Tuesday 5 March 2013

Darren Olivier

Africa IP Forum 2013 - Reflections - Denise Nicholson


Afro-IP continues its coverage of the inaugural Africa IP Forum with a guest post from Denise Nicholson who are argues, using research, that copyright impedes access to information and also that RSA's laws need an urgent update to comply with developments in the digital age. Do you agree with her? For previous posts on the Forum click here, here and here.

Overview of Plenary 3 Session Paper by Denise R. Nicholson, Copyright Services Librarian, University of the Witwatersrand, Johannesburg, and member of the IFLA TLIB Workgroup.

The title of this paper was Bridging the knowledge gap in Africa: Role of Copyright Exceptions and Limitations” and the panel members were Mr. Simphiwe Ncwana, Director, DTI, and Ms. Lucy Mahlangu, Department of Arts & Culture.

My paper discussed the importance of copyright exceptions and limitations in the context of developing countries and in the digital era.  By way of introduction, I discussed the ‘Knowledge Hierarchy’ and how knowledge is analogous to a coral reef system.  Each coral attaches itself to another and develops into something bigger and different, yet maintaining parts of its original makeup. Similarly, knowledge grows by the inclusion of many other sources, resulting in the creation of something new and different, yet still maintaining links with its original sources.  In essence, no work is totally original, yet the copyright system gives authors and creators a statutory monopoly over each piece of work along the knowledge chain, even though it may include extracts from other copyright sources or from the public domain.  I suggested that “were rights owners to have total control over their works, information would be ‘locked up’ and totally inaccessible to others, making the goals of copyright intangible”.  I stressed that authors and creators themselves need a rich and vibrant public domain to inspire innovation and new creations.  Researchers and scholarly authors rely on the public domain as a building block to the creation of new knowledge; education is promoted through a spread of ideas and information; access to cultural heritage is enabled through symphonies, ancient texts, amongst others ...[1]

I discussed the international trend in copyright and how it is shrinking the public domain, restricting access to knowledge and strengthening protection, particularly in the digital arena.  International treaties, EU directives and national laws have eroded information users’ rights, swinging the pendulum too far in favour of rights owners.  Restrictive copyright laws are hampering resource sharing of libraries, and negatively affecting access for research purposes and for persons with sensory-disabilities, as well as education and training in African countries.  I stressed that a balance is necessary between the rights of authors/creators and the rights of users of information.  This is achievable by adopting appropriate limitations and exceptions to the exclusive rights of authors/creators.

In a nutshell, I presented the research findings of the African Copyright & Access to Knowledge (ACA2K) Project (2007-11), conducted in 8 African countries, including South Africa.  These findings show that the stronger the copyright laws, the higher the levels of non-compliance in these countries. The research shows that access is primarily obtained through copyright infringing activities rather than through copyright law.  This is neither appropriate nor sustainable which indicates that the ‘disconnect’ between copyright laws and practical realities in the study countries must be narrowed in order to sustain or build respect for the concept of copyright.  The research suggests that softening copyright law by increasing flexibilities, such as limitations and exceptions, will more closely align laws and practices. This will bring stakeholders whose behaviours currently fall outside the copyright licensing, administrative and enforcement frameworks, into constructive engages with rightsholders.[2]

Limitations and exceptions are not just a ‘wish list’ for information users. They are very necessary and are indeed grounded in several international IP agreements, as well as promoted in many IP policy documents, projects, initiatives and research reports.  WIPO Studies on Limitations and Exceptions also provide excellent examples of the use of limitations and exceptions, mainly in developed countries, as well as the shortfalls in the system for most developing countries.

As a qualified librarian and a member of the International Federation of Library Associations and Institutions (IFLA)’s Workgroup on the Treaty on Limitations and Exceptions for Libraries and Archives (TLIB) at WIPO, I focused my last few slides on libraries and archives. In response to a rather naïve objection to the focus on libraries from a delegate in the audience, I explained that no one can create new works or advance knowledge without accessing a library at some stage.  Libraries play a crucial role in providing access to information and in the dissemination of knowledge.  Authors, creators, publishers, educators, researchers, doctors, lawyers, IP practitioners, engineers and others all need information from libraries to do their work.   I explained the genesis and progress of the TLIB at WIPO and the hope that it will provide minimum exceptions and limitations for libraries and archives around the world, at the same time recognizing the rights of authors.

My concluding recommendations were that South Africa should do some serious introspection about the state of its national copyright law which dates back to 1978. The IP Policy addressing a developing country in the digital age has been on the agenda of the DTI for more than a decade and needs to be published urgently.   I pointed out that there is no shortage of empirical evidence, research papers and other documentation to assist the Department of Industry in amending the Copyright Act and its Regulations appropriately.  I reminded the DTI and audience of the lobby efforts by the educational and library sectors, going back to 1998 and 2000, when they successfully challenged more restrictive proposals to amend the Regulations (1998) and the Act (2000).Since then, they have been campaigning for more balanced copyright laws, but without success. 

South Africa strongly supports the WIPO Development Agenda and the Africa Group’s Treaty for the visually impaired, for educational and research institutions and libraries and archives at WIPO, so why is it not doing anything to change its copyright laws back home? 

This article is the personal view of the author, Denise Rosemary Nicholson and does not purport to be the view/opinion of her institution or any other organisation or individual.

Darren Olivier

Darren Olivier

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