Copyright Act blocks access to information

The copyright environment in South Africa does not maximise access to educational materials for the country’s learners, and changes need to be made to the country’s legal regime in order to improve access.

These are the findings from South African research carried out as part of the eight-country African Copyright and Access to Knowledge (ACA2K) project.

A book describing the ACA2K research findings in all eight study countries, entitled Access to Knowledge in Africa: The Role of Copyright and published by UCT Press, is being launched on Saturday 31 July 2010, 11h00 to 12h30, at the Cape Town Book Fair.

The South African ACA2K research team is made up of Dr. Tobias Schonwetter and Caroline Ncube both from the University of Cape Town (UCT), and Pria Chetty, who is Principal Attorney at Chetty Law, a technology and innovation law firm based in Johannesburg.

The ACA2K project said that it has been probing the relationship between copyright and access to learning materials in Mozambique, Kenya, Uganda, Ghana, Senegal, Morocco, Egypt and South Africa since 2008. The project 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.

A gap that the South African research team found in South Africa Copyright Act of 1978 and its Regulations is that there is no exception allowing permission-free adaptation of works for use by sensory-disabled people. This gap arguably goes against the South African Constitution’s guarantees of the right to equality and the right to education. Also, the “fair dealing” exception in the Act was found to be too vague to provide reliable guidelines to users. Another problem is that 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.

On a more positive note, the researchers found in their interviews with government officials that access issues are likely to get more prominence in future copyright policy or legislative amendment processes.

The research team commended the South African Government’s recent adoption of a Free and Open Source Software (FOSS) Policy, which shows the state’s intention to lower barriers to use of information and communication technologies (ICTs). The team proposes, however, that in order to fully realise the benefits of FOSS, legislative amendments – including Copyright Act amendments – need to be made which promote access to the actual learning materials carried via ICTs.

The South African ACA2K country report also points to a problematic lack of directly relevant case law, meaning that most of the access dimensions in copyright law have not been subjected to judicial interpretation.

The main recommendations in the South African ACA2K report are:

  1. Access barriers for disabled people should be removed by allowing permission-free conversion of copyrighted learning material into Braille or audio format.
  2. 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;
  3. 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
  4. 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 a work falls into the public domain and can be freely used in any manner.

Four of the ACA2K study countries – Ghana, Morocco, Mozambique and Senegal – have recently extended their terms of protection to 70 years, which is potentially detrimental to the educational and developmental needs of these countries.

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Copyright Act blocks access to information