Tag Archives: copyright exceptions

COVID-19 Impacts on Cultural Industries and Education and Research Institutions: Key Questions from the WIPO Report

Tomorrow, the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) will hold an information session on the impact of COVID-19 on the cultural and creative industries, on the one hand, and on education and research on the other.

This follows requests from Member States at the previous meeting, conscious of the need to make sense of the experience of actors affected by copyright – either as owners, or as users, of relevant materials. While the meeting formally takes place outside of the SCCR agenda, its place at the beginning of the week will mean that it has the potential to shape discussions over the following days.

To support this, WIPO has published a commissioned study, based both on a series of responses to a call for evidence, and interviews with experts in different countries. The terms of reference for the study have not been shared, but it looks both to tackle the broader question of experiences (as mandated by the last meeting), and to cite case studies of initiatives taken (which goes beyond the mandate).

Ahead of this session – which will be available on WIPO’s webcasting service – this blog looks at some of the questions and issues raised by the report (intentionally or otherwise), and which the meeting tomorrow can hopefully address.


Public spending needed… but on what terms?

A consistent message from the report is the sense that governments need to step in to provide financial and other support, to institutions, businesses and individuals working with copyright where these would otherwise risk disappearing or disengaging. The report underlines in particular that the pandemic has represented a major shock to those actors depending on in-person engagement and activities, such as concerts, author events, or museum visits, as well as events where much business is done, such as book fairs.

Some – but not all – governments have of course taken action to help otherwise viable businesses from failing. The report underlines that more could and should have been done however, with independent authors in a particularly tough situation.

Looking forwards, however, this does raise the question of how to ensure that this support has maximum positive impact. Beyond the preservation of employment, how can this serve to support public interest goals, such as access to education, research and culture?


Digital here to stay, but how?

The report is clear about the fact that the shift to digital is going to be a lasting phenomenon, raising the question of how to ensure the sustainability of digital activities. It underlines components of a response, including efforts to get more people online, training and support for digital maturity, and new policy approaches in general.

A crucial point made is that libraries themselves have invested significantly in digital content – often paying again for the same material that they had already bought in physical format. Clearly, it cannot be sustainable for libraries to pay twice for the same things.

In terms of recommendations, the report does highlight the need to ‘provide clarity to institutions and organizations regarding the copyright implications of moving towards a digital world, and to evaluate appropriate means and innovative ways to make digital uses easier’.

Of course, this could be read either as a case for providing more flexible exceptions and limitations that adapt to needs, or for facilitating licensing. It is to be hoped that COVID will not be used as an excuse to extend the reach of licensing at the expense of the sort of free exceptions that libraries have traditionally relied on extensively, draining their resources.

More worrying is the suggestion that copyright for digital works should be tighter than that for physical ones (i.e. have weaker limitations and exceptions) in order to protect investments. This is to argue that there is less need to protect possibilities for education, research and cultural participation online than in person.

This of course flies in the face of the argument that rights offline should also be protected online, and indeed the case made by the UN Secretary-General that more effort is required to ensure that it is not only the decisions of private companies that should determine what we can and cannot do digitally.


An under-supply of digital content

A persistent issue is the lack of digital content available, especially in developing regions. The report suggests that this is sometimes due to a lack of capacity, but can also be the result of a conscious choice by rightholders not to make works available in digital form, for example due to apparent fears of piracy.

This raises a serious issue about the functioning of markets, and whether it really serves societal interest for works not to be sold in a form that works for people who may not be able to access libraries or bookshops, or even work with physical copies of books. The report suggests more licensing, but this has been a possibility for a long time, and does not seem to have delivered.

Instead, it’s worth remembering that it was the under-supply of accessible format works that underpinned the Marrakesh Treaty, which opened up the possibility to carry out format-shifting of works to make them accessible.

A parallel argument is that the ability of creators themselves to use digital platforms could be a useful area of focus. This is an area where libraries, through providing public access, can indeed help, although to do so need to have the necessary resources to offer such services.


Impacts are varied

At least terms of market impacts on different sectors, the story varies. For example, while extensively citing European research suggesting that the publishing sector there suffered strongly, it notes that publishing in the United States continued to grow. The US of course is characterised by a very flexible copyright regime – fair use – while another country whose model is celebrated, Canada, is also under regular attach from rightholders for the flexibility of their education exceptions.

