7. South Africa: Digital Age Copyright Limitations and Exceptions for Education and Research

Traditional media such as newspapers and the radio, and new media such as the Internet and the mobile phone work together to share and process information to produce differing types of information vehicles that combine texts, images and sounds for a variety of different recipients.

Örücü (2002), p. 13.

Adewopo (2001), p. 750.

Id, p. 755.

Id, p. 755.

To name but a few, the pieces of legislation this Chapter deals with are Copyright Act 98 of 1978, Copyright Act Amendment 9 of 2002, Copyright Regulations of 1978, Electronic Communications and Transactions Act 25 of 2002, and Consumer Protection Act 68 of 2008.

According to a United Nation report, South Africa’s technological capabilities rank first among African countries, followed by Mauritania, Zimbabwe and Kenya, see United Nations of Center on Transnational Corporations Africa’s Technology Gap: Case Studies on Kenya, Ghana, Uganda and Tanzania (July 2003) UNCTAD/ITE/IPC/Misc13 12. According to The Global Information Technology Report 2008–2009, produced by the World Economic Forum in cooperation with INSEAD, South Africa and Mauritius rank first for their ICT levels, followed by Egypt, Botswana, and Senegal, see Dutta and Mia (2009).

S 142 of the Patents, Designs, Trade Marks and Copyright Act 9 of 1916.

Dean (1987), pp. 1–3.

1–3.

1–3.

Copyright and Development: Global Imbalances PICC IP Report. This report is extracted from the PICC Report on Intellectual Property Rights in the Print Industries Sector (2004). See Gray and Seeber (2004), p. 1.

World Intellectual Property Organization Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO (27-07-2004) WO/GA/31/11 2.

Rens et al. (2006).

Gray and Seeber (2004), p. 45.

45.

The book sells for R150 in South Africa while it sells for approximately R70 in the US, R80 in the UK and R75 in India.

Prabhala (15-04-2005). Also see National Department of Arts & Culture (2007), pp. 70–73.

National Department of Arts & Culture (2007), pp. 70–73.

PICC Report 12.

The book publishing industry profits most from publishing school textbooks and teaching materials. Publishing academic papers and references is less profitable than publishing textbooks. Nevertheless, policymakers and the publishing industry consider publishing academic works strategically important for the national economy and social development. See PICC Report 13.

PICC Report 12-13 & 94-95.

Patel (2004).

Masango (2005), pp. 111–112 & 165. The major data the author provided was from Cape Town, West Cape Province.

Id, p. 126.

Id, pp. 129–132.

Id, p. 153.

Id, pp. 121–123.

Id, pp. 113–114.

Id, pp. 121–123.

Rens et al. (2006), p. 20.

Regional Association of Universities in Southern Africa ‘African Higher Education: A Driver for Development.’ (2004), submission by the South African University Vice-Chancellors’ Association (SAUVCA) on behalf of the University Vice-Chancellors of the SADC Region to the consultative process of the Commission for Africa. The report points out that higher education is critical for African countries striving for a knowledge economy. Also see South African Universities Vice-Chancellors Association SAUVCA Position Paper: A Vision for South African Higher Education (SAUVCA, November 2002). It envisions the coming knowledge economy in South Africa and predicts that universities and other higher education institutions will play a critical role in developing the knowledge economy.

Constitution of the Republic of South Africa, 1996.

Klare (1998), p. 150.

Minister of Finance and Another v Van Heerden 2004 (11) BCLR 1125 (CC) para 142.

Justice Pius Langa ‘Transformative Constitutionalism’ Lecture delivered at Stellenbosch University in 2006.

Dean ‘Trade-mark Dilution Laughed Off’.

S 36(1) of the Constitution provides that rights in the Bill of Rights may be limited only by the law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society. Relevant factors needing to be taken into account for limitation include (1) the nature of the right; (2) the importance and purpose of the limitation; (3) the nature of the limitation; (4) the relation between the limitation and its purpose; and (5) less restrictive ways to achieve the purpose.

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) para75.

van der Walt (2011), pp. 143–150; Roux (2004) 46-15-16; van der Walt (1999), p. 352.

SAB International t/a Sabmark International v Laugh It Off Promotions 2003 2 All SA 454 (c).

