Publishers’ association of south africa

(a) for the purposes of research or private study by, or the personal or private use of,

the person using the work;
The section offers no further explanation of ‘fair dealing’. However, Section 12(3), dealing with quotations, says that the quotation ‘shall be compatible with fair practice,and that the extent thereof shall be justified by the purpose’. This provides a guide to the effect that fairness might rest on not taking more from a work than is necessary to satisfy the purpose for which the copy is made.
Section 12(1)(a) does not explicitly say that only a single copy may be made under fair dealing. It is nonetheless impossible to escape the conclusion that a single copy is contemplated, since the dealing may only be deemed fair if it is for the purposes of research or private study by, or the personal and private use of, the person (singular) using the work. And why would the person using the work seek to make more than a single copy for his own private and personal use, his research or private study? However, if he did so seek, and had a good reason, then he would be justified in making more than one copy, and the dealing might still be fair.
The next question to consider is whether Section 12(1)(a) permits the making of the single copy by a person other than the person using the work. In other words, does the Act insist that the person using the work makes the copy himself, or does it contemplate his requesting another person to make it on his behalf? Does ‘using the work’ mean using it in the sense of studying from it, or obtaining information from it; or does ‘using’ refer to the act of using it to make a photocopy? The narrow interpretation would insist that the person using the work and the person making the copy should be one and the same, while the broader interpretation would hold that the intended meaning of ‘use’ here is for the purpose of study and personal and private use of a person, but that person need not necessarily be the one making the copy.¹³²
If one adopts the broader view and concedes that the person using the work is not excluded by Section 12(1)(a) from having his copy made by another person,¹³³ the next thing to consider is whether that other person is restricted to making a single copy. It is logical to assume that the person making the copy is restricted, in exactly the same way as the person using the work, to a single copy - and that only in unusual circumstances, justified by the personal and private use, research or private study of the person requesting the copy, may more than a single copy be made.
The scope of the fair dealing defence, as expressed in Section 12(1)(a) is limited. ‘... although it is not confined in terms to activities performed by the researcher or student himself, it does not justify the making of multiple copies by a third party for use by a plurality of such persons.’¹³⁴
The proposed new Section 12(1)(a) is as follows:
(1) Copyright shall not be infringed by doing a restricted act in respect of a literary or musical work if doing such act is compatible with fair practice and is

