By ReCreate South Africa
The cost of excluding billions of people in Africa and the Global South from access to knowledge could be huge for future generations. Knowledge-sharing in Africa is not always transactional, and the existing IP and copyright paradigms are not working well for creators or audiences on the continent. Creators are often poorly remunerated and in many cases audiences and students cannot afford access to knowledge and entertainment. Some global corporations take an extractive and exploitative approach to African creativity. Africa needs a new knowledge governance system to take into account the role of traditional and indigenous knowledge.
These were the main conclusions of an international conference entitled “Copyright and the Public Interest: Africa and the Global South” held last month in South Africa. The conveners were ReCreate South Africa, a coalition of creators and users of copyright material and conference participants included policy makers, creators, academic experts, educators and activists. The conference took place at the Mandela Institute, Law School, University of the Witwatersrand, Johannesburg (3 February), at the University of Cape Town Library (5 February) and at Innovation City in conjunction with the University of Cape Town IP Unit (6 February). This conference was a follow-on from ReCreate’s inaugural conference on the “Right to Research in Africa” held at the University of Pretoria and the University of Cape Town in January 2023.
You can watch the full conference sessions online.
IP as a tax on African Creativity: Protecting the Livelihoods of Creators
In his opening input, Ben Cashdan, convener of ReCreate South Africa and former economic advisor to President Nelson Mandela, said that IP royalties are a de facto tax on Africa. “Income from IP royalties on all creativity, on all inventions around the world, topped $1 trillion in the past 24 months for the first time, and the United States gets about $130 billion of that. Africa gets a tiny fraction. Could that be because we don’t have creatives? Could that be because we don’t have actors, writers, musicians? Obviously not. The system operates in such a way that we don’t get the fruits of our labor here in this country and on this continent.”
South African singer Mercy Pakela, whose music topped the charts in the 1980s, recounted how she had signed with record labels so that her music could be heard by music lovers around the world, but over 40 years later she still feels she has not received fair remuneration. Pakela said “I wish I knew then what I know now because then I did not know that it was business. I just wanted to be on stage. I thought it was just about talent.”
Jack Devnarain, Chairperson of the South African Guild of Actors highlighted that many performers in Africa die poor due to the power imbalance between artists and their distributors or rights owners. He pointed a finger at those whose business models restrict the livelihoods of African performers and who are opposed to copyright reform. “There are people, particularly the American-based organizations, the corporate giants in the Global North that are working very hard, and I’m talking about the publishers, the studios, the streamers, the broadcasters, that do not want South African actors to have a royalty earning right.”
South Africa’s CAB and Why Teachers Need Fair Use
The Copyright Amendment Bill (CAB), passed by Parliament in South Africa, but still awaiting the President’s signature, aims to solve the problem of exploitation of artists by introducing a right to fair royalties or equitable remuneration. The CAB also broadens access to knowledge for communities. Hence it addresses the needs of both constituencies, creators and users. The President has referred the Bill to the Constitutional Court over concerns that it may lead to arbitrary deprivation of property of rights holders.
Advocate Iain Currie, lawyer for ReCreate raised questions around whether Intellectual Property is property in the traditional sense and also challenged the view that adjustments to Copyright laws in the public interest are arbitrary. One of the main objectives of the CAB is to ensure that teachers and learners have access to educational materials, which is clearly a public interest goal.
According to Dr Mugwena Maluleke, President of Education International, “there is a shocking shortage of 44 million teachers worldwide. A major catalyst for this shortage is the inability to attract and retain teachers due to inadequate conditions for providing quality teaching,” including a shortage of textbooks and learning materials. “Fair use in education is the key that unlocks the door to a world of knowledge and creativity, by allowing educators to utilize copyrighted materials in their teaching.” Moreover “Fair copyright legislation is essential to enabling teachers to adapt and use the material and reach an increasingly diverse student body.” Maluleke is also General Secretary of SADTU, the largest teachers union in South Africa, with a membership of over 250 000 teachers and workers.
Dr Sanya Samtani, Senior Researcher at the Mandela Institute in the Law Faculty at the University of the Witwatersrand, Johannesburg echoed these sentiments. “The Copyright Amendment Bill is an example of the state trying to regulate copyright, trying to fulfill its international obligations on copyright, and also its human rights obligations, which are constitutional and international in nature.”
‘AI for Good’ in Africa
The conference considered the importance of Artificial Intelligence (AI) in solving the world’s most pressing challenges, including climate change, pandemic responses and countering misinformation. Generative AI has understandably raised alarm bells amongst creatives.
