A presentation, licensed under Creative Commons BY-SA 2.5 South Africa which provides a context for the IDRC-funded ACA2K project, its findings and relevance for South African librarians and teachers. The presentation is compiled by Caroline Ncube, senior lecturer within the University of Cape Town's IP Law & Policy Research Unit

1. Copy Responsible Caroline Ncube 20 May 2011

2. Rights & Permissions Default & automatic All Rights Reserved situation Permission is required for most uses of most works Unless a copyright exception and limitation applies 2

4. actual copying of a substantial part of the original work.

5. Copyright is not infringed if a second work is created independently.3

6. Remedies CIVIL PROCEEDINGS Interdict Delivery up Damages (reasonable royalty) Anton Piller order CRIMINAL First conviction – fine of R5 000 or imprisonment of 3 years, or both, for each infringing article Second conviction – fine of R10, 000 or imprisonment of 5 years, or both, for each infringing article ● Forfeiture 4

7. ACA2K: A Intro (what was it and when did it happen?) Background (why was it done?, its starting premise) What did it explore? How was it rolled out?/methodology How exhaustive was it? Which outputs did it produce? Next iteration?

8. ✓ Officially started in January 2008✓ End of the project: January 2010✓ 8 study countries: Egypt, Ghana, Kenya, Morocco, Mozambique, Senegal, SA and Uganda✓ More than 30 researchers✓ Funded by the IDRC (Canada) and Shuttleworth Foundation✓ Managed at Wits LINK Centre

10. Starting premise Education crucial for Africa Access to learning materials essential 8

11. ACA2K probed the relationship between national copyright environments and access to knowledge/ learning materials in the study countries.

12. 2 research hypotheses: The copyright environment in the study countries does not maximise effective access to learning materials The copyright environment in the study countries can be changed to maximise effective access to learning materials

13. 2 main parts in the report/METHODOLOGY: Survey of relevant legislation, policies and case law  Review of relevant secondary literature and impact assessment interviews with stakeholders

14. Interviews Government – Department of Arts and Culture (DAC) and the Department of Trade and Industry (DTI) Educational Community – University of Cape Town (UCT) IP and research department, the library and the Centre for Educational Technology; case studies UNISA (distance education) and University of Limpopo (formerly HDI) Copyright-holders – PASA and ANFASA

15. Research output: 8 stand-alone country reports (online/ printed) 8 stand-alone country executive policy briefs (online/ printed) 1 stand-alone comparative review (online/ printed) ACA2K book published by JUTA in 2010 2+1 WIPO briefing papers (statement read out at WIPO) article about ACA2K findings in African Journal of Information and Communication (AJIC) article about ACA2K findings in 2010 GISWatch 2 chapters in the Yale Access to Knowledge SA book

17. Second Project

19. Open A.I.R. 2011- 2013 African Innovation Research and Training: Exploring the Role of Intellectual Property in Open Development Case studies Copyrights: Empowering Collaborators in Creative Industries Patents: Open Innovation for Cleaner Energy Technologies Trademarks: Collective Agricultural Branding Strategies Cross-Cutting Theme: Implementing the WIPO Development Agenda Cross-Cutting Theme: The Traditional Knowledge Commons Cross-Cutting Theme: Sharing the Benefits of Publicly Funded Research Foresight scenarios

20. ACA2K: B FINDINGS General Implications for teachers and librarians How much of a work can I copy? How many copies of a work can I make? Can I use orphan works? Can I parallel import (cheaper) texts for my library? Can I digitise works? Can I translate works? Can I transform works? (e.g. written to audio or braille)

21. The findings in a nutshell Gaps Vagueness + Unduly restrictive clauses = Unintended consequences **some commendable aspects [noted, where relevant, at foot of slide]

22. FINDINGS GENERAL

23. Interviews: Government We probed: general view on copyright; the role played in copyright policy formulation; views on the effect of copyright on access to learning materials; the prominence, if any, given to the issue of access to knowledge in the copyright amendment process awareness of, or involvement in any ‘access to knowledge’ initiatives; views on any interrelation between gender and/or race and access to learning materials their understanding of the linkage between information communication technologies (ICT), copyright and access to learning material

24. Interviews: Government The DTI is the lead department on copyright law and policy, whilst the DAC plays a supportive role Interviewed only one representative of each department appreciative of the link between the copyright environment and access to learning materials one of the DTI’s goals is achieving a fair balance of interests (between rights-holders and users) in the area of copyright law – particularly in relation to learning materials familiar with the views of copyright stakeholders and access to knowledge initiatives probability that more prominence is likely to be given to access to knowledge in any future copyright policy or legislative amendment process

25. Educational community We probed: the role copyright plays in curriculum development and learning support at the university, and is generally significant to the university how copyright related issues are officially addressed/administered/ dealt with and communicated at UCT; how UCT participates in copyright policymaking, lawmaking and regulation-making how UCT utilises existing copyright exceptions and limitations; whether or not there is a different impact of the copyright environment on different racial groups and genders at the university; and how ICTs impacts the university’s handling of copyright.