In addition, the pandemic is reported as having been particularly hard for authors who, in addition to the impacts of falling sales (where sales actually fell), also missed out on other opportunities to earn, such as book fairs and signings. The same goes for performers, and people working as freelancers or on temporary contracts. This does raise questions about terms of employment, and what can be done to ensure fairer distribution of revenues to those missing out.


Anecdotes and rules

A point alluded to in the title is that the focus on examples of initiatives in the report goes beyond what was in the mandate proposed by Member States. This is of course valuable in terms of providing illustrations, but can also lead to the impression that everything is going well.

Furthermore, the report fails to reflect the view of many libraries that these initiatives, while welcome, were often hard to implement and were withdrawn well before the end of the pandemic – see IFLA’s own report on libraries, copyright and COVID-19 for more. Indeed, there is the argument that they were often intended as marketing exercises, aimed at building use of and reliance on services which could then be charged for.

The more systematic examples come the US, where the flexibility provided by fair use is underlined as having enabled initiatives like the Hathi Trust Emergency Temporary Access Service. These arguably provide better pointers for how to build resilience than individual stories that may depend on a wide variety of other factors which are potentially not replicable.


And an old cliché about lending and sales…

The report does touch a number of times on the relationship between library activities and sales. There are unsubstantiated claims about the impact of higher levels of library lending and use. The one reference given is to a speculative conclusion in a German study about future impacts of eLending. This same study also underlines that cutting back on library lending is unlikely to lead to any increase in the purchasing of eBooks.

These arguments also do not sit well with the report’s conclusion that increased spending by libraries on digital content raises sustainability concerns for our institutions. In this case, the question needs rather to be ‘where is the money’?

Going further, unfortunately, it also repeats old tropes implying that the work of libraries is not significantly different to copyright piracy. These betray a fundamental misunderstanding of what copyright is about and how limitations and exceptions work. It also suggests an inability to differentiate between the interests of one particular lobby group, and of society as a whole. It is of course a shame that such claims are repeated in a WIPO-branded report.


Follow the discussion on WIPO’s webcasting service, from 11:30-16:30 Geneva time, for more!

From the 17th to the 21st centuries: Copyright, Creativity and Access

Who should pay for creativity and how?

And who should be able to access creative works and how?

These are questions to which the answers have varied over time, leading to different business models, and different outcomes.

Of course, at the heart of this discussion is copyright – a set of exclusive rights awarded to creators allowing them control over copying and many forms of use of the works they have created.

As this blog will set out, copyright is often portrayed as a form of progress compared to what came before. However, the shift from patronage to a free market cannot be the end of the process if we are to reflect the understanding of human rights that has emerged over the 20th and 21st centuries.

From the 17th to the 19th centuries

The traditional model of supporting creativity and the arts is often characterised as being about patronage, i.e. where wealthy individuals or organisations simply provide the money up front for a new book, painting or other work.

For a long time indeed, monarchs, aristocrats, wealthy merchants and businesspeople, and religious institutions tended to be the ones paying the bills, in highly unequal societies where most people were illiterate and struggled to survive.

Under this model, the only works that would get created were those that could find a wealthy backer.

We can see this as a 17th century model (or at least the model that dominated up until the 17th century) – i.e. before the first copyright laws came into force in the early 18th century, and were internationalised with the Berne Convention in the 19th.

In effect, by creating a property right, copyright made it possible to turn works into commodities that could be bought and sold on the market. In doing so, it ensured that it wasn’t just the richest people and institutions that determined what would be paid for, but rather the wider buying public

Of course, it is not as if the patronage model has gone away. Patronage by wealthy backers is still a big thing in the visual arts sector, and government cultural policies can often be key in helping emerging talents and minority voices break through.

Moreover, in the scholarly sector, copyright has little if anything to do with whether researchers get paid – university salaries and grants rather account for this.

Nonetheless, those arguing for stronger copyright often focus on the importance of the shift from a (17th century) patronage model to a (19th century) market model as progress.

Under this discourse, copyright is a democratising influence, allowing the decisions of millions of consumers to determine what gets produced, rather than a small number of powerful and/or wealthy individuals.

From the 19th to the 21st centuries: from charity to guarantees

The promotion of the idea of copyright as a far-reaching exclusive property right created a new issue however – how to facilitate uses of works that contribute to broader public interest goals.

