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PUBLISHERS’ ASSOCIATION OF SOUTH AFRICA

PICC REPORT

INTELLECTUAL

PROPERTY

RIGHTS

IN THE

PRINT INDUSTRIES SECTOR

This project was funded by the Department of Arts and Culture.

May 2004

62 Queen Victoria Street

Cape Town

8001 South Africa

Tel: 021 422 2491
Fax: 021 424 1484
Email:

Compilers:

Eve Gray (principal author)

Monica Seeber (co-author)

Done under the chairpersonship of:

Publishers’ Association of South Africa:

Lindelwe Mabandla

PASA Copyright Committee:

Brian Wafawarowa (November 2002-August 2003)

Nicol Faasen (August 2003-May 2004)

The Report is available on the PASA website:

www.publishsa.co.za/

CONTENTS

ACRONYMS 6

EXECUTIVE SUMMARY 7

PREFACE 31

INTRODUCTION AND BACKGROUND - THE PRINT INDUSTRIES SECTOR IN SOUTH AFRICA 33

THE IMPORTANCE OF COPYRIGHT 33

THE PROFILE OF THE INDUSTRY SECTOR 34

The Print Industries Cluster Council (PICC) 34

STAKEHOLDERS IN THE PRINT INDUSTRIES SECTOR 35

The Print Industries Value Chain 35

Stakeholders 35

Rights Owners 37

Associations of Rights Owners 37

Rights Owners’ Alliances 38

Collecting Societies 38

Rights Users 39

1 AN INTRODUCTION TO INTELLECTUAL PROPERTY RIGHTS –

A BACKGROUND 41

THE NATURE OF INTELLECTUAL PROPERTY RIGHTS 41

General Principles 41

Moral Rights 43

Duration of Copyright 43

THE STATE OF COPYRIGHT IN SOUTH AFRICA – A BACKGROUND 43

The South African Copyright Regime 43

The Moral Basis of Respect for Copyright 47

Industry/Government Interaction on Copyright Issues 48

RECOMMENDATIONS 1 – 4 48

RECOMMENDATIONS 5 – 6 49

CONCLUSION 50

2 COPYRIGHT INDUSTRIES AND ECONOMIC GROWTH 51

THE ECONOMIC CONTRIBUTION OF THE PRINT AND PUBLISHING INDUSTRIES IN SOUTH AFRICA 51

Growth Rates 52

Publishers as Rights Managers 53

Authors and their Contribution 53

Electronic Media and Economic Growth 54

FACTORS INHIBITING ECONOMIC GROWTH 54

The Impact of Illegal Copying on Economic Growth 54

RECOMMENDATION 7 60

RECOMMENDATIONS 8 – 11 64

3 SOUTH AFRICA – THE LEGISLATIVE ENVIRONMENT 65

INTERNATIONAL TREATIES GOVERNING COPYRIGHT 65

The Berne Convention 66

The TRIPS Agreement 68

The WIPO Copyright Treaty (WCT) 69

RECOMMENDATIONS 12 – 15 69

SOUTH AFRICAN COPYRIGHT LEGISLATION 70

The Copyright Act 70

The Counterfeit Goods Act 72

The Legislative Context 73

Legislative Reform 73

Legislative Process – An Endnote 80

RECOMMENDATIONS 16 – 24 81

4 COPYRIGHT ENFORCEMENT 83

AN INTERNATIONAL CASE STUDY – AUSTRALIA 83

Responsibility for Enforcement – Australia 84

Responsibility for Enforcement – South Africa 84

Civil Remedies – Australia 86

Civil remedies – South Africa 87

Enforcement Measures 88

Collective Licensing 88

Information on Levels of Copyright Infringement 89

Book Piracy and Copyright Infringement in Developing Countries 89

RECOMMENDATIONS 25 – 30 90

5 COPYRIGHT AND DEVELOPMENT 92

GLOBAL IMBALANCES 92

Exceptions and Differential Pricing 93

African Publishing and Development 94

Cultural Diversity 95

Exceptions for Library and Educational Use as a Development Tool 97

Collective Licensing and Development 99

Libraries 99

RECOMMENDATIONS 31 – 35 100

6 COLLECTING SOCIETIES 101

THE ROLE OF COLLECTING SOCIETIES 101

Ownership and Regulation of RROs 102

Different Models of Collecting Societies 103

COLLECTING SOCIETIES IN SOUTH AFRICA 104

Background 104

The Canadian Model of Collective Licensing and its relevance to SA 104

DALRO 105

Government Plans for Supervising Collecting Societies 106

RECOMMENDATIONS 36 – 40 110

7 ELECTRONIC COPYRIGHT 111

DIGITAL MEDIA – OPPORTUNITIES AND THREATS 111

DIGITAL MEDIA IN THE SOUTH AFRCAN PRINT MEDIA SECTOR –

THE CONTEXT 111

The Stakeholders 111

ISSUES IN DIGITAL COPYRIGHT 113

Control Over Reproduction 113

Fair Dealing in the Digital Domain: Copyright and Contract 113

Digital Copyright Issues in the South African Context 114

Libraries and Electronic Media 115

ELECTRONIC COPYRIGHT AND LEGISLATION IN SOUTH AFRICA 115

Legislative Issues 117

IPR AND DIGITAL MEDIA – THE INTERNATIONAL CONTEXT 118

