Denise Nicholson, whose website Scholarly Horizons (https://scholarlyhorizons.co.za/), is a mine of up-to-date information on scholarly information, intellectual property and much else, last month drew attention to a post on the website of IFLA, the International Federation of Library Associations and Institutions, on 2 February 2022,  announcing that IFLA had submitted comments on South Africa’s Copyright Amendment Bill to a consultative process in that country (IFLA 2022).

A contested process

Since 2009 South Africa’s authors and content creators, publishers, readers and information users, and librarians have witnessed – and participated in – a struggle to pass a Copyright Amendment Bill aimed at revising the country’s outdated Copyright Act, No. 98 of 1978 (Nicholson 2020; 2021). The Bill modernizes the legislation and provides for fair use exceptions, including provisions necessary to allow permit preservation digitization in libraries and to give effect to the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (WIPO 2013; 2016), to which South Africa is a signatory. The Bill was passed by the South African Parliament in 2018, but it has not yet been signed into law by the President. In 2020 President Ramaphosa referred it back to Parliament citing concerns about its constitutionality. This has been attributed to pressure from the USA and Europe, whose “cultural industries” seek to prevent the adoption in South Africa and other developing countries of limitations and exceptions that are largely accepted in their own countries. South Africa may be a particular concern to them if it is thought that its legislation may set the standard for copyright reform elsewhere in Africa. Western pressure takes the form of raising tariffs on South African exports or excluding South Africa from favourable trade agreements. (Kayali 2020).

The blog posts I have cited above cover the issues better than I could. From my reading of the IFLA comments it appears that the South African officials had responded to the President’s refusal to sign the legislation by amending the Bill in ways that would satisfy the objections of the foreign governments. In the process the provisions for fair use would be encumbered by the addition of restrictive conditions that would make it much more difficult to utilize them, in effect, emasculating the Bill.

International perspective

From my non-expert perspective this is just one skirmish in an ongoing battle being waged by powerful lobbies in the West to keep as much control as possible of their “intellectual property”, even if this means cutting off scholars and students in the South from intellectual resources that are badly needed for their education, research, and national development. During the last two years this has been playing out in fairly high profile as the Covid 19 has highlighted the glaring inequities in respect of medical information and patents needed to combat the Covid-19 pandemic (Nicholson 2021; Oliphant 2021; Rossi Silva et al. 2022).

When it comes to copyright, South Africa is by no means alone in being saddled by antiquated legislation, which imposes barriers to access information essential to education, research, and development. Copyright laws should provide for “limitations and exceptions”. According to the World Intellectual Property Organization (WIPO),

In order to maintain an appropriate balance between the interests of rightholders [sic]  and users of protected works, copyright laws allow certain limitations on economic rights, that is, cases in which protected works may be used without the authorization of the rightholder and with or without payment of compensation (WIPO n.d.)

Study of limitations and exemptions by Kenneth D. Crews

WIPO has commissioned a series of studies on limitations and exceptions for libraries and archives, carried out by Kenneth D. Crews for WIPO’s Standing Committee on Copyright and Related Rights. The most recent edition was published in 2017 (Crews 2017). This report of 479 pages examines and analyses the copyright exceptions applicable to libraries in all 191 countries that are members of WIPO. It is based on a quite detailed analysis (in the form of a table over several pages per country) of the statutes of each of the countries. In all but thirty countries there is at least one provision that explicitly refers to libraries or archives.

In his Introduction, Crews mentions a number of trends. One of them is that “countries tend to look to neighbours, trade partners, and multinational consortia for inspiration and guidance when drafting statutes. For example. Many countries were following the guidance of a European Union directive authorizing member countries to allow libraries to make digitized copies of works available to library users on their premises for purposes of research or study. Crews summarises the main findings in a chart on p.10.

The six pages (401-406) devoted to South Africa provide a useful overview of what is allowed and what is not, drawing together the provisions of the Copyright Act and its amendments, its published regulations, and two other acts. In the Act there are no explicit exemptions for libraries, but library exceptions are provided in quite detailed regulations issued by the Minister of Economic Affairs, permitting the copying of limited portions of works by libraries for purposes of personal or private research or study, for inter-library loan, and for replacement of deteriorating or lost copies of books. Copying by or for libraries is limited to libraries and archives of which the collections “must be open to the public or available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field.” This all looks quite acceptable, until we study the amendment bill, the discussions that have swirled around it since 2017, the backtracking in the revised Bill, and the comments on this by IFLA.

South Africa’s neighbours

In view of Crews’s comment that countries tend to follow the examples of their neighbours, I looked at the sections for Botswana, eSwatini (still called Swaziland in 2017), Lesotho, and Namibia. All four of these have close historical ties with South Africa and very extensive economic relations, within the framework of the Southern African Development Community (SADC) and a customs union, and some monetary links. The tables for these countries are very short and provide little detail. eSwatini’s Copyright Act dates from 1912; its legislation and that of Namibia have no explicit library provisions. Unless there have been recent amendments, nowhere is there any mention of compliance with the Marrakesh Treaty. The very brief and general provisions of the four countries’ statutes may expose them to legal challenges in respect of electronic media, and they may be pressurized into adopting restrictive legislation acceptable to Western rightsholders but inimical to their development needs.

From the brief descriptions it does not seem that South Africa’s neighbours have used South Africa’s legislation as a template or model for their own. They all need to update and refine their copyright legislation, however. If and when they do, and if they should look to South Africa for inspiration, it would be a pity if South Africa’s legislation is still out-of-date and unfit for our needs.