With the 20th century, the notion of universal human rights came into focus with the Universal Declaration of 1948. In the 21st century, the logic of ‘no-one left behind’ and a ‘right to development’ have come into the mainstream, accentuating the idea that everyone has a right to a basic set of possibilities to fulfil their potential.

In this context, there is the question of how to meet the needs of people who might need books and other works, but cannot otherwise afford them. In other words, what would happen when the free market doesn’t deliver?

The 19th century approach was, arguably, through charity. The generous rich would provide support for the less fortunate, on a discretionary basis. In effect, they filled a gap that many governments were unwilling to fill, although doubtless in doing to encouraged the idea that there was no need for governments to act at all.

We still see the legacy of this approach, not least in the case of libraries with the construction of many institutions by people like Andrew Carnegie.

However, philanthropists and their fortunes come and go, and goodwill alone does not provide a strong foundation for guaranteeing fundamental rights.

Over the 20th century, the importance of exceptions and limitations to copyright, as a means of avoiding market failures and guaranteeing possibilities to deliver education, research, parody and beyond, emerged, not least through doctrines such as Fair Dealing and Fair Use.

However, these exceptions have increasingly been bypassed in the 21st century with the rise of digital tools for providing access to content. With the terms of contracts often priming over law, and few libraries or users in a position truly to negotiate terms, rightholders have an immense ability to determine what can and cannot be done with books, returning to a model of unlimited rights.

In the case of libraries, this means control over what our institutions can buy, whether they can lend it, copy it for education or research purposes, or even preserve it for the future.

This is not, arguably, an adequate way to enable libraries to carry out activities that make a reality of these key activities. Relying on a combination of the market and the discretionary generosity of private actors is not enough.

We have seen, during the COVID pandemic, that depending on goodwill offers of access to materials by rightholders has led to a highly uneven level of access, which often stopped well before the need for this disappeared (indeed, this need is continuing).

This is where the importance of a modern, balanced copyright system comes in, ensuring that institutions like libraries, as well as schools, research institutions and others, are able to deliver on these key rights, independently of the goodwill of private actors.

If we are to ensure that the rights of access to education, research and culture are realised in the 21st century, we need copyright laws that take a positive approach to delivering on these rights.

Clearly, of course, this needs to be done in a way that does not jeopardise the creation of works in the first place, but there is evidence enough that empowered libraries constitute an asset, not a threat, to the sustainability of the book sector.

In particular in fields where governments already play a key role in paying for creativity and publishing, the importance of ensuring that these investments deliver on public interest objectives is particularly strong.

In short, a modern copyright system requires not just a shift from patronage by the wealthy to a greater freedom to create and earn a living from creativity – i.e. from the 17th to the 19th centuries – but also a shift from fundamental rights of access to information depending purely on goodwill to being guaranteed in law – and so from the 19th to the 21st centuries.

A Right to Be Remembered: A Task for Copyright Laws

Ever since the decision of the Court of Justice of the European Union to allow people to request the removal of articles that violate their right to a private life from search results about them, the notion of a ‘Right to be Forgotten’ as entered the language.

It is not uncontroversial. Supporters highlight the possibility it offers for people to leave past minor misdemeanours behind them (especially once they have served their time), or to protect themselves against damage to their reputation, for example from allegations or charges which were never proven to the true.

Opponents worry that such provisions can be used to make it more difficult to find out about the past activities of people in power, and even the deletion of records (not just their removal from search results). The fact that decisions as to who has this right are effectively left to private companies also worries some.

In parallel, however, some commentators have pointed out the relevance of thinking about a ‘right to be remembered’.

This blog starts by exploring some of the different ways in which this has been talked about already as an idea, before underlining its relevance in a digital age, and finally setting out how this could manifest itself in copyright laws. In doing so, it covers much of the same ground as the UNECO 2015 Recommendation on Documentary Heritage.


From Forgetting to Remembering

Soon after the idea of the ‘Right to Be Forgotten’ appeared, that of a ‘Right to Be Remembered’ also popped up.

For some, the concept was an excuse to justify the collection of data about customers in order to offer them an ‘improved’ customer experience on websites.

However, already in 2015, Irina Raicu from the Markkula Centre for Applied Ethics at Santa Clara University in 2015 talked about being remembered as a  ‘privilege’, raising the idea of the importance of ensuring that individual stories are not lost. In particular, she highlights the importance of ensuring that the names of Holocaust victims where known, in order to promote awareness of what happened.

