If the project of decolonising education aims to shatter the barriers that keep formal learning within the province of the elite, in terms of both curriculums and spaces, then expanding access to education (and educational materials) is a crucial piece of the puzzle. The Copyright Amendment Bill of 2017 is a move towards enabling a majority of South Africans to participate in the previously inaccessible community of scholarship. In amending the apartheid-era Copyright Act of 1978 to introduce provisions that enable access to educational materials it contributes to the democratisation of knowledge and the fulfilment of the Bill of Rights.
A 2018 study found that 40% of black South African households receive an annual income of R33 000 for a family of five. Contrast this to textbook costs, which were often found to exceed R6 000 a year. This means that an imported textbook could potentially cost as much as a few months’ food for a family in the lowest-earning quintiles of the population. As universities also operate under budgetary constraints, bursaries cover only a small portion of the cost of books.
It is clear that educational materials are unaffordable for the vast majority of South Africans. Reasons for this include the entrenchment of apartheid-era inequality in distribution of resources across educational institutions, poor library provisioning, poor teacher quality, lack of infrastructure and, significantly, copyright.
Copyright is a monopoly over a work that grants the holder a statutory entitlement to reproduce, adapt, perform, publish, transmit, and/or broadcast the work. It 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.
The Bill itself, after its genesis in 2009, has been passed by both houses of Parliament in March 2019. It is now awaiting the final step, President Cyril Ramaphosa’s signature, for it to come into force.
The Bill will amend the existing Copyright Act of 1978, which is a product of British imperial copyright law being exported to its former colonies. The traditional economic justification for Anglo-Saxon copyright is that a monetary incentive is needed for creators to create. Copyright, we are told, creates an informational marketplace for the buying and selling of “knowledge goods”.
Since knowledge is not a good that may be excluded or consumed by a single use (unlike an apple, for instance), copyright law creates an artificial exclusivity that makes access available primarily through the informational market. But why must there be a monopoly over knowledge, which does not grow scarcer with sharing? We are told, in response, that the price placed on access “incentivises” creativity and, in turn, generates more “knowledge goods”.
There is no evidence to back up this claim that stronger copyright exclusivities correlate to greater stimulation of creativity. Moreover, the traditional justification fails to understand what the process of creation looks like because creativity always builds on existing knowledge. It assumes a market logic that fails to take into account human rights and ignores major technological developments since the time of the printing press.
Ask any creator of any work — an author, a photographer, a filmmaker — what their creative process involves and there will be a common thread running through their accounts: access. Being able to access existing work is a prerequisite for creation. As an academic author, if I do not have access to the literature in the field, I will not be able to assess the originality, relevance and strength of my argument. In this way, access engenders innovation — I am more likely to choose a research topic based on the availability of existing academic work. Only with access can I contribute to a conversation that spans generations and straddles continents.
What happens when copyright places a price on access to educational materials? Access becomes restricted to those who can afford to pay for it. In other words, monopoly prices fixed by intermediaries determine who can and cannot access works. This is a problem, particularly in post-apartheid South Africa. Apartheid-era discriminatory schooling concentrated resources in formerly white schools, which entrenched inequalities in the quality of education along racial and increasingly class lines.
Access to educational materials is, thus, limited to those schools that can afford to have well-stocked libraries and those students who can afford to pay for individual textbooks. While the government has the obligation to pay for textbooks for primary and high school learners, several provincial governments have failed repeatedly, with poor, rural learners least likely to receive textbooks. The existing concentration of resources continues to remain entrenched, restricting innovation and learning to elite spaces. Access to educational materials is, therefore, key to decolonising education and enabling a practice of decolonial scholarship.
The Constitution commits to rectifying historical injustices through a set of fundamental human entitlements that form the “cornerstone of democracy” in South Africa. The Bill of Rights guarantees everyone the right to basic education (under section 29(1)(a)) and further education (under section 29(1)(b), subject to reasonable measures taken by the state). The centrality of the right to education to human flourishing and the realisation of the other rights in the Bill of Rights has been affirmed by the Constitutional Court.