26. Educational community demonstrated an appreciation of the relationship between the copyright environment and access to learning materials committed to building a repository of Open Educational Resources (OER). Interviewees had different focii linked to role at UCT Copyright plays a significant part in curriculum development and learning support e.g. course packs & DALRO license Intellectual Property Policy (ownership of ©) UCT plays an active role in national IP policy and legislation formulation uncritical of framework but displeased about implementation

27. Right-holders We probed how their respective organisations participate in copyright policymaking; what their general stance on copyright protection is; how ICTs impact copyright-holders; and whether or not there are any gender and socioeconomic issues that impact on access to learning materials and/or their view on the South African copyright environment generally

28. Right-holders Differing views Both active in legislative processes e.g. ANFASA’s input on the then-Publicly Financed Research Bill successfully promoted an exception for academic works. emphasised the importance of a balanced approach to copyright consider the Copyright Regulations as too vague, making litigation in this field difficult and costly displeased with the implementation of the Copyright Act Licenses Conversion to braille

29. ICT-Specific Findings Significance of ICTs Evidence of current usage and policy support e.g. the government Free and Open Source Software Policy and the Electronic Communications and Transactions Act 25 of 2002 Interviews acknowledgment of the potential of ICTs as an enabler for increased access to knowledge need for more clarity on the application of copyright in this domain Confirmed by the Free High School Science Texts (FHSST) and UNISA case studies

30. Gender-Specific Findings guided by the belief that development-oriented research must be gender-sensitive Acknowledge the fact that even seemingly gender-neutral laws may in practice uphold existing gender discriminations Much research and writing in this area e.g. It has been asserted that copyright laws contribute to sustaining inequalities between men and women since they were ultimately written and enforced to help men retain control over copyright protected material We cultivated and maintained a general awareness with regard to gender-related issues and probed the interviewees on specific gender inequities however, a deep analysis of identified inequities was beyond the scope of the current project

32. A growing body of secondary literature exists – but material is often one-sided; most academics appear to favour less stringent copyright regime for SA

34. The new Intellectual Property from Publicly Financed Research and Development Act of 2008 fails to provide adequately for access to learning materials

36. The Copyright Act does not make use of many of the flexibilities contained in international instruments such as TRIPS, particularly in relation to copyright exceptions and limitations

37. Copyright Act does not properly address the digital environment

38. Provisions benefitting sensory-disabled learners and distance education are insufficient

39. Many e&l, particularly the concept of fair dealing, are too vague

42. All eight ACA2K study countries afford copyright protection that complies with, and in many cases exceeds the standards imposed by the relevant international treaties and agreements such as TRIPS and the Berne Convention (even if not bound by those)

43. Of the study countries, at least four are contemplating significant changes in their copyright regimes

45. None of the examined copyright acts contains provisions which specifically address either distance learning or e-learning

46. The copyright laws of six of the eight study countries contain express provisions for the protection of traditional knowledge and folklore, with South Africa and Uganda being the only countries with no such provisions

48. ACA2K study countries generally reported a lack of clarity with regard to the issue of digitisation of library and archival collections

49. Only one out of the eight study countries, Uganda, makes specific mention in its copyright law of the needs of the disabled

50. Other than Egypt, no other ACA2K study country explicitly allows for parallel importation of a copyrighted good

51. The precise scope of more general exceptions and limitations such as fair dealing is often so unclear

53. Exceptions & limitations literary & musical works NB distinction between fair use and fair dealing Exceptions for educational purposes Fair dealing for study, research, private use (s12(1) & Regs) criticism & review Quotations Reporting current events (newspaper, magazine) In judicial proceedings / judicial reporting For illustrating a point in any publication, broadcast or sound or visual record for teaching 37

54. Teacher/ classroom use: Reg 2 The reproduction of a work in terms of section 13 of the Act shall be permitted- (a) except where otherwise provided, if not more than one copy of a reasonable portion of the work is made, having regard to the totality and meaning of the work; and (b) if the cumulative effect of the reproductions does not conflict with the normal exploitation of the work to the unreasonable prejudice of the legal interest and residuary rights of the author.

55. Regulations 'teacher' means any person giving instruction or doing research at any school, university or any other educational institution, by whatever name he may be called ** Reg 7: Subject to the provisions of regulation 2, multiple copies (not exceeding one copy per pupil per course) may be made by or for a teacher for class-room use or discussion. [v & g = e-learning] Reg 8:Subject to the provisions of regulation 2, a single copy may be made by or for a teacher, at his request, for research, teaching or preparation for teaching in a class.