An article published by people involved in the High Atlas Foundation went further, suggesting that creating a right for communities to protect and preserve their heritage, and have autonomy over its safeguarding should be added to the Universal Declaration of Human Rights.

In this, it made the connection with the practices of many Western institutions in the past in appropriating elements of heritage from other cultures (often seen as inferior), and supported efforts at restitution.

This work does also highlight the issue, increasingly recognised in the library field, of the need to reconsider practices that risked treating knowledge and experience from much of the world and its populations, consciously or unconsciously, as inferior. In doing so, this has led to a situation where some groups’ lives have been more easily forgotten, allowing our image of the past to be distorted.

In parallel, we also have more conscious efforts to eradicate the experience of individuals or groups from history altogether, either through the altering of existing records, or the deliberate destruction of materials that testify to people’s existence.

In short, we can argue that individuals and groups should have the possibility to be remembered, and their experiences and contributions valued by those who come after.

Indeed, this could be seen as an element of the cultural rights offered by international law; future generations risking seeing these rights jeopardised if the memory of those who have come before – their ancestors – is simply wiped away.


New Possibilities

The emergence of the internet, and its spread to a greater and greater share of the global population have meant that there are now more opportunities than ever before to share stories, ideas and experiences.

It is no longer the case that only those with access to a printing press and a distribution network can share their ideas, experiences, and knowledge widely, through websites, blogs, social media, and beyond.

However, the possibility to be heard today is not the same thing as the possibility to be heard in future. The internet is a poor preserver of material. Materials published there, or otherwise in digital form, can easily be lost, and so the knowledge and experience of their creators forgotten.

Ironically, in parallel, in a world so focused on digital access, the same fate also risks befalling physical works, which are less easily found and accessed. And in the meanwhile, the intensification of the consequences of climate change risk seeing whole collections of memory destroyed.

This is where libraries, archives and museums can step in, with a mandate to ensure as broad a preservation of the experience of today for the benefit of tomorrow. This is a key social function, an investment today in ensuring the possibility for future generations to learn, to carry out research, and to enjoy their cultural rights.

In other words, the right to be remembered depends on having libraries, archives, museums and other heritage actors and institutions, tasked with preserving the memory of all cultures, libraries, archives and museums, and giving access to it.

It is clearly not something that can be left to the market. We cannot put a price on the value of memory or of the cultural rights it supports, just as we cannot charge our future selves for the cost of this work today. We need empowered libraries, archives and museums to fil the gap.

Clearly, this is work that needs to be taken forwards in line with ethical principles, in particular as regards Indigenous peoples, with collections built and managed in a way that respects the interests of the groups affected. There is growing awareness of how this can be done, in parallel with wider efforts to ensure that collections practices reflect the communities our institutions serve.


Acting for a Right to Be Remembered

A number of the elements that need to be in place for a Right to Be Remembered are already covered above – heritage institutions with the resources necessary to safeguard the knowledge and experience of the present and past, as well as collections policies and practices that promote inclusion while also respecting the interests of Indigenous groups in particular.

Yet beyond this, there is also the question of how to ensure that copyright laws do not end up representing a barrier to the right to be remembered.

This is a distinct possibility. Copyright already applies to works regardless of whether there is any intention to exploit them commercially. Even for works which are produced with a market in mind, for all but a tiny minority the term of protection extends far beyond their commercial lifespan.

In fulfilling their mission to defend the right to be remembered, libraries, archives and museums do risk running into blockages, being forbidden to take preservation copies of in-copyright works, in the most appropriate format, unless they seek permission (which may be impossible) or pay remuneration (which diverts resources away from the work of preservation itself).

This is the case in the 70% of countries which do not offer libraries, archives and museums a guarantee of being able to preserve works using whatever technology is most appropriate. Only among the 27 countries of the European Union is there (supposed to be) a clear possibility to form cross-border partnerships for preservation, helping ensure most effective use of resources and expertise.

As highlighted above, simply leaving the Right to Be Remembered to the market is unlikely to be an effective strategy. We tend to discount the value of access to knowledge for future generations, and of course even just the potential of earning revenues on a work in the short-term may prove too strong a temptation for rightholders.

Importantly, the Right to Be Remembered cannot be effective if works containing memory are locked away. While, of course, the Right to Be Remembered should not in itself mean the loss of the right to exploit a work commercially, it is meaningless if it is not accompanied by the possibility for people to access this memory. Cultural rights do not only apply to works that are old enough to have fallen into the public domain.

