The effect of copyright term length on South African book markets (with reference to the Google Book Project)

• Published date: 12 February 2020
• Pages: 71-98
• Date: 12 February 2020
• Citation: (2019) IPLJ 71
• Author: Heald, P.J.

71

THE EFFECT OF COPYRIGHT

TERM LENGTH ON SOUTH

AFRICAN BOOK MARKETS (WITH

REFERENCE TO THE GOOGLE

BOOK PROJECT)



Richard W. & Marie L. Corman Re search Professor, University of Illinois ( USA)

College of Law Fellow (2018), Stellenbosch Institute for Advance d Study (STIAS),

Stellenbosch Universit y

ABST RACT

Research on the ef fect of copyright ter m extension in the Un ited States demons trates

the negative effect of pro tection on the availabi lity of new bound edit ions, ebooks, and

audiobook editio ns of older works. Among the most popular t itles, copyright protection

is also associat ed strongly with higher pr ices in the US. Another rec ent study documents

the negative effect of cop yright term exten sion on titles available for e-lendi ng in the US,

Australia , New Zealand, and Canad a. The present study mea sures the effect of copyr ight

on the availabilit y of bound volumes and ebooks i n South Africa, a jur isdiction currently

 

        

jurisdict ions, are also shown. Final ly, the article measures t he extent to which the Google

Books Project im proves the availability of book s in South Africa.

KEYWORDS: copyr ight term exte nsion; bound edition s; ebooks; audiobooks; Go ogle

Books Project; Sou th Africa

  

In July 2018, US Trade Representative Rober t Lighthizer expressed the desire

‘to pave the way for a free trade agr eement between Washington and sub -

Saharan African countries’.1 Although he provided few details, bi-lateral

and multi-lateral tra de agreements with the US ty pically require all tra ding

partners t o extend the duration of copyright to 70 years beyond the life of the

author. The term of copyright i n South Africa is cur rently shorter, life-of-

the-author plus 50 years,2 same a s Canada, New Zealand, C hina, and Japan.

                   

Advanced Study (STI AS), Wallenberg Research C entre at Stellenbosch Un iversity, Stellenbosch

7600, South Afr ica. I would also like to tha nk my research assist ants, Jill Crandal l and Adetutu

Okusaga, No pa rt of a previous sma ll grant received f rom Google was used t o finance th is

research.

1 Tralac ‘US, Af rican officials p repare for post AGOA trad e future’, available at htt ps://www.

tralac.org/news/article/13284-us-african-officials-prepare-for-post-agoa-trade-future.html

(accessed on 29 Octob er 2019).

2 Section 3(2) of the Copyr ight Act 98 of 1978.

(2019) IPLJ 71

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Canada, however, will soon be forced to exte nd copyright protection an extra

20 years as part of the new Nor th American Free Trade Agreement,3 and New

Zealand narrowly avoided having to change its law when t he US withdrew

 

Zealand’s copyright term was descr ibed by one economist as a ‘dead rat’ that

its citizens would have to consume as t he price for increased trading with the

US.4

Recent empirical resea rch on US book markets supports the ‘dead rat’ claim,

that extending the te rm of copyright is associated w ith negative effects on

consumer welfare measu red by higher book prices and decreased availabilit y

of new editions of book titles for purchase and e-lendi ng.5 Whether this

research tran slates into other markets, like t he Republic of South Africa, is

unclear for several reasons. First, t he US copyright ter m is unique. In the US,

works published more than 95 years ago are al l in the public domain. Works

published between 95 years ago and 1964 are prote cted by copyright for 95

years after publication, but on ly if they were properly registered and renewed.

Works published between 1965 and 1978 are protected for 95 years regardless

of renewal status, and works published af ter 1978 have a term of life-of-the-

author plus 70 years.6 Works in South Africa are gener ally protected by a less

byzantine ter m of the life-of-the-author plus 50 years.7

Secondly, the US and South Africa are at di fferent stages of economic

development. The creative industr ies in the United States and South Af rica

may therefore not respond in the same way to legal cha nges to their respective



smaller than in the US. New busines s models designed to take advantage of

3 Agreement be tween the United St ates of America, t he United Mexican St ates, and Canad a

Text, art 20.63, available at htt ps://ustr.gov/sites/default/f iles/files/ag reements/FTA /USMCA/

Text/20_Intellec tual_Prope rty_Rig hts.pdf (accessed on 29 Oct ober 2019).

4 Eric Cr ampton ‘Copyright D ead Rats, Bon Appetit’ The Ne w Zealand Initiat ive, 12 Februar y

2016, available at https://nzinitiative.org.nz/repor ts-and-media/opinion/copyright-dead-rat s-

bon-appetit (acc essed on 29 October 2019) (discussing of co pyright protec tion available to

internat ional innovators wi thout the TPP).

5 R Giblin et al ‘Wh at can 100,000 Books Tell us about t he Internationa l Public Library E -lending

Landscape’ available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3354215 (accessed

on 29 October 2019); PJ Heald, K Erickson an d M Kretschmer ‘The Valuation of Unpro tected

Works: A Case Study of Publ ic Domain Images on Wik ipedia’ (2015) 29 Harv. J. of L. & Tech.

1; PJ Heald ‘How Copyright Keeps Works D isappeared’ (2014) 11 J. Empirical Legal Studies

829; PJ Heald and C Buccafus co ‘Do Bad Things Hap pen When Works Fall Into T he Public

Domain’ (2013) 28 Berkeley J. of Law & Tech. 1; PJ Heald ‘Proper ty Rights and the Effic ient

Exploitation of Copy righted Works: An Empirica l Analysis of Public Domain a nd Copyrighted

Fiction Bestselle rs’ (2008) 93 Minn. L. Rev. 1031; X Li, M Macgarvie and P Moser ‘Dea d Poets

Propert y: How Does Copyrig ht Influenc e Price’ (2018) 49 Rand J. of Econ. 181; I Reimers

‘Copyright and G eneric Entry i n Book Publishi ng’ available at https://pape rs.ssrn.com /sol3/

papers.cfm?abst ract_id=2938072 (accessed on 29 October 2 019); B Biasi and P Moser ‘Effect

of Copyrights o n Science’, available at https://pape rs.ssrn.com /sol3/papers.cfm?abstra ct_

id=2542879 (accessed on 29 Oct ober 2019).

6 Section 301 of the Copyr ight Act 1976, 17 USC.

7 S ections 3(2)(b)–(f) and 3(3) of the South Afr ican Copyright Act prosc ribe a shorter ter m of 50

years from publ ication or ‘making avail able’ for works like films , sound recordings, b roadcasts,

and anonymous works.

72 South African Intellectual Property Law Journal (2019) 7

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