Denise Rosemary Nicholson
Scholarly Communications Librarian,
University of the Witwatersrand, Johannesburg
In his online newsletter, President Ramaphosa regularly speaks about unemployment, poverty and various socio-economic problems that are negatively affecting millions of people in our country. He stresses the importance of education, social upliftment and the need to improve the lives of people with disabilities. He stresses the importance of a reading culture and an employed public. He talks about the various Government initiatives and plans underway to address many of these issues. Yet, he fails to acknowledge that access to information and knowledge-sharing are key elements for socio-economic development and advancement, teaching and learning, as well as creativity and innovation in South Africa.
The COVID-19 has not only harmed the economy, education, health, and livelihoods of millions of South Africans. It has certainly highlighted the long-known inadequacies and restrictions in the current copyright law that negatively affect access to information, knowledge-sharing, and the provision of relevant teaching and research materials.
Since 27 March 2020, South Africa has been under strict lockdown conditions. On level 5, libraries and archives, museums, educational institutions and businesses were closed at very short notice. Access to hard-copy study material, multimedia and other works in library and related collections became totally inaccessible. Educational institutions at primary, secondary and tertiary level had no way of providing courses or teaching material unless they went online immediately. As a result, educators and librarians were forced to provide course and other study materials via e-learning platforms, resulting in unforeseen expenditure on technology and equipment, data, training, software, and other related necessities, as well as unplanned copyright fees.
The current copyright law does not address the digital environment and creates many barriers and challenges for educators and librarians, who are trying their best to provide study material in very difficult circumstances. Inadequate limitations and exceptions and restrictive licences, especially relating to e-books, prevent or limit what can and cannot be used, shared, converted, or uploaded to e-learning platforms. Even those institutions with blanket licences with collecting societies have had to find additional funding for transactional licences to use extra materials which are not available from libraries. In addition, public libraries that, as a matter of course, promote authors’ works by reading books to school-children and in their reading circles, have been forced to apply for copyright permission to read books on online platforms, or to use alternative material for this important library function.
As EIFL states “In countries where copyright laws have a good range of digital exceptions for libraries, research and education, a flexible fair use-type exception, and a provision that protects library exceptions from being overridden by licence terms, libraries are best placed to support research and education”.
Well, South Africa has a progressive Copyright Amendment Bill. It was approved by Parliament on 28 March 2019 and proposes to update our forty-two year old Copyright Act and quantum leap our copyright law into the 21st century. It has fair and appropriate limitations and exceptions for education and research, libraries and archives, museums and galleries, and for persons with disabilities, many of which are modelled on progressive copyright laws in developed countries. The Bill also enables preservation in the digital space, format-shifting, deposits in open access institutional repositories, legal deposit of our documentary heritage, and inter-library loans. It give authors and creators more control over their works and regulates collecting societies, so they get a fair share of royalties from now on. Most importantly, it facilitates better access to information and knowledge-sharing for all South Africans, whether users, custodians, or producers of intellectual property.
Had the Bill been enacted last year, its limitations and exceptions would have been exceptionally helpful for educators, librarians, students, researchers, authors and creators, as well as people with disabilities, during the lockdown. Although lockdown is now on level 3, the situation for educational institutions and libraries continues, as most of them remain closed and online teaching is the only mode of teaching for the majority of students and school-children at the moment.
On the 16 June 2020, the copyright reform process in South Africa was unfortunately stalled. As a result of BlindSA’s ConCourt action to get the President to act in terms of Section 79(1) of the Constitution, President Ramaphosa decided to refer the Bill back to Parliament on the grounds of constitutionality concerns.
What is of grave concern is that the President ignored all the above issues and needs in the educational and library sectors and succumbed to pressure from the US Trade Representative, through public hearings, and more secretly, the European Commission, to stall copyright reform in South Africa or face negative consequences for trade. In both instances, interventions were orchestrated by lobbyists in major entertainment organisations, mainly in the US.
The referral of the Bill may be a perceived ‘win’ for multi-billion-dollar conglomerates but it’s a sad day for access to information for education, research, libraries, archives, digitization, people with disabilities, as well as for authors and creators who all need these exceptions in a digital world. As this statement shows, the further delay in updating the current copyright law is a sad day indeed for the youth of South Africa.
The International Federation of Library Associations and Institutions (IFLA)’s General-Secretary, Gerald Leitner states – “It is disappointing to see that learners, researchers and creators in South Africa will need to wait even longer for an already long-overdue reform, and particularly so given that the issues raised in the President’s statement have already been extensively discussed. … I hope that the South African Parliament will now stay true to its desire to support education, innovation, creation and development, and move rapidly to pass a law that will provide a model for the continent and the world.
Despite sending the Bill back to Parliament, the President has failed to provide concrete grounds for his concerns around constitutionality. His reservations are not supported by the law. His letter almost mirrors one particular submission to Parliament by a senior counsel on behalf of a group of rights holders. The President does not seem to have perused the many other submissions to Parliament, and in particular, a formal Opinion sent to his office and Parliament by Senior Counsel Susannah Cowen and two advocates from the Johannesburg Bar. He also surprisingly included quotations, news of the day, and interlibrary loans in his list of constitutionality concerns, yet these matters are not new, nor unconstitutional. They have been part and parcel of the current copyright law since 1978, except that they will now apply in the digital environment.
It is hoped that Parliament will address the constitutional concerns raised by the President astutely, transparently, and expeditiously, so that the Bill can be assented to in the not-too-distant future.
One has to ponder: Is the referral back to Parliament a genuine concern for constitutionality in the Bill, or has it become a game of politics for foreign governments and international conglomerates to stop South Africa from adopting similar copyright limitations and exceptions that they have enjoyed for decades?
Access delayed is access denied!