As the UNESCO 2015 Recommendation notes as early as its title, preservation and access must go hand in hand.

In short, if we are to take the Right to Be Remembered seriously, we need to ensure that institutions charged with making this right a reality themselves are guaranteed the possibility under copyright law to do whatever is necessary to preserve knowledge and experience, and to provide access to this knowledge in ways that do not jeopardise commercial exploitation.

Hammer Time (or not): Breaking Free from the Law of the Instrument at WIPO

When all you have is a hammer, everything looks like a nail.

This – the law of the instrument, or Maslov’s hammer – refers to a situation where someone’s actions are more determined by the tool that they have at hand than by consideration of what the best response might be.

The consequence is likely to be ill-suited solutions to problems faced, or even leaving things more broken than when they started. This can be the case at any level, from the individual to the governmental.

The response, of course, is to take the time, when facing an apparent challenge, to reflect first on which tool from a selection may be most effective.

How is this relevant to the work of the World Intellectual Property Organization?

Many of those engaged in discussions at WIPO, and in particular in its Standing Committee on Copyright and Related Rights (SCCR) spend their time focusing on creating, managing, or enforcing intellectual property rights.

When this is what you are used to, it is perhaps normal that, when you are faced with a new situation, the automatic response is to think about how you can create a new right.

Currently on the agenda of SCCR are new rights for broadcasters, theatre directors, authors (for public lending), and potentially though work on copyright in the digital environment, streaming.

This of course will make sense for anyone involved in managing rights. But are these all situations where more rights really represent the most effective way of achieving stated goals? What risk is there that they, in fact, end up doing more harm than good?


Maslov’s hammer at work: the proposed study on Public Lending Right

A first example of a drive to push new rights as a response to a challenge is the proposed study on public lending rights (PLR). This document, in summary, calls for an investigation of the benefits of PLR (disregarding potential costs), and effectively mandates work to set up a road map for rolling this out in developing countries.

IFLA of course has a strong position on PLR in developing countries, where libraries are often poorly funded, if at all, and the need to build literacy and reading culture is high. Yet at the same time, it is undeniable that many authors incomes that are barely, if at all, sufficient to support them in their work.

Therefore, before (uncritically) doing work in support of PLR, there is a case for avoiding the law of instruments, and thinking first about what tools are available, before then exploring which ones might work best.

For example, the European Union, in the Digital Single Market Directive, introduced both new provisions on fair remuneration, transparency around revenues, and the potential for rights to revert to authors after a period of time.

In Australia, The Author’s Interest has also underlined the potential of rights reversion as a way of empowering authors.

Meanwhile, the Racine Report in France set out 23 recommendations, highlighting the importance of direct and indirect support for authors, as well as social security. Importantly, it highlights imbalances in the relationship between authors on the one hand, and intermediaries and collecting societies on the other. Indeed, the report does not mention exceptions to copyright at all.

In short, this suggests that any sincere effort to address the incomes of authors – in particular in the case of developing countries where public resources are scarce – can draw on a wide variety of experiences. Simply looking at just one solution – without considering its merits in relation to others – offers a poor service to governments. And for authors themselves, the uncertain promise of PLR money may offer less of a support than more meaningful solutions to support incomes.

An open question: understanding the impact of COVID on the copyright sector

As hinted on the first day of SCCR, there is the possibility that WIPO will launch discussions on the topic of the impact of the pandemic on the copyright sector.

The question is a fair one, given the intensification of the shift to digital tools for sharing and accessing culture. There has, undoubtedly, been a huge impact on performing artists, hit by the closing of venues, as well as for bookshops.

In the meanwhile, those able to operate online have done a lot better. This includes not just streaming platforms, but also those able to sell physical goods such as books over the internet. Clearly, of course, platforms have benefitted in particular from higher numbers of users and so of data gathered.

This situation has accentuated questions about the division of revenues from such services, not least as concerns whether compensation from streaming and other uses on digital platforms is fair – the ‘value gap’. This is the same concern that underpinned the drive for Article 17 of the EU’s Directive on Copyright in the Digital Single Market.

How to address the challenges faced is a great example of an opportunity to think hard about the different tools available, rather than immediately reaching for new rights.

