FW: REVISION OF COPYRIGHT REGULATIONS


Subject: FW: REVISION OF COPYRIGHT REGULATIONS
From: Mark Perkins (MarkP@spc.org.nc)
Date: ke 10 helmi  1999 - 23:40:48 EET


Mark Perkins
Secretariat of the Pacific Community Library
BPD5
98848 Noumea Cedex
New Caledonia
South Pacific
Tel: +687 26 20 00 Fax: +687 26 38 18
Email: MarkP@spc.org.nc

> -----Original Message-----
> From: Hester van der Walt [SMTP:hvdwalt@statelib.pwv.gov.za]
> Sent: Thursday, February 11, 1999 12:05 AM
> To: African Libraries Listserve
> Subject: REVISION OF COPYRIGHT REGULATIONS
>
> Dear Colleagues: This text is being sent to SABILIST as well. We
> apologise for any cross-postings.
> WARNING: the document is very long.
>
> REVISION OF COPYRIGHT REGULATIONS
>
> TO ALL HEADS OF LIBRARIES AND HEADS OF INTERLENDING SECTIONS
>
> Dear Colleagues
>
> The SAUVCA/CTP Copyright Task team has mandated various groups to
> investigate various aspects of the revision of the regulations of
> the Copyright Act, 1978. Denise Nicholson, Publishing Liaison
> Officer of Wits Library, is the convenor of the Task Team.
>
> One of the groups mandated by the Task Team is concerned with
> interlibrary loans and forwarding of individual articles.
>
> Below follow the regulations drafted by this group, of which the
> coordinator is Jenny Raubenheimer of the Unisa Library. The members
> of the group thoroughly debated the issue and used the previous
> draft regulations as published in the Government Gazette of 7 August
> 1998 (No. 19112) as point of departure. A book on British copyright,
> 'Copyright made easier' by Raymond A. Wall (2nd ed. Aslib, 1998),
> was also consulted to clarify matters and arrive at conclusions.
>
> The group would appreciate it if you would read through their
> proposals and send constructive comments, suggestions or solutions
> before 16 February 1999. Please send your comments to Barbara
> Kellermann (State Library) at kellbc@statelib.pwv.gov.za. You may
> wish to compare these new draft regulations with the previous ones
> published in the Government Gazette of 7 August 1998 (no. 19112).
>
> Thank you and kind regards.
> Barbara Kellermann
> State Library
>
> COPYRIGHT ACT 1978 (NO. 98 OF 1978)
> COPYRIGHT REGULATIONS
>
> SAUVCA/CTP COPYRIGHT TASK TEAM
> Task Team on Interlibrary Loans & Forwarding of Individual Articles
>
> DRAFT REGULATIONS
>
> Jenny Raubenheimer (Unisa), Coordinator
> February 1999
>
> The draft given below follows the numbering and format of the
> regulations published in the Government Gazette of 7 August 1998
> (No. 19112, no. R. 1001). Text which has been newly drafted or
> changed by the Task Team on Interlibrary Loans & Forwarding of In
> vidual Articles (TTIL) is enclosed in arrows >> <<. Comments,
> questions and proposals by the TTIL are given in square brackets [ ].
>
> 1 Definitions
>
> (1) In these regulations, unless the context otherwise indicates--
>
> (a) "the Act" means the Copyright Act, 1978 (Act No. 98 of 1978);
>
> (b) "archives repository" means an archives repository referred to
> in section 1 of the National Archives of South Africa Act, >>(Act
> No. 43 of 1996)<<;
>
> [TTIL: Incorrect reference to Act corrected.]
>
> (c) "archivist" means the person who is responsible, for the time
> being, for the immediate care and control of a collection comprising
> an archive repository;
>
> (d) "educational institution" means an educational institution as
> defined in section 1 of the National Education Policy Act, 1996 (Act
> No. 27 of 1996), and any university, technikon or other institution
> providing tertiary education;
>
> [Definition given in National Education Policy Act 1996: '
> "education institution" means any institution providing education,
> whether early childhood education, primary, secondary, further or
> higher education, other than a university or technikon, and also an
> institution providing specialised, vocational, adult, distance or
> community education .' TTIL is happy with definition as it includes
> pre-primary and primary schools.]