194 of 1993.

Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International 2005 (2) SA 46 (SCA).

Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and

Another 2006 (1) SA 144 (CC).

Paras 43–44.

Devenish (2005), p. 794.

Laugh It Off Promotions CC v South African Breweries Para 74.

Para 105.

Paras 93–95.

Paras 84–85.

Para 83.

Rimmer (2008), pp. 114–116.

Schlosser (2001), pp. 963–964.

98 of 1978.

GN no R 2530 GG no 6252 of 22 December 1978.

S 12(1)(a) of the Copyright Act 1978 provides that fair dealing with a literary or music work for research or private study does not infringe copyright.

Ss 15(4) and 19A provide that 12(1) shall mutatis mutandis apply to artistic works and published editions.

Garnett et al. (2011) para 9-08.

S 2 of Sch 2 of the CDPA 1988.

Cohen (2000), pp. 1816–1817.

S 12(4) of the Copyright Act of 1978.

S 2 of the Copyright Regulations of 1978.

Section 1(iii) of the Regulations clarifies the meaning of ‘cumulative effect’. It states:

(a) not more than one short poem, article, story or essay or two excerpts copied from the same author or more than three short poems, articles, stories or essays from the same collective work or periodical volume for the purpose of instructing a particular class during any one term; and

(b) not more than nine instances of such multiple copying for one course of instruction to a particular class during any one term;

PICC Report 72.

S 3 of the Copyright Regulations of 1978.

Pistorius (1993), p. 8.

Davis (1999), p. 162; Bhana and Pieterse (2005), pp. 879–880.

van der Merwe et al. (2012), pp. 20–21.

1999 (1) SA 982 (SCA).

Chapter 3, footnote 188.

In contract law, the principle comes about from a series of cases in which the courts held a person handed a ticket or another document with terms is bound by the terms no matter whether the person had read the terms or not. If the ticket holder was indeed unaware of the terms existence, then the court considered whether a reasonable person would have known the ticket contained terms. If the answer was affirmative, then the ticket holder was bound by the terms; if not, then the court turned to the general test of whether a reasonable notice of terms was given. Parker v The South Eastern Railway Co (1877) 2 CPD 416 established the ‘ticket case’ principle, which was developed in Olley v Marlborough Court (1949) 1 KB 532 and Thornton v Shoe Lane Parking [1971] 1 ALL ER 686. In Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433, it was held reasonable notice must be given by the party who wished to make an onerous term a part of the contract that was to be accepted by the other party.

Durban’s Water Wonderland (Pty) Ltd v Botha 416.

van der Merwe et al. (2007), p. 216; Lubbe and Murray (1988), p. 238; Naudé and Lubbe (2005), p. 442; Hawthorne (1995), p. 173.

2007 (5) SA 323 (CC).

See the Constitutional Court decision para 33.

2007 (5) SA 323 (CC).

Para 56.

Jordan v Faber 2010 JOL 24810 (NCB).

Ngcobo J decided the fairness of the contract clause in question must be assessed on the basis of the parties’ circumstances, see the Constitutional Court decision para 64.

Para 140.

Para 138.

Para 148.

Paras 146–148.

Vickers (2004), p. 287.

Sutherland (2009), p. 53.

2007 (5) SA 323 (CC) para 141.

Naudé (2006), p. 362.

Naudé (2006), p. 381.

Naudé (2010), p. 517.

Naudé (2010), p. 517; see also the minority opinion by Sachs J.

No 68 of 2008.

Art 1 of the CPA.

No 71 of 1988.

Art 4 of the Consumer Affairs Act.

Naudé (2009), p. 506.

Ss 49 & 50 of the CPA.

Ss 48, 51 & 52.

S 4(4).

S 52(3)(b)(iii).

S 4(1)(e).

Southern Africa Enterprise Development Fund Inc v Industrial Credit Corporation Africa Ltd 2008 (6) SA 468 (W).

Naudé (2009), p. 515.

Naudé (2010), p. 527.

524.

Naudé (2009), p. 535.

510.

Naudé (2006), p. 372.

Naudé (2006), pp. 375–376.