For example, the traditional means of addressing situations where one player is in a much stronger position in a negotiation than another is through competition law. It may also be possible to use contract law, especially in the case of individuals, which of course may also help ensure that authors receive a higher share of any revenues earned.

Fully considering these alternative options would make it easier to assess whether rights – which are likely to be best used by those with the resources to make the most of them – are the best response.


A clear case for action: cross-border exceptions

There is one situation at WIPO, however, where there is more clarity – the need for an international instrument to allow for cross-border cooperation for preservation, education and research.

Meetings held throughout 2019 explored various options for supporting these activities (see the report), but no credible alternatives to action emerged.

For example, while cross-border licensing is possible, there is no justification for obliging a user (or an institution supporting users like a library) to pay to do something across borders which they can do without compensation or permission at home.

Preservation is a perfect instance of this – a clear public interest activity for which few would argue for compensation domestically. Yet without an international instrument making clear the possibility to share works and copies – for example through preservation networks, or to allow for cloud storage of copies, there is no other solution giving legal clarity.

The same goes for core forms of access – for example to supply documents on an ad hoc basis, for text and data mining, or to support basic teaching activities. While more extensive uses may of course justify licensing solutions, minimal (or purely technical) ones do not.

Without a clear possibility to work across borders, learners, educators and researchers face uncertainty and frustration. This is an area where the other available tools have been reviewed, and the value of an international instrument is clear.


As argued in this blog, the law of the instrument provides a good analogy for an approach that sees new rights as a response to emerging challenges. While in some cases, they may be appropriate, in many cases they are not.

Indeed, the accumulation of new rights (i.e. offering someone a share of potential success, rather than simply offering those involved in the creation of a work a decent contract) causes significant challenges to those who need to clear them. While the work of collective management organisations does allow a simplification of the process, simpler still would be to seek alternatives which avoid this complexity in the first place.

In their work this week, we hope that delegates will break free of the law of the instrument, and be ready to consider the whole toolbox.

Digital Isn’t Different: Learning the Lessons of the Pandemic at SCCR

This week’s 41st meeting of the World Intellectual Property Organisation’s Standing Committee on Copyright and Related rights (SCCR) will take place in hybrid form.

With all but a few delegates attending online rather than in person, we are likely to see little in the way of concrete decision-making.

However, as the only meeting of the Committee this year, there is nonetheless the opportunity to deepen understanding of the situation that copyright law-makers – and those affected by their decision – face today. Through this, they can help lay the foundations for more normative work in future.

Crucially, as this blog suggests, the experience of the pandemic suggests that, more than ever, digital isn’t different, or at least shouldn’t be.

Analogue, but only by omission

Unfortunately, copyright laws have traditionally been designed in ways that do not take account of how digital technologies work. For example, when reading a physical book, copyright does not come into play. However, when you read it on your computer, a local copy is being made, and so copyright.

The same can go when delivering a copy of a book to someone, for example to support research or the right to participate in cultural life. Digital delivery raises many more questions under copyright than physical.

Storytimes too have raised the same concern. Reading to children aloud in a library is, in most countries, uncontroversial, accepted as a key part of promoting reading and intellectual development. However, filming a storytime for remote access implies rights of performance, and communication to the public or making available if put online. Technological measures exist to prevent the widespread sharing of works, allowing

It is by no means clear that the additional complexity associated with digital uses – especially by public interest institutions such as libraries – was intended. Rather, simply, the way in which digital technologies function was not imagined when laws were created.

And given that it can take time and effort to change these laws (and that copyright rarely wins or loses elections), they have all too often stayed the same.

The costs of inadaptation

For as long as physical access to library collection and services was possible, the costs of not adapting laws to allow for digital uses fell mainly on only the share of the population who would struggle to travel.

This of course already had a strongly discriminatory effect against people living far from major institutions, or persons with disabilities.

With the pandemic, and the obligation on libraries to shut-down physical services, whole populations have found themselves in this situation. Access to research, to storytimes, to educational materials needed to take place digitally, or not at all.

Yet copyright laws have not always permitted this, for the reasons set out above. As such, libraries have been prevented from letting their communities use works in the ways they are used to, for example to help students prepare for examples, researchers review existing knowledge, or others seek wellbeing in books.

The brightest spots have been in those countries with more flexible copyright laws, such as in the United States. Elsewhere, there has been some welcome flexibility from rightholders, but this is often uneven, and arguably the ability of libraries to carry out core functions should not depend on goodwill alone.