In interpreting the content of the right to education, courts have held that textbooks are necessary for all forms of education. This has been reflected in the draft national policy for the provision and management of learning and teaching support material (2014) created by the department of basic education. Most recently, the presidential commission of inquiry into higher education and training, which was set up as a result of the #FeesMustFall movement, also affirmed that tuition is of little practical value without access to resources, including textbooks and internet connectivity.
In order to truly enable “everyone” to access quality education, the state must fulfil its constitutional obligation under section 7(2), which includes the duty to respect, protect, promote and fulfil the right to education. 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.
Educational materials are published and distributed by private gatekeepers, such as publishers. While they do not bear obligations to provide textbooks for free, they do have a legal duty not to hinder the realisation of the right to education. The Competition Commission has recognised the relationship between affordability of textbooks and private actors. It has launched an ongoing investigation into price-fixing of textbooks and other educational materials by the Publishers Association of South Africa, as well as its 91 member publishers, in August last year. It is at this intersection that copyright law becomes relevant.
The Copyright Act of 1978 was enacted in apartheid South Africa. At the time, there was no Bill of Rights to safeguard the rights of the marginalised and vulnerable. However, under the Constitution today, the state unequivocally commits to redressing past inequalities through the guarantees of “human dignity, the achievement of equality and the advancement of human rights and freedoms”. All legislation must be consistent with the Bill of Rights.
The Copyright Amendment Bill of 2017 has been drafted, and must be interpreted in this light. In brief, the 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”. The Bill also explicitly permits the creation of free course packs (both printed and electronic), reading lists and study packs, which is hugely beneficial to learners who would otherwise struggle to procure and collate such materials. The Bill has specific provisions for libraries as well. In a move to respond to changing technologies, the Bill also allows educational institutions to upload educational materials for virtual learning and prevents the use of technological prevention measures to facilitate access to educational materials.
In a positive step, recognising the discrete interests of authors and intermediaries, 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. This is particularly important as authors’ interests are often more closely aligned with users, as authors require access to materials to be able to create.
The Bill 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. This tackles the complex terrain of publishing contracts between authors and intermediaries, where authors often assign their copyright to intermediaries (albeit unwittingly) and have to ask for permission to use their own works in future publications.
Even so, the Bill subjects the educational use of copyrighted materials to the marketplace in two ways. First, it requires educational institutions to procure a licence to incorporate the whole of a work into its curriculum. This is a cumbersome and expensive process. Second, it allows for the reproduction of a whole work but subjects it to specific conditions — when the work is out of print; when the owner of the copyright may not be found; or the book in question is unavailable in South Africa or unaffordable in comparison with similar works that are sold in South Africa. This is problematic as the price of the textbook, instead of being measured against the ability of the user to afford it, is measured against what is normally charged by the South African market. The market, as described earlier, currently excludes a majority of South Africans.
This brings us back to the affordability concern viewed through the equality lens. Since all legislation must be interpreted so as to promote “the spirit, purport and objects” of the Bill of Rights, any interpretation of the Copyright Amendment Bill of 2017 must be carried out accordingly. The right to equality is mentioned both as a constitutional value, and as a right under section 9 of the Constitution. In interpreting its content, the equality court has recently recognised that discrimination on the ground of socioeconomic status amounts to unfair discrimination and is unconstitutional.
Moreover, the Constitutional Court has previously ruled on the issue of differential access to antiretroviral medication in the private and public health sectors, following the work of the Treatment Action Campaign. In that case, the Court mandated the state to fulfil its obligations under the right to health, particularly taking into account those who were unable to afford private medical treatment. Similarly, the Copyright Amendment Bill of 2017 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.
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.
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 (such as the regulation of collecting societies and intermediaries), the Copyright Amendment Bill is a step in the right direction for students, educators and universities.
Sanya Samtani is a doctoral researcher at the University of Oxford working at the intersection of human rights and copyright law in India and South Africa. She was a foreign law clerk at the Constitutional Court of South Africa from July to December 2018