Legislation, law enforcement
and education: copyright protection in the developing regions*
Brian Wafawarowa is President of the Publishers Association of South
Africa and Publisher, New Africa Education Publishing, 20 Werdmuller
Centre, Newry Street, PO Box 23317, Claremont, 7735, South Africa. +27
21 674 4187 (tel), +27 21 674 2920 (fax), email: email@example.com;
This paper takes a cursory look at the copyright
situation in South Africa as an example of a developing publishing environment.
It evaluates the role of legislation and law enforcement institutions
in combating copyright infringements. It argues that, cutting across
these two pillars is the need for a third pillar: education and awareness
Significant progress has been made towards making
South African copyright law comply with Trade Related Aspects of Intellectual
Property Rights (TRIPS) with the help of the International Publishers
Association (IPA) and the International Federation of Reproduction Rights
Organisation (IFRRO). Projects are being planned on awareness and securing
a more favourable environment for copyright holders and publishers.
Significant progress has also been made in securing both blanket licensing
and transactional licensing at tertiary level with a number of academic
institutions. The same initiatives are also in the pipeline for the
primary and secondary schools education sector.
Despite these initiatives, copyright violation
of protected works in South Africa is so rampant that it has started
undermining the viability of the industry. Illegal copying and piracy
have begun to erode the economies of scale to a point where books get
out of the reach of the general book user. This, coupled with other
factors, significantly reduces the attractiveness of the sector to investors.
It is very clear that banks do not regard the publishing sector as a
viable commercial sector and will not grant anyone the capital that
is required to invest in it. On the other hand, professional authors
who write for a living are now very reluctant to invest their time in
writing unless they are given significant advances. This leaves the
risk and burden of investing in publishing on the shoulders of the publisher.
It is clear that in South Africa, fears of that failure to protect copyright
will discourage creativity are fast becoming a reality.
In the textbook market, it is estimated that approximately
40-50% of the potential R400-million market is lost to piracy and illegal
photocopying. This photocopying is carried out by students in a number
of educational institutions, illegal course packs that are distributed
by the authorities of educational institutions, and illegal copy shops
that copy books and sell them to educational institutions and individual
students. Most of the books copied are international publications. The
copying of these books has been increasing with the increasing cost
of imported books due to the collapse of the rand against the British
pound and the American dollar. This trend is expected to continue unless
some drastic action is taken by all concerned. As illegal copying continues,
the economies of scale are eroded further and the prices continue to
go up for the few students who still buy books. The market for international
publications is further lost to a few, but significant, pirated copies
that are brought into the country illegally, especially in KwaZulu Natal
and the Eastern Cape. The origin of these copies is mainly India. Although
genuine Indian products have a very good reputation for quality in South
Africa, these pirated copies are notorious for their very poor physical
quality. The pirated books have mainly been in the technical, medical
and reference fields and are aimed at the tertiary education sector.
A case of a South African medical text being pirated in Nigeria has
been reported, but the origin of this South African book was India.
The growth of illegal photocopying involving both
educational institutions and illegal copy shops can be linked to the
introduction of the Outcomes Based Curriculum in South Africa. The emphasis
on the need for educational institutions to be more resourceful in developing
their own learning support materials has been misinterpreted in many
cases to mean the replication of copies for use by students, and in
other cases the creation of learner support packs that are made up of
huge chunks of copyrighted materials. In a number of provinces, especially
the Western Cape, this has resulted in the buying of single copies for
replication at a huge scale. The Publishers Association of South Africa
(PASA) has recently realized to its horror that some institutions' photocopying
paper budget is higher than their budget for books.
While educational institutions and reading activists
plead poverty for students in the developing world and ask for further
exceptions on copyright law for these regions, the pirates are setting
up businesses competing with the rights holders. Many bookshops have
reported that customers walk in, check the prices, and indicate that
they can buy cheaper photocopies elsewhere; while in the education sector,
some photocopying shops are in the business of supplying schools with
illegal copies on a huge scale.
In such a situation, where piracy and illegal
photocopying threaten the existence of a whole industry, and where the
activities of pirates are carried out with so much impunity and across
borders, the roles of legislation and law enforcement are critical.
The provisions of TRIPS are adequate to deal with the South African
situation. Provisions are made for effective action against any form
of infringement of intellectual property rights, including expeditious
remedies to prevent further infringement. TRIPS requires the procedures
of enforcement to be fair and equitable and to avoid complicated and
costly procedures which allow unreasonable time limits or unwarranted
delays. Such delays, especially on the part of law enforcement, have
made it virtually impossible to secure evidence on infringements. Where
infringement is happening across borders, TRIPS provides for special
border provisions and procedures. TRIPS provisions on criminal procedures
and civil procedures, if followed, can be reasonable deterrents against
infringement and can make it more worthwhile for individual companies
to institute civil and criminal action against offenders.
