INTERNATIONAL CONFERENCE IN SOUTH AFRICA HIGHLIGHTS THE URGENCY OF COPYRIGHT REFORMS

The cost of excluding billions of people in Africa and the Global South from access to knowledge could be huge for future generations. Knowledge-sharing in Africa is not always transactional, and the existing IP and copyright paradigms are not working for creators or audiences on the continent. Creators are often poorly remunerated and audiences cannot afford access to knowledge and entertainment. Many global corporations take an extractive and exploitative approach to African creativity. We need a new knowledge governance system to address these concerns and to take into account the role of traditional and indigenous knowledge. The passing of the South African Copyright Amendment Bill (CAB) is more urgent than ever!

These were the conclusions of an international conference entitled “Copyright and the Public Interest: Africa and the Global South” held last month in South Africa. The convenors were ReCreate South Africa, a coalition of creators and users of copyright material and the conference took place at the University of the Witwatersrand, Johannesburg (3 February), at the University of Cape Town Library (5 February) and at Innovation City(6 February). This conference was a follow-on from ReCreate’s inaugural conference on the “Right to Research in Africa” held at the University of Pretoria and the University of Cape Town in January 2023. Conference partners included the Program on Information Justice and Intellectual Property (PIJIP), the intergovernmental organisation, South Center, the University of Cape Town’s IP Unit, Mandela Institute, Law School and more. The conference was made possible by funding acquired through PIJIP and Arcadia, as well as Open Air.

A playlist of conference sessions from 03 February 2025 at the University of Witwatersrand, Johannesburg, and 06 February 2025 at Innovation City in Cape Town:

Ben Cashdan, convenor of ReCreate South Africa and former economic advisor to President Nelson Mandela, said that IP royalties are a de facto tax on Africa, “Income from IP royalties on all creativity, on all inventions around the world, topped $1 trillion in the past 24 months for the first time, and the United States gets about $130 billion of that. Africa gets a tiny fraction... Could that be because we don't have creatives? Could that be because we don't have actors, writers, musicians? Obviously not. The system operates in such a way that we don't get the fruits of our labour here in this country and in this continent.”

South African pop star Mercy Pakela, whose music topped the charts in the 1980s, recounted how she had been signed by record labels and other distributors so that her music could be heard by music lovers around the world, but how she had never received fair remuneration. Pakela said “I wish I knew then what I know now because then I did not know that it was business. I just wanted to be on stage. I thought it was just about talent.”

Jack Devnarain, Chairperson of the South African Guild of Actors highlighted that many performers in Africa die poor due to the power imbalance between rights owners and artists. He pointed a finger at those whose profit-seeking business models restrict the livelihoods of African performers and who are opposed to copyright reform:  “There are people, particularly the American-based organisations, the corporate giants in the Global North that are working very hard, and I'm talking about the publishers, the studios, the streamers, the broadcasters, that do not want South African actors to have the royalty earning right.”

The Copyright Amendment Bill (CAB), passed by Parliament in South Africa, but still awaiting the President’s signature, aims to solve the problem of exploitation of artists by introducing a right to fair royalties or equitable remuneration. The CAB also broadens access to knowledge for communities. Hence it addresses the needs of both constituencies, creators and authors. The President has referred the Bill to the Constitutional Court over concerns that it may lead to arbitrary deprivation of property of rights holders.

Advocate Iain Currie, lawyer for ReCreate raised questions around to what extent Intellectual Property is property in the traditional sense and also whether adjustments to Copyright laws which are clearly in the public interest are arbitrary. One of the main objectives of the CAB is to ensure that teachers and learners have access to educational materials, which is clearly a public interest goal.

According to Dr Mugwena Maluleke, President of Education International, “there is a shocking shortage of 44 million teachers worldwide. A major catalyst for this shortage is the inability to attract and retain teachers due to inadequate conditions for providing quality teaching,” including a shortage of textbooks and learning materials. “Fair use in education is the key that unlocks the door to a world of knowledge and creativity, by allowing educators to utilise copyrighted materials in their teaching.”  Moreover “Fair copyright legislation is essential to enabling teachers to adapt and use the material and reach an increasingly diverse student body.”  Maluleke is also General Secretary of SADTU, the largest teachers union in South Africa, with a membership of over 250 000 teachers and workers.

The conference considered the importance of Artificial Intelligence (AI) in solving the world's most pressing challenges, including climate change, pandemic responses and countering misinformation. AI has raised alarm bells amongst creatives.

Professor Vukosi Marivate, Chair of Data Science at the University of Pretoria, described a project in which broadcast TV shows could be used to train AI models to educate local communities about primary health care in indigenous African languages. Marivate said that a power reset needs to take place between local communities and Big Tech based in the Global North, “language communities are creating resources in Africa, and saying, yes, we might not have access to the computing power to make some of these models a reality. How do we exchange that? You can get access to some of the resources we've built, but then we're getting access to your resources as well to build for ourselves. Ultimately, we want to have agency.”

Dr Melissa Omino, the Director of the Kenyan-based Centre for Intellectual Property and Information Technology Law (CIPIT), argued similarly that “you can't treat culture as a commodity. You have to really think in a nuanced way about culture”, essentially if language and other data sets are collected from communities in Africa, and these datasets end up creating a monetary value, then those communities should benefit in some way for their contributions. Dr. Omino has been part of a team researching suitable licence models for data creation in AI on the continent.

