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Copyright laws stifle education

South African research shows local copyright legislation infringes on access to learning materials via digital portals.

The study was carried out as part of the eight-country African Copyright and Access to Knowledge (ACA2K) project.

It found the legislation does not promote and maximise access to educational materials, and changes need to be made to the country's legal regime in order to improve access.

The South African ACA2K research team is made up of Dr Tobias Schonwetter and Caroline Ncube, of the University of Cape Town, and Pria Chetty, principal attorney at technology and innovation law firm Chetty Law.

Stifling education

The project has been probing the relationship between copyright and access to learning materials in Mozambique, Kenya, Uganda, Ghana, Senegal, Morocco, Egypt and SA.

“A gap that the South African research team found in SA's Copyright Act of 1978 and its regulations is that there is no exception allowing permission-free adaptation of works for use by sensory-disabled people,” states the study findings.

“Also, the 'fair dealing' exception in the Act was found to be too vague to prove reliable to users. Another problem is that the Act does not cater for the digital age – in which 'reproduction' has been transformed and even the simple act of opening a Web site is potentially an act of illegal copying.”

However, the researchers found in their interviews with government officials that access issues are likely to get more prominence in future copyright policy or legislative amendment processes, adds ACA2K.

“The research team commends the South African government's recent adoption of a free and open source software (FOSS) policy, which shows the state's intention to lower barriers to ICT use.

“The team proposes, however, that in order to fully realise the benefits of FOSS, legislative amendments – including Copyright Act amendments – need to be made which promote access to the actual learning materials carried via ICTs.“

Accessible solutions

The report also points to a problematic lack of directly relevant case law, meaning that most of the access dimensions in copyright law have not been subjected to judicial interpretation.

The report has recommended some steps to help remedy the situation. It says access barriers for disabled people should be removed by allowing permission-free conversion of copyrighted learning material into Braille or audio format.

It also says: “The law must protect user access to, and reproduction/adaptation of, digital materials, including use of digital materials to which user access is blocked by technological protection measures.”

The piracy question

Web and digital media lawyer Paul Jacobson says such a change to the law will not necessarily open doors for piracy. He explains that this recommendation basically calls for a removal of digital rights management (DRM).

“Removing DRM on digital materials will allow for easier access, but the licence will still be in place. In practical terms, it may open the door for piracy, because DRM is removed and access is easier, but the licence is still there.”

He adds that DRM is not an answer to piracy in itself anyway and so removing it will not make a major difference to piracy levels.

“The suggestion being made is a good idea.” Jacobson agrees there needs to be easier access to online educational material, highlighting the high costs of physical text books and the like.

Schonwetter adds: “Piracy is the infringement of someone else's copyright. However, our copyright law expressly allows, in certain circumstances, the permission-free use of copyrighted materials, especially in the context of learning and education. If this is the case, we speak of 'user rights' provisions – or copyright exceptions and limitations.”

He adds that, despite the fact that the copyright law for public policy purposes and benefits allows these uses, other laws, particularly the Electronic Communications and Transactions (ECT) Act, undermine these important legal access provisions.

”They prohibit the circumvention of technological protection measures put in place by rights-holders, even though the intended use is allowed under copyright law's user right provisions. This is in our view a major obstacle for legitimate user access, particularly by learners.”

Schonwetter adds that there are fairly easy ways of fixing this problem. He suggests introducing the same user right provisions into the ECT Act that the Copyright Act already contains, which, he says, are also not far-reaching and clear enough.

“Piracy is often overblown and the people getting hurt are those who need the digital educational content. License it, charge for it, but make it more accessible,” says Jacobson.

A book describing the ACA2K research findings in all eight study countries, entitled “Access to Knowledge in Africa: The Role of Copyright”, will be launched on 31 July, at the Cape Town Book Fair.


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