OPINION: Copyright reforms to improve access to education

Access to education materials in the new South Africa continues to be limited. The new law should be in the interests of local, as opposed to foreign publishers and authors, write Eve Gray and Desmond Oriakhogba.

There is a loud and sustained campaign from the publishing industry against the Copyright Reform Bill being considered by the National Council on Provinces this month. 

This should be taken as a sign that the copyright bill is exactly what South Africa needs to promote the right to education in the face of a long history of abuse of our local market by international publishers. 

READ: The Copyright Bill goes too far on royalties

The truth is that the bill will HELP local authors and publishers while helping to restrain the excesses of foreign publishers to exploit our markets with excessive prices. In addition, fair use provisions in a digital world assist in enabling and legitimising the use of multimedia and digital examples in the teaching and learning process. In short – the reform will promote the right to education. Parliament should not waiver. 

Copying for education in South Africa

The core of the criticism being mounted by international publishers and their local affiliates is that South Africa – the most unequal country in the world – should not broaden the education rights for teachers and students to levels enjoyed in the USA, Canada and elsewhere. 

The proposed change is not actually a major alteration of existing law. Since its enactment in the 1970s, South Africa's copyright law has always had strong and broad rights to use copyrighted materials for education and study purposes. In addition to this right of educators, learners have a separate right to make private copies to facilitate their learning.

With growing frequency in the 1970s and '80s, the construction of course packs in the universities and the copying of foreign books not available in South Africa were made as a set of practical workarounds against censorship, the anti-apartheid academic boycott, high costs, and inadequate distribution systems.  

READ: The Copyright Bill - threat to patent rights

After apartheid, the primary policy goal of the publishing industry was a collective licensing agreement that would establish a flat fee for all photocopying in the universities. The license now in effect essentially authorises for a fee what universities were largely doing without payment until then. 

Access to education materials in the new South Africa continues to be limited. In recent years, the local publishers' stake in university publishing has been growing, helping to bring down prices. But over 70% of students still rely on private copies to access course materials. 

Fair use

The bill makes a just and reasonable effort to clarify the degree to which teachers and students can lawfully make copies to facilitate education. The practices permitted by the bill are more restricted than those routinely followed under apartheid. But they are more liberal than are practiced at some universities that license all copying, even the use of quotations of private copies that current law permits. It is important to note that publishers' claim that schools can copy whole works for all their students is wrong. The law specifically provides that course packs or other forms of copying may not "incorporate the whole or substantially the whole of a book or journal issue, or a recording of a work". It authorises copying of full works only if the work is not available in the South African market on reasonable terms and conditions.

Supporting schools, students and local publishers and authors

The proposed new law does not ban the DALRO blanket license. But it will pressure DALRO to offer more in the license than the law makes clear can already be provided for free. The new law would expressly liberate schools and post-school educational institutions from paying fees for mere extracts, and will strengthen their hand in negotiating prices for licenses. This should enable educational resource budgets to stretch further and toward more use of locally produced works.

Benefit to local publishers

The new law should be in the interests of local, as opposed to foreign publishers and authors. Latest publicly available figures show that DALRO collected R48m as royalties. The majority of this licensing revenue goes to foreign publishers and authors. As the Copyright Review Commission summarised, "the system favours international publishers: most of the licensing revenue sent to DALRO leaves the country".

While most blanket licensing revenue leaves the country, most book purchasing by schools stays right here. A majority of book purchases are from local publishers. When Canada expanded its fair dealing rights to include educational uses, education budgets remained the same but spending shifted from foreign licensing to local purchasing. If the same occurs in South Africa, local authors and local publishers stand to gain.

Help for open educational resources

Finally, the new law may help promote the use of so-called open educational resources. These are materials developed under a different model – where authors are paid up front for their work and the product is made freely available without copyright restrictions – permitting students and teachers to change and adapt the works freely. 

One barrier to the use of open educational resources can be legal ambiguity around the extent to which such texts can include excerpts of other works. The new educational right combined with the proposed adoption of a fair use model will make clear that open educational resources producers have a green light to produce the best possible materials. 

Our support for the legislation

At its foundation, the Copyright Amendment Bill takes appropriate incremental steps to clarify the educational rights of teachers and every student. It should benefit, not harm, local publishers. It deserves all of our praise. It is good to hear, in the last few days, that the National Council of the Provinces is not being misled by alarmist claims. Perhaps after all these years, South Africa will finally get a more modern copyright regime. 

- Eve Gray is a contract researcher in the IP Unit at UCT. She has a background in university press and academic publishing. Desmond Oriakhogba is a PhD candidate and a research assistant in the IP-Unit at UCT. His PhD research focuses on the regulation of collecting societies in South Africa and Nigeria.