Publishers’ association of south africa

The Recent History of Legislative Reform
The recent history of reform in copyright legislation in South Africa has not been happy. A pattern appears to have been established, in which the DTI gazettes, unannounced, proposals for legislative amendments and calls for responses; industry stakeholders broadly support the amendments; the universities oppose the amendments; and the DTI then withdraws the amendments or stops the legislative process. This situation has been further complicated by the intervention of the Minister of Education, on behalf of the universities, in asking for the withdrawal of proposed amendments in 2001. The result has been that legislative reform has effectively been stalled since 1999.
Although the then Registrar of Copyright has tried, from time to time, to canvass stakeholder opinion, for example in the convening of a workshop in 1999 to consider stakeholder input into amendments of the Regulations, this appears to have stalled the legislative process, rather than advancing it. Faced with conflicting views between local and international industries in the print sector and the universities in South Africa, the DTI has chosen to step back rather than attempting to resolve the conflict.
Moreover, a pattern has developed in which, given a lack of action from government in promoting legislative reform, stakeholders have taken their own initiatives in proposing and drafting legislative amendments. This is an unhealthy situation, which, if anything, is merely increasing the polarisation between rights users and rights owners and, in particular, the universities and the publishing industry.
Legislative reform internationally
A review of the international copyright scene would suggest that such conflicts between universities, libraries and the publishing industry are by no means unusual and have been encountered and overcome in different ways in all the countries reviewed for this report. What appears to be required is a legislative process that calls for stakeholder input in the form of position papers and discussion workshops, but which then turns to government expertise to design legislative proposals that weigh up the differing viewpoints in order to arrive at a solution. The interests at stake could be national and international trade requirements, or developmental issues. In either event, the countries studied have brokered different compromises, according to the circumstances of the country, in order to arrive at effective legislation.
An example of such a process can be followed in the introduction of legislation to deal with digital media in Australia, and in particular, the question of fair dealing and library and educational exceptions in digital media. There was extensive input from rights owners and rights users, all of which can be followed in online documentation.⁵³
What has to be recognised is that the differences of opinion between rights owners and rights users are not always reconcilable, and that compromise has to be achieved in the best national interest. Moreover, where there are solutions, these are not always a matter of legislation. Very often, the issues at stake are in reality questions of the price that has to be paid for access to knowledge. In the case of Canada and Australia, for example, this has been resolved through the negotiation of a collective licensing regime that provides advantageous prices to the users, on the one hand, and exerts pressure on rights owners to participate.
South African Legislative Reform – The Regulations
Attempts to reform the Regulations promulgated in terms of Section 13 bear out the general pattern for legislative reform in South Africa described above. In the early 1990s, PASA tried to reach agreement with the universities on the desirable extent of exceptions for educational and library copying, but these discussions stalled when the universities refused to relinquish what they saw as a potential advantage in the ambiguity of the provisions of the regulations.
In 1996, the then Chairman of the Copyright Sub-Committee of the Advisory Committee on Trade Marks, Patents, Copyright and Designs in the DTI, considering the regulations to be hard to understand and almost unworkable in practice, sought to revise them and invited PASA to prepare a suitable draft.
In drafting the proposal PASA had two fundamental objectives: to make the regulations easy enough for the layperson to understand and apply, and to reduce free multiple copying to a minimum. The focus was on multiple copying for classroom use, as that was where publishers were most directly affected and prejudiced when photocopies, made without permission or payment, were used in the classroom or lecture hall. PASA argued that, above a certain minimum level, a fee should be paid to a collecting society to pass on to rights owners for the use of their works.
The draft prepared by PASA was submitted to the DTI early in 1998. The DTI found it to be acceptable and it was published in the Government Gazette of 7 August 1998. Interested parties were invited to submit their written comments to the Registrar, SA Patent and Trade Marks Office, by 18 September 1998.
The proposed regulations met with protest from the university sector, as a result of which the Minister of Trade and Industry granted an extension for the submission of comments and the Registrar agreed to broaden the consultation process by convening a workshop with all stakeholders.
The workshop, held in March 1999, merely demonstrated that the polarisation of views appeared irreconcilable. Rights owners wanted the author’s exclusive right to be limited as little as possible through legislative means and motivated for collective licensing as a balancing mechanism between the rights of owners and needs of users of published copyright works. Users, on the other hand, sought generous exceptions, arguing that this was to the advantage of disadvantaged students.⁵⁴
And there, effectively, the legislative process on the regulations has stalled. Attempts by the print industries sector and its international partners to get amendments reinstated have been met with silence from the DTI.⁵⁵ As far as the industry sector has been able to establish, the DTI wants the publishers and the universities to reach agreement before any legislative amendment will be undertaken. For reasons set out below, rights owners do not believe that this is a realistic prospect.

As the regulations are ambiguous and contradictory (see p. XXX, above), the print industries urge the DTI to put legislative amendments back on track. Examining and analysing the submissions in opposition (many of which were reasonable) it would be possible to redraft the proposed revised regulations to take most of those submissions into account without compromising the objectives of the original draft. A proposal in this regard, drafted in response to the stalemate that has been reached, is appended to this Report, together with a detailed explanation of how and why revisions were made (see Appendix 3).