Intellectual Property, Education and Access to Knowledge in Southern Africa

Abstract

Tennessee, and founding member of the

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Intellectual Property, Education and
Access to Knowledge in Southern Africa
Andrew Rens*, Achal Prabhala**
and Dick Kawooya***
Andrew Rens is legal lead of Creative Commons South Africa, a fellow of the Stanford Centre
for Internet and Society, and researches IPR issues at the LINK Centre at the University of the
Witwatersrand, Johannesburg.
Achal Prabhala coordinated the Access to Learning Materials Project in Southern Africa in
2004/2005, and researches IPR issues in association with the Alternative Law Forum, India.
Dick Kawooya is a PhD Candidate at the School of Information Sciences, University of
Tennessee, and founding member of the
Africa Access to Knowledge Alliance formerly Africa Copyright Forum.
Copyright © ICTSD, UNCTAD and tralac, 2006.
This document has been produced with the support of the ICTSD-UNCTAD Project on IPRs and
Sustainable Development. Readers are encouraged to quote and reproduce this material for
educational, non-profit purposes, provided the source is acknowledged.

Executive Summary
There can be little doubt that education is a cornerstone of social and economic
development, or that access to learning materials is a crucial factor in the success of
any educational system. In a world which values the production and dissemination of
information and knowledge, human capital growth is a serious developmental concern.
We live, apparently, in a ‘knowledge economy’, and if so, two processes seem worth
noting. First, societies of the global south are struggling with everyday challenges of
education and literacy, while their institutions and governments perform the inevitable
balancing act between scarce resources and vast needs. Second, producers of
knowledge goods, heretofore located in the north, are increasingly global in scope;
exporting, with their expansion, an intellectual property rights (IPR) regime that poses
current and potential deterrents to learning.
It is against this backdrop that the global access to knowledge (‘a2k’) campaign
emerged. In the context of economic development in the south, and education work in
particular, curricular resources in primary, secondary and tertiary education bear
examination. While much of the changes wrought recently in IPR (in the domain of
multilateral and bilateral trade negotiations) concern changes to the digital environment,
their effects are as yet minimal in the southern African context and usually relegated to
the institutional sphere. But while this is currently true on account of the relative lack of
affordable and available telecommunications and computing infrastructures, they cannot
be overlooked in that they pose a potential threat to the learning environment, and
curtail opportunities – now and in the future – to institutions and individuals enabled with
adequate infrastructure.
The majority of the world learns from the printed and/or spoken word and associated
imagery. In this context, examining the problem of access to learning materials, and
understanding its connection to current and future IPR regimes (along with a
consideration of potentially offsetting strategies such as open access) provides us with a
firmly-rooted perspective of the options and solutions available to societies, institutions
and governments in southern Africa.
1

The simplest lesson, perhaps, comes from exploring the dichotomy evident in the
traditional knowledge good and its alternative equivalent. Books are still largely
inaccessible in the south – whether on account of high cost, unsuitability of language
and format, or, even more simply, plain unavailability. The open access textbook, on the
other hand, costs as much as it does to print and can be available wherever necessary.
Even a visible scarcity of knowledge goods in the main languages spoken in southern
Africa could be alleviated by the permission-free translation choices presented by open
access, since access to cultural goods in turn produces producers of cultural goods. The
point to bear in mind is that access as a strategy is not predicated on the assumption
that students of the south are ‘consumers’ (and that professors of the north are
‘producers’), but rather, that a complex, interdependent relationship exists between
consumption and production – and furthermore, that access to cultural goods is a
necessary and significant factor to stimulate production.
The challenges facing copyright law in relation to access to learning materials need to
be prefaced by the international obligations facing the Southern African Customs Union
(SACU). SACU countries (including Lesotho, which is classified as a ‘least developed
country’) are members of the World Trade Organisation (WTO), are further bound by
treaties signed at the World Intellectual Property Organisation (WIPO) when applicable,
and face negotiation constraints in bilateral trade agreements with countries and
economic blocs, such as the US and the EU. While the a2k movement and its allies
hope to present a sound case for national legislations to take full advantage of
flexibilities (especially in relation to exceptions and limitations in copyright law) available
under obligations to the WTO, the copyright industries are simultaneously calling for the
enforcement of another aspect of SACU obligations to the WTO – namely, criminal
sanction for certain copyright violations. A significant process currently underway in
SACU, for instance, is a free trade agreement (FTA) with the US, where the conditions
proposed by the US on copyright and related policy are, in general, beyond conditions
imposed by obligations to the WTO, especially in the digital domain.
But a focus on global processes, necessary as it is, must also consider local
circumstances. In SACU countries, as elsewhere in the global south, the informal
2

