Keeping up with international approaches: SA copyright limitations and exceptions for educational activities

charleneby Charlene Musiza

The 35th session of the Standing Committee on Copyright and Related Rights (SCCR) took place at the World Intellectual Property Organization (WIPO) at the end of last year. Comprising of all members of WIPO, the SCCR analyses matters relating to the substantive law or harmonisation of copyright and related rights, and formulates recommendations.  Current issues the SCCR is addressing include the protection of broadcasts and broadcasting organisations as well as copyright limitations and exceptions. With regard to limitations and exceptions the focus is now on three areas: educational activities, libraries and archives and disabled persons.

At the 35th session of the SCCR, UCT’s Professor Caroline Ncube presented, together with Professor Blake Reid from the University of Colorado, an important scoping study concerning access to copyrighted works by persons with disabilities.

Furthermore, a report titled “Updated Study and Additional Analysis of Study on Copyright Limitations and Exceptions for Educational Activities” by Professor Daniel Seng was presented that provides an analysis of the existing educational copyright limitations and exceptions in the copyright laws of WIPO member states. Against the background of South Africa’s current efforts to modernise its copyright legislation, one important aspect in the report concerns limitations and exceptions that enable the use of adaptations and translations for educational activities.

As regards exceptions and limitations facilitating adaptations and translations for educational activities, Professor Seng’s SCCR report distinguishes three approaches in existing copyright laws around the world:

  • “adaptation or translation” formulations,
  • “source work” formulations, and
  • “use” formulations.

Under the “adaptation or translation” formulation approach, the limitation and exception allows for the adaptation and translation of a work, for instance, by expressly providing that it is lawful to translate a work for educational purposes. In other words, the statute directly incorporates adaptation and translation into the limitations and exceptions by providing that copyright is not infringed by the making of an adaptation or translation. Under the “source work” formulation approach, limitations and exceptions permit the use of the adaptation or translations and also permit the use of the original source work – in other words, they absolve the user of the work from copyright liability vis-a-vis the translator and the original author. And, finally, under the “use” formulation approach the exceptions and limitations generally allow the use of the original work, or the adaptation or translation of the original work, to the extent justified by purpose and compatible with fair practice. This broad category covers exceptions and limitations that do not expressly allow either the making of adaptation or translation or use of adaptation or translation.

South Africa is mentioned in the report, at page 6, as a country that currently combines all three formulations in s12 of the Copyright Act 98 of 1978. More specifically, the report states that s12 (4) provides that copyright shall not be infringed by using a work to the extent justified by purpose for teaching (use formulation). Section 12(9) provides for an exception for the making or use of an adaptation of a work, thereby directly enabling an adaptation in addition to reproduction (adaptation or translation formulation). And with regards to translations, s12 (11) provides that exceptions also apply to the right to use the work in its original language or in different language and such use does not infringe the author’s right of translation (source work formulation).

One interesting question is, however, whether the Copyright Bill retains these formulations in the current regime. While proposing a highly-debated move from fair dealing to fair use in s12, the Copyright Bill retains, in s12A, the general exception approach of s12 of the current regime and now also specifically permits numerous reproductions for educational and academic activities under s13B. Section 12 (4) of the Copyright Act which relates to use of a work for teaching (use formulation) is maintained in the Bill in s12 A (1) (b); however, there is a requirement to mention the source and author of the work in the act of teaching or illustration.

The provision for the making or use of an adaptation (adaptation or translation formulation) in s12 (9) of the Copyright Act can also be found in the Bill in s12 A (3) which states that the provisions in subsection (1) shall also apply to the making or use of an adaptation of a work. The Bill however goes a step further and includes the making or use of the adaptation of the work in its original language or a different language. The current regime makes no mention of the language of the adaptation. This addition broadens the provision for adaptation as a different language can be used from the original work and still be covered, and for a country with 11 official languages this is a welcome addition.

Section 12 (11) of the Copyright Act on translation (source work formulation, see above) is also retained in s12 A (1) (f) of the Bill which provides that copyright is not infringed by the translation of a work by a person giving or receiving instruction provided that the translation is not for commercial purposes. The Bill however introduces the uses of such translation and specifically includes educational and teaching purposes in subsection (ii) which is not provided for in the Copyright Act. The provision also widens the scope of who can translate the work – a person receiving or giving instruction, thereby covering learners and instructors. Whereas under the Copyright Act there is no specific mention of educational and teaching purposes this provision in Bill can further access to educational materials.

As regards limitations and exceptions for educational purposes it thus seems the Bill retains the three approaches highlighted by Professor Seng. Copyright is one among several factors that can contribute to the cost and scarcity of learning materials in developing countries and using the limitations and exceptions for educational activities could be helpful to alleviate these effects. Against this backdrop it appears appropriate that the Copyright Bill seems to broaden the scope for limitations and exceptions for adaptations and translations for educational purposes.

At WIPO, a draft action plan relating to educational and research institutions was included in the Draft Action Plans on Limitations and Exceptions for 2018 and 2019. The draft action plan for educational and research institutions contains the following steps:

  • Develop a typology of the existing legislative and other mechanisms on the application of limitations and exceptions regime;
  • Undertake a study on the digital issues at stake at the national and international level;
  • Conduct regional seminars to analyse the situations and identify proposals for reform; and
  • Hold a conference to consider the checks and balances of various international solutions to address identified challenges.

It is hoped that these efforts will address some of the current challenges relating to access to educational materials.