Literal Extortion

Posted on Jul 24, 2014

Literal Extortion

The verb “extort” means “obtain (money, a promise, a concession, etc.) from a reluctant person by threat, force, importunity, etc.)” The noun form, “extortion”, means “the act or an act of extorting money etc.” (The New Shorter Oxford English Dictionary published by Clarendon Press, 1993). Requiring someone to pay copyright royalties for a manner of use of a literary work, when none is due in law, amounts to literal extortion. It is not a salutary practice.

Copyright in a work confers upon the copyright owner the exclusive right to perform certain acts in relation to that work (so called “restricted acts”). If any restricted act is performed without the permission or licence of the copyright owner, copyright infringement can take place. In the event that another party wishes to perform a restricted act, the permission of the copyright owner must be sought and granted in order that it might be lawful. Generally, when granting such a permission or licence copyright owners require payment of a monetary consideration, commonly referred to as a royalty. The corollary of this situation is that royalties are only payable when permission has been granted to do something which, in the absence of permission, would constitute copyright infringement. If an act performed by another person in relation to a copyright work does not in principle constitute copyright infringement, there is no basis nor justification for the payment of royalties to be required.

It has recently come to the fore that in certain circles in the publishing industry royalties are unjustifiably being required to be payed for the use of quotations from literary works. In copyright law a literary work in essence amounts to a work that is an expression in words of the results of intellectual activity, in a material form. Literary merit is not required. The perpetrators of the practice of requiring royalty payments for the use of quotations from works include publishers who hold rights (or purport to hold rights) in textbooks, law reports, dictionaries and even legislation, all of which are species of literary works. In a particular case, royalty payments are expected for using quotations from a variety of sources in a legal text book on the subject of intellectual property intended for use in education. This is indeed an extreme case in which to demand payment of royalties for the use of quotations. The authors of a book incorporating copyright law ought, after all, to have some knowledge of the circumstances in which copyright royalties are payable, and when they are not payable. Against this background it is expedient to discuss and elucidate the manner in which our copyright law approaches the question of the use of quotations from literary works in the course of writing and publishing other literary works.

A written text such as is contained in a book, a statute, a court judgement or in a dictionary, being a literary work for purposes of copyright law, enjoys copyright automatically, provided certain conditions are met, and more particularly the work must be original to the author claiming copyright. The making of an unauthorised reproduction of a substantial part of a copyright work in principle constitutes copyright infringement. Prima facie the taking of a quotation of a literary work without the authority of the copyright owner may constitute copyright infringement. However, the matter does not stop there because the legislature, in its wisdom, has incorporated certain exceptions to this general principle in the Copyright Act, in the public interest. These exceptions, or exemptions from copyright infringement, are instances where the legislature has weighed up the rights of the copyright owner against the reasonable entitlements of users of works in order to create an equitable balance between them in the public interest, and has elected to mitigate the effects of copyright in works in favour of the general public.

Indeed the basic principles of copyright law themselves seek to create something of a balance of this nature. The copyright in a literary work is not infringed by reproduction unless the person making the reproduction takes a “substantial part” of the source work. What in any given situation constitutes a “substantial part” of a copyright work is a moot question and has been the subject of many court cases. The criterion is said by the courts to be a qualitative and not a quantitative measure. Nevertheless, where a verbatim reproduction of a portion of a work is made, as in the case of a quotation, the quantity of material used is not without significance. It suffices to say for present purposes that no infringement occurs if reproduction of less than a substantial part of the source work occurs. It is conceivable that quotations entailing the use of less than a substantial part of a literary work can be made, and in this case there can be no question of copyright infringement taking place.

Perhaps because of the indeterminate nature of precisely what constitutes a “substantial part” of a work, the legislature has specifically addressed the question of taking quotations from literary works in section 12(3) of the Copyright Act. This section reads as follows:

“The copyright in a literary or musical work which is lawfully available to the public shall not be infringed by any quotation therefrom, including any quotation from articles in newspapers or periodicals that are in the form of summaries of any such work; Provided that the quotation shall be compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose and that the source shall be mentioned, as well as the name of the author if it appears on the work”

In terms of this section, even if a substantial part of a work is taken (thus potentially rendering the reproduction an infringement of copyright if done without authority), the use of a quotation within the parameters of the section is exempted from constituting copyright infringement. There is no mystery about this section. Its meaning is clear. Quotations may freely be taken from literary works provided the conditions set out in the section are met.

