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LEGAL DEPOSIT OF BOOKS



The aspect of Pippa's legal deposit case in South Africa which
interests me the most is whether the courts had come up with a
decisive definition of a "book".  After all the discussion and
controversy as to what constitutes a book, wouldn't it be nice of the
Supreme Court (even if only in South Africa) gave us a definition!

In the catalogue to our Artists' Book Exhibition in Johannesburg last
year, I remarked:
"One cannot assume that the definition of a book, let alone an
Artist's Book, is understood by all, but indubitably the book arts
have infinitely expanded that definition.  The definition of a book
(like the Duchampian definition of art itself) can now mean any object
which a book artist defines as a book!  All the usual criteria have
been breached, infringed and transgressed.  The Oxford English
Dictionary (O.E.D.) entry for "book" is surprisingly wide and not
just, say, "a repository of information, usually printed on paper and
bound for ease of use and portability".  Part of the long O.E.D. entry
(running to over seven pages) reads:  [I then quoted the interesting
parts of that definition].

It is really interesting that both the OED definition of "book" and
the South African Supreme Court's is surprisingly wide and inclusive -
perhaps even more so than some book artists would concede.

The act under which Pippa was obliged to deposit her book is The Legal
Deposit of Publications Act 17 of 1982.  Section 1 of the Act defines
the word "publication" to include "a printed book, newspaper,
magazine, periodical, journal, pamphlet, brochure, sheet card or
portion thereof or any similar printed matter".  This is not much help
as far as the definition of "book" is concerned bar the fact that
"publication" includes "book".  It is interesting that, Pippa's
counsel sought to restrict the definition of "book" so that her
artist's book would fall outside of the definition of the Act.  For
those of you interested, I will quote from the judgement in the case,
below.  The history of Artists Books has been to widen rather than
restrict the definition of "book".

Of course, the definition of "book", whatever it may be, does not
detract from the fact that book artists are expected to provide the
state with a free copy of their work when, and only when, it is also a
"book".  This seem grossly unfair and, had the new South African
Constitution been passed when the judgement was given, the judgement
might have been different (and probably would be on appeal to the
Constitutional Court).  Why should artists producing an editioned
graphic not be included?  And what about graphics in a portfolio?  Are
portfolios "books"?

Some years ago when importing an artist's book into South Africa, the
Customs insisted that the "object" was art (which attracted import
duty) rather than a book (which did not).  The term "artist's book"
was simply considered confusing!  It would seem the State wants to
have it both ways!

My views on the matter differ from Pippa's, I think, in that I believe
that libraries will be the poorer if they do not have a comprehensive
collection (or a collection which excludes Artist's Books).  South
African libraries, being under-funded, would probably not consider
acquiring Artist's Books, being a minority interest.  As a collector,
I would regret not having such books available for inspection by the
public.  In South African law, under the Act, the Minister is allowed
to exclude from the operation of the Act any publication he wishes,
but, to my knowledge, has not done so.  While it is obvious that
unique book-works cannot be deposited, and for an edition of, say, two
copies, it would be unrealistic, at what number would it be fair for
the State to demand a copy?  I suggest that editions under ,say,
fifity copies should be exempt, on the theory that the artist should
be able to factor the cost of the depository copy into an edition of
over fifty copies.  This would mean that the subscribers (purchasers)
of the full edition would be funding the despository copy.  I believe
this makes more sense than exempting books over a specified price.  In
South Africa we (as in the UK) have about five depository libraries
scattered around the country but it seems to be accepted that, for
very limited or expensive editions, only the State Library (in Cape
Town) will demand a copy.  I do not know whether this is legislated or
just practice.

Here follows an extract from the judgement in Pippa's case which is
rather long - so ignore if not interested.  I hope it may be of
interest to some of you!  In particular for Sam Lanham who said "Tell
us more".

Extract from the Judgement of Vivier JA in Case  number 339/95:
"[Pippa's] counsel submitted that the work was not a "printed book" as
defined in the Act.  He ... submitted that the words which follow
"printed book" in the definition clause i.e. "newspaper, magazine,
periodical journal, pamphlet, brochure, sheet card" restrict the
meaning to be given to "printed book".  The submission was that these
items were all mass-produced, inexpensive, machinery-produced
publications involving essentially commercial printing by means of
which a large number of identical copies came into existence.  Counsel
submitted that the works were not of such a kind.  ...In the present
case there is no determinable limitation to the words "printed book"
to be found in the context.  To mention only two vague and uncertain
aspects of the suggested limitation: when does a printed book become
mass produced or inexpensive?  With regard to the submission that only
inexpensive "copies" were intended to be hit by the Act I should point
out that section 2(4)(d) of the Act expressly provides that the
obligation to supply a free copy to the [legal deposit library]
extends to a deluxe edition of a publication.

There is no warrant for a restrictive interpretation of the words
"printed book" to be found in the scope and purpose of the Act either.
 It was not in issue that the Legislature's intention in passing the
Act was to build up a national collection of books providing a record
of cultural and scientific activities.  To this end legal deposit
libraries were empowered to collect, preserve and index published
material as fully as possible and make it available for study and
research purposes in order to enrich the cultural and scientific life
of the present and future generations of South Africans with specific
reference to literature.  By using the word "publication" in section
2(1) of the Act as opposed to "book" in the corresponding sections of
the previous statutes dealing with legal deposit...the Legislature, in
my view, clearly intended to widen the ambit of the requirement that
free copies be supplied to legal deposit libraries.

Counsel for [Pippa] submitted that the words "printed book" should be
given the restrictive interpretation contended for since a grammatical
construction of these words would lead to a result which was so
clearly unjust, unreasonable and absurd that it could never have been
contemplated by the Legislature.  He submitted that there may be cases
where only one or two specimens of a book are published and offered
for sale in the Republic and that it would be unreasonable and absurd
to require the publisher to supply one free specimen to the legal
deposit libraries.  The Act, however, provides for exemptions from the
obligation to supply free copies and for exclusions from the operation
of the Act.  Section 3(1)(a) provides that if the Minister is of the
opinion that the publisher of any particular publication will, owing
to the high cost of the publication, suffer serious financial hardship
if he supplies a free copy to every legal deposit library, he may
exempt such publishers from the obligation in respect of such legal
deposit libraries as he may specify.  In terms of section 3(1)(b) the
Minister may not so exempt a publisher from the obligation in respect
of [Pippa].  In terms of Section 3(2) a legal deposit library is
itself empowered to grant exemptions from the said obligation.
 Seciton 4(1)(c) of the Act provides that the Minister may ... exclude
from the operation of the Act any publication or publication belonging
to any category of publications.  There is no provision similar to
Section 3(1)(b) limiting the Minister's power under Section 4(1)(c) to
legal deposit libraries other than [the legal deposit library in
question].  It would thus be open to him, should he consider it to be
justified, to exclude from the operation of the Act, a publication of
which there are so few that it would be unreasonably burdensome to
require a free copy to be supplied.

In terms of Section 2(1)(b) of the Act a publisher only has to supply
a free copy if more than one copy [is] intended to be sold.  In the
case of the publication for a single specimen of a book postulated by
counsel for [Pippa] the obligation cannot therefore arise.

I am accordingly unable to agree with the submission that a literal
interpretation of the words "published book" will lead to a result
which is absurd or unreasonable.  In my view no reason exists for not
giving the words their ordinary grammatical meaning.


Jack M. Ginsberg
Tel (H): +27-11-646-8279
Tel (W): +27-11-477-3331
Fax (H): +27-11-477-7141
Fax (W): +27-11-477-6610
E-mail: jackg@cjpetrow.co.za


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