Other topics considered by the conference were traditional knowledge, libraries and archives,  and the preservation of African heritage.  According to Professor Chidi Oguamanam,  Research Chair in Sustainability, Bio-Innovation Indigenous Systems and Global Knowledge Governance in the Faculty of Law at the University of Ottawa, protection of Traditional Knowledge (TK) has become an afterthought in global IP systems and has “been subjugated to the characteristic inclination of Western knowledge systems, that is to say, Western science.” Oguamanam urged that for Africa and many in the Global South, TK should be at the centre of Knowledge Governance and requires a completely new paradigm.

On 5 February 2025, the International Federation of Library Associations (IFLA) hosted a half-day programme on libraries and archives, which included a visit to the ruins of the Jagger Library at UCT Library.  Ujala Satgoor, Executive Director: UCT Libraries, gave a powerful presentation about the 2021 fire and the tragic loss of the Jagger Library which housed Special Collections Africana, rare books, government publications, manuscript and audio-visual archives - a great loss not only for South Africa but for  Africa and further afield.  She shared practical insights on managing such crises and highlighted legal issues, such as copyright restrictions on digitising materials and the urgent need for the Copyright Amendment Bill to be passed. 

The conference looked at copyright reforms underway in African countries and also at negotiations taking place at the World Intellectual Property Organisation (WIPO) in Geneva. Gilbert Agaba, Director of Intellectual Property at Uganda’s Registration Services Bureau, noted the alignment in copyright reforms taking place in multiple African countries, “I felt all the issues we are looking at are virtually the same… and we really need to see how we can leverage what we've learned from each other to be better.”

Gladys Isaac Ojo, Assistant Director with the Nigerian Copyright Commission, the copyright office that administers, enforces and prosecutes copyright offences in Nigeria. She highlighted a novel provision in the new Nigerian Copyright Act that allows a user to approach the Nigerian Copyright Commission for a special licence to use a work in line with public interest or in favour of public interest.  Regulations on this provision are yet to be activated.  She stressed that this is an exception, not a rule, and it is intended to serve public interest. “It is not intended to serve any individual person, or any individual business. It is for the purpose of serving the public interest.”

Professor Sean Flynn from the American University Washington’s College of Law’s Program on Information Justice and Intellectual Property (PIJIP), provided a historical background on copyright law, which stems from Common Law that bestowed the “privilege” of copyright ownership in accordance with a “duty” to ensure that the use of that copyright is reasonable and has benefits to the public, “...reasonable use means fair remuneration. Reasonable use means rights for some of the creators who have been excluded in the system. And reasonable use means fair pricing of the products.”

Copyright has always existed in the framework of limitations and exceptions, and contextualised with an understanding of how it might impact the public interest. The South African Presidency seems to misunderstand this in favour of strict copyright ownership that does not prioritise innovation and access to education and research. All of which are cornerstones for a thriving democracy.

On 21 - 22 May, 2025, in the matter of Ex Parte President of the Republic of South Africa, ReCreate, along with more than 20 civil society organisations signed on as Parties to its Amicus that represent a range of users and creators of copyright, will defend the CAB and argue that many of the provisions are in the public interest and therefore not arbitrary. 

Here are the conclusions of the conference in full:

• Knowledge Governance and IP: Question the paradigm. Question mercantilism & commodification. Creation & knowledge sharing is not always a transaction. 

• Recognise the Artists.  Recognise and remunerate the artists. Reclaim our heritage and redress the past exploitation. Distinguish the artists & creators from the distributors. Follow the money and keep your eye on the intermediaries.

• Quantify the cost of Exclusion. There are costs of non use and costs of policy gaps, especially in education. We need to preserve our heritage. It’s time for an African Agenda and an increased focus on a Global South approach.

• Resist the Balkanisation of TK. Ask the TK question. TK is not a side issue to mop up whatever doesn’t fit into Western knowledge governance.

• We are creators and farmers of our own data.  Miners or extractors of data need to have their claims to our data re-examined.

• Democratise the WIPO System: Increase awareness of the purpose of balanced copyright, including exceptions. Send the right people.  Ensure global representativity, inc. civil society.  Insist on impact assessment (on human rights, equality etc.)

• The Public Interest EXISTS.  We have inequality and exclusion, health crises, climate change, misinformation.  If copyright doesn’t help us combat these challenges, it needs to change. IP is not the objective. 

In South Africa, all eyes will be on the Constitutional Court on 21 and 22 May 2025, when it is expected to rule on the constitutionality of the Copyright Amendment Bill.  

Copyright discussions and reforms are also taking place in other forums, for example: -

1. Policy discussions are taking place at the African Union and in the AfCFTA negotiations.

2. WIPO negotiations on limitations and exceptions and related topics will again be on the agenda  of the Standing Committee on Copyright and Related Rights (SCCR) in Geneva, from 7-11 April 2025.

3. UNESCO actively engages in discussions and initiatives regarding copyright, focusing on balancing the rights of creators with the need for access to knowledge and cultural expression, including promoting open licences and addressing challenges in the digital environment. 

4. South Africa and various countries, including the U.S, UK, EU, are all working on finding solutions on how to regulate AI as it relates to copyright works. 

5. Copyright reform and legislative processes are at various stages in each country.  Nigeria is the most recent African country to update its copyright law and adopt fair use provisions, although it is still called fair dealing.

by Denise Nicholson and Kyla Mc Nulty, ReCreate South Africa