economy – knowledge and cultural goods included – plays a key role in bridging access
gaps that traditional market mechanisms overlook or exclude. As much it may be difficult
for policy-making structures to overcome the naturalisation of simplistic polarities such
as ‘piracy’ on the one hand, and the ‘formal economy’ on the other, any set of policy
solutions that address the problem of access to learning materials in southern Africa will
have to consider the informal economy in order to be comprehensive.
It is under such conditions then, local and global, that the importance of making a
legitimate claim for access to learning materials becomes important. As past campaigns,
such as the loosely federated access to medicines movement have shown, the
challenge is not insurmountable. In this case, the current needs and potential benefits of
expanding access, combined, present a credible case for serious and urgent
intervention.
Acknowledgements
The authors are grateful to Tenu Avafia for initiating the research, to
Calvin Manduna for facilitating the process, to Manon Ress, James Love,
Gwen Hinze, Lawrence Liang, Dalindyebo Shabalala, David Vivas-Eugui and
Kiyoshi Adachi for inputs and suggestions, to Ruth Okediji and Peter Jaszi
for their comprehensive reviews, and to the Open Society Institute and the
Open Society Initiative for Southern Africa for supporting the Access to
Learning Materials Project.
Funding for the TRALAC-ICTSD Project on Intellectual Property Rights, Innovation and
Sustainable Development in Eastern and Southern Africa was generously provided by
ICTSD. The broad aim is to improve the understanding of intellectual property rights
related issues among developing countries and to assist them in building their capacity
for ongoing as well as future negotiations on intellectual property rights (IPRs). For
details on the activities of the Project and all available material, see
www.iprsonline.org.
3

Table of Contents
Executive Summary 1
Acknowledgements 3
Abbreviations and acronyms 5
List of tables 5
1. Introduction 6
2. Access to knowledge in southern Africa: the problem 9
2.1 Excessive pricing 10
2.2 Unavailability and unsuitability 14
2.3 Government resource constraints 16
2.4 Potential trade-related changes to intellectual property 21
3. The informal economy in knowledge goods 25
3.1 Copyright in the informal economy context 25
3.2 The photocopier as an access mechanism 27
3.3 Petty photocopying businesses at Makerere University: a case study 32
4. A review of Copyright Law in southern Africa 36
4.1 International Trade Rules 36
4.2 Multilateral agreements and SACU 40
4.3 Copyright law review 41
4.4 Copyright regimes at a glance 43
4.5 Legislative provisions which impact on access to learning materials 46
4.6 Limitations and exceptions including fair dealing/free use 48
4.7 Important legislative provisions: importation 61
4.8 Important legislative provisions: digitisation 62
5. Conclusion 64
6. Bibliography 66
Appendix A: Data from petty photocopying businesses, Makerere University 68
4

List of tables
1. UNDP Education Index Rank 9
2. International Book Price Comparison 11
3. International Book Price Comparison by Income Proportion 11
4. Case Study: Nancecol, Johannesburg 18
5. Open access textbooks 21
6. Photocopying at Makerere University 33
7. International Copyright Agreements 41
8. Comparison of legislation impacting access to learning materials 43
9. Copyright legislative provisions which impact access to learning materials 47
Abbreviations and acronyms
a2k Access to Knowledge
DoE Department of Education, Government of South Africa
DRM Digital Rights Management
FTA Free Trade Agreement
GATT General Agreement on Trade and Tariffs
GPI Global Publishing Information Report
ICT Information & Communication Technologies
IPR Intellectual Property Rights
NGO Non-governmental organisation
North/South Used to refer collectively to developed/ developing and least developed countries,
respectively
PICC Print Industries Cluster Council, South Africa
SACU Southern African Customs Union (comprising Botswana, Lesotho, Namibia,
Swaziland, South Africa)
TPM Technological Protection Measures
TRIPs Agreement on trade-related aspects of Intellectual Property Rights
UNDP United Nations Development Programme
USTR (Office of the) United States Trade Representative
VAT Value Added Tax
WIPO World Intellectual Property Organisation
WTO World Trade Organization
ZAR South African Rand
5

