Publishers’ association of south africa

legitimate’ interests of the copyright owner, Sub-section 2(b) of the regulations themselves refers to ‘unreasonable prejudice [of] the legal interest and residuary rights’. Stressing the difference in meaning between the two expressions, legitimate and legal, they say that the provision is not about economic prejudice, but only about the right to not have any illegal actions committed in respect of the work. The late Dr Gideon Roos addressed this matter in a presentation to the Johannesburg College of Education some years ago, pointing out that reality suggests the legislator did not intend there to be two different words and two distinct fields of application. Originally, Section 13 also spoke of ‘legal’ but when the Act was amended by Act 56 of 1980, ‘legal’ was changed to ‘legitimate’. The regulations, however, were not changed, no doubt by oversight. The 1978 regulations contained other terminological misunderstandings, such as the reference to ‘residuary rights’. ‘Residuary rights’ were, again, amended to ‘moral rights’ in Section 20 of the Act by Section 19 of Act No 125 of 1992. As moral rights are not harmed by photocopying, it is impossible to know what ‘unreasonable prejudice of the legal interest and residuary rights of the author’ could mean in the context in which the phrase appears. Finally, Dr Roos commented that if the legislator could use as baffling a word, in its context, as ‘residuary’, it could just as inexplicably fail to spot the difference between ‘legal’ and ‘legitimate’.

115 South Africa has signed the Brussels text (1948) of the Berne Convention, and not the more recent Paris text (1971). However, South Africa is bound by Article 9 of TRIPS which provides that members of the World Trade Organisation must adhere to the Paris text of the Berne Convention. Thus, South Africa is as bound to the Paris text as if it had signed that text.

116 While some commentators have on occasion referred to the fair dealing provision as ‘fair use’, the two doctrines should not be confused. Although fair use is also an affirmative defence to an action for copyright infringement, it derives from American law, where it is given statutory language in Section 107 of the United States Copyright Act 1976 as amended, which specifically states that in determining whether the unauthorised use of a work in any case is fair a court will consider four factors: the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the work as a whole; and the effect of the use on the potential market for or value of the work. The apparent similarities between the British and South African ‘fair dealing’ and the American ‘fair use’ belie certain fundamental differences (such as, for instance, that multiple copying may constitute fair use if such use does not affect the market for the work), and the terms may not, therefore, be used interchangeably.

117 The question arises whether a group of students, directed by their teacher, may each make a copy, each for his or her personal and private use or research or private study, under the fair dealing provision of Section 12(1)(a). The issue has not been tested in either a South African or a British court. It is our view that the defence of fair dealing would fail in such a case, since the end result – multiple copies – would amount to systematic or coordinated copying, and the use would no longer be personal and private. A court would also consider the effect on the potential market for the work in determining whether the dealing was fair. Since British courts have applied the defence of fair dealing restrictively, a South African court would probably do so as well (C E Puckrin, Section C). Opinion: Ex parte Dramatic, Artistic and Literary Rights Organisation (Pty) Ltd, In re Infringement of Reprographic Rights by South African Universities). Section 12(1)(a) also requires that the fair dealing copy should be made by the person wishing to use the work for his own use. Thus the regulations provide (in regulation 4) that a librarian may also make a copy for a person requesting it for research or private use. The privilege offered by regulation 4 should not, however, be confused with fair dealing.

118 The argument that the loss of sales is the compelling factor in determining whether or not the work has been normally exploited was addressed by the United States Court of Appeals for the Second Circuit in the 1994 decision American Geophysical Union v Texaco, where the court found that the publisher had not lost subscriptions but had lost the right to license the work for reproduction. Because there existed a licensing body (the Copyright Clearance Center of CCC, from which Texaco could have acquired a licence, the market was affected.

119 This Appendix was authored by Monica Seeber.

120 C Clark. Photocopying From Books and Journals. British Copyright Council, London 1996.

121 E Barrow. ‘Fair Dealing and the Texaco Decision: Implications for the UK.’ In Copyright World, Issue 25, November 1992, pp. 16-24.