>
> (e) ">>disabled<< reader" means a blind person, a person with
> severely impaired sight, a person unable to hold or handle books or
> to focus or move his or her eyes, or a person suffering from a
> perceptual handicap;
>
> [TTIL PROPOSAL: replace'the word handicapped' with 'disabled'. TTIL
> finds practical wording of rest of definition useful for those
> library staff, often library assistants, who need to implement the
> regulations.]
>
> (f) "librarian" means the person who is responsible, for the time
> being, for the immediate care and control of a collection comprising
> a library;
>
> (g) "library" >>means an agency which collects, organises,
> preserves and makes available books and other information materials
> (e.g. periodicals, audio-visual materials and electronic media). It
> helps its users to find and use information in its collection or
> obtains information for them from other sources. Libraries are
> mainly concerned with information materials that have been produced
> for general distribution, i.e. published materials<<;
>
> [TTIL PROPOSES the above definition for 'library' taken from the
> Actag Report, 1995, p. 6, to better cover all library types.]
>
> (h) "municipality" means a municipality as referred to in Chapter 7
> of the Constitution of the Republic of South Africa, 1996 (Act No.
> 108 of 1996);
>
> [TTIL is happy with definition (h)]
>
> (i) "quarter" means a period from 1 January to 31 March, 1 April to
> 30 June, 1 July to 30 September or 1 October to 31 December in any
> year;
>
> [TTIL feels that this is to be interpreted to mean merely calendar
> quarters, and would not necessarily impede provision of copies to
> students more than once during their course of study.]
>
> (j) "reasonable portion" >>means no more than--
> (a) in the aggregate, ten per cent of a work; or
> (b) one chapter of a work in the case where the work is
> divided into chapters,
> whichever is the greater<<;
>
> [TTIL PROPOSAL: delete original j(b) ("in the aggregate, ten pages
> of an edition which comprises or contains a work"); change numbering
> of (j)(c) to (j)(b); and replace the word 'lesser' with 'greater'.]
>
> (k) "reprographic process" means a process of making copies,
> including copies which are reduced or enlarged in scale, or
> involving the use of an appliance for making multiple copies, and
> includes, in relation to a work held in electronic form, any copying
> by electronic means, but does not include the making of a
> cinematograph film or sound recording;
>
> >>(l) "second-hand copy" means a published copy of a book or other
> publication which has had a previous owner or is not new;<<
>
> [TTIL PROPOSAL: add the above definition for 'second-hand copy' to
> the list of definitions. This should prevent people from
> interpreting 'second-hand-copy' as meaning a reproduction.]
>
> (m) "student" means any person enrolled or receiving instruction at
> an educational institution;
>
> (n) "teacher" means any person giving instruction at an educational
> institution;
>
> (o) "work" in relation to--
> (i) an article in a periodical publication, means that
> article; and
> (ii) a literary, musical or artistic work contained in a
> collection of such works, means each literary, musical or artistic
> work so contained.
> [TTIL is happy with definitions (m) to (o).]
>
>
> (2) (a) A word or expression to which a meaning has been assigned in
> the Act bears that meaning.
>
> (b) A word or expression to which a meaning has been assigned in
> the Act and these regulations bears the meaning assigned to it in
> the Act supplemented by the meaning assigned to it in these
> regulations.
>
>
> CHAPTER 1
> REPRODUCTION REGULATIONS
> (Section 13)
>
> Permitted reproduction in educational institutions
>
> 2. The reproduction of a work in terms of section 13 of the Act shall
> be permitted--
>
> (1) where a >>person<< makes a copy of a work--
>
> [TTIL PROPOSAL: replace the words 'teacher or student' with 'person'
> to include librarians.]