1. Introduction
As a concept, knowledge covers vast ground and has multiple meanings. In the present
day, it is frequently encountered through the term ‘knowledge economy,’ which is usually
used to refer to the importance of knowledge as a contemporary commodity – an
undeniable fact, even if it puts a big idea in a utilitarian cage. Consequently, it becomes
important to acknowledge both the normative and pragmatic foundations of this concept.
As Peter Drahos succinctly puts it: ‘Knowledge underpins everything, including
economies’.
1
It is therefore appropriately difficult to exhaustively list elements of issues to consider
under a campaign for access to knowledge (a2k). To circumscribe ‘knowledge’ would be
a foolhardy exercise; instead, the campaign – as this paper – deals with conventionally
identifiable elements of curricular and self-administered learning. ‘Access’ is a similarly
fraught term. One could begin by considering that knowledge is accrued in different
ways, by both the structured system of education and cultural encounters at large. One
might consider that access to these resources can be by different means: the printed
and spoken word, television, the Internet, and many other media. One might also
consider that systems of learning must be compliant with learners’ needs, in the case of
either disabled learners or distance learners, to name but two possible groupings.
Access to learning materials is one aspect of access to knowledge. Although, for the
purpose of analysis, we might divide access to learning materials into issues of bulk
access, format access (such as the availability of works in appropriate formats for
sensory disabled persons) such classifications tend to overlook the unique nature of
knowledge. Knowledge and or knowledge media are often notionalised as ‘commodities’
for the purposes of economic analysis, denying the catalytic potential of knowledge for
development and economic efficiency. Access to knowledge and to learning materials
thus encompasses a multiplicity of routes. Even the issue access to learning materials
cannot be simply reduced to ‘ownership’ of textbooks, but extends to ways in which
learners make use of texts, such as the act of copying a library resource.
1
Drahos, P. 2005. Time for an A2K Treaty? Bridges, 9 (4), April 2005.
6

The a2k movement
2
grapples with exactly such categorical difficulties while calling for
action on two broad fronts: first, to limit the barriers imposed on access to knowledge by
current and forthcoming intellectual property policy (in the most part, copyright law) and
second, to widen the horizons of access by positively licensing knowledge goods (to
protect and populate the public domain).
The a2k movement builds on previous and ongoing development advocacy, connecting
intellectual property rights (IPR) law and policy with the broad goals of social and
economic development. It analyses the experience of individual countries with
exceptions and limitations to copyright law, it involves the free and open source software
movement and applies lessons learned to the knowledge industry at large; it learns from
the global access to medicines campaign
3
; it builds on the extensive development work
around education; and it takes on the politics of publishing. Importantly, an opportunity
exists for the a2k movement to capitalise on the education movement’s emphasis on the
fundamental right to education, constitutionally upheld in several states
4
.
The motivation for investigating industry-led copyright regimes comes from anecdotal
observation and empirical documentation of restrictions on access to knowledge, both
2
We refer, primarily, to the group of non-governmental organisations, academics and others from Asia,
Africa, Latin America, Europe and the United States, who met during 2005 to formulate a proposed a2k
treaty, and their loose group of allies and institutional affiliates. For more information, see
www.cptech.org/a2k.
3
We refer, particularly, to the dramatic price reductions in essential antiretroviral medicines used to treat
people with HIV/AIDS. The international humanitarian organisation Médecins sans Frontières notes that
the annual cost of the ARV medicines package has fallen from $10,439 in 2000 to $152 in 2005 –
representing a price decline of approximately 99% in a mere 5 years (Médecins sans Frontières. 2005).
For one overview of the process by which civil society organisations lobbied for access to medicines, and
enabled it – typically by tackling the IPR norms that governed their manufacture and circulation, see
Berger, J & Prabhala A. 2005, Assessing the impact of TRIPs-plus patent rules in the proposed US-SACU
Free Trade Agreement. Oxfam GB, South Africa.
4
UNESCO, in particular, has done noteworthy work around implementing the right to education. For
instance, the Bill of Rights, Constitution of the Republic of South Africa states (emphasis added):
‘29. (1) Everyone has the right
a. to a basic education, including adult basic education; and
b. to further education, which the state, through reasonable measures, must make progressively
available and accessible.
(2) Everyone has the right to receive education in the official language or languages of their choice in
public educational institutions where that education is reasonably practicable. In order to ensure the
effective access to, and implementation of, this right, the state must consider all reasonable educational
alternatives, including single medium institutions, taking into account
a. equity;
b. practicability; and
c. the need to redress the results of past racially discriminatory laws and practices.’
7

