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The Fair Dealing Doctrine in Respect of Digital Books

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The Fair Dealing Doctrine in Respect of Digital Books The fair dealing doctrine in respect of digital books Gerardus Verhoef The fair dealing doctrine in respect of digital books University of South Africa - 2017 G Verhoef 2017 THE FAIR DEALING DOCTRINE IN RESPECT OF DIGITAL BOOKS by GERARDUS VERHOEF Dissertation submitted in fulfilment of the requirements for the degree MASTER OF LAWS in the Department of Mercantile Law College of Law UNIVERSITY OF SOUTH AFRICA Supervisor: Professor Tana Pistorius December 2017 DECLARATION I declare that the dissertation titled THE FAIR DEALING DOCTRINE IN RESPECT OF DIGITAL BOOKS is my own work and that all the sources I have used or quoted have been indicated and acknowledged by means of complete references. I further declare that I have not previously submitted this work, or part of it, for examination at UNISA for another qualification or at any other higher education institution. _________________ _____________________ Gerardus Verhoef Date i ACKNOWLEDGEMENTS The financial assistance of the National Research Foundation (NRF) towards this research is hereby acknowledged. Opinions expressed and conclusions arrived at, are those of the author and should not be attributed to the NRF. Prof Pistorius – Jou insigte en waardevolle insette, veral in die pylvak, was ‘n heerlike bevestiging van ‘n ware studieleier wat haar studente ernstig opneem – baie dankie. Anthea – jy weet reeds wat ek gesê het. Dankie! ii “Gutenberg’s press mechanized copying and made copyright necessary. Digitization makes copying instantaneous and viral, and renders existing laws obsolete. I leave it to experts to find a solution and hope they succeed, for – to put it bluntly – they must.” Jason Epstein1 “…fairness is achieved when people restrain their liberty in ways necessary to yield advantages for all.” HLA Hart2 1 Epstein (2011) WIPO Magazine 1. 2 Hart (1955) 64/2 Philosophical Review 175-91. iii SUMMARY Copyright is essentially the right of the rightsholder of an original work to prohibit others from making or distributing unauthorised copies of his or her work. More specifically for this dissertation, when an end user deals with digital content, one of the aims of copyright becomes the balancing of the conflicting interests in ‘exclusivity’ on the one hand, and in ‘access to information’ on the other. Exclusivity is achieved by the rightsholders through technological protection measures to protect their commercial interests. Access to information is achieved where works are available to the general public without payment and technological protection measures and where the digital content is not directly marketed for commercial gain. Exclusivity and access to information are two conflicting cultures surrounding copyright in the digital era. It is submitted that unless we find a socio-economic-legal way for the dynamic coexistence of these two conflicting cultures by means of fair dealing, the culture of exclusivity will eventually dominate fair access to information. The transient nature of digital content means that rightsholders have little or no control over their works once the end user has obtained a legal digital copy of the work. The right ‘to prohibit’ end users from copying and distributing unauthorised copies is, therefore, largely meaningless unless a legal or other solution can be found to discourage end users from the unauthorised reproduction and distribution of unauthorised copies of the work. Currently, technological protection measures are used to manage such digital rights because legal permissions within the doctrine of fair dealing for works in printed (analogue) format are inadequate. It is, however, submitted that a legal solution to discourage end users from copying and distributing unauthorised copies rests on two pillars. Firstly, the solution must be embedded in state-of-the-art digital rights management systems and secondly the business model used by publishers, and academic publishers in particular, should change fundamentally from a business-to-consumer model to a business-to-business model. Empirical evidence shows that the printing of e-content will continue to be relevant far into the future. Therefore, the management of fair dealing to allow for the printing of digital content will become increasingly important at educational institutions that use e-books as prescribed course material. It is submitted that although the origination cost of print editions and e-books correspond, the relatively high retail price of e-books appears to be based on the fact that academic publishers of digital content do not have the legal or digital rights iv management tools to manage the challenges arising from the fair dealing doctrine. The observation that academic publishers are reluctant to grant collecting societies mandates to manage the distribution of digital content, and/or the right to manage the authorised reproduction (printing) of the digital content, supports this hypothesis. Ultimately, with technologies at our disposal, the fair use of content in digital and print format can be achieved because it should simply be cheaper to comply with copyright laws than to make unauthorised digital or printed copies of content that our society desperately needs to make South Africa a winning nation. v Key terms Copyright; digital book; digital rights management (DRM); e-book; e-learning; exception; fair dealing; fair use; limitation; literary work; reproduction right; rightsholder; technological protection measure (TPM). vi CONTENTS SUMMARY ............................................................................................................................ iv Key terms ................................................................................................................................. vi LIST OF TABLES ................................................................................................................ xii LIST OF FIGURES .............................................................................................................. xiii ACRONYMS AND ABBREVIATIONS .............................................................................. xiv EXPLANATION OF TERMS ........................................................................................... xviii CHAPTER 1 ............................................................................................................................. 1 INTRODUCTION TO THE DEVELOPMENT OF E-BOOKS AND THE IMPACT THEREOF ON THE FAIR DEALING DOCTRINE ................................................ 1 PART A .................................................................................................................................... 1 INTRODUCTION TO THE DEVELOPMENT OF E-BOOKS .............................................. 1 1.1 A brief history of e-books: 1971 – 2017 .................................................................... 1 1.2. But what is an e-book? ............................................................................................... 3 1.3 Digital fulfilment platforms ........................................................................................ 3 1.4 Digital rights management systems ............................................................................ 4 1.5 Background to the cost structure of books ................................................................. 4 1.6 The academic book market ......................................................................................... 7 1.7 PASA Survey 2014 .................................................................................................. 10 1.8 Preliminary conclusion on publishers’ views on e-books ........................................ 11 PART B .................................................................................................................................. 13 BRIEF INTRODUCTION TO THE FAIR DEALING DOCTRINE .................................... 13 1.9 Brief introduction to the fair dealing doctrine .......................................................... 13 1.9.1 The Berne Convention .............................................................................................. 13 1.9.2 General fair dealing provisions in South African legislation ................................... 13 1.9.3 Fair dealing provisions on literary works: Sections 12 and 13 of the Copyright Act 98 of 1978 ................................................................................................................. 15 vii 1.9.4 Fair dealing provisions in regulations 2 and 7 of the Copyright Act ....................... 16 1.9.5 Fair dealing: Literary works in a digital format ....................................................... 16 SYNOPSIS: CHAPTER TRAJECTORY .............................................................................. 19 1.10 SYNOPSIS: CHAPTER TRAJECTORY ................................................................ 19 CHAPTER 2 ........................................................................................................................... 23 TECHNOLOGICAL PROTECTION MEASURES THAT IMPACT ON FAIR DEALING .............................................................................................................................. 23 PART A .................................................................................................................................. 23 TECHNOLOGICAL PROTECTION MEASURES AND E-PUBLISHING MODELS ...... 23 2.1 Understanding what Digital Rights Management entails ......................................... 23
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