Publishers’ association of south africa

A Note: The Categorisation of the Print Industries within the DTI A problem that the industry sector faces in interacting with the DTI on questions of legislative reform is the fact that, in the overall categorisation of industry sectors in South Africa, the print industries are included in the Agri-processing sector. As this provides an inappropriate policy environment for the print industries, it is recommended that the print industries motivate for re-categorisation as part of the cultural industries, which are a priority area for government intervention and growth and which include a number of IP industries.

The Print Industry Sector and the DTI
Over the last decade, the major legislative needs articulated by the print industry sector have had to do with provisions for reprographic reproduction in educational institutions and with barriers to effective enforcement. In general, publishers are hesitant to prosecute copyright offenders because of ambiguities in the legislation; the expense of bringing cases to court; the lack of effective penalties; and inefficiencies in the criminal justice system. The publishing industry has been the protagonist in discussions around legislative issues and submissions on proposals for legislative reform – however, up until now, authors have not been active on the copyright front.
While the publishing industry has enjoyed cordial relations with the Director for Commercial Law and Policy and his office at the various workshops that have been convened from time to time, and there appears to be agreement over a number of issues, interaction over legislative reform has been less happy. The Director has not responded to submissions from the industry sector, locally and internationally, and industry representatives have had difficulty in getting responses to queries about the state of legislative reform.
In recent years, the DTI has attempted to promulgate amendments relating to the Regulations, in 1998, and further amendments in 2001, relating to fair dealing; evidentiary presumptions in court cases; and statutory damages. It has held workshops on the Regulations governing exceptions; on the WCT and electronic copyright; and on the regulation of collecting societies, but none has resulted in any legislative action, at least in the case of the print industries. Some amendments to copyright legislation have been passed dealing with needle time in the music industry and draft regulations for collecting societies in the music industry have recently been tabled⁵⁰ – both of these interventions as a result of vigorous lobbying by the music industry.
The legislative reforms that have been gazetted by the Director’s office in recent years have been stalled by the intervention of the South African University Vice-Chancellor’s Association (SAUVCA), supported by the Minster of Education, and the publishing industry has been unable to set up a dialogue with government, or to get legislation back on track.
Government Policy
Radical restructuring in the DTI in the context of government transformation has broadened the field of influence of intellectual property to encompass not only the four traditional branches (copyright, trade marks, patents and designs) but additional domains such as database protection, traditional knowledge, trade secrets and global energy issues. In this context it can be seen that copyright occupies only part of Government’s intellectual property concerns. Nevertheless, the print industry sector believes that an effective copyright regime is an essential component in South Africa’s national and international trading development and that the concerns of the industry need to be taken seriously.
The print industry sector understands from the Director, Commercial Law and Policy that all future legislation is to be informed by policy, and that the government think-tank will eventually take a sober decision based on trade imperatives and on stakeholders’ interests.⁵¹ According to the Director, the policy document, which is under construction and discussion internally, is not yet ready for public consumption and comment; ipso facto there will be no legislative development until the policy document is finalised and has been accepted by Cabinet and the public.
However, industry informants understand that legislative review (where a law is simply ‘bad’ or unworkable) need not necessarily be neglected until the policy document is complete, whereas legislative reform must be informed by policy. Possible amendments to the Act such as a new definition of fair dealing, subsistence of proof of ownership, and the introduction of statutory damages, as well as revision of the copyright regulations⁵², in particular, straddle these lines. The door is therefore not entirely closed to renewed efforts to resolve these outstanding issues as a matter of urgency.
The Director has said that only if the shelved amendments to the Act (revision of the Regulations; statutory damages; proof of the subsistence of copyright; and the criminalisation of end-user piracy) are of the utmost urgency – in that they might stave off immediate and likely losses to the publishing industry – would they be willing to make an intervention in the short to medium term. The print industry needs to make its own stand to demonstrate that they are urgent and it is important that it does so in concert with other rights owners affected by the shelving of legislative amendments, particularly the software industry.
However, the print industry sector wishes to make the point, forcibly, that a policy process that operates behind closed doors, without consultation with industry stakeholders, is likely to be flawed. It is vitally important that the industry sector makes a strong input into the policy document, preferably at the drafting stage or, at worst, when it comes before the public for comment. Examples of local and international best practice would indicate that the most effective route to policy formation in this complex and strategically important area is through a transparent and informed consultative process, followed by the formulation of policies that have a good chance of acceptance by all parties concerned. In such a consultative process, it is normally the role of government to act as a mediator between conflicting viewpoints, using expert advisors to arrive at a solution that best reflects that national interest.