instances of which are examined further in this paper. The motivation for studying
access to knowledge lies within the challenge to sustain an environment of learning,
creativity and social and economic growth. Thus, it is important to note that neither is
this solely a southern issue, nor are concerns around industry induced copyright
amendments less legitimate because they occur in the north. Yet, the study of access to
knowledge as a development goal, in the context of the state, closely relates to the
challenges of literacy and education in the global south. For the purposes of this paper,
we analyse the issue through a narrower term, namely, access to learning materials.
While most of the world still formally learns through the printed or spoken word, for some
time now, copyright industries
5
have been lobbying for increased control of the electronic
domain – advocating the implementation of terms which, in many countries, would
impose restrictions on users that go further than laid down in national copyright law
6
.
Though the accessibility of electronic content is sometimes seen as a developed country
problem – due to the widespread lack of affordability of computer hardware and
telecommunications infrastructure in the south – any regulation of the electronic domain
has broad global significance, in the present, and in the future. The irony is that even
while information and communication technology is championed by northern
governments as a development tool, regulation proposed by these very entities
threatens to limit its potential.
The first section in this paper defines broad issues to consider and examines the
barriers to access to learning materials faced in the Southern African Customs Union
(SACU), analysing the responsibility of intellectual property legislation within the
complex structure of systems that are consequential to consumers and learners. The
second section reminds us that the informal economy in knowledge goods is an access
mechanism, prompting a conceptual consideration of the phenomenon of piracy, and
then, through a case study in Uganda, suggests possible policy lessons. The third
section frames the environment described in the first two sections in a survey of
5
Content and information technology corporations, primarily based in the north, whose revenue is linked
to copyright control.
6
For an overview of the problems faced by electronic domain content, see pages 8–10 of the draft text of
the a2k treaty, available at:
http://www.cptech.org/a2k/consolidatedtext-may9.pdf.
8

intellectual property law in SACU member countries, and audits the limitations or
exceptions available within the law, in the light of those that may be made use of, as a
consequence of access to learning materials.
2. Access to knowledge in southern Africa: The problem
Conventional, developmental accounts of human capital theory are based on the idea
that education leads to increased productivity, which, in turn, leads to increased wages.
That education is a cornerstone of economic development is incontestable. But
education in turn relies on the assumption that schooling outputs are directly related to
schooling inputs: in other words, it is assumed that the quality and availability of learning
materials are crucial for sustaining a student through the various processes and stages
in the education system. Noting this significance, the South African Department of
Education (DoE) states
7
:
The price of textbooks warrants special attention…partly because textbooks
are probably the most important input, at the margin, in producing learning
achievement…
Education in southern Africa is characterised by general underperformance, as
manifested in standard human development indicators, pointing to a struggle to develop
human resource capital:
Table 1: UNDP Education Index Rank
Country
UNDP Education Rank
8
(Out of 177)
South Africa 119
Namibia 126
Botswana 128
Swaziland 137
Lesotho 145
7
South Africa. Department of Education. 2003. Report to the Minister: Review of the Financing,
Resourcing and Costs of Education in Public Schools. Pretoria: Government Printers.
8
UNDP. 2004, United Nations Development Programme, Human Development Report. Geneva: UN.
9

