Legislation, law enforcement and education: copyright  protection in the developing regions*

Brian Wafawarowa
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: bwafa@naep.co.za; bwafa@mweb.co.za; www.newafricabooks.co.za

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 programmes.

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 learners.

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 further.

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 uncertain outcome.

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 whole campaign.

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:

o the 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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