In regard to the question of non-infringing reproduction of work, the legislature has gone even further in respect of certain types of literary works. Section 12(8) (a) of the copyright act provides that “no copyright shall subsist in an official texts of a legislative, administrative or legal nature, or in an official translations of such text, or in speeches of a political nature or in speeches delivered in the course of legal proceedings, or in news of the day that are mere items of press information.”

Statutes and other legislative instruments such as regulations, and court judgements, are amongst the types of works which fall within this exemption. It goes very far and not only does it allow reproduction in certain circumstances, but rather it declares that the works in question do not enjoy any copyright at all and in fact are in the public domain. They are therefore free for use by all in whatever manner or measure.

It will be apparent that the legislature has bent over backwards to allow the use of quotations from literary works in a manner and in circumstances which are reasonable. While the Copyright Act, 1978, ante-dates the South African Constitution, the provisions which have been discussed are consonant with the principle of freedom of speech enshrined in the Bill of Rights. The court will undoubtedly take account of the individual’s right of freedom of speech when interpreting the provisions of the Copyright Act which have a bearing on the use of quotations.

That is all well and good, you may say, in regard to South African works, but what about foreign works, for instance British text books, which are written and published in countries where the legislature is perhaps less generous in making provision for the use of quotations? The simple answer to the question is that the fact that a source work has a foreign origin is of no relevance whatsoever. The same principles which apply to South African works, apply equally to foreign works. The reason for this is the principle of so called “national treatment” which applies internationally in copyright law. In terms of this principle, to which South Africa and virtually all countries throughout the world subscribe, works of foreign origin are to be protected in a particular country as though they were national works. The provisions of the South African Copyright Act thus apply entirely to works of foreign origin and the copyright laws of their country of origin play no role whatsoever, and in fact are irrelevant. This means that, although there may not be a general exemption allowing the use of quotations from a work in the copyright laws of the country of origin of a foreign work, in South Africa that work is subject to the exemptions contained in the South African Copyright Act.

As it happens, virtually all copyright laws throughout the world allow for the free use of quotations to some degree, although perhaps not to quite the same extent that the South African Copyright Act does. In Britain, for example, the matter is dealt with in the first place by determining whether a quotation amounts to the reproduction of a substantial part of a source work. As previously mentioned, determining what amounts to a “substantial part” of a work in any given situation involves making a difficult value judgement. However, there can be no doubt that many quotations will not constitute the reproduction of a substantial part of a source work. The use of such quotations without authority is permissible. Furthermore, there is a specific exemption in the British Copyright Act allowing the use of extracts or quotations of a substantial part of a work that is publicly available where that quotation is a fair dealing and is for the purposes of criticism or review of the work in question or of another work; due accreditation of the source must be given (a similar provision is to be found in section 12 (4) of the South African Copyright Act and this exemption thus also exists in South African law and further enables the free use of quotations). With regard, for instance, to a quotation used in a legal textbook dealing with statutory law, the statute under discussion itself constitutes a “work” for the present purposes. It is permissible to freely use reasonable quotations from another work (for instance a commentary on the law or a court judgment) in order to review or discuss the interpretation of that statute. However, that is by the way because, as explained, the provisions of the British Copyright Act are irrelevant to quotations made from a British work in South Africa. South African copyright law prevails in this instance.

So, reverting to the propriety of publishers demanding the payment of royalties for the use of quotations from literary works, whether local of foreign, in the course of writing another literary work, it is clear that such publishers are overreaching themselves. Provided the prescribed accreditation of the source of a quotation is duly given, there is no impediment under our law against quotations being freely used in the course of writing a literary work, if they are reasonable and their usage meets the prescribed formal requirements. This is particularly so where the nascent work is for use in education. The publisher of a statute, a court judgement, a dictionary, or indeed any literary work, that seeks to extract royalties for the use of a reasonable quotation from its work, is acting without any legal foundation. That publisher, whose business is perforce founded upon, and steeped in, the application of copyright law, ought to know better and this practice is to be deprecated and ought to be discontinued. It amounts to the disregard of the public interest as identified and recognised in the Copyright Act and of the principle of freedom of speech enshrined in the South African Constitution. Literal extortion by publishers requiring royalty payment for the use of quotations is beyond the pale.

Prof Owen Dean