that is necessary for free expression and that would not erode the rights of the author or compromise the author’s rightful earnings.³⁶

As defined internationally, fair dealing can only be carried out where there are no commercial interests involved. In other words, the fair dealing activity has to be not-for-profit and in Australia, could not, for example, involve a commercial copyshop.³⁷ In the UK, it would be permissible to ask a librarian to make a copy for private research purposes if the user cannot make the copy herself.
Legislation in the UK systems tends to avoid spelling out the limits of fair dealing – for example, how much may be copied. In the UK, Canada and Australia, individuals are permitted to make a single copy of a ‘reasonable proportion’ of a work for fair dealing purposes.
Only in Australian law is this ‘reasonable proportion’ spelled out as 10% of a published work of 10 pages or more; or one article from a periodical.³⁸

In America, the concept is different and the term ‘fair use’ is adopted. The US fair use system is an open-ended one, which does not impose a scope limiting copying, but instead asks that four factors be observed³⁹:

In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

• 
  The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  

• 
  The nature of the copyrighted work;
  

• 
  The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  

• 
  The effect of the use upon the potential market for, or value of, the copyrighted work.
  

The fair use doctrine requires considerable discretion to be exercised by the user, who has to judge, from a multiplicity of perspectives, whether the use is fair or not. For this reason, it has been subjected to criticism by rights users and rights owners alike. Multiple copies can be made, for classroom use, but if this is to fall within the fair use provisions, it has to meet the criteria of brevity and spontaneity. The copying has to take place close to the time of its use – the idea being that this is a short-term, spontaneous need, without time to ask for permission – and the act of copying cannot be repeated – in other words, the same extract cannot be used again in another semester.

Fair dealing is a deeply nuanced doctrine, which has been the subject of much controversy among legal experts worldwide, and is examined in detail in Appendix 4, Fair Dealing and Literary Works.
In South Africa, the publishing industry has argued that there is a need for clarification of certain of the fair dealing definitions and provisions in the Copyright Act.
The TRIPS Agreement
As described above, in the context of copyright and international trade, South Africa is a signatory of the TRIPS Agreement, which covers the enforcement of copyright, and provides for a dispute prevention and settlement procedure between member states.
As we have seen, TRIPS requires signatory countries to have a range of effective and accessible measures to ensure enforcement; procedures that aid enforcement; expeditious processes for the prosecution of infringements; and remedies that act as a deterrent to further infringements.

The WIPO Copyright Treaty (WCT)

South Africa has also signed but not ratified the WIPO Copyright Treaty (WCT) of 1996. The fact that eight years have elapsed since signature, without significant moves to address legislative issues relating to digital copyright, is cause for concern and puts South Africa well behind most if not all of the major trading nations and a number of its African partners.
The WIPO Copyright Treaty (WCT) was adopted in Geneva in 1996 and is mainly aimed at providing copyright protection on global information networks, such as the Internet. It tackles the major issues confronting national legislatures in addressing the impact of digital media on their IP systems.⁴⁰
The WCT establishes a new exclusive right, the right of on-demand communication to the public, and provides for obligations concerning technological measures of protection and rights management in the digital environment. It complements the Berne Convention with provisions on the scope of protection, the protection of computer programmes and original databases, the right of distribution, the right of rental and the duration of protection of reprographic works.
Most importantly, the WCT reaffirms the application of the three-step test to exceptions and limitations in the digital environment.
The WCT was adopted before any countries had enacted specific legislation to deal with copyright in the digital environment. Since 1996, a number of countries have grappled with the issues and enacted legislation, either creating entirely new legislative instruments, or amending existing copyright acts. The treaty, having reached its 30^th ratification or accession, has entered into force as of 6 March 2002.
RECOMMENDATIONS

12. 
    South Africa needs to ensure that its legislation and is in line with international treaties if it is to provide a conducive trading environment for local industries and their international trading partners. This is particularly important in the light of international trade agreements currently being negotiated.
    

13. 
    It is a matter of concern that a number of legislative amendments needed to bring South African legislation into line with international standards of protection and enforcement have been stalled for a number of years. The DTI is urged to take up its responsibilities in addressing these issues and resolving differences currently blocking legislative change.
    

14. 
    It is equally disturbing that South Africa has fallen behind in addressing its international obligations in relation to electronic copyright issues and the DTI is urged to set up, as a matter of urgency, the inter-industry consultations needed to formulate South African policy on electronic copyright legislation.
    

15. 
    Provisions in South African legislation for fair dealing and regulations governing exceptions for educational use are of particular concern and these need to be examined in the light of international treaty obligations.