122 Though they were given judicial recognition in the Kinko’s case and have, in the United States, been elevated to the level similar to that of interpretative regulations. Spalding, A D, ‘Fair use of research and course packets in the classroom’. In American Business Law Journal, 1993.

123 Lehman, B A, The Conference on Fair Use. Washington, U S Patent and Trademark Office 1996, p. 5.

124 It should also be remembered that while the American Classroom Guidelines were agreed by representatives of publisher, author, educator and librarian bodies, the South African regulations of 1978 were imposed on rights owners without consultation.

125 South Africa is not in fact a signatory to the Paris Act 1971 of the Berne Convention. However, it is a signatory to the TRIPS Agreement, by virtue of which it is bound to abide by articles 1-20 of the Berne Convention, including those added by the Paris Act.

126 S 29(3) explicitly provides for a person other than the researcher or student himself to make the copy. However, it is also explicit that only one copy may be made, and that it is not fair dealing if the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.

127 The Australian Act regards the copying of the whole of an article in a periodical publication as a fair dealing. As far as books are concerned, a reasonable portion may be copied, and ‘reasonable portion’ is defined as not more than 10% or one chapter, whichever is the greater. This provision has been misinterpreted to mean that multiple copies of an entire journal article or 10% of a book may be copied in Australian law whereas it applies only to the single copy for personal or private use or personal scholarship or research. In effect, the Australian fair dealing provision is stricter than the South African, where the amount of the fair dealing has not been quantified.

128 Thus, in the United Kingdom as well, there exists some definition of the extent of fair dealing, although, unlike in Australia, it has no statutory force.

129 Carlo Scollo Lavizzari, ‘Is fair for the principle fair for the agent?’, unpublished article.

130 Ibid.

131 It would be altogether a mistake for a user to presume that use would qualify as fair so long as he had paid lip service to the four factors, as they are merely the starting point for a court’s deliberations on the matter. While multiple copies for educational purposes are capable of qualifying as fair use (whereas they are not under fair dealing), they also have to pass tests such as their effect on the potential market for the work and one aspect a court would consider is whether the copies appeal to the same audience as the original. If they do, the dealing would not be fair.

132 Common sense, moreover, dictates that the use of the present tense (‘using’) is intended to mean that the fair dealing and the use are simultaneous events. Had the legislator intended to allow a third party to perform the act, surely it would have used the future tense (‘the person who will use the work’). This point was also made by Carlo Scollo Lavizzari in his interesting and relevant article.

133 A further argument made by the opposition to the requirement that the person making the copy be a natural person is that under the South African law of agency (which has not been expressly excluded in the Copyright Act) a person may authorise another, natural or juristic, person to do an act on his or her behalf. To what extent would the defence of a person making a reproduction of a work for use by a third party hold up? There is no South African case law to guide one here, but common sense dictates that if the fair dealing defence was meant to be available to a third party acting as the agent of the person requiring the copy, then why were regulations enacted expressly providing exemptions in the cases of libraries and educational institutions?

134 Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs.

135 One of the arguments raised by an academic institution in defence of third-party copying under fair dealing is that South African common law admits of the principle of agency; in other words a person may instruct another person to act as his agent in carrying out certain actions. It is difficult, however, to see how the law of agency might apply to a university’s making copies on behalf of its students, since the legal relationship between the student and the university is not that of an agency. But even if the making of one copy by a university for a student might slip through the fair dealing net under the guise of ‘agency’, one fails to see how multiple copies, resulting in economic prejudice to the rights’ owner, could ever be considered fair.

136 Dean, O H. ‘Comments on the suggested amendments to the Copyright Act of 1978 proposed by SAUVCA/CTP’, unpublished commentary, 22 August 2001. Page 1.

137 Dean, op cit, Page 2.

138 Dean, op cit, Page 6.

139 Dean, op cit, Page 7.