Publishers’ association of south africa

Permitted Reproduction in Educational Institutions
As suggested by the Submission, the introductory paragraph of this regulation now refers back to Section 12 of the Act.
Regulation 2 (1): this now reads “where a teacher or student makes one or more copies of a work”. The Submission says that sub-regulation 2(1)(b) contradicts 2(1)(a). This is not strictly correct, but the point the Submission is apparently reaching for is that these two sub-regulations should be taken together to make sense. 2(1) now allows multiple reproduction not by a reprographic process and 2(2) now allows multiple reproduction by a reprographic process in specific circumstances - assignments, tests and examinations – in which multiple copies are by necessity required, and both sub-regulations therefore refer to the same introductory sentence, i.e. one or more copies. Sub-regulation 2(1)(b) in the draft regulations now becomes sub-regulation 2(2) in the proposed draft regulations, and 2(2) becomes 2(3). The purpose is to provide complete clarity with respect to the three instances in which reproduction is permitted in educational institutions.
Another change to sub-regulation 2(2) is that “person” has been replaced by “teacher or student”. Not only does this change make 2(2) concordant with 2(1) but, since regulation 2 deals with reproduction in educational institutions and not in libraries, it is logical to restrict the acts of copying permitted by the regulation to teachers or students.
2(2) The word “literary” has been removed from this sub-regulation. The new regulation 3 makes it clear beyond doubt that only literary works are referred to, but that where pictorial or graphic works appear as diagrams, illustrations etc within the body of a text, they are permitted. This new regulation 3, taken from sub-regulation 5(2) of the current regulations, is as a result of a very sensible intervention from the University of Pretoria.
2(2)(b) “Quarter” has been replaced by “any one discrete module or study programme” for the reasons outlined above.
In sub-regulation 2(2)(b), the amount which may be copied has been increased from one percent or 2 pages, to five per cent. It should be noted that 5% may, however, only be copied if no licence is available (2(2)(d)). Originally, “in terms of a licensing scheme” caused a lot of confusion. It was assumed to mean “in terms of a blanket licensing scheme”, whereas the original drafters of the proposed new regulations had merely intended it to mean any kind of a licence, transactional or blanket. All confusion should fall away if reference to a “scheme” is removed.
4(2) The words “in terms of these regulations” have been added, so that the sub-regulation cannot be misconstrued as impinging on the rights granted in Section 12(1)(a) of the Act. Further the word “published” has been added, and only workbooks have been specified as excluded from the provisions of regulation 2. This is in line with the Submission’s comment that it is common practice for students to work through old exam papers.
Sub-regulation 3(4) of the draft regulations has been omitted. It has given rise to justifiable concerns about the meaning of “term” in the context of the modularisation of tertiary education currently in development.
Permitted Reproduction by Libraries and Archive Repositories
A new regulation 5 has been inserted. The Submission has requested this concession and it appears to be a very reasonable one which will help educators and librarians without prejudicing rights owners.
Sub-regulation 4 (1)(b) of the draft regulations has been omitted. In omitting it we have taken into account the Submission’s view that a simple order form should suffice and, since the order form bears the copyright warning as set out in regulation 14, we feel that a further written declaration - even though we do not agree that it would place an undue and impractical obligation on the librarian - would serve no useful purpose.
Sub-regulation 4(2) of the draft regulations has also been omitted. We agree with and accept the Submission’s argument that to check on the precise subject matter of each article requires technical knowledge which the librarian may lack, and that it would place excessive responsibility on the librarian. The Submission is also correct in that this sub-regulation is covered by 4(3) of the draft regulations (6(2) of the proposed draft regulations).
New sub-regulation 6(2) differs slightly from its counterpart in the draft regulations 4(3). Instead of specifying that no more than a reasonable portion may be made by the librarian or archivist, the sub-regulation stipulates how much may be made - ten per cent or one chapter, whichever is the greater. This removes all doubt as to the meaning of “reasonable portion”, and “lesser” has been changed to “greater”. We agree in this instance as well, that a declaration by the librarian or archivist is of no more practical use than his or her satisfaction that the work cannot be obtained within a reasonable time at an ordinary commercial price, and have therefore scrapped the declaration requirement. Finally, we agree with the Submission that the use of the word “copy” in the second last line of 4(3) is ambiguous, and now, in 6(2) refer only to “work”.
Since a declaration is no longer required by the proposed draft regulations, sub-regulation 4(4) of the draft regulations falls away.
7(2)(a) and(b) in the proposed draft regulations: In 7(2)(a) the “declaration” is now a “written declaration”, and in (b) the “written statement” has become a “written declaration”, which makes it obvious that what is required from the librarian requesting the copy is a written declaration stating why the request is being made, and that an attempt has been made, and has failed, to obtain an original of the work. The Submission indicated confusion at the seemingly interchangeable use of two terms “declaration” and “statement” and we have therefore standardised terminology for the sake of simplicity and ease of understanding. To answer the Submission’s question ‘to whom will the declaration be addressed?’ we have used the phrase “furnishes a written declaration” which indicates that the declaration will be addressed to the librarian or archivist supplying the copy. Again, we have noted the apparent contradictions usefully pointed out by the Submission, and attempted to put them right.
In 6(2), 7(2)(b), 8(2), 8(3) and 9 we have acted on the concern of the Submission that the word “copy” is potentially confusing, and where “copy” is intended to indicate an original copy, i.e. the book itself, have used the term “work”.
Sub-regulations 8(2) and 8(3) now refer to a “written declaration”, again to obviate any confusion between a statement and a declaration.
Regulation 9, which corresponds with regulation 7 in the draft regulations, omits the term “reasonable portion” and, instead, sets out the amount of the portion - ten percent or one chapter, whichever is the greater.
Regulation 11, which corresponds with regulation 9 in the draft regulations, uses the term “disabled reader” instead of “handicapped reader”.
The Submission is correct in saying that the Copyright Warning should include the purpose of research, and the words “scholarship and research” have been added.

