Scholarly Horizons - a new resource for all things copyright and more

Scholarly Horizons - a new resource for all things copyright and more

By Afro Leo   Tuesday, March 30, 2021   No comments:

Denise Nicholson, the specialist librarian in copyright and scholarly communication, has launched Scholarly Horizons, a resource and advisory service for publishers, researchers and academics and more! According to the website launched this week, Scholarly Horizons offers various web sessions which are particularly useful for academics, authors, postgraduate students, and librarians, but can also be tailored for corporates, government departments, specific interest groups, freelancers, NGO’s, authors, and/or secondary school teachers and learners.

In addition to this educational content, it has published its maiden informative ebulletin and they provide an array of related services which are described here. 

This new service addresses a neglected need in the field of copyright and related rights. Knowing Denise from her work at Wits University, the service is likely to be of high quality and affordable. Afro-IP will be tracking her progress with interest and with luck she will send a guest post for our readers when she gets a gap.

You can read more about Denise on this blog, here.

 

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Copyright reforms likely unconstitutional says SA President in major decision

Copyright reforms likely unconstitutional says SA President in major decision

By Afro Leo   Sunday, June 21, 2020   1 comment:

The President of South Africa has made a much-awaited announcement regarding the controversial Copyright Amendment Bill and Performer’s Protection Amendment Bill in South Africa. His decision to refer the Bills back to the National Assembly is because they “may not pass constitutional muster” and could be at risk of being set aside by the courts.

The reasons:

• Incorrect tagging –the Bills were incorrectly tagged as section 75 Bills when they are section 76 Bills that affect cultural matters and trade.
• That the Bills will enact law that may be retrospective and arbitrary deprivations of property. Copyright owners will be entitled to a “lesser share of the fruits of their property than was previously the case” and there is uncertainty as to how it would operate.
• A failure to consent on the material amendments including the fair use provisions.
• Impermissible delegation of legislative authority to the Minister regarding the deprivation of property i.e. copyright from those to whom it was assigned in the past.
• Several new exceptions constitute:
• arbitrary deprivation of property and violate the right to freedom of trade, occupation, and profession.
• may conflict with international treaties signed by South Africa.

For these reasons the National Assembly is requested to consider “the Bills afresh so that their objectives can be realized speedily and without the risk of any constitutional challenge”.

Afro Leo spoke with Afro Chic who has been following the developments on CAB very closely: “I wonder what different outcome would have been achieved had a different process taken place? What is clear from this is that copyright is considered “property” for the purposes of Section 25 of the Constitution. This has potentially far reaching implications in the current context of national debate on appropriation of property without compensation in the land reformation process. One wonders what, potentially unintended, consequences may come from that.”

Stephen Hollis, Adams & Adams, who has been a crusader for a number of trade associations that do not support the Bills in their current form is delighted, citing this as “a huge win for the creative sectors” whilst at the same time commenting that “now the real work begins”. Stephen should also be delighted because much of reasoning in the President’s communication was extracted directly from submissions that were carefully prepared by him and others.

Blind SA, who had initiated legal proceedings to compel the President to comply with his duties and who advocated for many of the changes in the Bill, stated that they will “study the State Attorney’s letter [containing the President’s decision] and the options available to Blind SA”.

Denise Nicholson, librarian at Wits University and well known proponent for signature of the Bills, was obviously disappointed - "One has to question, if he views these issues as unconstitutional, why Ramaphosa only acted in terms of his constitutional obligations after blind people had to take him to the Constitutional Court and the USTR and EU stepped up their economic bullying.  Had he acted responsibly in terms of Section 79(1), maybe these issues could have been resolved by now for the benefit of all stakeholders. Many of the provisions in the Bill would have been extremely helpful for libraries, archives, teaching and learning, research and innovation, during the lockdown period. 

Perhaps the USTR, EU, and multibillionaire conglomerates that are the main beneficiaries of copyright from South Africa, especially from the educational and library sectors, perceive this as a 'win'.  Well, it is indeed a sad day for access to information for education, research, innovation, AI, people with disabilities, digitization programmes and preservation of our cultural heritage, authors and creators, libraries and archives, etc. They all need many of the provisions in the Bill to function in a digital world in the 21st century. 

Of course, everyone wants this matter resolved fairly and efficiently, and for the benefit of all South Africans. But, the President's failure to act decisively and within a reasonable period as required by our Constitution has prejudiced everyone. Access delayed is access denied for all!"

It will not be easy or quick for the National Assembly to deal with the constitutional aspects of the Bill. The processes for section 76 Bills are significantly different from those of section 75 but that may not be the biggest hurdle says Afro-Chic who considers that the National Assembly will likely need to refer the matter back to the Department of Trade and Industry. In snakes & ladders, that is like going from the final tier to the first, chimes in Afro Leo.

Public consultation needs to follow due process which will take time. On a positive note, the whole process has brought copyright onto the national agenda and there is at least agreement on the need for urgent reform. What happens next is likely to require strong leadership and collaboration to take the process forward. There will need to be ladders to make the game move faster.

