Copyright Bill decolonises access to education
Publish date: 20 August 2019
Issue Number: 4764
Diary: Legalbrief Today
Category: Labour
While there are many more steps the state must take to decolonise access to educational materials and to ensure that authors are adequately recognised for their work, the Copyright Amendment Bill is ‘a step in the right direction for students, educators and universities’. The University of Oxford’s Sanya Samtani says the Bill is a move towards enabling a majority of South Africans to participate in the previously inaccessible community of scholarship. She adds that in amending the apartheid-era Copyright Act to introduce provisions that enable access to educational materials, ‘it contributes to the democratisation of knowledge and the fulfilment of the Bill of Rights’. In an analysis on the Mail & Guardian Online site, Samtani notes that educational materials are unaffordable for the vast majority of South Africans. Copyright, she says, is one of the few barriers to accessing educational materials that may be directly overcome through legislation. ‘The Copyright Amendment Bill recognises this by expressly incorporating provisions enabling some free uses of copyrighted materials for educational purposes.’ Samtani argues that when copyright places a price on access to educational materials, access becomes restricted to those who can afford to pay for it. Standing opposed to this is the Bill of Rights, which guarantees everyone the right to basic education and further education, subject to reasonable measures taken by the state. ‘For basic education, the state must provide textbooks and other learning materials prescribed by the curriculum. For further education and basic education, the state must make libraries in educational institutions available; and provide scanning and photocopying machines to facilitate distance learning and private study. In addition, the state must protect learners from interference with their rights. In doing so, the state must not make policy or laws that obstruct access to educational materials.’
Samtani argues that the Copyright Amendment Bill is favourable to learners, as it allows for reproduction of works for educational and academic activities, and subjects this to the ‘extent justified by the purpose’. She says the Bill ‘crystallises’ the right of authors to make their works available to the public through open access licensing arrangements, ‘despite granting the publisher or editor an exclusive right of use’. In doing so, it moves towards the creation of an accessible archive of publicly funded research. Samtani argues this is particularly important, as authors’ interests are often more closely aligned with users. The Bill, she says, further affirms the relationship between authors and users by making it clear that agreements that deny the author their statutory right to make their publicly funded research publicly available will be unenforceable. She says the Bill must be interpreted so as to take into account those who are unable to afford the market prices of textbooks and ensure that the state fulfils its obligation under the right to education and non-discrimination. Samtani adds: ‘The Constitution also allows for the creation of rights through legislation. However, it subjects these statutory rights to those that are guaranteed by the Bill of Rights. This means that – to the extent to which copyright is constructed by a statutory framework – it is subordinate to the right to education, the right to equality, the right to freedom to receive or impart information and ideas, the right to freedom of artistic creativity, the right to academic freedom and freedom of scientific research, and the right to participate in cultural life.’