A bad good idea

Increasingly intensive use of digital technologies has, by bringing about situations of a lack of clarity, opened the door to new efforts to offer licences which ‘give’ the right to make uses of works, such as those set out above.

Licences of course do arguably have a place in giving original access to many digital works, as long as this is not under unduly restrictive terms. For example, a licence that imposes high costs, limited possibilities to grant access, or prevents preservation should be questioned.

However, elsewhere, just because it is possible to offer a licence, it doesn’t mean that this is necessarily the right thing to do from the perspective of maximising public benefit. In other words, in the case of many library activities, these are rights that should – arguably – be given by law, not by whoever manages licences.

For example, licensing storytimes, text and data mining, or ad hoc resource sharing can end up excluding many, leading to a much higher cost to the public interest than gain to whoever is managing the rights.


What does this mean for SCCR? Already, work in 2019 (pre-COVID), summarised in a report published last year, underlined the challenge that an inadaptation to digital technologies posed to the ability of copyright laws to achieve their goals.

COVID has only underlined the need to move towards action here, offering libraries and their users a situation that is not only clear, but also fair. An obvious solution is to promote technological neutrality in laws, ensuring that regardless of whether a use is analogue or digital, as long as it takes place under the same terms, it should be treated in the same way.

We hope that, in the case of core library functions, from preservation to the provision of access for education and research purposes, the committee will accelerate its work to provide the legal frameworks and guidance governments need to be able to bring laws into the digital age.

A Narrow Basis for a Decision with Wide Implications

South Africa’s Copyright Amendment Bill represents an important opportunity to bring the country’s laws into the 21st century, and apply international best practice in support of access to education, research and culture. Indeed, the country has been a strong and leading voice in Africa and across the developing world, at the World Intellectual Property Organisation, in support of better rules for libraries and their users, in order to help bridge the development gap.

There clearly has been controversy around this legislation, including efforts to engage foreign governments to call for a halt to the work. This has only underlined the need for the President of South Africa to stand above the noise and take account of the views of all sides in carrying out his duties.

Surprisingly, however, it appears that in the letter signed by the President and addressed to Parliament, returning the legislation for consideration of a number of questions of constitutionality, this may not have been the case. Indeed, it is rather a submission prepared by Steven Budlender and Ingrid Cloete, on behalf of members of the Copyright Coalition of South Africa – an active and vocal player on one side of the debate – which appears to have provided the structure, the content, and in some cases the wording of the letter.

On such an important issue, it is therefore unfortunate that the letter appears to be so narrowly based, with little evidence of having taken account of the opinions of all Senior Counsels, or the whole range of recommendations from stakeholders. Here, we look more closely at the similarities.

Concerning the allegation of incorrect tagging, the President’s letter repeats the arguments made by Budlender and Cloete, not only giving the exact same article references in its claims that the bill concerns trade and culture, and raising the same suggestion that the referral to the House of Traditional Leaders represents a further proof of the cultural nature of the legislation. The only substantive difference on this point is the reference to the Performers’ Protection Bill in the President’s letter, which can be explained by the exclusive focus in the Budlender and Cloete letter on the Copyright Amendment Bill.

Concerning the allegation of retrospective and arbitrary deprivations of property, the President’s letter summarises the case of Budlender and Cloete. The latter claim both that the scope of the provisions for compensation of creators who have been mistreated in the past is excessive, and suggest that the lack of a time-limit in the primary legislation for the operation of the provisions creates uncertainty. The President’s letter adds in short arguments concerning the issues surrounding works with multiple authors, or where copyright owners are non-profit organisations.

Concerning the allegations around fair use, the President’s letter broadly copy-pastes sentences from the Budlender and Cloete submission (paras 47-49) with only the most minor changes.

Concerning the delegation of legislative power to the Minister, the President’s Letter simply summarises Budlender and Cloete’s arguments, including the focus on the treatment of past agreements, the supposed lack of a due process for making regulation, and the specific reference to the role of the National Council of the Provinces.

Concerning copyright exceptions. The President’s letter lists the exact same sections and paragraphs as highlighted in Budlender and Cloete’s submission, including for example the highly questionable assertion that it may be impermissible to extend the quotation right to artistic works in Article 12b(1)(a)(i) – something that is in fact mandatory under the Berne Convention.