The Law Commission and the Scottish Law Commission Unfair Terms in Contracts (2005) LAW COM No 292/SCOT LAW COM No 199.

Law Commission and the Scottish Law Commission Unfair Terms in Contracts para 3.104.

Para 3.86.

Naudé (2009), p. 531.

Naudé (2006), p. 366.

381–382.

Naudé (2009), p. 527.

Consumer Protection Act (No 68 of 2008): Regulations.

S 44 of the CPA Regulations.

S 44 (2).

Pistorius (1993), p. 16.

S19B of the Copyright Act of 1978.

S 28(1) of the CDPA 1988.

Burrell and Coleman (2005), p. 69.

Ibid.

Cornish and Llewelyn (2003) para 19–77.

Ss 50A, 50B (2) & 50BA of the CDPA 1988.

MacQueen and Waelde (2006), p. 5.

S 50C of the CDPA 1988.

S 36(3).

South Africa entered the WTO on 1 January 1995.

Gray and Seeber (2004), p. 111.

112.

Electronic Communications and Transactions Act 25 of 2002.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.

S 86(1) of ECTA.

S 86(2).

S 86(4).

Pistorius (2006), p. 7.

S 86(3) of ECTA.

Pistorius (2006), p. 7.

See para 4 1 of Chapter 4.

Producers of copying assisting devices used to be considered contributory infringers. Historically, most European countries imposed levies on media or equipment used primarily for private copying. Since a device that might be used for circumvention can be multifunctional, it is unfair to prohibit devices simply because they have the circumvention function. In addition, end users usually pay for material with a pay-per-view format. A strict prohibition of devices that assists circumvention is much like a second subsidy for right holders.

Samuelson (2001), p. 6.

Art 9(1) of the Berne Convention.

WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions CRNR/DC/56 (1996) 1.

WIPO Records of Diplomatic Conference I 670-671.

Vinje (1997), p. 233.

Van Coppenhagen (2002), p. 437.

437–438.

Art 5(1) of the Information Society Directive.

Van Coppenhagen (2002), p. 435.

The Copyright Act defines a diffusion service as a telecommunication service of transmissions consisting of sounds, images, signs or signals. Section 6(e) of the Act grants copyright holders an exclusive right to transmit a literary or musical work in a diffusion service, and section 7(d) provides a right to transmit a television program or other program including an artistic work in a diffusion service.

In South Africa, whether to make a work available on the Internet means it is a publication is an unsettled issue, see Buys (2000), p. 47.

S 1 of the Copyright Act of 1978. Van Coppenhagen suggests the Internet is a service that diffuses sounds, images, and signals, see Van Coppenhagen (2002), p. 440.

Amendments of the CDPA SI 2003/2498.

S 4 of the Copyright and Related Rights Regulations.

An intranet is a private computer network that uses Internet technologies to share an organisation’s information or operational systems with its employees.

Van Coppenhagen (2002), p. 440.

Ibid.

Buys (2000), p. 21.

National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).

1982 (3) SA 146 (A).

1998 (4) SA 1196 (SCA) 25.

Id, pp. 36–37.

Van Zyl (2006), p. 140.

Tsichlas v Touchline Media (Pty) Ltd 2004 (2) SA 112 (W).

Id, p. 127.

Id, p. 131. S 75(c) of the ECTA provides ‘take-down notification’ procedures to exempt a hosting service provider from liability if it deletes objectionable content promptly upon notification.

Rens (2005), p. 743.

Buys (2000), p. 26.

Id, p. 7.

Dean (1987) 1–B43.

Buys (2000), p. 23.

S 78 of ECTA.

Buys (2000), p. 26.

Gray and Seeber (2004), pp. 76–77.

Id, p. 92.

Id, p. 99.

Id, pp. 102–104.

Litman (2001), p. 20.

CIPR (2002), p. 151.

Garnett et al. (eds) Copyright para 29-02.

29-02.

CIPR (2002), p. 101.

Id, pp. 101–102.

Gray and Seeber (2004), p. 93.

Under indirect appropriability, the price of an original copy rises when copies of the original are produced. The increased price reflects that the value of the original copy is shared by its purchaser and users who make copies from the original, see Liebowitz (1985), pp. 956–957; Johnson (1985), pp. 158–174; Novos and Waldman (1987), pp. 3434–3443; Besen and Kirby (1989), pp. 255–280.