It was hoped that South Africa was going to comply
with the provisions of the TRIPS agreement as scheduled in 2000. Today,
the South African copyright law falls far short of these provisions
because the question of fair dealing has not been adequately defined,
provisions for punitive measures and civil damages have not been set
out, and the law as it stands now is too cumbersome for any successful
prosecution to be launched. The South African publishers and the government
through the Department of Trade and Industry (DTI) are aware of this
non-compliance and, indeed, proposed amendments to make sure that South
Africa complies were tabled last year. However, these were opposed viciously
by mainly the Library Association and the University Vice Chancellors
Association (SAUVCA), who managed to get the sympathy of the Department
of Education. The result was the withdrawal of these amendments. As
a result, the position of the law is very unclear and in a very transient
state. In the meantime the pressure from the international community
for South Africa to comply is mounting and South Africa is back on the
watch list of an American intellectual property watchdog with the support
of the American and British Publishers Association.
The flaws in the regulations include the whole
argument around fair usage and exceptions for educational usage. The
arguments by the educational institutions that they should be allowed
to make multiple copies for and on behalf of their institutions, and
that at the same time they cannot be held accountable for the actions
of their learners, present a number of problems. For a start, it leaves
copyright holders more vulnerable, as there is no limit to fair usage
when an institution makes multiple copies for its students. Whilst the
institutions are ready to champion this cause for their learners, they
refuse to be accountable for the enforcement of regulations on their
The other major weaknesses of the law are its
requirements for a successful conviction. Under the old law of evidence
it was possible for suspecting copyright holders to incite a pirate
to violate the law and use that as evidence for a conviction. In an
environment where law enforcement officials sympathize with the people
who infringe on copyrights, it is very difficult to raid the premises
of pirates and obtain evidence to seek redress. In most cases, the evidence
- for example, films, original master copies, and the pirated copies
of titles - are never kept on site, and the culprits are often tipped
off before the raid. Under the requirements of the current law on evidence
it is extremely difficult to obtain such evidence in attempts to prosecute.
For example, in 2000, a group of publishers saw a proliferation of copies
of their books on the market. The pirated copies were so similar that
the differences could only be established by technical experts. They
traced the illegal copies to a pirate operation in KwaZulu Natal. They
sent in their staff to buy copies and organized a raid with the police.
When they got there they did not get any film or any substantial evidence.
Under the new requirements of the law on evidence, the copies that they
had purchased could not count as evidence and the case did not go any
The law is also very complicated and makes it
virtually impossible to carry out a successful prosecution, and even
more difficult to pursue statutory damages. In a developing industry
that lacks basic market statistics, it is difficult to quantify damages
effectively and, therefore, to be able to claim such damages in a court
of law. Under the existing law, the cost of securing a successful conviction
and statutory damages are often too high to warrant pursuing such an
The commissioner of the commercial crime branch
of the police that is now in charge of piracy acknowledges that law
enforcement personnel do not regard copyright violation as a serious
crime. In a number of cases the prosecutors have refused to prosecute
or have expressed their unwillingness to do so.
It is therefore not surprising that there have
only been two recorded cases of successful copyright convictions in
South Africa. Of these two, only one resulted in the offender being
fined, the other received a suspended fine. In both cases the publishers
could not prove that they had suffered any damages and none were awarded.
A closer look at the case study of the successful
prosecution will highlight the rather disabling role of the law and
the reluctance of the law to intervene. From this case one also realizes
that the fines imposed fall far short of being effective deterrents.
In 2001, after an unsuccessful attempt at prosecution
the year before, a group of publishers noticed that their titles continued
to be pirated in the Empangeni area of KwaZulu Natal. The whole Empangeni
rural catchment area was acquiring books from a pirate photocopying
shop. The prescribed books of at least four major companies were involved.
After getting individuals to buy copies, and following the experience
with the earlier case, these copies and the affidavits of people that
had bought copies were used as evidence before the judge. In addition
to several boxes of illegal copies of local books of the local publishers
concerned, eight other publications from international publishers originating
from India were found. A meeting had to be held with the prosecutor
to stress the seriousness of the crime and its implications for the
industry and the country. The pirate was fined R30 000 or a three-year
jail term. Of the amount only R15 000 was payable. Although the publishers
were aware that their books were being copied and sold over the counter
in large numbers and the culprit acknowledged that he was netting R5
000 a month, they could not quantify their losses and they were advised
that pursuing damages would cost them money without any guarantee of
success. The publishers had spent R38 000 among themselves to get this
conviction. They were nonetheless thrilled to have secured the first
conviction that was followed by a fine.
It is clear in this case that the requirements
of the law are too cumbersome and at times do not serve the ends of
justice. The publishers had to work creatively around the law to get
the evidence they needed to prosecute. They also had to make a special
case of appeal to the prosecutor for him to accept the gravity of the
matter. The fine imposed is not an adequate deterrent for a commercial
crime of this magnitude. A case like this would be materially impossible
for an individual publisher to pursue.
South Africa has a very successful and efficient
commercial crime unit. The unit confiscates a number of pirated product
brands and destroys them on national television to deter other would-be
criminals. It also seizes the property of such criminals and their means
to commit the crimes further. Heavy fines and jail terms are also imposed.
