RE: COLLECTIVE MANAGEMENT OF COPYRIGHT AND NEIGHBOURING RIGHTS

[Edward Barrow <edward@copyweb.co.uk>]

On Saturday, May 12, 2001 3:46 PM, Denise Nicholson 
[SMTP:nicholson.d@library.wits.ac.za] wrote:

> Good day,
>
> I am writing to you hoping you can assist me with some information on the
> above topic.

I have a little experience of this subject, having worked for the UK's
reprographic collecting society, CLA, until becoming freelance a few
months ago.

In the UK, the university sector and my former employer (and continuing
client)  the CLA are now engaged in an unfortunate dispute over fees, from
which the only certain winners are the lawyers and the only certain loser
is education as a whole (of which scholarly and educational publishing,
both non-profit and for-profit, is a part). It is, I believe, vital that
you avoid institutionalising artificial polarities which can lead to
conflict. .

It seems to me (admittedly from a distant perspective)  that there are two
important objectives for South Africa.

The first is to ensure affordable access to educational content for South
Africa's students - particularly those at the historically-disadvantaged
institutions and those from backgrounds which suffered discrimination
under apartheid. The second, perhaps more difficult to appreciate but
equally important in the long run, is to ensure that South Africans are
able to profit from their own creative and intellectual output, because
only by becoming stakeholders in the global information economy will
citizens of less-well-developed countries be able to make sufficient
economic progress in the twenty-first century.

The debate over ownership of, and access to, the research literature (a
relatively small proportion of the material used for teaching and
learning)  is international, and moving rapidly. If South Africa's
academics are to participate in the debate, they - as the first owners of
the rights in their research papers - must be able to exercise their
ownership rights;  I suggest that your position in this debate should not
colour your attitude to the question that collective licensing addresses:
efficient access to the wider corpus of material for teaching and
learning.

Although I cannot speak for the South African rightsholder community, I
know you will find a positive response to these sentiments from DALRO, the
South African reproduction rights organisation (RRO) . I would urge you to
engage with them as partners rather than protagonists, and to seek their
assistance in protecting (which does not mean locking up)  the
intellectual property assets of your institution, its faculty and its
students.

A collective licence should provide institutions with far greater
certainty (backed by an indemnity) than reliance on statutory exceptions.
Governments are limited by Berne and TRIPS in the extent to which they can
provide statutory exceptions in any case. Increasingly, rightsholders are
granting RROs the necessary flexibility to license both digital and paper
copying from paper originals.

To encourage rightsholders formally to mandate RROs, a statutory provision
limiting damages to those that would be available under the collective
scheme is useful (I suggest looking at Canada's legislation for an
example).

Licences should provide for all the use that the insititution reasonably
requires, provided it does not undermine primary sales.  Since primary
sales to students at the historically-disadvantaged institutions are
likely to be minimal, I would think that rightsholders should be willing
to grant more generous rights through the collective scheme than perhaps
they might be happy with in a more developed economy.


Edward Barrow
new media copyright consultant
http://www.copyweb.co.uk/
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