Publishers’ association of south africa

The Nordic model is based on the ‘extended collective licence’. The RRO is authorised by organised groups of rights holders (writers, publishers, illustrators and journalists) to collect and distribute royalties on their behalf; and by law the RRO is also authorised to collect on behalf of rights holders who have not authorised the licensing organisation to represent them. This model allows users licensed access to most published works worldwide. Collection and distribution are based on statistical surveys which determine quantities and classes of works copied. In the Nordic model, distribution is made through rights owners’ associations, rather than directly to individual rights owners. In many cases, a proportion of this income is used by rights owners’ associations for development projects, locally and internationally.

Variations on all of these are possible. There is, therefore, no one ‘model’ of an RRO, but, rather, a principle held in common by all of them. That principle is founded on the recognition that the uncontrolled reprographic reproduction of books and other publications undermines the freedom of expression by reducing publishers' willingness to take the risk of offering new works in the marketplace. Licensed photocopying does not inhibit the legitimate use of copyright material, but rather makes simple and legal, at a small fee, what is frequently carried out illegally and without payment. Unfortunately, owing, in some cases, to poor knowledge of copyright provisions and, in others, to disregard for the law, users have become accustomed to photocopying without restriction, and are bound to balk at having to pay for something they have so far been getting ‘free’. It is therefore vital to educate users about the need to provide some returns to the creators of the material they have been using for nothing.

In other countries, national legislation allows for compulsory or semi-compulsory licensing, linked to strategic national policy decisions on the role of collecting societies in supporting local industry growth and in creating the balance between rights owners and users.
COLLECTING SOCIETIES IN SOUTH AFRICA

Background

The South African RRO, the Dramatic, Artistic and Literary Rights Organisation (DALRO) operates within what is known as a voluntary system of collective licensing, the only system currently enabled by the country’s national copyright legislation. In essence this means that rights owners entrust their rights to collective administration by DALRO on a voluntary basis and, similarly, that users voluntarily acquire those rights under licence. The voluntary system of collective licensing is enabled by Section 6(a) of the Copyright Act which reserves to the owner of the copyright in a work the exclusive right to reproduce or to authorise the reproduction of the work ‘in any manner or form’.

In the course of this study, it has emerged clearly that a crucial issue in determining policy for the management of copyright involves the degree to which a country uses the collective management of copyright and neighbouring rights to help achieve the balance between the author’s entitlement to protection and due reward and the right of access to information.
As early as 2001 MacDonald Netshitenzhe, then Registrar in SAPTO, is on record as claiming that licensing is another way of assisting protection, and that licensing structures should be put in place in the legislation.⁸⁹ Collective agreements should be negotiated, he said, and dispute resolution mechanisms should be entrenched in the law, as should regulatory structures.
The Canadian Model of Collective Licensing and its

Relevance to SA

The South African Departments of Arts and Culture and of Trade and Industry have both expressed interest in the Canadian legislative model for rights collection. In 2001 a delegation from the Canadian Ministry of Heritage met with officials of the Department of Arts, Culture, Science and Technology (DACST) and the DTI. The Canadian delegation briefed several meetings about copyright legislation and the collective administration of reprography in its home country, concentrating on copyright licensing in higher education – how it was initiated, how it proceeded and the role of national bodies such as the Association of Universities and Colleges of Canada (AUCC).
The report arising out of the Canadian intervention recommended that the uncertainties surrounding legislative reform and licensing in South Africa would be eased by a form of statutory reinforcement for collective licensing such as exists in the United Kingdom⁹⁰ and Canada. Canadian law, for instance, limits the damages a rights owner outside the collective’s repertoire can obtain for copyright infringement to the level of the royalties which would have been payable for that use under licence. Canadian law also prevents a claim for statutory damages against a licensed educational institution, and it offers statutory indemnity to an institution in respect of acts committed on its premises (i.e. photocopying by students or staff) only if the institution holds a blanket licence:
The Canadian RRO, Cancopy, aided largely by supportive legislation ... was able to overcome [the] barriers and currently has a strong and constructive relationship with the universities. The AUCC played a hugely important role in representing its members in negotiating the Cancopy model agreement, and even though it could not commit them all to signing, all of them did.
At the end of the visit, the report submitted by Andrew Martin, a member of the Canadian delegation, recognised something very important, namely that:
… what is most appropriate for the longer term is a more conceptual approach to copyright law reform. The recent draft amendments and draft regulations do not flow from a statutory framework for collective licensing. This needs to be addressed before legislating on the rights and obligations of the respective parties ... if the South African government is committed to collective licensing, this should be reflected in the Copyright Act. That will give DALRO the legitimacy that [the Canadian RROs] had in their work with rightsholders and users.
As Andrew Martin has pointed out, ultimately most licensing disputes come down to price. In Canada, the strategy was to enrol as many users as possible, rather than aiming for high prices. Within the Canadian pricing structure, it was accepted that tariffs needed to reflect sectoral differences.⁹¹
It seems that Andrew Martin’s report was favourably received by DACST and the DTI, for when, in May 2001, the DTI held another workshop, this time on a regulatory framework for collecting societies, Mr Tsheko Ratsheko, at the time Deputy Registrar in the South African Patents and Trademarks Office (SAPTO), delivered a paper supporting licensing on the Canadian model and spoke glowingly of the Cancopy model agreement with the universities. Steven Sack, Director of Cultural Industries Development in the DACST, actually said, "We’re going the Canadian route."
DALRO
The role of an RRO is to consult, negotiate and liaise with the users of licensable material, and over the past five years DALRO’s work in the higher education institutions has led to a steady growth in the collection of licensing income and a slow but steady decline in infringement levels in the majority of institutions.⁹²
In 2002, DALRO distributed almost R5,7m to local and foreign rights owners for reproduction from published editions. Approximately 38% of this amount was paid to local rights owners, with the balance distributed to foreign RROs, mainly the Copyright Clearance Center (CCC) in the USA and the Copyright Licensing Agency (CLA) in the UK.