Papers Presented at the 1st National NADEOSA Conference
Held 11-13 August 1999

Author: Fiona Bulman, University of Pietermaritsburg
Title: Taking the Copyright Debate into Distance Education

Abstract:
This is not a traditional conference paper but rather an attempt to capture something of, and begin to find, a position in relation to the current debate around copyright. New regulations governing the copyright act were proposed earlier this year that caused a strong response from the Higher Education institutions. NADEOSA was asked to respond from the distance education perspective and this paper builds on an attempt made to develop that response. The matter is not yet resolved and the submissions to the Department of Trade and Industry which might shed some light on it have not yet been posted on the web. This paper attempts to begin to locate our organisation in relation to these debates.

About the Author:
Fiona Bulman has been working at the University of Natal for the past fifteen years based on the Pietermaritzburg campus. Originally a tutor in a language-for-academic-purposes programme she later coordinated two faculty education development programmes. She is currently the coordinator of the University of Natal Open Learning Network and has the task of supporting departments and facilitating more flexible delivery modes at the University.

Introduction

The recent debate around copyright in this country has primarily been between two parties - the higher education sector as represented by SAUVCA and the publishers as represented by PASA and DALRO. The issues are quite varied and arise in the wake of the proposed amendments to the copyright act of 1964 as amended in 1978 and subsequently amended 8 times, most recently in terms of the Intellectual Property Laws Amendment Act No.38 of 1997.

Copyright legislation 1978

The difference between the earlier regulations of the Act of 1978 and the current proposed amendments is that the latest proposals place considerably greater limitations on what is legal. Essentially the 1978 copyright act says no copying is legal with the exception of the aspects covered in section 12. "General exceptions from protection of literary and musical works." In this section of the act item 1 states "Copyright shall not be infringed by any fair dealing .." (my emphasis) but this is specifically in relation to "personal or private use", ie not multiple copies.

Later regulations do allow for multiple copies "by way of illustration" provided that the "cumulative effect" of this copying does not conflict with the rights of the author. However, although the notion of cumulative affect may have appeared to limit copying the regulations that spelt out the terms of cumulative effect still gave considerable leeway. It appears that the attempt in the new regulations to tighten up the terms of what is "compatible with fair practice" ... (and) ... justified by the purpose" is what has caused the storm of protest.

Position of NADEOSA Members

As NADEOSA we are in an interesting position in relation to this debate. In their pamphlet on fair dealing DALRO quote Joshua McDonald, "Take not from others to such an extent and in such a manner that you would be resentful if they so took from you." We are in the position of being both the takers and those taken from for we do copy and distribute extensive course packs to our students that would include extracts from the work of many different authors but we do not want other educational providers copying and distributing our materials to their students without paying us what is due.

Thus it could be argued that we would benefit where regulations are tightened. However, tightening the regulations because there has been so little regard for the previous more lenient regulations would seem to be most onerous on those institutions, (particularly distance education institutions) who have to date observed the regulations and paid copyright. Is making terms more stringent the way to ensure that institutions and individuals abide by the regulations?

Proposed Changes

The new regulations do still allow some exceptions but restrict both personal copying and multiple copying as follows:

1. For personal copying it is

a. In the aggregate, ten percent of a work; or

b. in the aggregate, ten pages of an edition which comprises or contains a work; or

c. one chapter of a work in the case where the work is divided into chapters,

(Section 1 or the draft regulations published in the Govt Gazette of 7 august 1998, Definitions item j "reasonable portion")

2. Multiple copies are permitted provided that

a. A copy of a whole work is not made

b. no more that one percent of a work, or two pages of an edition which comprises or contains the work, whichever is the greater, may be copied by virtue of this sub-regulation

c. the number of copies made of an extract of a work does not exceed one copy per student per course; and

d. no licence is available in terms of a licensing scheme authorising such reprographic copying

(Chapter 1 Reproduction Regulations, Section 13 of the draft regulations published in the Govt Gazette of 7 august 1998, item 2 "The reproduction of a work in terms of section 13 of the Act ..")

Furthermore the regulations prohibit the reproduction of material:

* to create anthologies, compilations or collections

* from workbooks, tests booklets, answer sheets

* to substitute for published works

* to make copies over again by the same teacher from year to year

Thus the heart of the new regulations for us, as distance providers, is that we will be required to pay copyright for anything that goes into an anthology or reader and anything more that one percent or two pages of a work - whichever is the lesser.

In addition section 13 2.1 allows for copying for instruction or assignments, tests or examinations provided that this is not by means of reprographic purposes. In distance education the bulk of instruction is presented utilising reprographic processes and certainly all tests, examinations and even assignments that incorporate text in any form in higher education utilise reprographic processes.

SAUVCA Response

The South African University Vice Chancellors Association (SAUVCA) established a task team to develop a response from higher education to the new regulations. This group expresses concern that the new regulations reduced copying rights for educational institutions rather than facilitating fair practice. In a knowledge dependant society is this fair to learners?

These regulations seem perhaps to have swung too far the other way and are particularly onerous for educational institutions, particularly those in higher education where one of the major tasks of the educator is to introduce learners to a range of different perspectives and analyses. This is specifically so for distance education providers who teach through reprographic processes. The only option for such institutions would be to employ staff whose sole task would be to obtain copyright permission for all items used in the development of materials, or to enter into a licencing agreement.

