SA copyright laws outdated and in need of urgent overhaul, says new study

By   |  August 3, 2010

Findings of a new study show that the current copyright regimes in Africa in general, and South Africa in particular, are not promoting access to knowledge and the authors have called for an urgent revision of copyright laws.

Published by UCT Press, Access to Knowledge in Africa: The Role of Copyright was launched on Saturday at the Cape Town Book Fair.

It is based on research in eight countries carried out by the African Copyright and Access to Knowledge (ACA2K) project.

The ACA2K project has been examining the relationship between copyright and access to learning materials in Mozambique, Kenya, Uganda, Ghana, Senegal, Morocco, Egypt and South Africa. The project, which began in 2008, is supported by Canada’s International Development Research Centre (IDRC) and South Africa’s Shuttleworth Foundation, and managed by the Wits University LINK Centre in Johannesburg.

“Some books should not just be read, but be calls to action. On a continent still ravaged by conflict and hunger and lacking in many freedoms, free or government-funded education would be meaningless without open access to knowledge,” said Luci Abrahams, director at the LINK Centre. “These are for the attention of governments and policy makers. Authors, including authors of this book, are activists for intellectual property freedom, so that policy makers can make the necessary changes to laws and regulations.”

Illiteracy

The South African ACA2K research team included Dr. Tobias Schonwetter, Caroline Ncube of the University of Cape Town (UCT), and Pria Chetty, Principal Attorney at Chetty Law.

“While the South African government spends a healthy 5 percent of GDP on education, we still have unacceptably high levels of illiteracy. There was an overarching acknowledgement among those we interviewed that ICTs could assist in access to knowledge, but there remains a disconnect between many of our laws.” explained Chetty.

As part of the study, the 1978 Copyright Act was tested against other South African legislation and policy including the Constitution, the Electronic Communications and Transactions Act and the government’s free and open source policy directives.

The South African research team found that there is no exception allowing permission-free adaptation of works for use by sensory-disabled people. They believe this gap could be in conflict with the South African Constitution’s guarantees of the right to equality and the right to education. The team has also said that the “fair dealing” exception in the Act was found to be too vague to provide reliable to users.

According to the team, the Act does not cater for the digital age – “in which ‘reproduction’ has been transformed and even the simple act of opening a website is potentially an act of illegal copying”.

The frustrations of the ACA2K team have been echoed by many others in South Africa. An online petition was launched some months ago by the African Commons Project (TACP) in cooperation with South Africa’s National Consumer Forum. The petition calls on the South African Department of Trade and Industry to conduct a “consultative, development-focused copyright review”.

Legislative conflict

The South African team acknowledged the government’s efforts in adopting their Free and Open Source Software (FOSS) policy, but said that it stopped short of being effective due to the conflicting wording in the current Copyright Act.

In positive news, the study is already having some effect in the Kenyan policy environment where their copyright laws, last revised in 2000, are undergoing a fresh overhaul.

In the South African context, Chetty says the lack of relevant case law has contributed to the fallacy that copyright law is complicated and difficult to enforce. She believes it is up to the judiciary to produce some clarity.

The local team has called for the following recommendations:

  • Access barriers for disabled people should be removed by allowing permission-free conversion of copyrighted learning material into Braille or audio format;
  • Detailed and clear provisions are required for uses by libraries, archives, educators and learners, including clarification of the rules around compiling course packs composed of portions of copyright-protected materials;
  • The law must protect user access to, and reproduction/adaptation of, digital materials, including use of digital materials to which user access is blocked by technological protection measures (TPMs); and
  • The Act should be amended in order to permit the use of “orphan works” on reasonable terms when a work’s copyright-owners cannot be identified or located.

The research team also recommends that the South African Government should retain, and not extend, the current 50-year term of copyright protection in place. After the term expires, researchers say a work should fall into the public domain and should be freely used in any manner.

A full copy of the book can be accessed at http://link.wits.ac.za/papers/aca2k-book.html.

Policy briefings based on the study can be found here.

And those wishing to add their signature to the petition calling for a Copyright review can visit: http://www.africancommons.org/

Bronwen Kausch runs PSI-Communications and specialises in ICT communications. She is reading for her Masters Degree in ICT Policy and Regulations at Wits University and is passionate about ICT for Development (ICT4D) in Africa. You can follow Bronwen on Twitter: @Bronwen_Kausch


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