Publishers’ association of south africa

Government and industry cooperation in the creation of a climate of respect for and understanding of the value of copyright to the country.

Responsibility for Enforcement – Australia

Copyright enforcement tends to be a responsibility shared between copyright owners and law enforcement agencies, the Australian report claims. Because copyright is intangible, it is not as readily understood as tangible property rights. For this reason, there is an additional burden placed both on government and on copyright owners in the enforcement of these rights. The Australian Commission found that
… government has a responsibility to afford copyright, as well as other intellectual property rights, proper recognition and protection as property. This responsibility will only increase with the emergence of electronic commerce and the exchange of ideas through the Internet.⁶⁴
At the same time, copyright enforcement needs the involvement and cooperation of copyright owners. This is a result both of the specialist nature of copyright and of limitations in the capacity of law enforcement agencies. The process of prosecuting civil cases is expensive and this can, at times, render enforcement difficult, if not impossible, for rights owners, particularly smaller companies and companies in smaller industry sectors, such as publishing. It is in good part for this reason that effective enforcement often depends on industry and cross-industry collaboration. Alliances of rights holders in various copyright industries, at national and international level, funded by industry members, often investigate infringements and carry out regular surveillance of infringement levels.⁶⁵
Responsibility for Enforcement – South Africa
When faced with illegal copying, South African rights owners can press a civil case for damages, or lay a complaint with the police for the institution of criminal charges under either the Copyright Act or the Counterfeit Goods Act. Given that under the Copyright Act it falls to the plaintiff to prove copyright ownership, is could be preferable, when the publisher’s trade mark is registered, to prosecute under the Counterfeit Goods Act and rely on trade mark infringement.
The available remedies are described by copyright lawyer Owen Dean in a set of guidelines for publishers commissioned by DALRO in 2003.⁶⁶
The infringement of the copyright in a literary work or a published edition can give rise to a civil law claim, and in most instances to a criminal offence, under the Copyright Act. In both instances the legal action can be instigated by the copyright owner or by an exclusive licensee. In civil proceedings an interdict restraining the unlawful conduct, damages, delivery-up of infringing copies and various other forms of ancillary relief can be obtained. In the case of criminal copyright infringement the State can prosecute the offender and the court can impose a penalty of R3 000 or five years imprisonment, or both, for each infringing article, in the case of a first offence. In the case of a second or further offence, the penalty is increased to imprisonment for a period of five years and a fine of R10 000 per infringing article, or both.
Civil court proceedings generally proceed more expeditiously than a criminal prosecution and can be dealt with more efficiently. However, they are very costly and can be time-consuming as well. In general, an application for an interdict, but not including a damages claim, can be disposed of within six months. An action for an interdict and damages can take up to a year or 18 months to be finalised. The distinct advantage of civil proceedings is that their conduct is under the control of the plaintiff, unlike in the case of a criminal prosecution.
The advantage of commencing a criminal procedure, on the other hand, is that the raid can take place and the infringing goods can be seized and placed in safe custody expeditiously, perhaps even within days of the initial purchase being made. However, after the raid and seizure of the goods is over, the further prosecution of the criminal case can be extremely drawn out and frustrating as one is entirely in the hands of the police and prosecutors as to the efficiency with which the criminal procedure is pursued. Experience has shown that it can take many months, even years, before a prosecution is finalised. However, the raid and seizure are in themselves a deterrent and an unpleasant experience for an offender.
The Counterfeit Goods Act renders the making and sale of unauthorised copies of a book an act of dealing in counterfeit goods, provided that activity at the same time constitutes either an infringement of copyright or the infringement of a registered trade mark. Offending against the Counterfeit Goods Act can give rise to a criminal prosecution and the penalties are the same as those for which provision is made under the Copyright Act. The Counterfeit Goods Act gives wide-ranging powers of search and seizure to inspectors (police officers, customs officials, and the inspectors appointed by the Department of Trade and Industry) operating in terms of the Act. In practice, the Counterfeit Goods Act has become the norm for use by the police and law enforcement authorities when dealing with trading and other activities in counterfeit goods. It has certain advantages over the Copyright Act: the mere possession of counterfeit goods in the course of trade is a criminal offence, whereas under the Copyright Act in equivalent circumstances proving that the goods have been made and/or sold by the accused is necessary before an offence can take place.
In South Africa, there is relatively little copyright case law relating to print products. Rights owners hesitate to prosecute either civil or criminal copyright cases, because of the expense involved in pursuing the case; the length of time that a case can take; and the lack of effective remedies. The Counterfeit Goods Act is providing some relief, but there are still serious problems with enforcement.
The South African print industries could learn from the Australian experience in joining rights alliances in the interests of better enforcement. At the same time, it is clear that a more focused intervention by government is needed if it is to create an effective copyright regime in the interests of the national economy. Thus far, the South African government has shown some vigour in pursuing legislative reform and better enforcement for the music industry, but copyright in the print industries, as own Dean commented, is in a state of almost complete paralysis.⁶⁷
Civil Remedies – Australia
Rights holders need to be able to enforce their rights in civil courts, the Australian report argues – in most countries this is the main enforcement mechanism. However, as the Australian commission commented, very often civil remedies appear ineffectual and inadequate.
The main issues that need to be considered in relation to civil remedies and their effectiveness are: