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| Denise |
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]
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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.
[1] Cheverie J (2011). Copyright, the
Public Domain, and the Value to Higher Education – http://www.educause.edu/blogs/cheverij/copyright-public-domain-and-value-higher-education