In economics, one kind of good is said to be a substitute good for another if the two kinds of goods can be consumed or used interchangeably. One does not need to purchase an original copy of a periodical if one has a substitute copy.

This is supported by an empirical study, see Liebowitz (1985), p. 956.

Johnson and Waldman (2005), p. 35. The authors critically examine Liebowitz’s theory of indirect appropriability and show the theory has two deficiencies when applied under circumstances other than the sharing and copying within libraries. Nevertheless, the theory still is applicable to academic libraries’ sharing and copying activities.

Yoo (2005), pp. 106–107.

Besanko and Braeutigam (2002), p. 33.

Id, p. 38.

Ficsor (2002), p. 19.

Sinacore-Guinn (1993), p. 10.

Some copyright practitioners argue that with the aid of digital technology, users no longer need to seek authorisation from a collective organisation but can identify and contact an author directly. However, Reto Hilty argues authors may not be able to benefit from individual copyright management supported by digital technology for they are not necessarily technologically apt. Moreover, market failure cannot be simply interpreted as a commercial problem but it may also come about because of a lack of competition; see Hilty (2007), pp. 341–342.

Ficsor (1990), p. 6.

Adewopo (2001), pp. 755–771; CIPR (2002), pp. 140–141.

CIPR (2002), pp. 98–99.

98.

Garnett et al. (2011) para 28-27.

Ss 137-141 of the CDPA 1988.

http://​www.​era.​org.​uk/ (accessed 22-08-2017).

Garnett et al. (2011) para 29-71.

S 137(2)(a) of the CDPA 1988.

SAMRO is the primary representative of music performing rights in Southern Africa. As a member of the International Confederation of Societies of Authors and Composers (CISAC), SAMRO is authorised to fully represent the interests of South African composers, authors and publishers internationally.

NORM is a negotiating body which protects the interests of composers and publishers and issues mechanical copyright licences.

Recording Industry of South Africa is affiliated with the International Federation of the Phonographic Industries (IFPI). It promotes and safeguards the collective interests of the South African recording industry.

http://​www.​dalro.​co.​za/ (accessed 27-08-2017).

http://​www.​ifrro.​org/​show.​aspx?​pageid=​members/​rrodetails&​memberid=​22 (accessed 27-08-2017).

http://​www.​dalro.​co.​za/ (accessed 27-08-2017).

Figures from Ms Carol Kat, Copyright Officer of Stellenbosch University, at carolk@sun.ac.za. The University of Witwatersrand paid in excess of R 1.7 million to DARLO in 2009 for the blanket licence, Mrs Denise Nicholson, Copyright Services Librarian, the source at denise.nicholson@wits.ac.za. Both the transactional and blanket licence fees are subject to annual consumer prices index (CPI) increases.

For example, see the ‘submissions’ of the South African Music Studies ‘Submissions’ South African Journals Online http://​ajol.​info/​index.​php/​samus/​about/​submissions (assessed 27-08-2017); ‘instructions to authors’ of the South African Journal of Chemistry ‘Instructions to authors’ (January 2011) South African Journal of Chemistry <http://​journals.​sabinet.​co.​za/​sajchem/​chem_​aut.​html> (accessed 27-08-2017).

Cape Town Open Education Declaration ‘Read the Declaration’.The Declaration is part of a worldwide movement towards open resources for education. An example is the United Nations Educational, Scientific and Cultural Organization Forum on the Impact of Open Courseware for Higher Education in Developing Countries (2002).

Open-source software is considered to be a development opportunity for Africa. Users can obtain open-source software at a lower cost than proprietary software and create content to suit local needs, Wachira ‘Africa: The Linux Continent?’ Wired (22-09-2000).

THUTONG South Africa Education Portal ‘Licence Conditions’.

University of the Western Cape ‘eTeaching: KWEL3.0’.

KEWL is an active server page application that runs on any Microsoft operating system.

Keats (January/February 2003).

University of Cape Town ‘Lawspace’.

Creative Commons South African ‘Information of the Creative Commons South Africa License’.