Publishers’ association of south africa
INTERNATIONAL TREATIES GOVERNING COPYRIGHT
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INTERNATIONAL TREATIES GOVERNING COPYRIGHTWORLDWIDE, INTELLECTUAL PROPERTY PROTECTION rests on national, not international legislation. However, an international system is necessary to avoid the conflict of laws. International intellectual property treaties regulate relations between governments and comprise international case law and custom as well as the bilateral and multilateral agreements, or treaties, negotiated by governments and ratified by national legislatures and through which governments develop their legislative frameworks in conformity with global standards. This system is particularly important in the information age, with the blurring of international boundaries and the explosive growth of trans-border information dissemination, across a multiplicity of national legislations. Such a system is provided by the international treaties, which ensure that member countries’ laws conform to certain, mutually agreed, minimum standards. The most important of these (as far as publishing is concerned), are the Berne Convention and the TRIPS Agreement. As a member nation of the Berne Union, a member of the World Intellectual Property Organisation (WIPO), and a signatory to the Agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement), South Africa has international obligations concerning the legal environment in which copyright is protected and in which that protection is enforceable. It has to be recognised, too, that many trade relationships and agreements are dependent upon a sound intellectual property framework in a country and, most particularly, preferential trading agreements with the United States for duty-free access to the United States market for South African goods. Investment in South Africa can also be dependent upon the perception that the country provides a sound intellectual property environment. The importance of this aspect of South Africa’s international obligations is recognised by the South African government as being of key importance in its international trading relationships. The Chief Executive Officer of the Companies and Intellectual Property Registration Office (CIPRO) has articulated this as being a central concern: As far as intellectual property is concerned South Africa is in a fairly unique situation in that we are leaders in Africa as far as the recognition of these rights are concerned and the feeling is that we should avail ourselves of the situation in order to expand South Africa’s influence in this field in Africa and the rest of the world ... it is our view that much can be done to promote the prestige of South Africa in this regard. I submit that this would also serve to increase international regard for South Africa as a country with refined intellectual property laws and recognition of these rights. This should also increase the international investor confidence in our country.33 The Berne Convention The Berne Convention for the Protection of Literary and Artistic Works, adopted in 1886, last revised in Paris in 1971 and amended in 1979, is the principal international treaty regulating copyright protection. In setting the minimum standards for the protection of copyright, it guarantees to authors and publishers the protection of their rights in all countries party to the treaty.34 The principle of national treatment as expressed in Article 3 means that a country’s copyright laws have to grant the same level of protection to creators in other countries of the Berne Union as they do to their own. It does not prescribe how such protection should be provided but, rather, sets out which principles and provisions should and should not be implemented in national laws. Most importantly for publishers and authors, the Berne Convention, in Article 9(2), provides a number of exclusive rights to the author35 in the economic exploitation of the work. Of these, the most important is the following: Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form. (Article 9 (1)) The Berne Convention then allows member states to introduce exceptions to the exclusive right of the author, in their national legislations: It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (Article 9 (2)) The Three-step Test These conditions are often referred to as the three-step test, which is of fundamental importance to rights owners. Under the three-step test the reproduction must be a special case, and it may not conflict with a normal exploitation of a work, and it may not unreasonably prejudice the legitimate interests of the rights owner. As can be imagined, a number of interpretations can be placed on ‘special cases’, on ‘a normal exploitation of a work’ and on ‘legitimate interests’. International agreement, however, is that ‘special cases’ refer to personal or private copying by an individual, usually for the purposes of scholarship or research or of criticism or review; the ‘normal exploitation of a work’ refers to both sales and exploitation through sub-licensing; and ‘legitimate interests’ are the economic benefits due to the rights owner in respect of his or her work. The ‘special cases’, therefore, provide society with a safety valve and pertain to copying for personal and private use, for scholarship and research, for criticism and review and for reporting current events. It is also up to national legislatures to provide for exceptions in the case of educational institutions and of libraries, provided that they do not contravene the three-step test. The narrow line copyright law has to tread lies in balancing the rights of the author with the needs of society. The importance of Article 9 (2) of the Berne Convention to rights owners cannot be over-emphasised. Moreover, South Africa is bound to observe the three-step test in its national