National Legislations – Approaches to Legislative Change in Relation to Digital Copyright 118

Electronic Copyright and International Trade 119

The Legislative Process – Resolving Differences 121

CONCLUSION 124

RECOMMENDATIONS 41 – 47 124

CONCLUSION 125

SELECT BIBLIOGRAPHY 127

LIST OF RECOMMENDATIONS 132

APPENDIX 1 LIVING WITH THE STATUTORY LICENCE – THE AUSTRALIAN EXPERIENCE 139

APPENDIX 2 MAKING MULTIPLE COPIES IN EDUCATIONAL INSTITUTIONS 143

APPENDIX 3 REVISION OF THE COPYRIGHT REGULATIONS 149

APPENDIX 4 FAIR DEALING AND LITERARY WORKS 162

APPENDIX 5 ELECTRONIC COPYRIGHT – AN OPINION FROM BUYS INCORPORATED ATTORNEYS 169

APPENDIX 6 ELECTRONIC COPYRIGHT – PASA SUBMISSION ON THE ELECTRONIC COMMERCE BILL MARCH 2001 177

ACRONYMS

AGOA African Growth and Opportunity Act

APNET African Publishers Network

AAP Association of American Publishers

CAL Copyright Agency Limited (Australian collecting society)

Cancopy The Canadian RRO (now re-named Access Copyright)

CCC Copyright Clearance Center (USA)

CIPRO Companies and Intellectual Property Registration Office

CLA Copyright Licensing Agency (UK)

CTP Committee of Technikon Principals

DAC Department of Arts and Culture

DALRO Dramatic, Artistic and Literary Rights Organisation

DoE Department of Education

DTI Department of Trade and Industry

GDE Gauteng Department of Education

IIPA International Intellectual Property Alliance

IKS Indigenous Knowledge Systems

INCP International Network on Cultural Policy

IPA International Publishers Association

IPACT Intellectual Property Action Group

IPR Intellectual Property Right

JISC Joint Information Systems Committee

Kopinor The Norwegian RRO

LIS Library and Information Services

LSM Learning Support Materials

NIICD New International Instrument for Cultural Diversity

PA Publishers Association

PAMSA Paper Manufacturers Association of South Africa

PASA Publishers’ Association of South Africa

PICC Print Industries Cluster Council

RRO Reprographic Rights Organisation

SABA South African Booksellers’ Association

SACU South African Customs Union

SADC Southern African Development Community

SAMRO Southern African Music Rights Organisation

SAPTO South African Patents and Trademarks Office

SAUVCA South African Universities’ Vice-Chancellors’ Association

SAWA South African Writers’ Association

TRIPS Trade Related Aspects of Intellectual Property Rights Agreement

WCT WIPO Copyright Treaty

WIPO World Intellectual Property Organisation

WTO World Trade Organisation

EXECUTIVE SUMMARY

THE BRIEF

This Report on copyright in the print industries sector was commissioned by the Department of Arts and Culture, through the Print Industries Cluster Council (PICC), as part of a broader initiative to identify policy and development needs in the cultural industries. The Report deals in particular with copyright as an aspect of Intellectual Property Rights (IPRs) and the impact of these rights on growth and development in the print industries sector. It therefore surveys the state of copyright as it relates to the written word and identifies ways in which copyright laws and practices in South Africa are aiding or inhibiting growth. Finally, it makes recommendations for further action that could contribute towards growth and development in the print industries sector.

The purpose of the Report is therefore to provide recommendations for:

§ A policy and strategy framework for the management of intellectual property, in particular the management of copyright;

§ Government consideration and implementation; and

§ The formulation of strategies that would contribute to industry growth.

THE REPORT

The Report provides the following content:

§ A background on international best practice;

§ A review of intellectual property rights issues and the status quo in the print industry sector in South Africa;

§ Identification of what intellectual property issues are helping or inhibiting growth in the sector; and

§ Recommendations for policy interventions and strategic actions.