The Registrar of the Department of Trade and Industry is currently considering submissions from the various stakeholders and for the present the 1978, more generous regulations apply.

The DALRO Agreement

The debate on the amendments to the Regulations are further complicated by the licencing agreement being offered to education through DALRO. The publishers association and DALRO maintain that the two matters are not connected in any way but SAUVCA have decided not to consider the licencing agreement until the amendments to the copyright act are clearer.

There would seem to be no doubt that, although they are ostensibly coming from two different directions, these two matters are inextricably linked. The more stringent the regulations the more likely institutions will be to sign the blanket licencing agreement offered by DALRO. Furthermore operations in those institutions who do not choose the blanket option, and continue to operate with transactional licencing agreements, will be closely scrutinised by DALRO.

Copyright in a "Developing Country"

Educational institutions who have been opposing the terms of the new regulations have argued that these regulations will further disadvantage disadvantaged students in this country. These students are least able to be able to afford books and have least access to libraries and are the students who most need to be exposed to a range of perspectives from different authors.

DALRO maintain that their licencing agreement takes cognisance of South Africa being a developing country and their rate (both within transactional licences acquired through them and in their blanket licence) "will be considerably lower than that applied in countries like Germany or the United states" (Fair dealing pamphlet). This rate for 1999, and the terms of the 1999 blanket agreement have been negotiated and renegotiated over recent months. Their blanket licence allows for 250 pages per student per annum and apparently, on the basis of the last negotiations, works out to under R30 per student per annum.

However, although this would seem a possible solution, it appears that users are concerned that the licence, which requires a fee paid for every student registered at the institution, would not be fair as some fields of study really do not make use of multiple copies nor do their students make copies. It has also been suggested by one of the members of the SAUVCA task team that a better rate can be obtained by applying directly to the publishers as some do not charge anything at all.

What Authors want

An article recently circulated electronically by the Association of Learned and Professional Society Publishers on "what authors want" would seem to support the above view.

Authors are continuing to publish in learned journals primarily to communicate their findings and advance their careers. Direct financial reward is not an important issue. Their main aim is to reach the widest possible audience, with the quality of peer review and the impact factor of the journal the main factors of importance in achieving their overall publishing objectives.

This view might be of considerable concern to some publishers but it does not relieve academic institutions of the responsibility for respecting intellectual property rights nor does it remove the need for copyright law.

Law to ensure fair dealing.

With the advent of the photocopier in almost every office the interpretation of the Act of 1978 has become wider and wider and it is necessary to regulate copying. It is evident in many institutions that self regulation has not worked and that there must be a limit set to fair dealing that will require that copyright fees should be paid for anything outside that limit. According to one source the extent of illegal copying is pushing up the prices of text books and this means that we all lose.

The question that remains however is what is fair? And fair to whom? Addressing a conference on "Universities in the 21st Century" Professor Gourley, then Chairperson of the Committee of University Principles, said "It is clear that the great issues of our time, issues involving survival and sustainability, are issues about closing the gap between the haves and the have-nots, and are going to require choices: choices that ought to be made on moral or ethical grounds of one sort or another." The recent shocking update from the United Nations on the relative positions of the haves and have-nots re-emphasises her point and we here in South Africa face the stark reality of the inequities in society on a daily basis.

NADEOSA Perspective

Our code of ethics would seem to imply that NADEOSA would require respect for the rights of authors but at the same time that as NADEOSA members we should provide the best quality at the best price for our learners . This perspective could locate us as fence sitters but there are three options that might assist us in developing our position:

1. Is it "fair" to limit multiple copying to no more than one percent or two pages whichever is the greater?

2. Should we ask for the same amount as is allocated for personal use, ie ten percent or ten pages whichever is the greater? This was the suggestion of one of the SAUVCA Distance education team.

3. Should we ask for something in between the two?

Conclusion

Unfortunately an emotionally charged atmosphere has developed around the matter of these new copyright regulations and the needs of learners. The proposed regulations did not seem fair to all sides, nor did they really address the matter of illegal copying. They also don’t address the issue of electronic copying and materials available on the Internet and some stakeholders have suggested that the act needs to be rewritten to take these changed circumstances into account.

Furthermore it must be acknowledged that both sectors are suffering the aftershocks of transformation, the resultant financial constraints and the impact of global financial trends.

None of these factors seem to remove the ethical imperative that we respect intellectual property rights and pay our dues but it does perhaps require that we seek ways to move beyond the adversarial position that we appear to be in.

We need regulations that protect writers and the publishers who have purchased their work. We need a licencing agreement that will facilitate the provision of quality education within the law. But, we need the regulations to take seriously the needs of learners and we need licencing agreements that are developed in a spirit of constructive collaboration and not confrontation or even compromise.

And lastly we need, individually, to take responsibility for ensuring that in all our dealings copyright is respected.

References

Association of Learned Professional Society Publishers. What Authors Want

(SMTP:alpsp@morris-assocs.demon.co.uk)

DALRO. Fair Dealing A guide for users of Copyright-protected Works

Dean, O. H. Handbook of South African Copyright Law. Juta, Cape Town 1998

Gourley, B.M. Pedagogy or Politics. Universities in the 21st Century: Education in a Borderless World. Singapore August 1996

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