The only area where the President’s letter indeed departs from the Budlender and Cloete submission is in its inclusion of arguments concerning incompatibility with international law. These paragraphs are also out of character with the rest of the letter, providing long descriptions of the international legal instruments mentioned, but only the vaguest indication of what concerns may be.


In sum, the letter signed by the President appears to represent a summary of the Budlender-Cloete submission on almost all points, and occasionally a direct reproduction of specific sentences. There is little evidence of the President having applied his own mind to the issues or having proposed new reasons for the alleged unconstitutionality of the bills. The only divergences concern inclusion of reference to the Performers’ Protection bill (a topic not covered in the Budlender-Cloete submission), specific additional issues relating to the retroactive effect of laws, and vaguely worded concerns around international law.

We very much hope that the Parliament will, as it has done in the past, continue to show a more balanced and independent approach, focused on promoting the wellbeing of South Africans and the sustainable development of South Africa.

Building Understanding, Building Confidence: Interview with Chris Morrison on the University of Kent’s Copyright Literacy Strategy

Copyright can all too often seem complicated, scary, or both. Yet having a sense of what it does, and does not permit can help avoid accidental infringements, as well as preventing situations where library users do not take full advantage of the possibilities open to them.

Chris Morrison, at the University of Kent in the UK – co-owner of copyrightliteracy.org – has done extensive work on the subject, as well as co-developing games such as ‘Copyright, the Card Game’ in order to build confidence. He has also played a key role in developing a copyright literacy strategy at the University of Kent, UK. We interviewed him to find out more.


What is the state of copyright literacy currently among students, faculty and librarians?

This is difficult to say with certainty. But we did run a survey last year asking our academics how confident they felt in dealing with copyright issues and the majority didn’t feel as confident as they would like to. I certainly still get asked a lot of questions that show people still want clear guidance on how to address copyright issues.

How much appreciation was there of the need for a focused approach to copyright literacy?

As you know, this is something that Jane Secker (City, University of London and co-owner of copyrightliteracy.org) and I have been talking about for some time. Copyright is often not many people’s favourite subject, but when I started talking to colleagues about focussing on a clear institutional vision on copyright literacy they were all very supportive. Everybody seems to have some experience of working with copyright where they have or might benefit from institutional support.

For you, what is the value added of a strategy?

In the past I may have been a bit cynical about strategy documents. They can sometimes seem a bit vague – making obvious statements as part of a box ticking exercise. But after many years of working with copyright, I became convinced that going through a process of making a formal statement would be beneficial. It’s allowed me to present my vision and ideas to my colleagues and incorporate it with their experiences and ideas to create something which I think is really valuable.

What did you need to do to get to the stage of getting this drafted and approved?

We ran the development of the strategy as a project, getting together a representative working group of academic and professional services staff and holding a number of workshops. This allowed us to start off capturing lots of ideas before looking at specific position statements. I then shared drafts with student representatives, as well as experts and peers across the university sector and beyond,  before submitting to the formal approval process at Kent.

How are you approaching the question of balance between exclusive rights and enabling use?

Unsurprisingly this was one of the biggest areas of contention when developing the strategy. Universities use copyright content, but they also generate valuable intellectual property which they may want choose who gets access to and under what terms. When we realised that we weren’t trying to resolve this tension, but acknowledge it and help people make sense of it in the context of their own work, we were able to make progress.

What are you looking forward to most in the implementation?

Other than the satisfaction of a job well done it will be the ability to finally answer the question “but what does the University say about that”? I think this document reflects that a university, or any large institution has multiple perspectives, but that we should ultimately be focusing on our teaching, research and engagement.

What do you think will be most challenging?

We have a huge challenge in responding to the COVID-19 pandemic, so I think the interesting question is whether this strategy actually helps us to do the best work we can.

What does success look like in 5 years’ time?

We have a section on measuring success in the strategy. It’s a difficult thing to pin down in quantitative terms, but we’re planning on capturing lots of case studies and examples of where our approach has helped us.

Is this an experience that you think could be replicated elsewhere – both in the UK and globally?

Yes, I think it could. I’ve already received positive feedback from those who have seen the strategy, some of whom have said they are thinking of doing something similar. The strategy is available under a Creative Commons Attribution (CC BY) licence so others are free to adapt it if they want. But I would recommend going through a proper process of working out what statements might be right for your institution in collaboration with your colleagues and students or users of your library/information service. I certainly wouldn’t recommend adopting a strategy like this as a box ticking exercise.