>
> (a) in the course of instruction or of preparation for instruction;
>
> [TTIL PROPOSAL: delete in 2(1)(a) the words "provided the copy is
> not by means of a reprographic process"]
>
> (b) for the purpose of giving an assignment, test or examination,
> by way of setting the questions, communicating the questions and
> answers to students completing the assignment or taking the test or
> examination, or for the purpose of a student's answering such
> questions;
>
> >>(c) when a teacher prescribes an interim copy of an article or
> part of a work for a reasonable period to students to be used for an
> assignment. Should this be scanned into a database on a network and
> delivered to students in electronic format, a copyright warning
> should be attached stating that the forwarding of this copy of an
> article or part of a work is subject to the copyright regulations;<<
>
> [TTIL PROPOSAL: add new subregulation 2(1)(c)]
>
> (2) where a person makes one or more copies of a work [TTIL
> proposal: delete the words 'an extract of' and 'literary'] by means
> of a reprographic process for the educational purposes of an
> educational institution, provided that--
>
> [TTIL PROPOSAL: delete the original wording of 2(2)(a) ' a copy of a
> whole work is not made', and re-number the subregulations']
>
> (a) no more than >>a reasonable portion<< of a work may be copied
> by virtue of this subregulation 2(2) in any quarter;
>
> [TTIL PROPOSAL: replace the words 'one per cent of a work, or two
> pages of an edition which comprises or contains the work, whichever
> is the greater' with 'a reasonable portion' (as defined in
> subregulation 1(j)).]
>
> (b) the number of copies made of a work >>in terms of subregulation
> 2(2)(a)<< does not exceed one copy per student per course;
>
> [TTIL PROPOSAL: insert the words ' in terms of subregulation 2(2)(a)']
>
> >>(c) the cumulative effect of the reproduction does not conflict
> with the normal exploitation of the work to the unreasonable
> prejudice of the legal interest and residuary rights of the owner of
> copyright;<<
>
> [TTIL PROPOSAL: include subregulation 2(b) from the 1978 Copyright
> Regulations as a new subregulation 2(2)(c)]
>
>
> (d) no licence is available in terms of a licensing scheme
> authorising such reprographic copying.
>
>
> Prohibitions on copies for use in educational institutions
>
> 3. Notwithstanding the provisions contained in regulation 2, an
> educational institution, a teacher and a student may not--
>
> (1) use copies made in terms of these regulations to create or
> replace or substitute anthologies, compilations or collective works;
>
> [TTIL PROPOSAL: delete original subregulation 3(2) 'make copies of
> or from works intended to be ephemeral, including workbooks,
> exercises, standardised tests and test booklets and answer sheets
> and similar ephemeral material'. Reason for deletion: making copies
> of especially examination papers is an everyday practice at
> educational institutions.]
>
> (2) use copies made in terms of these regulations as a substitute
> for the purchase of published works, including books, publisher's
> reprints and periodicals;
>
> [TTIL PROPOSAL: delete original subregulation 3(4) 'make copies of
> the same material for use by the same teacher from term to term'.
> Reason for deletion: modular courses have been introduced by many
> universities which could require that the same study material be
> copied and re-copied at various stages during a year or over longer
> periods, sometimes for reason of students having to write
> supplementary examinations. Subregulation 2(2) already limits
> copying to stay within reasonable use.]
>
>
> Permitted reproduction by libraries and archive repositories
>
> 4 (1) A librarian or archivist may make and supply a copy of an
> article or part of an article contained in a periodical publication,
> or of the whole or part of a published work other than an article
> contained in a periodical publication, to a person who has requested
> such a copy, provided--
>
> (a) the person satisfies the librarian or archivist, as the case
> may be, that the person requires the copy for the purposes of
> research or private study, >>or personal or private use<<, and will
> not use it for any other purpose;
>
> [TTIL PROPOSALS:
> - add the words 'or personal or private use' to
> 4(1)(a) to correspond with section 12(a) of the Copyright Act;
> - delete original 4(1)(b) and 4(1)(c), and propose new 4(1)(b)]:
>
> >>(b) the person has, at the time of registering/re-registering as
> a student at an educational institution or applying/re-applying for
> membership of a library or entering into a service contract with an
> employer where reproduction is required to support the core business
> of the employer, signed a one-time declaration that he or she
> undertakes not to infringe the Copyright Act and copyright
> regulations. The declaration to be signed should include the
> following text:
>
> "I declare that:
> (i) I will request a single copy only of any material;
> (ii) I will not use the copy except for research or private
> study
> or personal or private use, and will not supply a copy of it to
> another person;
> (iii) I will not request a copy of any material of which any
> other
> person with whom I work or study, has to my knowledge made or intends
> to make a request for substantially the same material or
> substantially the same purpose;
>
> I understand that if this declaration is false in a material
> particular the copy or copies supplied to me will be an infringing
> copy or copies and that I shall be liable for infringement of
> copyright as if I had made the copy or copies myself."<<
>
> [TTIL PROPOSAL: add new subregulation 4(1)(b) as alternative to the
> original 4(1)(b) and 4(1)(c) to eliminate the requirement of a
> declaration having to be made with every request for a copy.