While it is clear that the availability of learning materials is a crucial component of
education, some basic questions are important at this stage. Firstly, to what extent is
access to learning materials a problem in the region? And secondly, how can we trace
the effects of the problem to intellectual property law?
We rely on empirical evidence, qualitative accounts and surveys of access problems as
they currently exist, to suggest that there are significant problems regarding access to
learning materials in southern Africa, many of which are connected to intellectual
property legislation, and others which would benefit from a progressive licensing policy
(while acknowledging other, non-intellectual property factors responsible for creating
access barriers). We also caution that the quality and range of empirical data with
regards to documenting and quantifying the access gap are generally thin, and that
structured research is necessary on this question in order to establish a basis for further
advocacy.
In considering access barriers in southern Africa, we devote considerable attention to
South Africa, and frequently intend it as a regional metaphor. South Africa accounts for
91% of the SACU regional economy and houses 87% of the regional population. South
Africa’s regional leadership in manufacturing, and consequently, regional export,
extends to the publishing industry – the country manufactures 95% of SACU’s net
industrial output and is responsible for 88% of the export in the region
9
. South Africa is
of similarly considerable economic importance to non-SACU neighbours like Zimbabwe
and Zambia.
Among the significant barriers to access to learning materials considered are:
2.1 Excessive pricing
The price of books in South Africa can be considered excessive in two ways: first, by a
comparison of absolute prices across several countries; second, in comparison to
average incomes within the country. The lowest local price of a textbook for secondary
9
UNDP. 2004, United Nations Development Programme, Human Development Report. Geneva: UN.
10

and tertiary education can be some multiples of its counterparts in developed country
markets (even, as seen below, when the author originates in South Africa):
Table 2: International Book Price Comparison
10
South Africa USA UK
J.M. Coetzee’s Disgrace $ 21.70 $ 10.15 $ 10.15
Nelson Mandela’s Long Walk to Freedom $ 23.70 $ 11.60 $ 16.30
Oxford English Dictionary $ 44.61 $ 20.46 $ 24.00
A comparison of the proportion of income spent on acquiring textbooks across countries
provides a sound justification for labelling prices as excessive:
Table 3: International book price comparison by income proportion
11
Country GNI/Capita
(US$)
Oxford English
Dictionary as a fraction
of average income
Local cost of Oxford English
Dictionary at current South
African proportions (US$)
South Africa
3630 1.2 % (Null)
USA
41,400 0.0004 % $497
UK
33.940 0.0007% $407
South Africa is one of the few countries in the world which levies a Value Added Tax
(VAT) on books, currently resulting in a 14% increase in retail price. Imported books
face an additional customs tariff of 10%, in addition to freight charges, which a Global
Publishing Information (GPI) report from 2004
12
estimates at 10%. A rough calculation of
the mark-up due to taxes, tariffs and freight pegs the figure at 35% – which is still
insufficient to justify the international pricing disparities observed in Table 2, which place
South African book prices at an increase of more than 100% over the foreign
counterpart
13
.
10
Comparative editions priced at: www.amazon.co.uk, www.amazon.com and www.kalahari.net. All three
books are recommended texts in the South African secondary school system, and in various tertiary
courses. To the best of our knowledge, student editions of these books are not widely marketed.
11
UNDP. 2004, United Nations Development Programme, Human Development Report. Geneva: UN.
12
Andrew, J. 2004. Publishing Market Profile: South Africa. British Council and the Publishers
Association, UK.
13
While this might suggest that a South African student would be better off buying books from a UK/US
online retailer, rather than buying books at a local bookstore or from a local online retailer, the
11

Among the main reasons for the excessive pricing of books in South Africa is a lack of
competition in the market, evidenced in several ways across the spectrum of book
publishing. In the Academic book publishing market (denoting textbooks and reference
material primarily for tertiary education), the GPI report notes that three publishers
(LexisNexis Butterworths, Pearson and Juta) have a combined market share of 62%.
Academic book distribution is even more consolidated, with two firms – Van Schaik and
Juta retail – holding close to a 100% market share. In the schoolbooks market (i.e.
primary and secondary education), five publishers (Maskew Miller Longman, Macmillan,
Nasou, Oxford University Press and Juta) hold a combined market share of 71%.
The Print Industries Cluster Council (PICC) concluded that South Africa lacked a
‘reading culture’ based on their estimation
14
that not more than 4% of the country’s
population were active readers. The broader context that access to learning materials is
located in is the historically and currently limited market focus of the book retail industry
at large: observable in that an already limited number of bookshops exist only in
shopping malls located in affluent parts of urban South Africa. According to the GPI
report, There are ‘very few bookshops outside the larger cities and virtually no
bookshops in rural areas or in the townships’ (townships are an apartheid term for urban
black settlements), signifying that the majority of the urban and rural population has
limited access to book buying and reading, even as a leisure activity. And as the GPI
report dryly notes: ‘Trade books are bought predominantly by white readers’.
Excessive pricing indicates a lack of affordability, and a cursory glance at the 2004
statistics suggests that the link is strong. The GPI report estimates that the average cost
of a single book in South Africa is ZAR 100. It further estimates that the average
government outlay on learning materials is ZAR 189 per student. The South African
Students Congress estimates that the average annual cost of tertiary education learning
preconditions for such purchase (access to the internet, ownership of a credit card, a willingness to
tolerate the considerable delay in procurement, etc.) render this option meaningless for the greater part.
14
Noted in a communiqué from the Print Industries Cluster Council: Van der Sandt, E. 2003. Are Books
Expensive? (23 October 2003). [Online]. Available:
http://www.picc.org.za/pdf/are_books_expensive.pdf.
12