56. Regulation 9 Notwithstanding the provisions contained in regulations 7 and 8, the following copying shall be prohibited: (a) Copies may not be used to create or replace or substitute anthologies, compilations or collective works; (b) no copies may be made of or from works intended to be ephemeral, including workbooks, exercises, standardised tests and test booklets and answer sheets and similar ephemeral material; (c) copying may not- (i) be used as a substitute for the purchase of books, publishers' reprints, or periodicals; and (ii) be repeated in respect of the same material by the same teacher from term to term [loss/destruction?];

57. Exceptions for libraries and archives (s13 & Regs)

58. Exceptions & Limitations s 13 General exceptions in respect of reproduction of works In addition to reproductions permitted in terms of this Act reproduction of a work shall also be permitted as prescribed by regulation, but in such a manner that the reproduction is not in conflict with a normal exploitation of the work and is not unreasonably prejudicial to the legitimate interests of the owner of the copyright. [V] 42

59. Regulation 2: Permitted reproduction (literary works) The reproduction of a work in terms of section 13 of the Act shall be permitted- (a) except where otherwise provided, if not more than one copy of a reasonable portion of the work is made, having regard to the totality and meaning of the work; and (b) if the cumulative effect of the reproductions does not conflict with the normal exploitation of the work to the unreasonable prejudice of the legal interest and residuary rights of the author. [v = ui/licensing & parallel imports]

60. Regulation 3:Conditions for distribution of copies not be made with any intention of deriving direct or indirect commercial advantage; the collections of the library or archive depot shall be open to the public or available to researchers affiliated to the library or archive depot or to the institution of which it is a part, and to other persons doing research in a specialised field; ** the reproduction of the work shall incorporate a copyright warning;

61. Regulation 3:Conditions for distribution of copies applies to a copy of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit, for research use, in another library or archive depot: Provided that the copy reproduced is to be placed in the collection of the library or archive depot; ** applies to a copy of a published work duplicated in facsimile form solely for the purpose of replacement of a copy that is deteriorating or that has been damaged, lost, or stolen: Provided that the library or archive depot has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; [v = ui]

62. Regulation 3:Conditions for distribution of copies the right of reproduction and distribution shall apply to a copy made from the collection of a library or archive depot to which the user addressed his request or from that of another library or archive depot, of not more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy of a reasonable portion of any other copyrighted work: Provided that the copy shall become the property of the user and the library or archive depot has had no notice that the copy would be used for any purpose other than for private study or the personal or private use of the person using the work; the library or archive depot shall display prominently, at the place where orders are accepted, and include on its order form, a copyright warning in terms of regulation 6; [v]

63. Regulation 3:Conditions for distribution of copies the rights of reproduction and distribution shall apply to the entire work, or to a substantial portion of it, copied from the collection of a library or archive depot to which the user addressed his request or from that of another library or archive depot, if the library or archive depot has first determined, on the basis of a reasonable investigation, that an unused copy of the copyrighted work cannot be obtained at a fair price: Provided that- (i) the copy shall become the property of the user, and the library or archive depot has had no notice that the copy would be used for any purpose other than private study or the personal or private use of the person using the work; and (ii) the library or archive depot shall display prominently, at the place where orders are accepted, and include on its order form, a copyright warning in terms of regulation 6. [** but v= ui]

64. Regulations 5: not for multiple copies & clearly infringing activities May contract if not incompatible with Act DALRO licenses cater for multiple copies annually

65. GAPS Orphan works Conversion, digitisation & translation of works (covered by normal exploitation?) Parallel imports

67. Address orphan works

68. Provide for promotion of access to knowledge for the (sensory) disabled

69. Address the conflict between Copyright Act and the ECT Act

70. Review, amend and expand copyright e&l

72. Introduce easily understandable policies for staff and students on what can be lawfully copied

73. Consider negotiating blanket licence agreements, eg with DALRO (that sufficiently take into account existing copyright e&l for educational uses)

74. Government

75. Adopt far-reaching legislative guidelines on copyright and access to learning materials (jointly drafted by DTI, DoE, DAC in consultation with relevant stakeholders)

76. Future legislation should then be drafted under consideration of these guidelines

77. Copyright-holders

78. Accept responsibility towards society to enable access

82. Share Alike. If you alter, transform or build upon this work, you may distribute the resulting work only under a license identical to this one.

83. For any reuse or distribution, you must make clear to others the license terms of this work.

84. Any of these conditions can be waived if you get permission from the copyright holder. Your fair use and other rights are in no way affected by the above. This is a human-readable summary of the Legal Code (full licence). The full licence is available at http://creativecommons.org/licenses/by-sa/2.5/za/. 53

85. Thank you!My contact details are: Caroline B Ncube caroline.ncube@uct.ac.za 54