South Africa’s Copyright Amendment Bill had been sitting on the desk of President Cyril Ramaphosa for over a year, waiting to be signed into law. But instead of signing the bill, the President returned it to parliament citing constitutional concerns with certain aspects, including new exceptions for libraries, education and persons with disabilities. If enacted, the bill would have helped teaching, learning and research during COVID-19 lockdowns. Instead South Africans are forced to struggle under the current, outdated law. EIFL guest blogger Denise R. Nicholson, Scholarly Communications Librarian, University of the Witwatersrand, Johannesburg, discusses challenges and issues.
The COVID-19 pandemic has highlighted the long-known inadequacies and restrictions in South Africa’s copyright law that negatively affect access to information, knowledge-sharing, and the provision of relevant teaching and research materials in our educational institutions. The law is 42 years old and totally outdated. It does have fair dealing and some limited provisions for education, libraries and archives but there are no exceptions for people with disabilities, and the law does not address the digital environment at all.
On 27 March 2020, South Africa went into Alert Level 5 lockdown restrictions to help stop the spread of COVID-19. All South Africans were required to stay at home except for certain essential services. Libraries, archives, museums, educational institutions, as well as bookstores and most businesses were closed at very short notice. University residences were swiftly evacuated, resulting in many students having to leave their textbooks and course materials in their rooms before they left their campuses. Even in Alert Level 1 (most normal activity resumed, with precautions like wearing masks, social distancing and limits on gatherings), some libraries remain closed or partially closed.
This situation meant that access to hardcopy material, multi-media and archival collections in libraries and archives was totally closed off. Overnight, e-learning platforms became the virtual classroom for schools and tertiary institutions. Suddenly institutions had to find funding to assist students with software, hardware, training, and mobile data costs to enable them to access their study material.
The copyright barrier and the permissions wall
Educators and students had to quantum leap totally into remote teaching and learning mode. Teachers and lecturers needed to scan book chapters, articles, images and other teaching material from personal or borrowed copies, and to upload them to password-protected e-learning platforms. Of course, they quickly hit the copyright barrier. With hard-copy material no longer available to students, lecturers needed to use more material than usually allowed in institutional licences for copying.
One lecturer, who was unable to access the hard-copy book in the institution’s library, asked the publisher for permission to place sections of the e-book version on her institution’s password-protected e-learning platform. It would have given access to registered students for that course only, for a period of 6 weeks. The request was declined on the basis that the copying was not permitted under the licence. So she wrote to the collective management organization (CMO) asking for assistance. But the CMO said they could not assist if permission had already been declined by the publisher! Other lecturers also hit the permissions wall when publishers and CMOs also declined requests due to licence restrictions. Instead students were told to buy the e-books, even though they had already purchased the print version and just couldn’t access it during the lockdown. Obviously it was impossible for students to purchase the book again.
The e-textbook problem
Access to e-books has been particularly problematic for libraries in the lockdown. Most books that are considered textbooks are simply not available for purchase by libraries in electronic format. For example, two South African textbook providers do not allow libraries to purchase e-books, and they will only sell directly to individual lecturers or students. But e-book prices in South Africa are unaffordable for most students (and library prices range from US$50 to over US$1,000).
In general, database and e-book licences are restrictive and proved to be problematic during COVID. A few South African publishers made concessions for better access to their databases in the lockdown period, and this was welcomed, but the concessions were very limited. For example, two South African law databases lifted access restrictions for legal practitioners during the lockdown, but not for academic institutions. Overseas publishers also offered concessions, such as adding additional content for free to existing subscriptions, but the concessions often didn’t apply in South Africa, or they were discipline-specific and therefore not always relevant to students and researchers working in other subject areas.
In addition, few, if any, temporary waivers or reductions in copying fees were offered by CMOs to lecturers wishing to place full-text articles from databases onto password-protected learning management systems, such as Sakai, for particular classes of students during lockdown. While the e-resource licence allows students to access the resources directly themselves, mobile data costs were too expensive or unaffordable for them. However, if the students were able to access the material via Sakai, data costs were free because Vodacom, a local mobile telecoms company, provided students with a free data package to access study material on the online learning platform. It would have been nice if copyright owners reciprocated with a similar gesture.
Public libraries - authors and children disadvantaged
During the lockdown, librarians in public libraries were unable to read books to children in the usual face-to-face reading circles. To continue providing this socially valuable service, they wanted to use YouTube or social media platforms, but copyright got in the way - the CMO said that permission was necessary and that appropriate copyright fees would apply. Save for quickly finding the money in the middle of a pandemic, or using alternative material, what were librarians supposed to do? Ironically, in this case, it is mostly local authors who were being prejudiced as the reading circles introduce and promote local and new authors to people who have not read their works before.
COVID and copyright - the benefits of the Bill
The Copyright Amendment Bill was approved by Parliament in March 2019. It has fair use and appropriate limitations and exceptions for libraries, archives, museums and galleries, as well as for education and research, and for people with disabilities. It also gives authors and creators more control over their works, and will enable them to get a better deal on royalties through regulation of collecting societies. It brings the law into the 21st century and will enable South Africa to positively embrace the 4th Industrial Revolution.
These provisions would have been extremely helpful to all stakeholders in the COVID-19 lockdown, but especially to the library and educational sectors, and for people with disabilities. For example, the Bill would have supported the making of digital copies by libraries, and the use of audio-visual material for online learning. Fair use would have provided the legal flexibility needed by teachers, students and libraries seeking to maintain education and homeschooling during lockdown. And the provisions could not be taken away by licence terms.
Unfortunately, due to pressure from the US, the EU and international entertainment and publishing conglomerates, President Cyril Ramaphosa returned the Bill to Parliament on 16 June 2020, right in the middle of the pandemic! He referred all these helpful exceptions back for review on the basis that they may be found to be unconstitutional and in conflict with the three-step test in international law. Notably and unconventionally, the President based his entire decision, almost word-for-word, on one submission from a senior legal counsel representing the Copyright Coalition of South Africa, which strongly opposes the Bill.
One does have to wonder about the President’s motives, especially since all the exceptions for the educational and library sectors are legitimate provisions already enjoyed by many developed countries around the world. They were drafted within the framework of our Constitution, Human Rights Conventions, the Farlam Copyright Commission Review, the Marrakesh Treaty for persons with print disabilities, and the EIFL model copyright law, as well as numerous assessment studies and research reports, WIPO studies, and treaty proposals at WIPO that South Africa strongly supported through the African Group. The Bill also adopted clauses from progressive copyright regimes around the world, including fair use, which the US and a number of other countries enjoy in their copyright laws.
The Bill is now back before Parliament for review by the Portfolio Committee on Trade and Industry. Following a few meetings of this Committee in August and early September, discussion on the Bill has twice been postponed, most recently on 28 October 2020, and it doesn’t appear to be re-scheduled at this stage. Further delays!
It is crucial that Parliament addresses the constitutional concerns raised by the President expeditiously, astutely and transparently so that the Bill can finally be enacted for the benefit of all South Africans.