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The South African copyright law is up for reform and access-to-knowledge (A2K) advocates led by the National Council for the Blind have seen some important gains in their engagement with the Department of Trade and Industry. In support APC has commissioned a paper on model A2K legislation. The paper looks at the South African case but is a useful document for anyone anywhere in the world who wants to strengthen access-to-knowledge provisions under a revised copyright law.

That there is a problem of access to knowledge in South Africa is not a novel observation.

Developing countries have spent considerable energy at the World Intellectual Property Organization (WIPO) making the case that when it comes to intellectual property law, one size does not fit all.

While the legal history and socio-economic milieu in each country is unique, the examination of legislative best practise that enables access to knowledge is useful for a number of reasons examined in the second part of the report.

Adopting legislation from other countries that enable access to knowledge has important advantages under the current globalised intellectual property regime, in which the WTO-TRIPS agreement has severely constrained the policy space for developing countries to craft appropriate intellectual property systems.

If the legislation in another country has not evoked a challenge under the Trade Related aspects of Intellectual Property Agreement, that is a rough but ready test to determine that it passes muster under the TRIPS agreement. Adopting such legislative language thus provides a relatively quick and efficient means for a legislature, such as the South African Parliament to enable access to knowledge and to repair some of the obvious deficiencies of a Copyright Act.

Access enabling legislation and best practise

Legislative and enabling best practise serves two further important functions in the human rights analysis of the 1978 Copyright Act, by demonstrating the putative unconstitutionality of a restriction in the Act by showing less restrictive means of achieving the same purpose and serving as the basis for a remedy in a constitutional challenge.

The reasons for considering legislative best practise which enables access to knowledge are therefore specific to the South African constitutional context in which the pre-constitutional 1978 Copyright Act is fails to provide the access to knowledge required by the Bill of Rights. Some of the provisions are found in the laws of developed countries, but it is noteworthy that those countries have not sought to export their access to knowledge provisions to developing countries, instead insisting on ever-greater monopoly rights.

Reference to specific access to knowledge provisions of a particular country does not constitute a general argument for South Africa to imitate the copyright legislation of those countries.

Access to knowledge in South Africa a question of fundamental rights

Historically provisions to enable access to knowledge have often been neglected in developing countries. The first intellectual property laws applicable to most developing countries were imposed by colonial administrations, concerned primarily with securing the rights of rights holders based in the colonising country.

Post independence most developing countries have had few resources to devote to crafting appropriate developing property rules. In many cases developing countries have relied for expertise on international agencies, which have exhibited a tendency to be captured by powerful rights holder interests from the developed world. There have been dramatic changes since the beginning of the 1990’s, developing countries hadn’t fully understood how the WTO-TRIPS agreement constrained their policy space when they were confronted with additional treaties such as the WIPO Copyright Treaty, bilateral trade agreements, which invariably contain an intellectual property clause, and ongoing campaigns financed by rights-holders located in developed countries for ever expanding rights and ever more draconian enforcement.

The Bill of Rights sets out fundamental human rights, which in turn gave rise to access to knowledge requirements. Recent research on the 1978 Copyright Act finds it to be deficient in enabling access to knowledge, and that the Act itself restricts access to knowledge. Some of the restrictions on access to knowledge infringe fundamental rights, and render the 1978 Copyright Act putatively unconstitutional.

Fundamental rights affect every part of South African law, including copyright law. They cannot be dismissed as irrelevant or subordinate to other interests. The Constitution is the supreme law and any legislation inconsistent with it is invalid (s2). Every branch of government has a positive duty to advance the rights in the Bill of Rights (s7). Fundamental rights may only be limited as far as permitted in the Bill of Rights.

A critical factor in assessing whether a limitation on a fundamental right in legislation is constitutional is whether there is a “less restrictive means” of attaining the purpose of the legislation. Discrimination against persons with disabilities is prohibited (s9).

The provisions of the Copyright Act preventing print impaired persons from using technology to read like everyone else discriminate against the print disabled. Everyone has the right to education (s29) and to receive and impart information (s16), taken together these require access to learning materials that the Copyright Act currently prohibits. The ban on parallel import is not required to achieve the purpose of Copyright law nor by the Berne Convention or the WTO-TRIPS agreement, and is an unconstitutional infringement of the rights to education (s29) and to receive and impart information (s16).

These restrictions on fundamental rights could be cured by adopting legislative best practise from other countries, which enables access to knowledge.

Legislative best practise from other jurisdictions does not resolve every access to knowledge issue. It does however provide the best immediate solution for the unconstitutionality of the Copyright Act. Legislative best practise from other jurisdictions is an indication of “less restrictive means” of achieving the purpose of copyright legislation. Legislative best practise from other jurisdictions may be assumed to be compliant with South Africa’s obligations under the Berne Convention and the WTO-TRIPS agreements, and it provides existing legislative language which may thus be implemented quickly to enable access to knowledge for a generation of South Africans, while longer policy processes to completely re-write South African copyright law are under way.

The New Zealand Copyright Act provides an example of how to permit parallel import of legitimate copyright goods from elsewhere. The fair use provision, which protects freedom of expression in the United States, can protect freedom of expression in South Africa. The Canadian Copyright Act offers an exception in favour of sensory-disabled persons.

The urgency of access to knowledge

The immediate amendment of the 1978 Copyright Act to introduce fair use will grant increased access to knowledge to South Africans now. The introduction of an exception for sensory-disabled persons will finally treat sensory-disabled persons equally. The repeal of the prohibition on parallel import will finally allow the import of cheaper books from India.

Seventeen years have elapsed since the introduction of freedom of expression in South Africa, fourteen of them under the current Constitution, and yet the 1978 Copyright Act has not been amended to accord with the constitutional right to equality, freedom of expression, education, or to give South Africans access to knowledge.

The drafting of detailed exceptions to the copyright monopoly is a resource intensive endeavour that will become more arduous as interest groups contest various proposals. It will be years before detailed exceptions are passed into law in South Africa. In the meantime a generation of children and young people is being denied learning materials. In the meantime the vast majority of South Africans are blocked from access to knowledge. In the meantime the 1978 Act is unconstitutional. Law makers should act quickly to cure this unconstitutionality.

Legislative best practise from other jurisdictions can help. Specifically the Canadian provisions on the sensory-disabled, the New Zealand repeal of the prohibition on parallel import and the United States fair dealing provision offer ways in which to address the unconstitutionality of the Act quickly by amending the current Act. If law makers fail to seize the opportunity then the Copyright Act may be declared unconstitutional by the courts, and struck down.

Other issues which affect fundamental rights and which require legislative innovation include:

  • orphan works.
  • positive protection for the public domain,
  • translation and other languages
  • right to make copies and adaptations in order to re-engineer for research purposes,
  • right to make copies and adaptations to extract public domain elements,
  • right to make adaptations to ensure technical inter-operability,
  • anti-circumvention provisions,
  • rights of authors to reclaim works disused by subsequent rights holders,
  • the default award of rights in commissioned works to parties other than authors.

There are no doubt other issues that will emerge in future. The listed issues provide an opportunity for South Africa to take an international lead in promoting access to knowledge and fundamental rights. This process will inevitably take some time. However the three issues identified by this report cannot wait, and must be dealt with urgently.

This article is based on an extract from the Report on fundamental rights, and global copyright legislative best practise for access to knowledge in South Africa by Andrew Rens, commissioned by the APC.

Photo by wackystuff. Used with permission under Creative Content license 2.0.