Appendix

4FAIR DEALING AND LITERARY WORKS
South Africa, as a signatory to the Berne Convention¹²⁵, is bound to frame its national copyright legislation within certain parameters and to abide by the provisions of Article 9(1) according to which the author has the exclusive right to authorise reproduction of his or her work in any manner or form.
However, recognising the need for special provisions to take account of the needs of the public and especially of education, Article 9(2) of the Berne Convention allows member states to permit reproduction in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the author. Thus, while copyright law reserves to the copyright owner the exclusive right to undertake certain acts in regard to his or her work, it recognises that certain uses of copyright-protected works lie outside the owner’s control, and it consequently provides for exceptions to, or limitations on, the exclusive right. While many users regard these exceptions or limitations as their rights, they are technically exemptions from liability or, in other words, defences to what would otherwise be acts of infringement.
In accordance with Article 9(2), the South African Copyright Act, Act No 98 of 1978, sets out, in Section 12, general exceptions from the protection of literary works. Section 12(1)(a) states that fair dealing with a literary work is permissible for the purpose of research or private study or for the personal or private use of the person using the work.
Thus in a loose way, since it is not defined with exactitude and there are no set guidelines with universal applicability, fair dealing permits users to copy, for their own study or research or private use, as much of the work as is necessary to meet their reasonable needs, without seeking permission from the copyright owner or paying compensation.
Provisions similar to that of Section 12 (1)(a) are contained in the Copyright Acts of other countries including:
The United Kingdom, where section 29 of the Act stipulates that “Fair dealing with a literary, dramatic or artistic work for the purposes of research or private study does not infringe any copyright in the work…”¹²⁶

Australia, where section 40 of the Act states that fair dealing for the purposes of research or study is not an infringement of copyright. In determining whether dealing with a work by copying it constitutes a fair dealing regard must be had to the purpose and character of the dealing, the nature of the work, the possibility of obtaining the work within a reasonable time and at an ordinary commercial price, the effect of the dealing upon the potential market for the work, and (when only part of the work is copied) the amount and substantiality of the part copied in relation to the whole.¹²⁷

Fair dealing is not quantified in any law, and since there is no bright line separating the lawful from the unlawful, voluntary guidelines have been developed in some countries. In Norway 15% of a complete work or 30 pages, whichever is the lesser, is considered fair for private use. In Britain the Publishers’ Association, the Writers’ Guild and the Society of Authors accept, as within the bounds of fair dealing for research or private study, one copy of a maximum of one chapter in a book, or 5% of a complete work.¹²⁸
On the other hand, in the United States, ‘fair use’ is by law determined qualitatively as well as quantitatively. Section 107 of the US Copyright Act 1976 states that it depends on four factors: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the whole; the effect of the use on the potential market for the work.
The American ‘fair use’ should always, therefore, be distinguished from ‘fair dealing. In The Modern Law of Copuright and Designs Laddie, Prescott and Vitoria make the following reference to this distinction:
‘Fair use should be distinguished from the statutory defences based on fair dealing; the latter are conceptually distinct since they pre-suppose that a substantial part has been taken.’
Moreover, fair dealing, sets out a ‘limited and specified catalogue of circumstances within which the defence may apply’¹²⁹. ‘In other words, if a certain act does not fit one of the pigeon-hole fair dealing exceptions (research, private study, personal and private use) no defence is available, whereas in the United States the Act ‘contains an open-ended catalogue’ - what has been called an ‘omnibus’ approach.¹³⁰ Consequently, while in the United States commercial use may qualify as fair provided it conforms to the four factors, in South Africa commercial use is excluded. Fair use, an open-ended legal doctrine, is thus an altogether broader concept¹³¹ than fair dealing, which is constrained by reference to the specific instances in which it applies.
In May 2000, the Department of Trade and industry published, in the Government Gazette, certain proposed amendments to the Copyright Act, including one to Section 12 (1)(a). Rights’ owners approved of the proposed amendment as, inter alia, it made unambiguous that the act of copying must be performed by the person requiring the copies. The Task Team set up by the South African Universities’ Vice-Chancellors’ Association (SAUVCA) to deal with impending changes to the Copyright Act, on the other hand, objected on the grounds that the change would ‘virtually cancel all provisions allowed for reproduction of works for educational purposes in the current legislation ...’ The proposed amendment was subsequently withdrawn – presumably, in the absence of any evidence to the contrary, that the DTI found validity in this objection.
This commentary will now examine the validity of the SAUVCA’s allegation. In the current legislation, reproduction for educational purposes, without the authorisation of the copyright owner, is allowed in three places, Section 12(1)(a), Section 12(4) and the regulations promulgated in terms of Section 13. No reference to the regulations was made in the proposed amendments to the Act, thus their provisions are not relevant to the allegation. Section 12(4) permits reproduction by way of illustration in a publication for teaching, and would have been unaffected by the proposed amendments. Section 12(4) is therefore also irrelevant to the allegation.
Thus, the assertion that the proposed amendments ‘virtually cancel all provisions allowed for reproduction of works for educational purposes in the current legislation’ can only be based on one premise: that such provisions are currently granted in Section 12(1)(a).
Current Section 12(1)(a) states that:
(1) Copyright shall not be infringed by any fair dealing with a literary or musical work -