PLAYS

fair dealing

South Africa's copyright legislation abides by the Berne Convention. This means authors have the exclusive right to authorise reproduction of their works in any manner or form.

The Convention does make special provisions for educational needs. It allows member states to permit the reproduction of copyright-protected works in certain special cases, but the reproduction can't interfere with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the author. The copyright owner still has the exclusive right to undertake certain acts with his work, but the law recognises some uses of copyright-protected works do lie outside the owner's control. These are the exceptions to the exclusive right. While many users regard these exceptions as their rights, they are technically exemptions from liability or defences for acts that would otherwise infringe copyright law.

The South African Copyright Act sets out general exceptions from the protection of literary works. Section 12(1)(a) says fair dealing of a copyright-protected literary work is permissible for the purpose of research or private study or for the personal or private use of the person using the work.

What exactly is fair dealing?

Fair dealing allows a user to copy, for their own study or research or private use, as much of the work as they need to meet their reasonable needs, without seeking permission from the copyright owner or paying compensation.

How much may I copy under fair dealing?

The Act doesn't give us a precise definition, so we can't say how much! It depends on the circumstances of each case. South African law does not specify that 5%, or 10%, or 20% - or any percentage - is "fair", and it doesn't say that you can make a single copy as long as it doesn't constitute a "substantial amount". If you were to copy a large portion of a book or journal, and were charged with infringing copyright, it would be up to you to convince the court that your actions were fair.

Copyright experts agree that fair dealing is a question of fact and impression based on the circumstances. In some circumstances taking too much of a work, or even taking small amounts of a work on a regular basis, would not be fair.

Fair dealing is not quantified in any law because it depends on a particular set of circumstances. Some countries have developed voluntary guidelines, e.g. in Norway 15% of a complete work or 30 pages, whichever is the lesser, is considered fair for private use. In Britain the Publishers' Association, the Writers' Guild and the Society of Authors say one copy of a maximum of one chapter in a book, or 5% of a complete work for research or private study is fair. The British guidelines have no legal force, but could be used to persuade a South African court.

As well as research or private study, personal or private use, the South African Copyright Act considers it fair dealing to use a work for the purposes of criticism or review, or for the purpose of reporting current events in a newspaper, journal or magazine. You may quote in print from a published copyright protected work in certain circumstances - but, again, no limits are specified. You must always acknowledge the source and the author.

Is there any difference between fair dealing and fair use?

In the United States, fair use is by law determined qualitatively and quantitatively. Section 107 of the US Copyright Act uses these four factors:

  • The purpose and character of the use
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the whole
  • The effect of the use on the potential market for the work

What about multiple copies?

South African copyright law doesn't specify how much you may copy within the bounds of fair dealing, but it is clear that it must be for your own use. So, multiple copies are outside of fair dealing.

The essence of fairness

It is not 'fair' to deprive authors and publishers of their rightful income. Authors and publishers earn an income, not merely from selling their books, journals or periodicals but also from the fees collected for sub-licences. These include licences to copy by reprographic reproduction. If your copy deprives the rightsholder of income, then it's not fair, and you can't regard it as fair dealing.

general info

Find out more about reprographic rights

Contact DALRO if you need to make photocopies in multiples. We'll help you identify which method of licensing will best suit your needs and how exactly to go about getting your licence.

Where can I get a licence to photocopy a whole book?

DALRO may not allow the reproduction of whole books, either by a transactional licence or under a blanket licence. It's unlawful to reproduce a whole book instead of buying it.

Licensing allows numbers of students and professional employees, who would in any case not have bought the published work, to lawfully gain access to a photocopied extract from it.

This applies even if the book is out of print

If the book is out of print and unavailable, DALRO will approach the publisher to clear the permission transactionally.