For those new to action, please read the numerous posts on this blog tracking the progress of CAB and the divergent views on it. Here are some of them:

THE COPYRIGHT AMENDMENT BILL: WHERE TO FROM HERE? ALUTA CONTINUA! DECOLONISING COPYRIGHT: BUILDING OUR CREATIVE AND INFORMATION ECONOMY CRITICS OF SOUTH AFRICA'S COPYRIGHT AMENDMENT BILL GATHER RE-CREATE'S SEMINAR ON THE COPYRIGHT AMENDMENT BILL THE COPYRIGHT AMENDMENT BILL: WHERE ARE WE NOW? EXPECTATIONS AHEAD OF 'ON A KNIFE'S EDGE' SOUTH AFRICA'S COPYRIGHT BILL - TAKING THE DEBATE FORWARD HAS SOUTH AFRICA’S IP AGENDA BEEN CAPTURED? RESOURCES ON THE CAB DEBATE: ALL THE LINKS YOU NEED

Image Credit: Jacqui Brown https://www.flickr.com/photos/120600995@N07/14125947172 
Edited on 22 June to include comments from Denise Nicholson

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Questions and answers surrounding the Copyright Amendment Bill

Questions and answers surrounding the Copyright Amendment Bill

By Afro Chic   Friday, November 29, 2019   No comments:

The Copyright Amendment Bill of 2019 (CAB/the Bill) in South Africa raises many questions surrounding how this piece of pending legislation will function if it is passed into law in its current form. The Bill has caused much controversy among both creators and practitioners and it is important that parties speak out with a view to clear the air and enhance understanding of the possible reforms. Denise Nicholson of the University of Witwatersrand provides a series of questions and answers pertaining to general features of the Bill and the controversial doctrine of fair use. In the interest of disclosure Denise is an active supporter of the CAB in its current form.

The questions posed were the following and you can click here for the full set of answers.

For additional articles and posts on the CAB click here.

General questions on the CAB:

Where can one find the latest version of the Copyright Amendment Bill?

Did any international, regional or domestic policies, documents or research form the framework of the Copyright Amendment Bill?

What was the Farlam Copyright Review Commission (CRC)?

Is the SA Bill in conflict with our international IP treaties?

Is the Bill compliant with the 2013 Marrakesh Treaty?

Is the Bill unconstitutional?

Was the public given adequate time to participate in the process of CAB?

Why was the copyright term not extended to 70 years in the Bill as many other countries have done?

Is the clause on unenforceable contracts legal?

Does the Bill amount to expropriation of local content without compensation?

Will the Bill limit the right to freedom of trade, occupation or profession as provided for in Section 22 of the Constitution?

Will the Bill lead to the Minister of Trade and Industry being able to prescribe the terms of publishing contracts, taking bargaining power away from authors?

Will authors/creators be affected by regulation of collecting societies?

Does reversion of assigned copyright after 25 years negatively affect authors?

Does Section 12B (1)(a) in the Bill encourage plagiarism?

Is the exception for course-packs for educational purposes unique to South African copyright law?

Does the Bill protect data?

Does the Bill allow text and data mining?

Why is the Bill important for all stakeholders?

Does the Bill enable SA to benefit from the 4th Industrial Revolution?

What is Parallel Importation?

Are Parallel Importation Restrictions (PIRs) prescribed in international intellectual property agreements?

Why has the Bill not included provisions for content filters, similar to the recent EU Directive?

What are the President’s obligations with regard to a Bill that has been approved by the National Assembly and the National Council of Provinces?

Questions on the doctrine of fair use

Why has the Bill adopted concepts such as fair use, which originated in other countries?

Will fair use lead to greater recourse to the courts and a dependence on U.S. jurisprudence, causing unnecessary financial problems for authors or publishers?

Under fair use, can a whole textbook be copied and 2000 copies be made for students, without permission?

Are the provisions for fair use in SA Bill much wider than fair use in the U.S.?

Should the fair use provisions in the Bill be accompanied by statutory damages?

Does the PWC Report quoted by rights owners present the true picture about fair use and other provisions in the Bill?

What impact did ‘expanded fair dealing’ (not fair use) have on the Canadian publishing industry?

Did the introduction of fair use negatively affect the publishing industries of countries that adopted it?

Do transformative uses of copyright works compete with the market of the original work of the authors and publishers?

Will every case relating to fair use have to go to the courts for a decision?

Was fair use recommended in the WIPO Study commissioned by the DTI in 2011?

What does the Handbook of South African Copyright Law say about fair use?

Does the Australian Law Reform Commission's Report 122 (2014) entitled "Copyright and the Digital Economy" say anything about fair use?

What is New Zealand’s approach to fair use?

Where can one find more information about fair use?

Brought to you by Afro Chic

Image credit: Iñaki del Olmo 

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Africa IP Forum 2013 - Reflections - Denise Nicholson

Africa IP Forum 2013 - Reflections - Denise Nicholson

By Darren Olivier   Tuesday, March 05, 2013   No comments:

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]

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.

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[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

[2] ACA2K Project -  http://www.aca2k.org/attachments/281_ACA2K-2010-Access%20to%20knowledge%20in%20Africa-s.pdf

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