Professor Vukosi Marivate, Chair of Data Science at the University of Pretoria, described a project in which broadcast TV shows in South Africa could be used to train AI models to educate local communities about primary health care in indigenous African languages. Marivate said that a power reset needs to take place between local communities and Big Tech based in the Global North. This will allow AI to be used to protect and communicate in African languages, he said. “Language communities are creating resources in Africa, and saying, yes, we might not have access to the computing power to make some of these models a reality. How do we change that? You can get access to some of the resources we’ve built, but then we’re getting access to your resources as well to build for ourselves. Ultimately, we want to have agency.”
Dr Melissa Omino, the Director of the Centre for Intellectual Property and Information Technology Law (CIPIT) at Strathmore University, Nairobi, Kenya, argued similarly that “you can’t treat culture as a commodity. You have to really think in a nuanced way about culture”. If language and other data sets are collected from communities in Africa, and these datasets end up creating a monetary value, then those communities should benefit in some way for their contributions. Dr. Omino has been part of a team researching suitable license models for data creation for AI on the continent.
Another application of ‘AI for Good’ was brought alive on stage at the conference by Christo de Klerk, President of Blind South Africa, who gave a demonstration of several tools that can read aloud texts for the visually impaired, and even describe pictures, artworks and photographs. Christo urged policy makers to support this kind of life-changing innovation in Africa with copyright laws that allow access to materials for the training of accessible translation and description tools.
Ask the TK Question
Other topics considered by the conference were traditional knowledge, libraries and archives, and the preservation of African heritage.
According to Professor Chidi Oguamanam, Research Chair in Sustainability, Bio-Innovation, Indigenous Systems and Global Knowledge Governance in the Faculty of Law at the University of Ottawa, protection of Traditional Knowledge (TK) has become an afterthought in global IP systems and has “been subjugated to the characteristic inclination of Western knowledge systems, that is to say, Western science.” Oguamanam urged that for Africa and many in the Global South, TK should be at the center of Knowledge Governance and requires a completely new paradigm. “Ask the TK Question in all copyright forums.”
On 5 February 2025, the International Federation of Library Associations (IFLA) hosted a half-day program on libraries and archives, which included a visit to the ruins of the Jagger Library at UCT Library. Ujala Satgoor, Executive Director: UCT Libraries, gave a powerful presentation about the 2021 fire and the tragic loss of the Jagger Library which housed Special Collections, Africana, rare books, government publications, manuscripts and audio-visual archives – a great loss not only for South Africa but for Africa and further afield. She shared practical insights on managing such crises and highlighted legal issues, such as copyright restrictions on digitizing materials and the urgent need for the Copyright Amendment Bill to be passed.
Africa Gaining Momentum on Copyright Reforms in the Public Interest
The conference looked at copyright reforms underway in African countries and also at negotiations taking place at the World Intellectual Property Organization (WIPO) in Geneva.
Gilbert Agaba, Director of Intellectual Property at Uganda’s Registration Services Bureau, noted the alignment in copyright reforms taking place in multiple African countries, “I felt all the issues we are looking at are virtually the same… and we really need to see how we can leverage what we’ve learned from each other to be better.”
Gladys Isaac Ojo, Assistant Director with the Nigerian Copyright Commission, highlighted a novel provision in the new Nigerian Copyright Act that allows a user to approach the Nigerian Copyright Commission for a special license to use a work in line with public interest. Regulations on this provision are yet to be activated. “It is not intended to serve any individual person, or any individual business. It is for the purpose of serving the public interest.”
Sharon Chahale-Wata, Deputy Executive Director for Training & Research at the Kenya Copyright Board called for more engagement in copyright reforms by civil society and practitioners in Africa to ensure balanced legislation. “Whenever you put out public participation, you may even find and international group will give you comments, but you will not get comments from librarians in Kenya. So people are not participating as much, and so that also has been an issue.” Several civil society representatives, including Ceslause Ogbonnaya of the Africa Knowledge Initiative rose to the challenge and presented strong support for balanced copyright in Africa during the conference.
Dr. Viviana Muñoz Tellez, Coordinator of the Health, Intellectual Property and Biodiversity (HIPB) Program of the South Centre encouraged policy makers in the Global South to work together to strengthen their voices in forums like WIPO. Professor Caroline Ncube, the DSI/NRF SARChI Research Chair in Intellectual Property, Innovation and Development in the Department of Commercial Law at the University of Cape Town also called for more collaboration in policy making. ” The thing that should bring us towards cooperation is because we’re all moving towards a common African position, right? We all have this vision for an Africa that has an intellectual property that serves its people, that is balanced, that serves the public interest.”
