The South African Copyright Law: a historical overview and challenges to address access to knowledge issues in a country in transformation

Abstract

This paper provides a historical overview of developments in the South African copyright law and challenges by the educational sector and libraries, to address access to knowledge issues, particularly in a country in transformation. South Africa’s current Copyright Act was enacted in 1978. Because of its colonial background, South Africa’s current copyright law was adapted from British copyright law. It also incorporated provisions from the Berne Convention. The Act has been amended several times, most notably in 1992 to categorise computer programs as a separate, distinct class of protected work. In 1997, it was amended to bring it into line with the TRIPS agreement. In 2002, it was amended to provide ‘needle-time’ rights for owners of sound recordings (embodying musical works) and performers of the musical works, to enable them to receive royalties in respect of the broadcast, or performance, of these sound recordings. Section 13 Regulations governing limitations and exceptions for libraries and archives and education have not been updated since 1978. These Regulations were an adapted version of the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals, published in the United States House Report 94-1476 (1976). These Regulations are limited and restrictive and have become a barrier to access to information, particularly in the digital environment. This paper tracks important initiatives by the educational sector and libraries since 1998, to address access to information needs of libraries, archives, persons with sensory disabilities, educators and researchers. After successfully challenging Government proposals to amend the Copyright Regulations (1998) and the Copyright Act (2000), the educational sector and libraries have continued to lobby for more balanced copyright laws, but to date the Department of Trade and Industry has not delivered in this regard. South Africa (through the Africa Group) strongly supported the adoption of a Treaty for the Blind and Visually Impaired at the WIPO Diplomatic Conference in Marrakesh, Morocco, and on 27 June 2013 the Marrakesh Treaty was adopted. South Africa has not ratified this Treaty as yet, since it is finalising its Intellectual Property Policy and will need to amend its Copyright law before ratifying this Treaty. This Treaty has been ratified by a number of WIPO Member States to date and this has put pressure on South Africa to do the same, so that blind and visually impaired persons can benefit from the Treaty’s provisions as soon as possible. The Department of Trade and Industry needs to fast-track matters, and in the process, amend and update the copyright law. The paper will highlight the library and higher educational sectors’ initiatives and interactions with the Department of Trade and Industry in an attempt to expedite the process and to modernise the copyright legislation in the context of international treaties, WIPO’s Development Agenda, IFLA’s proposals at WIPO, and access to knowledge initiatives. The outcome and implications of proposed amendments to the copyright law will also be discussed. It is hoped that this paper will provide some guidelines for other developing countries on how to change their copyright laws to address access to knowledge and transformation issues in a digital world.