Ref. Ares(2020)3170450 - 18/06/2020
Art.4(1)(b)
Art.4(1)(b)
Art.4(1)(b)
Art.4(1)(b)
1. General Policy Objectives
South Africa rightly gives education and access to knowledge and culture a high policy
priority. There is a strong interest in making sure that the citizens of South Africa have access
to high-quality schoolbooks and that literacy and reading strengthens national identity and
diversity. Copyright plays an important role here, and the current Bil includes policy
measures that intend to broaden access. At the same time, many proposed measures will
impact on the ability of South African authors and publishers to write and publish for South
African readers, including students.
As it does in other jurisdictions, South African copyright law will strongly determine whether
local writers and local publishers wil choose to devote their careers and invest their
resources into writing and publishing local books.
Weakened South African copyright laws that enable uses without reward for creators or that
undermine copyright enforcement will foster a dependence on content from foreign countries
where strong copyright laws encourage creativity and investment. Currently, the South
African publishing industry is well placed to compete with other publishing industries —
particularly in the English speaking, developing world. Becoming a net exporter of
knowledge-based goods in the future is predicated upon enabling a national copyright
framework that nurtures and drives forward strong, national publishing and creative
industries.
Exceptions play an important role in copyright law. They ensure that rights do not
unnecessarily impede insubstantial or common-sense reproductions. Copyright exceptions,
however, are not intended to enable users to avoid purchasing works altogether, nor in other
ways to avoid providing creators and their publishers with appropriate remuneration. As the
photocopying, digitization and making available of substantial parts of works has become
more widespread, collective management organisations, such as DALRO, have stepped in to
enable reasonable copying while ensuring simple, fair and balanced remuneration. These
fundamental principles must be borne in mind as South Africa changes its copyright law.
2. South African and International Copyright Law
South Africa is a contracting party of the Berne Convention and the WIPO Convention, and it
signed the
WIPO Copyright Treaty (WCT) in 1997. IPA welcomes the steps undertaken in the
Bill to adapt national copyright law to international obligations with a view to acceding to the
WCT. We also welcome all steps that will enable South Africa to accede to
the WIPO
Performances and Phonograms Treaty.
3. WIPO Marrakesh Treaty
We would strongly urge South Africa to take this opportunity to implement the
Marrakesh
Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired
5. Education exceptions
The Bill seeks to expand exceptions for ‘educational activities’. The exceptions are broad,
numerous, and definitions are ambiguous. The only real restriction on these exceptions is
t6hat the allowed use may not be for profit or commercial gain. Given the importance of non-
commercial providers in the educational sector, these exceptions wil , therefore allow large
scale, systematic and substantial copying of educational content without any compensation
for rightsholders.
We ask that these exceptions be tightened with clear wording that limits uncompensated use
to a small set of clearly circumscribed special cases, which in turn do not unreasonably
prejudice the interest of authors and publishers.
Copyright exceptions are intended to allow a very limited set of uses. For example, special
provisions in international treaties limit exceptions to ‘illustration for teaching’. Implementing
the Bill as currently worded creates a clear risk that South Africa will be in violation of its
international obligations under the Berne Convention. Under no circumstances do
international copyright treaties allow exceptions that intend to ensure that the regular supply
of educational content is provided under copyright exceptions. Exceptions are not intended to
reduce costs for commercial or non-commercial suppliers, nor are they meant to replace
functioning markets.
The exceptions being contemplated also create a great risk that the market in South African
education will shrink to the point that it will no longer be able to sustain a local educational
publishing industry.
Canada is a prime example of the dangerous consequences of such an approach. A recent
study by PricewaterhouseCoopers2 has shown the dramatic impact that broad copyright
exceptions can have on the provision of textbooks. The Canadian educational publishing
industry has been dealt what many believe is a lethal blow. At least one Canadian education
publisher has closed as a result, others are reducing staff, and the incomes of Canadian
authors have been badly affected.
South Africa, with its unique culture, history, diversity and destiny has requirements that are
unlike those of any other country. Such requirements are best satisfied by locally based,
innovative and viable educational publishers who understand their readers and curricula, and
know how to best deliver high-quality content. Our experience shows that a vibrant,
competitive and open market is the best way to develop, produce and distribute such content
effectively and efficiently, at an affordable price. IPA is not aware of a government anywhere
in the world which can provide quality textbooks and secure their effective and efficient
distribution at a price anywhere near the low cost that effective competition achieves in the
most demanding global markets.
2 http://www.accesscopyright.ca/media/94983/access copyright report.pdf