> Although librarians have a responsibility to bring copyright to the
> notice of library users, the TTIL feels that ultimately the onus
> rests on the user/requester to comply with copyright, and having to
> sign such a declaration will point out to him or her their
> responsibilities in this regard. This mechanism should further
> eliminate future administrative work to be done by the librarian.
>
> TTIL QUESTION: Should the declaration to be signed be made available
> in all eleven official languages?]
>
>
> (2) Subregulation 4(1) shall not apply in relation to a request for
> a copy of, or parts of, two or more articles in the same periodical
> publication unless the articles relate to the same subject matter.
>
> [TTIL PROPOSAL: retain this subregulation as it allows copying of
> more than one article from especially professional or subject
> journals, i.e. it gives more leeway.]
>
>
> (3) Subregulation 4(1) shall not apply to a request for a copy of
> the whole of a work (other than articles contained in a periodical
> publication), or to a copy of a part of such a work that contains
> more than a reasonable portion of the work unless, before the copy
> is made, the librarian or archivist has, after reasonable
> investigation, made a declaration stating that he or she is
> satisfied that a >>published<< copy (not being a second-hand copy)
> of the work cannot be obtained within a reasonable time at an
> ordinary commercial price.
>
> [TTIL PROPOSAL: insert the word 'published' before the words ' copy
> (not being a second-hand copy)' to ensure that it is understood
> correctly. The equivalent Afrikaans term is "eksemplaar". Especially
> in the context of these regulations the word "copy" in this
> particular instance can be misunderstood as meaning a reproduction.
>
> TTIL PROPOSAL: add a definition for 'second-hand copy' to the list
> of definitions in subregulation 1(1) - q.v.
>
> TTIL PROPOSAL: delete original 4(4) as original 4(1)(b) and 4(1)(c)
> to which it refers, have also been deleted.]
>
>
> 5 (1) A librarian or archivist may make and supply to another
> library or archive repository a copy of an article, or a part of an
> article, contained in a periodical publication, or the whole or a
> part of a published work other than an article contained in a
> periodical publication--
>
> (a) for the purpose of including the copy in the collection of the
> other library or archive repository; or
>
> (b) for the purpose of supplying the copy to a person who has made
> a request for the copy under subregulation 4(1).
>
> (2) The provisions of subregulation 5(1) shall not apply--
>
> (a) where a copy of the same article or other work or of the same
> part of the article or other work, as the case may be, has
> previously been supplied under subregulation 5(1) (a) for the
> purpose of inclusion in the collection of the other library or
> archive repository, unless the librarian or archivist of the other
> library or archive repository, as the case may be, makes a >>written
> statement<< setting out the particulars of the request, including
> the purpose for which the request is made, and stating that the copy
> previously supplied has been lost, destroyed or damaged, as the case
> may be; and
>
> (b) unless the librarian or archivist requiring the copy furnished
> a written statement to the effect that, after reasonable
> investigation he or she is satisfied that a copy (not being a
> second-hand copy) of the article or the work cannot be obtained
> within a reasonable time at an ordinary commercial price.
>
> [TTIL PROPOSAL: Replace the word 'declaration' in 5(2)(a) with the
> words 'written statement' for the purpose of consistency.
>
> TTIL COMMENT: Unisa Library investigated this issue and found that
> copying for the purpose of inclusion in the library's collection is
> not done in large numbers, and making and keeping record of the
> written declarations should not place an unreasonable burden on the
> library. The TTIL feels that regulation 5 is fair to the copyright
> owner.]