This Report is the first step in the process of policy and strategy development. In line with the PICC strategic approach, the Report presents the perspectives and needs of rights owners in the industry sector. The Report therefore provides the foundation of information and industry knowledge that will be needed in order to engage in the second phase of the dialogue, between rights holders, nationally and internationally, government and rights users. It also provides the basis for informed strategic decisions that need to be made in the industry before such an engagement takes place.

The Report concludes that the industry sector needs to participate more actively in the promotion of intellectual property issues and that this would best be pursued in collaboration with other rights holders, in order to maintain a united front in pursuing the implementation of the necessary policy, legislative and strategic actions that need to be taken if the print industry is to prosper and grow.

THE PROCESS

The following steps led to the finalisation of the Report:

§ Research;

§ Review of international and local environments;

§ Initial drafting of the report;

§ Preliminary conclusions and recommendations; and

§ Review by and input from PASA and other PICC members.

Consultation took place over an extended period with a wide range of stakeholders, including industry participants and rights users, nationally and internationally.

THE HEART OF THE INDUSTRY SECTOR

Intellectual property lies at the very heart of the publishing and printing industries. This Report should therefore provide the foundation for many of the core initiatives that need to be undertaken before the industry sector can exploit its full potential in delivering the sector’s social and economic goals.

Instead of seeing themselves merely as book publishers, publishers could see themselves as acquirers, custodians and managers of intellectual property rights in the process of exploiting these rights to the best advantage of themselves, authors and users. With this wider view of who publishers are and what they do, they may come to see that that is their business even though it currently mainly takes the form of publishing books.

More than just legislation

This Report cannot just be about legislation and infringement. Copyright is so central to industry development that issues of legislation and infringement cannot be divorced from development agendas. Policy approaches in countries studied recognise the need to create a climate of respect for intellectual property. It is important that copyright policy initiatives be linked to broader national policies for national development in the knowledge economy.

In developing countries, it is particularly important that legislation does not undermine the local creative industries and that steps taken to protect the right of access to information do not erode the viability and vitality of indigenous authors and publishing industries.

The argument that provision for broad exceptions, allowing for permission-free copying, is the best way to serve the needs of rights users in the country and contribute to developmental objectives is not sustained by a review of the provisions of other developing countries’ legislations.

The broad recommendations of the Report are that:

§ The print industry sector needs to become more active in forging alliances both within the industry sector and with other copyright industries to promote copyright issues and to lobby for national policy initiatives and legislative reform. (recommendation 1)

§ However, the industry sector cannot achieve this alone. Active government engagement is needed, in a transparent and consultative process, to ensure the creation of an effective copyright regime that will

o Foster the growth of the copyright industries;

o Provide an effective framework for information and knowledge dissemination to meet national needs; and

o Provide an enabling context for South Africa’s international trade negotiations. (recommendation 2)

§ If the print industries are to make their maximum contribution to the country and its cultural and economic growth, attempts to improve the copyright framework in South Africa will need to be linked to:

o Active programmes for the growth of a reading culture;

o Support for and promotion of the rights of authors;

o Educational programmes on the value of copyright; and

o The expansion of library services. (recommendation 3)

§ From the perspective of industry strategy, this could include:

o Initiatives to produce information and raise the profile of copyright issues;

o The promotion of training in copyright for publishers and rights owners; and

o Active interaction with readers and consumers to promote the value of copyright and copyright compliance. (recommendation 4)

Effective Copyright

A strong copyright regime contributes to the economic, cultural and educational strength of the country:

§ Effective copyright protection ensures that creators are given due recompense for their efforts and encourages creative production.

§ Copyright provides a framework for the dissemination of knowledge and creative work. It is about enabling access to creative works and knowledge products, rather than preventing access, as is often perceived.

§ With the rapid globalisation and growth of digital media, an effective copyright regime is the essential underpinning of a country’s participation in the global information economy.

BACKGROUND – THE PRINT INDUSTRIES SECTOR

The Report identifies the stakeholders in the copyright industries that could participate in consultation processes. Rights owners include creative content creators; publishers; freelance workers; distributors and suppliers of products and services. Collecting societies are also important industry sector participants. Rights users, or consumers, include general readers, learners and educators, and libraries.

Getting organized locally

International experience suggests that developmental goals for the growth of the copyright industries and for the provision of the knowledge and information needs of the country are best achieved by the promotion of local industries. This could be done by addressing a number of issues:

Author and professional associations

The presence of strong author organisations, working to protect the rights of authors, is an important feature of a strong national copyright regime. In fact, the presence of author organisations in national lobbies on copyright issues is an important measure of credibility. Authors need to have knowledge of copyright and contractual issues if they are to protect their rights and grow their financial stake in the industry sector.

Collective licensing

In the countries studied collective licencing often plays an important role in balancing the rights of rights owners and rights users and combating seemingly inevitable illegal photocopying.