Copyright is A Privilege Granted and Limited by The Public Interest
Professor Sean Flynn from the American University Washington’s College of Law’s Program on Information Justice and Intellectual Property (PIJIP), provided a historical background on copyright law, which stems from Common Law that bestowed the “privilege” of copyright ownership in accordance with a “duty” to ensure that the use of that copyright is reasonable and has benefits to the public. “Reasonable use means fair remuneration. Reasonable use means rights for some of the creators who have been excluded in the system. And reasonable use means fair pricing of the products.”
South African experts and practitioners expressed the view that this balance in copyright has been lost in the President’s arguments when referring the Copyright Amendment Bill to the Constitutional Court. According to Denise Nicholson, former Scholarly Communications and Copyright Services Librarian at Wits University and founder of Scholarly Horizons, “Copyright has always existed in the framework of limitations and exceptions, and must be contextualized with an understanding of how it might impact the public interest. The South African Presidency seems to misunderstand this in favor of strict copyright ownership that does not prioritize innovation and access to education and research. All of which are cornerstones for a thriving democracy. “
According to Professor Tobias Schonwetter, director of the IP Unit and the iNtaka Centre for Law & Technology at the School of Law at the University of Cape Town, the CAB seeks to strengthen the rights of authors, provide clearer and more flexible provisions for access to works, and improve the oversight of collecting societies. “Almost everything the CAB contains can also be found in copyright laws in other places around the world – we have not come up with this for the first time.”
On 21 – 22 May, 2025, in the matter of Ex Parte President of the Republic of South Africa, ReCreate, along with more than 20 civil society organizations signed on as Parties to its Amicus that represent a range of users and creators of copyright, will defend the CAB and argue that its provisions are in the public interest and therefore not arbitrary.
Conclusion of the Conference: A Checklist
The following box provides a snapshot of the conference conclusions.
| Knowledge Governance and IP Question the paradigm. Question mercantilism & commodification. Creation & knowledge sharing is not always a transaction. Recognize the Artists Value and remunerate the artists. Reclaim our heritage and redress the past exploitation. Distinguish the artists & creators from the distributors. Follow the money and keep your eye on the intermediaries. Quantify the cost of Exclusion There are costs of non-use and costs of policy gaps, especially in education. We need to preserve our heritage. It’s time for an African Agenda and an increased focus on a Global South approach. Resist the Balkanization of Traditional Knowledge Ask the TK question. TK is not a side issue to mop up whatever doesn’t fit into Western knowledge governance. Reset the Power Balance to Promote African ‘AI for Good’ We are creators and farmers of our own data. Miners or extractors of data need to have their claims to our data re-examined. Democratize the WIPO System Increase awareness of the purpose of balanced copyright, including exceptions. Send the right people. Ensure fair global representation, including civil society. Insist on impact assessment (on human rights, equality etc.) The Public Interest EXISTS We have inequality and exclusion, health crises, climate change, misinformation. If copyright doesn’t help us combat these challenges, it needs to change. IP is not the objective. |
What Next?
You can watch the conference sessions online and you can read the full conference program.
In South Africa, all eyes will be on the Constitutional Court on 21 and 22 May 2025, when the court is expected to rule on the constitutionality of the Copyright Amendment Bill.
Copyright discussions and reforms are also taking place in other forums, including
- WIPO negotiations on limitations and exceptions and related topics will again be on the agenda of the Standing Committee on Copyright and Related Rights (SCCR) in Geneva, from 7-11 April 2025.
- UNESCO actively engages in discussions and initiatives regarding copyright, focusing on balancing the rights of creators with the need for access to knowledge and cultural expression, including promoting open licenses and addressing challenges in the digital environment.
- South Africa and various countries, including the U.S, UK, EU, are all working on finding solutions on how to regulate AI as it relates to copyright works.
- Copyright reform and legislative processes are at various stages in each country. Nigeria is the most recent African country to update its copyright law and adopt fair use provisions, although it is still called fair dealing.
- Policy discussions are taking place at the African Union and in the AfCFTA negotiations.
Conference Partners and Funders
The conference was organized by ReCreate South Africa with primary support from the Program on Information Justice and Intellectual Property (PIJIP) at American University (supported by the Arcadia Fund).
Support was also received from the Open African Innovation Research Network (Open AIR) (which is part-funded by IDRC). Additional Partners included the Centre for Intellectual Property and Information Technology Law (CIPIT) at Strathmore University in Nairobi and the Data Science for Social Impact Research Group at the University of Pretoria, The South Centre in Geneva, The International Federation of Library Associations and Institutions (IFLA), Educational International and Blind South Africa. The conference hosts were the Mandela Institute in the School of Law at the University of the Witwatersrand, Johannesburg and the IP Unit in the Faculty of Law at the University of Cape Town.