>
>
> 6 (1) A librarian or archivist may make a copy of any work that
> forms part of the collection of the library or archive repository,
> as the case may be--
>
> (a) in order to preserve or replace a work by placing the copy in
> the collection of the library or archive repository, as the case may
> be, in addition to or in place of it;
>
> >>(b) in order to preserve a work from damage or theft by placing
> an interim copy of a reasonable portion of the work for short loan
> purposes on a reserve shelf for a reasonable period; or<<
>
> [TTIL PROPOSAL: add above new subregulation 6(1)(b)]
>
> (c) in order to replace in the collection of another library or
> archive repository a work which is deteriorating or has been lost,
> stolen, destroyed or damaged.
>
> (2) Subregulation 6(1)(a) shall not apply unless the librarian or
> archivist, as the case may be, has, after reasonable investigation,
> made a >>written statement to the effect<< that he or she is
> satisfied that a copy (not being a second-hand copy) of the work
> cannot be obtained within a reasonable time at an ordinary
> commercial price.
>
> [TTIL PROPOSAL: replace the word 'declaration' in 6(2) with 'written
> statement to the effect' for the purpose of consistency.]
>
> (3) Subregulation 6(1)>>(c)<< shall not apply unless a librarian or
> archivist of the other library or archive repository, as the case
> may be, furnishes a written statement to the effect that the work to
> be replaced is deteriorating or has been lost, stolen, destroyed or
> damaged, and that he or she is satisfied, after reasonable
> investigation, that a copy (not being a second-hand copy) of the
> work cannot be obtained within a reasonable time at an ordinary
> commercial price, and that if a copy is supplied it will only be
> used to fulfil the purpose set out in subregulation 6(1)(c).
>
> [TTIL PROPOSAL: Change the words '6(1)(b)' in subregulation 6(3) to
> '6(1)(c)' to provide the correct reference. TTIL feels that in
> general, copying of works for inclusion in a library's collection
> does not happen in large numbers, and having to provide written
> statements therefore is reasonable.]
>
>
> 7 If the collection of a library or archive repository contains a
> copy, made by a reprographic process, of the whole of a work or of
> more than a reasonable portion of a work, and the copy was made in
> terms of these regulations because a copy of the work could not be
> obtained within a reasonable time and at any ordinary commercial
> price, and subsequently the work concerned can be obtained within a
> reasonable time and at an ordinary commercial price, the library or
> archive repository, as the case may be, will, within a reasonable
> time of the availability of the work concerned coming to its
> attention, destroy such copy.
>
>
> [TTIL COMMENT:
>
> * The TTIL agrees with the content of regulation 7 as it does not
> make the re-purchasing of the specific work at a later stage when it
> may have become less important or obsolete, compulsory, but merely
> that the copy should be destroyed.
>
> * However, the TTIL feels that copyright tends to stand in the way
> of technology. Should the proposed new subregulation 2(1)(c) be
> added, regulation 7 could become a problem. Valuable archival
> material may also be kept in electronic format.
>
> QUESTIONS:
>
> 1. How long may texts which have been copied on electronic medium be
> kept before having to be destroyed?
>
> 2. What is 'a reasonable time'?]
>
>
> Permitted reproduction for >>disabled<< readers
>
> 8 (1) Any person may make >>one<< copy or sound recording of a
> published literary, musical or artistic work in a format that is
> more appropriate to meet the needs of >>disabled<< readers than the
> format in which the [TTIL: delete the word "literary"] work was
> published.
>
> (2) Subregulation 8(1) shall not apply where a copy or sound
> recording of the work is commercially available in a format that
> would accommodate the needs of the >>disabled<< reader.
>
> (3) If it is necessary to make an intermediate copy of a work in
> order to make a copy or sound recording >>in terms of<<
> subregulation 8(1), such intermediate copy must be destroyed as soon
> as it is no longer needed.
>
> (4) A person who makes a copy or sound recording under
> subregulation 8(1) may not, without the express consent of the owner
> of copyright, use the copy or sound recording for any purpose other
> than for which the making of the copy or sound recording is
> permitted in terms of subregulation 8(1).
