(Also see Philippa’s post on this startling turn of events.)
An unexpected visitor
On the 7th May 2013 16h22 an attorney arrived at our office with a stack of papers giving us notice that Mamphela Ramphele intended to take a case up against New Africa Books (PTY) Ltd (First Respondent) and Paperight (PTY) Ltd (Second Respondent).
The notice prevented us from doing any act that related to the book authored by Mamphela Ramphele and entitled Mamphela Ramphele: A Life, including producing, publishing and distributing the book. We were ordered as the second respondent to remove all copies and references to this book from our website and our outlets within 10 days of receiving this order.
We were also notified that we would be liable as respondents to pay the costs of the application and possible further or alternative relief. This came as quite a shock to us as we were given permission to add this book to our website as New Africa Books was the title owner.
We got in touch with New Africa Books to find out what had taken place. There was quite a complex story involved where there was some confusion about who was the current title owner, New Africa Books or Mamphela Ramphele.
We took the book off of our website and drafted an affidavit which was sent through to our lawyer to explain what took place. The case against us was dropped as we had not infringed any copyright agreement.
Our drafted affidavit
Paperight acts as a distribution service for Rightsholders by allowing printing businesses to licence and legally print out books and other paper documents from its website.
Rightsholders register on the Paperight website and provide Paperight with content that they would like distributed through the Paperight network.
Rightsholders charge a licence fee through the Paperight website to printing businesses to allow them to legally print out copies of documents.
Paperight ordinarily takes 20% of each licence fee earned by a rightsholder through the Paperight website.
Rightsholders are required to agree to Paperight’s Rightsholder Agreement – or negotiate and sign a separate legal contract if the Rightsholder objects to any of the terms of the regular Agreement – when they sign up with the Paperight service.
New Africa Books (Pty) Ltd signed up with Paperight on 25 February 2013, and agreed to the standard Paperight Rightsholder Agreement in doing so.
Paperight was supplied with an original print copy of Mamphela Ramphele – A Life by New Africa Books (Pty) Ltd thereafter, as the latter was seeking to republish the book under its David Philip Publishers imprint.
The copy of Mamphela Ramphele – A Life supplied to Paperight from New Africa Books (Pty) Ltd was published by David Philip Publishers in 1995. Paperight digitised and uploaded Mamphela Ramphele – A Life onto the Paperight system on 17 April 2013.
Paperight released a press release, jointly with New Africa Books (Pty) Ltd, promoting the latter’s re-printing and “re-release” of Mamphela Ramphele – A Life and its distribution through bookstores and the Paperight network.
On 7 May 2013, Paperight was notified of a motion relating to copyright infringement of Mamphela Ramphele on behalf of New Africa Books (Pty) Ltd and Paperight, relating to the reprinting of Mamphela Ramphele – A Life.
As per Paperight’s Rightsholder Agreement, which New Africa Books (Pty) Ltd agreed to when they signed up to the Paperight service, “the Rightsholder warrants that it is the owner of, or is authorized to licence, the rights to all content provided to Paperight”.
The agreement further states that content provided by a Rightsholder “does not infringe on anyone else’s intellectual property or other rights”.
The Rightsholder Agreement states that “The Rightsholder will defend, indemnify and hold harmless Paperight […] against any third-party claims arising from a breach of this warranty”.
The onus of the legality of the content provided to and distributed by Paperight is therefore on the Rightsholder, in this case, New Africa Books (Pty) Ltd.
Paperight, therefore, cannot be held responsible for any infringement on Mamphela Ramphele’s copyright by New Africa Books. After being served with the notice, Mamphela Ramphele – A Life was taken off of the Paperight system at the discretion of Paperight’s employees.
From 17 April 2013 to 7 May 2013, New Africa Books (Pty) Ltd did not sell any copies of Mamphela Ramphele – A Life through the Paperight network.
As such, Paperight has earned no money or royalties from New Africa Books (Pty) Ltd’s distribution of Mamphela Ramphele – A Life.