Friday 27 September 2013

Caroline B Ncube

Evidence based copyright reform needed in South Africa

[Reposted, with some revisions, from info-justice, Link (CC-BY)]  The Law and Economics of Copyright Users Rights conference  which this Leo participated in, probed the value of economic empirical  evidence to copyright reform discussions.   This post gives an account of the use of such evidence in current reform discourse in South Africa.  As Afro-IP readers know, the Department of Trade and Industry (DTI) has taken some initial steps towards a comprehensive IP reform process by  publishing a draft national IP policy, which is currently open for public comment.  The copyright sections of the draft policy do not engage with user rights in a detailed manner. Some mention is made of the need to have meaningful exceptions and limitations (E & L) ( at p16)  and the need to ensure that  these are not abrogated online through the use of technological protection mechanisms protected by anti-circumvention provisions (at p29). Currently the Copyright Act falls far short of reasonable expectations – it does not provide for E & L for the visually-impaired and does not cater adequately for online and distance learning (see the findings of the African Copyright and A2K project). One would therefore expect the draft policy, as the first step towards copyright reform, to raise these issues and to do so in a robust manner informed by empirical and other evidence. Disappointingly, the policy only cites the following two sources at p 29:

  1. Pouris ‘Copyright TRIPS Exceptions in South Africa, Access to Education, Learning Materials’ (2009)
  2. WIPO Studies

The WIPO Studies are not fully cited so it is not possible to follow these up. The report authored by Pouris is not publicly available and I have been unable to locate a copy of it.  It is important to make evidence on which policy recommendations are made publicly available in order to enable those who wish to engage in policy discussions to interrogate the evidence.

In searching for 2009 Pouris report, I came across another report by the same author entitled ‘The Economic Contribution of Copyright-based Industries in South Africa’ (2011) which used WIPO methodology and found that copyright-based industries contributed 4.11% to the South African economy in 2008.  It states the following recommendation in relation to users’ rights reforms at p 53:

‘The South African copyright regime does not include exceptions and limitations for the visually impaired or for the benefit of people with any other disability (e.g. dyslexics) as well as for technological protection measures (such as encryption of the protected material) and electronic rights management information (such as digital identifiers). Furthermore, despite the existence of exceptions for purposes of illustration, for teaching and research, the legal uncertainty surrounding the use of works has led to the conclusion of agreements between the collecting societies and educational establishments to the financial detriment of the latter. As exceptions have the potentials to create value (Gowers Review, 2006)53 we suggest that DTI should review the Copyright Act in order to introduce limitations in accordance with the Berne Convention three steps test (article 9(2)) and with the fair use provision and to clarify clauses as necessary’.

Surprisingly, this report , which was commissioned by the DTI with technical and financial assistance from WIPO, is not referred to in the draft IP Policy. However, as noted by Joost Poort in his presentation, studies on the economic contribution of copyright industries (and their counterpart – studies on the economic contribution of industries that depend on E & L) are not particularly useful as it is difficult to extrapolate policy directions from them. What would be more useful are ex-ante and ex-post evaluations of the experience of countries that have effected policy changes.  According to Poort, such studies could have been carried out in relation to Korea and Israel.

Other relevant research which ought to have been cited is  the chapter on South Africa written by  Natasha Primo and Libby Lloyd  in ‘Media Piracy in Emerging Markets’ (2011) (available here). Beyond this study, and those referred to in the ACA2K book, there does not appear to have been any other demand-side studies on South African copyright.  A study of  entitled ‘The Economics of IP in South Africa‘  was published by WIPO in 2009.  However, this study does not address copyright. It is essential to carry out economic research to provide empirical evidence to inform policy and copyright reform discussions. As stated by the speakers on the ‘copyright flexibilities and social and economic development: current state of knowledge’ panel at the conference, such studies should  be cost- benefit analyses of  flexible copyright in both the short and long term from creator and user perspectives. It will also be very important to bring relevant existing research (mentioned above) to the attention of policy makers in comments submitted to the DTI on the draft IP policy.

Caroline B Ncube

Caroline B Ncube

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Denise Nicholson
30 September 2013 at 13:35 delete

Apart from the African Copyright & Access to Knowledge (ACA2K) Project (, other useful studies are WIPO studies at showing what some countries have already adopted, whilst others have no limitations and exceptions for libraries, research or education, disabled persons, and the eIFL Model Copyright Law (which was drafted by IP and library experts and was based on the WIPO Model Law but includes L & Es) - These documents were sent to the DTI a number of times in the past. I also sent them my 2012 LLM Dissertation on Accommodating Persons with Sensory Disabilities in South African Copyright Law earlier this year. This has a survey of 150 countries L & Es for persons with disabilities and provides recommendations for the DTI.
Another study that is worth considering too is by Marlize Conroy, entitled" A Comparative Study of Technological Protection Measures in Copyright Law (Unisa Phd).

The DTI are well aware of the shortcomings of our Copyright Law and have received relevant studies, documents, articles, research, etc. over the years to enable them to amend the copyright laws. The educational sector and libraries have been lobbying since 1998 for appropriate, balanced copyright laws, and it has taken the DTI 13 years to produce an IP Policy Draft, which was promised back in 2000! Now they must start doing something about updating the Copyright law and other legislation that is negatively affected by the Copyright Act.

The Marrakesh Treaty is a good reason for the DTI to start amending the Copyright Law urgently. They don't have to sign the Treaty first. They can adopt those provisions into the Copyright Law and then sign later, if necessary. The current copyright law restricts access to information, education, libraries, research, authors, academic resource-sharing, persons with disabilities, etc. It creates serious problems for access to information in the medical field where rural doctors cannot access up to date information and are using outdated information to treat their patients.

Denise Nicholson