>
> [TTIL PROPOSAL: change or insert some words in regulation 8 as
> indicated by arrows >> <<.]
>
>
> Reproduction of building plans by a municipality
>
> 9 The person in charge of municipality may make and supply a copy of
> a building plan in respect of which the original or a reproduction
> is lodged for purposes of record at an office of that municipality,
> if the owner of land upon which a building has been erected in
> accordance with that plan requires copies of the plan or any portion
> thereof for the purpose of making additions or alterations to such
> building.
>
> [TTIL COMMENT: Regulation 9 not relevant to interlending and document
> supply.]
>
>
> Exemptions and savings
>
> 10 Nothing contained in these regulations--
>
> (1) shall be construed as imposing any liability for copyright
> infringement upon a library or archive repository or its employees
> for the unsupervised use of reproducing equipment located on its
> premises, provided that a copyright warning in terms of regulation
> 11 is prominently displayed on or in the immediate vicinity of such
> equipment;
>
> [TTIL QUESTION: should the copyright warning be displayed in all eleven
> official languages?]
>
> (2) shall absolve any person who uses such reproducing equipment or
> who requests a copy under regulation 4 from liability for copyright
> infringement for any such act, or the use of any such copy, if it
> exceeds the extent of the copying permitted under the Act or these
> regulations; and
>
> (3) shall in any way affect any contractual obligations assumed at
> any time by the library or archive repository when it obtained a
> copy of a work for its collection.
>
> [TTIL is happy with the content of regulation 10.]
>
>
> Copyright warning
>
> 11 (1) A warning of copyright shall consist of a verbatim production
> of the notice in this subregulation in such size and form and
> displayed in such manner as to conform to subregulation 11(2).
> Copyright warnings shall be displayed at the place where orders for
> copies are accepted by libraries and archive repositories and where
> unsupervised equipment is located.
>
> COPYRIGHT WARNING
>
> The Copyright Act, 1978, governs the making of photocopies or other
> reproductions of copyrighted material. Under the provisions of the
> Act libraries and archive repositories are authorised to supply
> photocopies or other reproductions. One of these provisions is that
> the photocopy or reproduction is not to be used for any purpose
> other than >>research or<< private study or personal or private use.
> >>The making of further copies from a permitted copy is
> prohibited.<<
>
> If a user makes a request for, or later uses, a photocopy or
> reproduction for purposes not permitted by the Act, that user may be
> liable for copyright infringement. This institution reserves the
> right to refuse to accept a copying order if, in its opinion,
> fulfilment of the order might involve violation of the Act.
>
> (2) The copyright warning required to be displayed in terms of
> subregulation 11(1) shall be printed on heavy paper or other durable
> material in type at least 18 points in size, and shall be displayed
> prominently, in such manner and position as to be clearly visible,
> legible and comprehensible to a casual observer in the immediate
> vicinity of the place where orders are accepted or where
> unsupervised equipment is located.
>
>
> [TTIL PROPOSALS
>
> * Insert in the first paragraph of the Copyright Warning the words
> 'research or' to correspond with section 12(a) of the Copyright Act;
> and add the sentence 'The making of further copies from a permitted
> copy is prohibited.'
>
> * Delete:
>
> - from the first paragraph of 11(1) the words 'and shall be
> incorporated in all forms supplied by libraries and archive
> repositories and used by their subscribers or the general public for
> ordering copies';
> - subregulation 11(3) ('The copyright warning
> required to be incorporated in order forms ...').
>
> Reason: The copyright warning as given here is too lengthy to
> include in printed request forms for copies or document supply,
> whether sent by post or fax. A short statement that copyright has
> been complied with should be considered acceptable, e.g. "This
> request complies with copyright law, and is needed for purposes of
> research or private study, or personal or private use only."
>
> With electronic document requesting and supply the matter of forms
> falls away. The Ariel system has for instance a space for inclusion
> of a copyright warning, which can be the wording as suggested in the
> previous paragraph, or a statement that the specific document supply
> transaction complies with the Copyright Act and its regulations.
> This statement then automatically accompanies all documents sent by
> Ariel.]



This archive was generated by hypermail 2a24 : ti 21 marras 2017 - 01:20:13 EET