materials is ZAR 6000
15
. These costs for learning materials (albeit very partially offset by
grants and scholarships) need to be viewed in the context of South Africa’s average
annual income per capita, ZAR 14,000
16
– which in the case of single earner households
is equivalent to the annual sum of money available to the whole family, for all basic
needs, such as food, clothing, shelter and transport (indicating, for example, for a family
earning the average income, that 40% of its annual income would have to go towards
supporting one child’s curricular book costs at university).
The producer-consumer dynamic in publishing in present day South Africa is
reminiscent of the apartheid state. Prior to 1994, the publishing industry only catered for
the middle-class, and the majority of the poor did not have access to learning materials
since they were excluded from quality education at large. In 2005, the publishing
industry catered for a racially and numerically expanded middle-class, but the majority of
the poor, while now encouraged to access education by the state, is often excluded from
it by the inaccessibility of learning materials.
The broad lack of competition in the publishing industry, coupled with an inability by the
industry to attract the majority of learners to its market, suggests a number of intellectual
property and competition policy related interventions – following from the premise that
copyright and market power are fundamental facets of a publisher’s ability to control the
market for a given learning material. On the basis of South African competition policy, it
is likely that a credible case may be made to investigate excessive pricing, abuse of
dominant position and (vertical and horizontal) monopolisation in the publishing industry.
It is also likely that a useful research question would be to understand whether licensing
terms of non South African publishers operating in the country set the tone for domestic
book prices, or whether it is domestic publishers whose policies create the current
pricing situation.
Within the domain of copyright law, sanctioning parallel importation, which would allow
distributors and booksellers to choose from a range of world markets, could lead to a
15
From an unpublished survey conducted in South Africa in 2005 by the South African Students Congress
(SASCO), on file with the authors.
16
UNDP. 2004, United Nations Development Programme, Human Development Report. Geneva: UN.
13

more equitable pricing structure. The basis for this is the lack of adequate provisions
within copyright law to promote access to essential learning materials. Where essential
learning materials are inaccessibly priced, compulsory licensing could be used to enable
a competitive production framework that meets consumer needs
17
.
2.2 Unavailability and unsuitability
In smaller, less industrialised Southern African economies (such as Zambia
18
),
textbooks, particularly for tertiary education, are routinely unavailable. In subjects
without politically contextual limits (such as the physical sciences, engineering and
medicine – and unlike, for example, history), tertiary institutions in the south often rely on
published material from the north. But the book in question will only be available through
a publisher, wholesaler or distributor, if it is adequately profitable to supply the market
with that book.
Market logic indicates that a business segment is entered only when there exists both
the opportunity to make a profit, as well as a rate of return that is attractive in
comparison to other possible investments. The low demand for specialised books in
higher education (for example in courses that have very few students enrolled)
sometimes means that it does not make business sense for a private retailer to stock
them.
This is coupled with another deterrent to access: unsuitability. In SACU, the majority
population, though multilingual, is primarily fluent in one or more of the indigenous
languages. Rural students (approximately 30% of South Africa live in rural areas) in the
17
Clear guidelines for compulsory licensing may enable expanded access to intellectual property goods
both through actual use and the threat of use. For example, in the access to medicines campaign in South
Africa, the AIDS Law Project, acting for the Treatment Action Campaign, wrested multiple voluntary
licences from two pharmaceutical companies in a settlement based on a case that hinged upon the
threatened use of compulsory licensing. See:
http://www.alp.org.za/modules.php?op=modload&name=News&file=article&sid=82.
In most of the jurisdictions there is no explicit enabling provision for compulsory licences, nor are there
any explicit legislative barriers. In our opinion it is not a requirement of TRIPs that countries make use of
the Berne Appendix to exercise their sovereign flexibilities under TRIPs.
18
From statements recorded by the authors at a workshop for academics and schoolteachers in Lusaka,
March 2005, organised by the Open Society Initiative for Southern Africa (
www.osisa.org), and attended
by the Access to Learning Materials Project in Southern Africa (
www.access.org.za).
14

