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					  LEGAL ACCESS – THE MEDIATING ROLE OF THE RRO IN
                           COPYRIGHT LICENSING

(Presentation by Gérard Robinson, Executive Director, Dramatic, Artistic and Literary
Rights Organisation – DALRO)


What does the term ‘access to information’ mean? At all levels of our existence we
need information in order to function effectively in our personal and professional
lives, and we come by it in endless ways. Information is essential to our well-being. I
need not elaborate on that.


But there is too often an assumption that, because it is essential, information should be
free. In an ideal world it would be, but the world is not ideal. In a modern society
with a highly-developed system of communications, information should flow freely,
unimpeded by censorship. But, as one of my colleagues has famously remarked, it is
wrong to confuse the free flow of information with the flow of free information.
Information producers have an economic interest in their products; that some of them
choose to give them away without recompense is their prerogative. The rest expect
financial reward – as, indeed, most of us expect reward for our labours. Information
is not sacrosanct, any more than are food, housing, clothing, health care or any other
essentials of what we think of as a decent life, and since the world is unfortunately not
ideal, none of those are free either.


What we are here today to debate, therefore, is presumably not how to make
information free for education, but how to make it accessible. There are certain
givens in our particular context: that education feeds on information and that
educational resources, scarce in southern Africa, have to be managed with the utmost
efficiency to spread them among the widest number of beneficiaries. In simple terms:
the information required for effective education should be as cheap as possible. What
does ‘as cheap as possible’ mean, bearing in mind that the majority of knowledge and
information producers (in our context authors and publishers) do expect to be
compensated?
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Furthermore, how does DALRO as a Reproduction Rights Organisation (RRO) fit
into this picture? For that matter, what is an RRO?


Since I have touched on an ideal world, I trust you will give me the latitude to
fantasise about an ideal university in which the lavish buildings have all been erected
through donations, the staff are paid generous salaries by the state, the libraries are
full to overflowing and the bookshop is crammed with volumes that students can
pluck from the shelves without payment. It is a utopian scenario. In reality, however,
amenities are often inadequate, staff struggle along on insufficient salaries, libraries
are under-resourced and students cannot afford more than the bare minimum of the
books needed. They resist buying books when they need only small portions in order
to gain background or supplementary reading material. How, then, can they be given
access to the information? The photocopier beckons, but the Copyright Act prevents
unrestricted multiple photocopying…


An RRO functions as an intermediary between rights owners and consumers. Rights
owners mandate the RRO to collectively administer their reprographic reproduction
rights, when it is impractical for this to be accomplished individually, by offering
licences in terms of which extracts from published copyright-protected works may be
copied for internal use within an institution against payment of a small fee. The RRO
collects the fees and channels them back as royalties to the rights owners. The
licensee is indemnified against any possible legal action by rights owners for
copyright infringement.


Access to information becomes relatively inexpensive, but at the same time rights
owners receive fair remuneration and are encouraged to continue producing – and the
flow of knowledge and cultural products is maintained.


This appears simple, but it is of course much more complicated than it appears. First:
the RRO needs an enabling legal environment to legitimise its operation. Second: the
terms of the licences need to be agreed between the RRO and its mandating rights
owners. Third: the institution needs to be persuaded of the legal and moral imperative
to be copyright compliant. Fourth: the licences have to be monitored since there is a
disclosing requirement enabling the RRO to receive the data necessary for the
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disbursement of royalties. None of these, as may be imagined, leads to a hassle-free
working life!


Another role of the RRO is to act as an advisory body to rights owners and users
alike. In the countries where they operate – some 40 around the world – RROs are
centres of excellence in copyright. Through their websites, through personal or e-mail
contact, and through running conferences, workshops and seminars, they educate and
inform.


Since reprographic reproduction is often a trans-border activity, RROs negotiate
bilateral agreements between themselves. When an extract from an American work is
copied under licence in a South African university, DALRO compensates its ‘sister’
RRO in the US, the Copyright Clearance Center (CCC). When an extract from a
South African work is copied under licence in France, the French RRO, Centre
Français d’exploitation du droit de Copie (CFC) sends the money to DALRO. RROs
the world over are linked through their umbrella organisation, the International
Federation of Reproduction Rights Organisation (IFRRO), which has its headquarters
in Brussels. DALRO holds bilaterals with Australia, Canada, the United Kingdom,
the USA, Denmark, Belgium, the Netherlands, France, Germany, Greece, Ireland,
Hong Kong, Norway, New Zealand, Switzerland and Zimbabwe, and is able to offer
the full English-language repertoire and several other languages besides.


In southern Africa, RROs exist in South Africa (DALRO), Zimbabwe (Zimcopy) and
Malawi (COSOMA), the last-named having recently been admitted as a full member
of IFRRO. In fact, the number of RROs established in developing countries recently
has been quite astounding. 2004 saw the addition of RROs in Uruguay and in
Trinidad and Tobago to those already existing in Mexico, Jamaica and Brazil, and
three more are expected to start up this year – in Peru, Barbados and Ecuador. In west
Africa, the Ghanaian and Nigerian RROs are on the verge of collecting. In the Asia
Pacific region, there are already functioning RROs in Japan, Australia, New Zealand,
Hong Kong and Singapore, and one was launched in Vietnam last November. IFRRO
held a symposium on the Collective Management of Rights in Singapore in October,
which was attended by delegates from all over the region including India, Malaysia,
China, Fiji, South Korea, Thailand and Papua New Guinea, and by the end of 2005
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there will be a whole batch of new RROs in that region. This gives the lie to the
outdated argument that developing countries require special arrangements, special
statutory privileges enabling them to copy without payment. In those countries, rights
owners, consumers and copyright administrators have come together and agreed that
licensing is the solution to problems of access.


The debate over copyright legislation in South Africa has been protracted and
sometimes acrimonious. Attempts have been made by rights owners to revise the
copyright regulations to simplify their expression and reduce free multiple copying.
Calls have been made by consumers to amend the Act to allow more free copying in
educational institutions. The legislator has to find a delicate balance between these
conflicting demands. That balance, I submit, lies in licensing, and the Department of
Trade and Industry itself has stated that it is not the principle of licensing that should
be up for negotiation but, rather, the cost. If the South African user community were
to accept that licensing offered access to learning materials – though I must stress that
a licence to copy extracts is not intended as a substitute for the purchase of prescribed
textbooks – in other words, if they were to accept the principle that it provides the
balance, then the way would be open to constructive negotiation over price.

				
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