This is not the case with books and copyright infringement. With established
brands like Nike, Reebok, Microsoft and Sony this is much easier and
a lot of success has been achieved. Customs certainly play a major role
in combating cross-border violations. However, book brands are less
established and recognizable. Customs officials are not adequately trained
or disposed to tell whether a book is a counterfeit or a genuine copy.
Also, as in the case with law enforcement, it is not generally regarded
as a serious crime. This draws us to the issue of education in this
Although government understands the need to rid
the market of pirated and counterfeit goods as a way of encouraging
research and product development, creating jobs, growing the market
and upholding the rule of law, the same understanding does not apply
when it comes to books and education. It is also clear that whereas
government and policy makers are not willing to entertain social pressure
for free access, even in vital areas like medicine and food, they are
more than willing to yield to this pressure when it comes to books.
This was certainly the case with the proposed amendments to the copyright
law. While universities and colleges go as far as barring students from
their premises for not paying for their tuition, they still do not treat
copyright infringement with the same attitude.
Evidently, the publishing industry is not recognized
as a bona fide commercial sector, nor is creativity regarded as an undertaking
that needs to be protected. This perception can be linked to ignorance
of the role of the industry, one which to a great extent has remained
very exclusive, less known and inadequately understood in the developing
world, where successful literacy on its own is such a monumental achievement
that it really does not matter what people are reading and whether copyright
is being violated.
Furthermore, the South African education publishing sector, like everywhere
else in the developing world, relies on the patronage of the Department
of Education for its market. Many companies are very reluctant to prosecute
their market or be seen to be raising their voice against it. At this
rate, however, there will come a time very soon when the industry will
realize that illegal copying and piracy has reached such a critical
level that something urgent and drastic has to be done.
It is therefore very important that:
relationship between copyright protection and creativity is emphasized
o the relationship between the reduced economies of scale and
the price of books is clearly understood
o the impact of piracy on international books and their availability,
the possibility of copyright holders on such books withdrawing their
books and the impact that this will have on teaching and diversity of
knowledge is emphasized
o the impact that the eventual collapse of the publishing industry
will have on employment, the economy and culture is fully understood.
Publishers have been very surprised to receive
letters from schools thanking them for giving them sample copies from
which they proceeded to make copies for the learners. Publishers are
also surprised to hear teachers clearly pointing out in seminars their
resourcefulness in creating packs for their learners from copyright
materials. After the publicity surrounding the Empangeni case, schools
phoned in to find out what it was they could copy, and how they could
go about it. A serious education drive is required to make sure that
those that commit these crimes out of ignorance are warned about it.
Similarly, publishers need to be educated on the
long-term effects of piracy on their viability as cultural and commercial
entities. The Empangeni case has proved that, when publishers work together,
they reduce the vulnerability of individual companies to pirate attacks
and their collective resources go so much further in seeking redress.
Similarly, international publishers need to understand the gravity of
the situation in the developing world and help the local industry protect
international titles as well, by strengthening the capacity of local
structures in dealing with these issues. International publishers have
the necessary clout to deal with copyright violation more directly and
effectively than local publishers.
Authors are closer to the sites of these crimes
and have a much stronger moral authority than publishers to voice their
concern on the violation of their intellectual property. It is important
to strengthen the level of awareness among authors, and also to strengthen
the authors' associations and work with them to make sure that copyright
laws comply with the provisions of TRIPS to protect their interests.
Lastly, legislation and law enforcement institutions
such as the police and customs are critical in ensuring the protection
of copyright. Whilst the developing world has to deal with problems
of access to reading materials, this should not and cannot be achieved
at the expense of copyright. It is imperative that South Africa and
the developing world comply immediately with the provisions of TRIPS.
However, legislation and law enforcement institutions such as customs
and excise cannot be effective if the individuals expected to implement
and enforce the law are not aware of the issues around copyright protection,
and those that are responsible for copyright violation are not fully
aware of the implications and criminality of their actions. It is therefore
important that these two critical pillars are supported by a third pillar:
education and awareness.
Note: Significant progress has been made with
regard to copyright in South Africa since the conference in February
2002. Cooperation between the Publishers Association of South Africa,
the Department of Education and DALRO (Dramatic Artistic and Literary
Rights Organisation, the South African Reprographic Rights Organisation
(RRO)) has resulted in the drawing up of guidelines to all schools in
the country on the criminal nature of copyright infringement and on
steps to assist educational institutions on how to obtain legal copy.
*Version of a paper
presented at the International Publishers Association Copyright conference
held in Accra, Ghana in February 2002. The paper is a chapter in the
forthcoming 'Proceedings of the 5th IPA Copyright Conference, Accra,
Ghana, 20-22 February 2002' to be published by APNET, GBPA and IPA in
2002. Acknowledgments to the publishers and the author for granting
permission to publish the piece in the BPN Newsletter. [end] [BPN,
no 30, 2002, pp 13-16.]
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