(a) for the purposes of research or private study by, or the personal and private use of, the person, being a natural person, doing such act;
In what way or ways does this purport to change the current situation? The use of the term ‘restricted act’ (newly-defined as ‘any act in respect of a work which falls within the exclusive rights in the copyright comprised in that work’) reiterates the exclusive right of the author to authorise the reproduction of his work ‘in any manner or form’ (Article 9(1) of the Berne Convention), and is thus in line with Articles 2.1 and 9.1 of the TRIPS Agreement. The term ‘fair dealing’ has been replaced by ‘fair practice’. This renders Section 12(1) concordant with sections 12(3) and 12 (4).
The person making the copy is now specified to be a ‘natural person’, rather than a juristic person. The legal effect of this specification is that an institution may not rely on the fair dealing (now fair practice) defence. However, the practical effect of this specification is merely that the student has to make the copy for himself, and not get the institution to make it on his behalf. One consequence of the proposed amendment would be to bring South African copyright law closer to British in this respect by achieving a similar result in a different way. The United Kingdom Copyright, Designs and Patents Act 1988 unambiguously makes the fair dealing defence available to a person other than the researcher or student himself (section 29(3)), but also unambiguously places a restriction on multiple copies of the same material (sections 29(3) (a) and (b)). The proposed amendment to Section 12(1) of the South African Act does the opposite: it does not explicitly restrict the number of copies to a single copy but, by restricting the person making the copy to a natural person, does so implicitly. In practice, neither British nor South African law will permit an institution to rely on the fair dealing defence in the case where it has made a number of copies available to its students. However, since the current South African Section 12(1) does not permit it either, the proposed amendment is not more restrictive to the education sector than the present law.
It is therefore surprising that any respected academic commentator could have supported a submission, as some did, stating that if the proposal was accepted no educational institution would be able to make an unauthorised copy on behalf of a student and that such a situation would represent a ‘dramatic’ departure from the current position in that it denies educational institutions the possibility of relying on the defence of fair dealing.¹³⁵ It begs the question whether educational institutions are relying on current Section 12 (1)(a) to make unauthorised copies on behalf of students. Similarly, any insinuation that Section 12 (1)(a) currently allows unrestricted copying calls into question the whole purpose of the section. The purpose of Section 12(1)(a) is to place a justifiable limitation on the exclusive right of the author, granted in section 6(a), in the interests of education. Article 9(2) of the Berne Convention concedes that member countries may limit the exclusive right in ‘certain special cases’, provided that they do not ‘conflict with a normal exploitation of the work’ or ‘unreasonably prejudice the legitimate interests of the author’. The general exceptions from the protection of literary and musical works, as set out in Section 12 of the Copyright Act, constitute those special cases. The purpose of fair dealing is to maintain a delicate balance between the exclusive right of the author and the needs of education, which would undeniably be prejudiced if the author had a total monopoly. Any interpretation of the current Section 12(1)(a) which admits of multiple copying by an institution would be an interpretation disregarding the delicate balance, for the author would undeniably be prejudiced if an institution were permitted, under the fair dealing principle, to make multiple copies, without permission or payment, for its students.
Another question arises when one is considering whether current Section 12(1)(a) is intended to grant to institutions the fair dealing defence in cases where they are making multiple copies for their students, and that is the purpose of the regulations promulgated under Section 13. Section 13 states that ‘in addition to reproductions permitted in terms of this Act reproduction of a work shall also be permitted as prescribed by regulation ...’ It is certain, then, that the regulations are intended to provide additional instances to those in the Act itself in which reproduction is permitted, and not to curb them. But the regulations do not permit unrestricted copying in a library or educational institution. On the contrary, the reproduction or distribution of a single copy in a library is limited to the ‘isolated and unrelated reproduction of a single copy of the same material on separate occasions’ (regulation 5(1)), and the making of multiple copies for classroom use, limited by the so-called ‘cumulative effect’, is restricted to the provisions of regulations 7, 8 and 9.
The conclusion reached in the light of the above arguments can only, therefore, be that the proposed amendment to Section 12 (1)(a) makes no substantive changes to current provisions and that opposition to it based on the allegation that it ‘virtually cancel all provisions allowed for reproduction of works for educational purposes in the current legislation’ is misguided. The proposed amendment would, rather, have provided useful clarification without altering the purpose of the law, and publishers look forward to seeing it re-instated.
In a commentary referred to in some detail below, Dr Owen Dean has the following to say about whether or not Section 12 (1)(a) refers to a natural or a juristic person:
‘There is a substantial body of opinion, if not the preponderance of legal opinion, that holds the view that the reference to “person” in existing Section 12 (1)(a) of the Copyright Act must be interpreted as a reference to a “natural person” and not also to a juristic person. There are other instances in the Copyright Act where the word “person” is clearly used in a context which can only refer to a natural person.’
Among the academic institutions which opposed the amendment, those which objected most strongly, and with reason, were the distance learning institutions which need to make photocopies of articles from learned journals and of extracts from books available to students at distant locations, often in quite remote rural areas where access to the original works is limited. This practice is as unlawful under current Section 12 (1)(a) as it would have been under the new section. That some provision is made for such students, who do not have access to the books and journals, in order to make their own copies when required under fair dealing, is a public good that rights’ owners might be able to concede. The obvious solution is for such copies to be made under licence, but this would mean that distance-learning students would be placed at a disadvantage compared to students in a contact teaching environment and with access to a library. With respect, however, placing unsustainable interpretations on Section 12 (1)(a) in order to service such students is not the right way to go about it. It would be preferable to amend the Section 13 regulations in order to introduce a concession in this respect.
In response to the proposed amendments to the Act which the SAUVCA found unacceptable, its Intellectual Property Committee drafted an alternative set of amendments to Section 12 (1) which were presented to, and roundly rejected by, the Publishers’ Association of South Africa (PASA). The SAUVCA’s proposals were examined and analysed by Dr Owen Dean, whose comments are incorporated herein. Dr Dean termed them ‘sectarian, one-sided and simplistic’ since they ‘overlook the fact that the Copyright Act protects nine different categories of works, ranging from literary works to programme-carrying signals and computer programmes, and not only literary works and published editions, and by and large its provisions must apply equally to all these divergent and heterogeneous classes of works.’¹³⁶ Moreover, as Dr Dean points out, they would result in the failure on the part of South Africa to meet the minimum requirements of the Berne Convention and the TRIPS Agreement and would ‘bring about a situation where South Africa would be in breach of its international obligations and thus be liable to action being taken by other member countries, and international organisations, in respect of such breaches.’¹³⁷
It should be borne in mind that Section 12 of the Act sets out certain specific cases in which exceptions to the author’s exclusive right may, in terms of article 9(2) of Berne, be admitted. Multiple copying in an educational setting is not one of those certain cases, and it may not therefore fall under Section 12 but should, instead, be dealt with in the s13 regulations, the purpose of which is to offer additional concessions for educational and library uses. Even so, the regulations may not introduce any provisions falling outside the parameters imposed by article 9(2) of Berne, repeated in the words of Section 13 itself. In other words, even if the SAUVCA’s proposals were to find a place in the regulations they would have to be ‘tested against the requirement that they are not unreasonably prejudicial to the legitimate interests of the owner of the copyright in relevant works and should not be in conflict with the normal exploitation of the works in question. Meeting this test will require an analysis and a survey of the circumstances of the South African market in educational books and other works.’¹³⁸ It is submitted that such a survey as suggested by Dean would immediately and unequivocally demonstrate that permitting multiple copies to be made in educational institutions would annihilate local academic and educational publishing and cripple the South African publishing industry.
Dean has acutely pointed out that although the benefits to education which would be brought about by permitting such multiple copying would be substantial, they would upset the balance which copyright law aims to bring about between the needs of society and the rights of authors and publishers to derive economic benefit from their works. ‘The proposal appears to be based on the premise that the needs and wants of education are all-conquering but this approach is in conflict with that of the Berne Convention, the TRIPS Agreement and the South African Copyright Act.’¹³⁹
To return to the statutory defence of fair dealing, it is clear that a court will apply a restrictive interpretation based on the facts and circumstances of the individual case. Although it does not apply clearly defined limits to the acts of the researcher or student himself, there is nothing in Section 12 (1)(a) which could reasonably be interpreted as justifying the making of multiple copies by a third party for the use of an amorphous body of students.

Appendix

5ELECTRONIC COPYRIGHT –

AN OPINION FROM

BUYS INCORPORATED ATTORNEYS

1.