DALRO doesn't own the copyright in the works

DALRO doesn't own copyright at all. It is mandated by the rightsholders (authors and publishers) to administer their reprographic reproduction rights. DALRO receives these mandates in three ways:

  • By direct assignment from the author or publisher
  • Through an association such as the Publishers Association of South Africa (PASA), which has already collected in the mandates of its individual members and passes them on to DALRO through a contractual arrangement
  • Through bilateral agreements with RROs in other parts of the world

DALRO has an extensive repertoire of works

DALRO is able to license the reprographic reproduction of the great majority of works published in South Africa, Argentina, Australia, Belgium, Canada, Denmark, France, Germany, Greece, Ireland, Mexico, New Zealand, Norway, Singapore, Switzerland, the United Kingdom, the United States and Zimbabwe.

DALRO distributes the licensing fees to the rightsholders

After deducting an administration fee, DALRO distributes royalties to the authors and publishers whose works have been copied.

DALRO will prosecute copyright infringers

DALRO believes copyright correctness should be encouraged through persuasion rather than litigation. We aim to nurture a copyright-compliant society that respects intellectual property. However, if we can't persuade a user to obtain a licence for the reproduction of a copyright work , DALRO would have to protect and defend the rights of its constituents.

With easy and cheap access to published works through licensing, there is no excuse for copyright infringement. Theft of intellectual property is not only against the law, but also morally unacceptable.

licensing

How does Licensing work?

As an RRO, DALRO's core function is to grant licences for the reproduction of extracts from copyright-protected published works. These would be for internal use in an educational institution, an organisation or a company.

In this way, the institutions pay a small fer to make multiple copies - legally. This money is then channelled back to the rightsholders.

Copying takes place everywhere and represents a massive use of published materials. If it's not regulated the livelihood of authors and publishers is threatened. There are functioning RROs in almost 50 countries around the world and under the collective administration of rights system, authors and publishers combine to mandate RROs to offer solutions to the problems of mass unauthorised copying. This solution is to give users easy and cheap access to the necessary materials while securing payment for the rightsholders.

Worldwide, reprographic reproduction (or photocopying) is licenced by RROs in one of two ways:

  • A Transactional Licence
  • A Blanket Licence

The best licence will depend on the institution's needs and resources.

Contact DALRO if you need to make photocopies in multiples so we can help you decide which is the best licence for you.

After deducting an administration fee, DALRO distributes royalties to the authors and publishers whose works have been copied. This gives rightsholders an alternative revenue stream for the legitimate use of their Intellectual Property.

DALRO also licenses Media Monitoring Organisations for the use of copyright-protected material. To find out more about this particular licence contact Sarah-Jane Bosch on 011 712 8398 or This email address is being protected from spambots. You need JavaScript enabled to view it. or download the licence here.

Transactional Licensing

What is Transactional Licensing?

A transactional licence authorises an institution, organisation or company to reproduce a set number of copies of a defined number of pages of a specified work for internal use.

The licensee has to apply for the rights in advance. DALRO needs full details of the title of the work (book or journal); title of the article (if a journal article); author(s) or editor(s) of the book or author(s) of the journal article; ISBN or ISSN of the book or journal; the number of pages to be copied and the number of copies to be made of those pages.

DALRO then grants the rights at a set fee per copy per page.

If you would like to find out more please contact us here.

Blanket Licensing

What is Blanket Licensing?

A blanket licence gives the licensee (currently only educational institutions) comprehensive, authorisation to copy from published editions if DALRO manages those rights.

The licensee concludes an agreement with us, and receives advance permission to copy in line with the licence agreement. It then reports back on exactly what and how much it's copied.

A blanket licence doesn't mean the licensee has permission to copy anything! It can't copy entire books for instance. The terms of the blanket licence clarify where and how much the licensee can copy.

If you would like to find out more please contact us here.

Reprographics - FAQ

Reproduction FAQ

Do I need a licence to photocopy a chapter from a book?

You do not if it's for your own personal and private use. You can find out more about private use in the fair dealing section.

Am I allowed to photocopy 10% or less of a published work?

No. The Copyright Act says nothing about 10% or about any other percentage. 10% may be 'fair' but then again, it may not, because the test for fair dealing is qualitative and quantitative. Find out more about this in the section on fair dealing.

Can I put a photocopy of a journal article on short loan and let my students make a copy?

No. This would infringe copyright, and isn't part of fair dealing.