legislation, not only by virtue of Article 9 (2) but also in view of having signed the World Trade Organisation TRIPS Agreement, since Article 13 of TRIPS reiterates Article 9 (2) of Berne. Fair Dealing This balance between the monopoly for authors and rights owners over the exploitation of their works, and the social goals of wide dissemination of and access to knowledge requires certain limitations on authors’ monopoly in respect of their works. The doctrine of ‘fair dealing’, which provides a safety valve in the interests of society in general, permits a certain amount of copying without the authorisation of the rights owner. This is one of the ‘special cases’ referred to in Article 9 (2) of the Berne Convention. South African copyright legislation follows broadly the UK system. In the UK system, which applies in other countries, like Canada, Australia, New Zealand, and Hong Kong, fair dealing allows for limited copying, without permission, for:
Such copying should follow the ‘three-step test’ of the Berne Convention (see above). The foundation of the concept depends upon the meaning of the word ‘fair’ and depends as much upon common sense as upon legal definition. In part, it is a deliberately ‘fuzzy’ concept that allows for the kind of small-scale copying that is necessary for free expression and that would not erode the rights of the author or compromise the author’s rightful earnings.36 As defined internationally, fair dealing can only be carried out where there are no commercial interests involved. In other words, the fair dealing activity has to be not-for-profit and in Australia, could not, for example, involve a commercial copyshop.37 In the UK, it would be permissible to ask a librarian to make a copy for private research purposes if the user cannot make the copy herself. Legislation in the UK systems tends to avoid spelling out the limits of fair dealing – for example, how much may be copied. In the UK, Canada and Australia, individuals are permitted to make a single copy of a ‘reasonable proportion’ of a work for fair dealing purposes. Only in Australian law is this ‘reasonable proportion’ spelled out as 10% of a published work of 10 pages or more; or one article from a periodical.38 In America, the concept is different and the term ‘fair use’ is adopted. The US fair use system is an open-ended one, which does not impose a scope limiting copying, but instead asks that four factors be observed39: In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:
The fair use doctrine requires considerable discretion to be exercised by the user, who has to judge, from a multiplicity of perspectives, whether the use is fair or not. For this reason, it has been subjected to criticism by rights users and rights owners alike. Multiple copies can be made, for classroom use, but if this is to fall within the fair use provisions, it has to meet the criteria of brevity and spontaneity. The copying has to take place close to the time of its use – the idea being that this is a short-term, spontaneous need, without time to ask for permission – and the act of copying cannot be repeated – in other words, the same extract cannot be used again in another semester. Fair dealing is a deeply nuanced doctrine, which has been the subject of much controversy among legal experts worldwide, and is examined in detail in Appendix 4, Fair Dealing and Literary Works. In South Africa, the publishing industry has argued that there is a need for clarification of certain of the fair dealing definitions and provisions in the Copyright Act. The TRIPS Agreement As described above, in the context of copyright and international trade, South Africa is a signatory of the TRIPS Agreement, which covers the enforcement of copyright, and provides for a dispute prevention and settlement procedure between member states. As we have seen, TRIPS requires signatory countries to have a range of effective and accessible measures to ensure enforcement; procedures that aid enforcement; expeditious processes for the prosecution of infringements; and remedies that act as a deterrent to further infringements. The WIPO Copyright Treaty (WCT) South Africa has also signed but not ratified the WIPO Copyright Treaty (WCT) of 1996. The fact that eight years have elapsed since signature, without significant moves to address legislative issues relating to digital copyright, is cause for concern and puts South Africa well behind most if not all of the major trading nations and a number of its African partners. The WIPO Copyright Treaty (WCT) was adopted in Geneva in 1996 and is mainly aimed at providing copyright protection on global information networks, such as the Internet. It tackles the major issues confronting national legislatures in addressing the impact of digital media on their IP systems.40 The WCT establishes a new exclusive right, the right of on-demand communication to the public, and provides for obligations concerning technological measures of protection and rights management in the digital environment. It complements the Berne Convention with provisions on the scope of protection, the protection of computer programmes and original databases, the right of distribution, the right of rental and the duration of protection of reprographic works. Most importantly, the WCT reaffirms the application of the three-step test to exceptions and limitations in the digital environment. The WCT was adopted before any countries had enacted specific legislation to deal with copyright in the digital environment. Since 1996, a number of countries have grappled with the issues and enacted legislation, either creating entirely new legislative instruments, or amending existing copyright acts. The treaty, having reached its 30th ratification or accession, has entered into force as of 6 March 2002. RECOMMENDATIONS
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