How about if I make the journal itself available for the students to copy?

Each student may make a 'fair dealing' copy, but 100 students each making a copy results in 100 copies. This isn't likely to be 'fair' in court.

Do I need a licence for electronic distribution?

Yes. You need a licence even if you scan a short extract from a book, or an article in a journal into your computer and transmit it electronically to your students.

How will I know what I must licence for?

We presume every student in the class will receive an electronic copy. So, you must licence the number of pages in the original (print) work x the number of students in the class.

May I download and print out an article from the Internet and photocopy it for my class of 20 students?

You may print out a copy for your personal or private use (if there are no technological measures preventing you from doing so) but you may not further reproduce it for students. You need permission from the rightsholder to do this.

May I copy a page from a book or journal to project on an overhead projector?

Yes. This is allowed in terms of Section 12 (4) of the Copyright Act.

If I don't exceed the number of instances of multiple copying, why should I get a licence?

The instances of multiple copying for educational purposes refer specifically to 'classroom use or discussion'. If you're not using the copies in the classroom or for discussion, you need a licence.

How about newspapers and magazines?

Newspapers and magazines usually administer their own reprographic reproduction rights. You need to contact an editor at the publication to get permission. If the article has been contributed by a freelancer, he or she will often own copyright, but your first stop will be the publication itself.

Can I go ahead and copy if the book I want to copy from is out of print?

No. 'Out of print' does not necessarily mean 'out of copyright'.

In South Africa, copyright lasts for 50 years after the death of the author. There are also two copyrights in every published page; the author may own copyright in the content and the publisher owns copyright in the published edition, or the typographical arrangement on the page. Copyright in the published edition lasts for 50 years from the end of the year in which the work was first published.

May I copy if the book is out of print and unavailable?

Publishers and authors don't only exploit a work when it's in print, and sales aren't the only means of exploiting a work. Long after a book is out of print it may still generate revenue for its creators through, e.g. translation rights, film rights and reprographic reproduction (photocopying) rights.

What about photographs, drawings, graphs, maps and so on?

These are all defined as 'artistic works' in the Copyright Act, and are copyright protected.

May I copy Masters or Doctoral theses in educational institutions' libraries or archives?

A thesis or dissertation is not a published work, but it is still copyright protected. The author of the work is the copyright owner unless he has assigned copyright in writing to the institution.

Since DALRO does not own copyright in the books and journals, how can it licence the photocopying of them?

It is not necessary to own copyright in a work to licence its reprographic reproduction.

Copyright consists of a whole bundle of rights: the right to reproduce a work; to publish it; to publish it in a certain territory, or in a certain language; to adapt it (make a film script from a book or turn a long and complex novel into a easy reader for adults); to include it in an anthology of short stories and poems, and so on.

To licence a photocopy, a person or entity other than the copyright owner, needs only to possess the right of reproduction, which DALRO does.

How does DALRO get the right of reproduction?

It enters into agreements with authors and publishers and is mandated to administer this right.

Why should I have to pay copyright fees? Isn't information supposed to be free?

The royalties collected by RROs are distributed back to the rightsholders, the people who have, through their mental efforts, created the intellectual property. Without reimbursement, they have little incentive to go on creating, and there would be no information. In any case, no photocopied page is free: you pay for the paper, the ink, the toner and the use of the machine. When you pay a copyright fee as well, you also pay for the content - arguably the most valuable element of the photocopied page.

Reprographic Reproduction Rights

What are Reprographic Reproduction Rights?

Reprographic reproduction rights are the rights an institution, organisation or business needs to make reproductions (e.g. photocopies) from copyright-protected works.

How does DALRO fit in?

DALRO grants these rights by issuing either a transactional licence or a blanket licence.

Local publishers and authors give us the mandate and authority to issue licences for the reprographic reproduction of their copyright-protected works. We're also part of a wider community of Reproduction Rights Organisations (RROs) affiliated to the International Federation of Reproduction Rights Organisations (IFRRO). Through this membership, and the bilateral agreements we've signed with sister organisations, we can also issue licences for the reprographic reproduction of foreign publications.