large part, receive their primary and secondary education in one of these indigenous
languages, depending on the region the student is from, and the options available.
Dominant languages (such as English and Afrikaans) are then only encountered upon
entering tertiary education – at which point the student is confronted with a near-total
lack of learning materials in her preferred language of instruction, thus often having to
grapple with learning in an unfamiliar language.
Students with a sensory disability (including blindness and partial sightedness) face
similar issues. In 2005, students at the Filadelfia School for the Blind – in a township
called Soshanguve outside Pretoria, South Africa – were compelled to go on strike to
protest the unavailability of learning materials in Braille
19
. Text-to-audio and text-to-
Braille conversion incur significant process costs, but notwithstanding, licensing factors
– whether related to a delay in obtaining formal permission, or the cost of obtaining an
adaptation licence – remain as barriers. Distance learning institutions, which serve the
majority of South Africa’s tertiary education students, find that the cost of designing
curricula restricts an expansion of their student base, in part, because of copyright
licence fees applicable when adapting existing content into suitable formats.
Indigenous language learners, sensory disabled students and distance learners are all
groupings generally considered outside the mainstream
20
– in that for educational
material to be suitable to their needs, it requires adaptation from its original format
(typically, a printed English book).
Compulsory licensing possibilities, including milestone clauses that monitor the use of
exclusive rights included under maximal copyright
21
(and, perhaps, transfer specific
rights to the public domain when the related copyright good – such as the Braille
adaptation, for example – does not enter the market in a reasonable time frame), and/or
provisions that make it easily and legally possible to adapt copyright material for non-
19
SABC News, 19 May 2005.
20
It must be noted that the use of the word ‘mainstream’ is misleading since it has no quantitative basis;
we use it to note prevailing social prejudice. The accumulated number of indigenous language learners
and/or disabled students and/or distance learners in Southern Africa, combined, would in fact form the
vast majority of students in the region as a whole.
21
The ‘bundle’ refers to, not exclusively, the right to reproduce, prepare derivative works of, distribute,
perform, display and/or make commercial use of copyright works.
15

profit markets, would serve, in part, to meet the needs of students thus considered. For
instance, provisions which allow individuals to make copies should state that others,
such as libraries may make copies on the person’s behalf. Another example would be a
provision which allows minority to language speakers to make their own translations for
educational purposes where there is insufficient economic incentive for the copyright
holder to do so
22
.
2.3 Government resource constraints
In situations where the government is a significant procurer of learning materials for
primary and secondary education, as is the case in South Africa
23
, the excessive pricing,
limited adaptability and unavailability of suitable learning materials cause a severe
resource crunch.
22
For one example of a sovereign copyright law that (partially) enables the educational provisions
suggested, see Australia - the Copyright Act 1968 (Act No. 63 of June 7, 1968 as amended in 2002):
Section 10(1A). Without limiting the meaning of the expression educational purposes in this Act, a copy of
the whole or a part of a work or other subject matter shall be taken, for the purposes of the provision in
which the expression appears, to have been made, used or retained, as the case may be, for the
educational purposes of an educational institution if:
(a) it is made or retained for use, or is used, in connection with a particular course of instruction provided
by the institution; or
(b) it is made or retained for inclusion, or is included, in the collection of a library of the institution.
[and]
Section 40–(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a
literary, dramatic or musical work, for the purpose of research or study does not constitute an infringement
of the copyright in the work.
(1A) A fair dealing with a literary work (other than lecture notes) does not constitute an infringement of the
copyright in the work if it is for the purpose of, or associated with, an approved course of study or research
by an enrolled external student of an educational institution.
(1B) In subsection (1A) the expression lecture notes means any literary work produced
for the purpose of the course of study or research by a person lecturing or teaching in or in connection
with the course of study or research.
(2) For the purposes of this Act, the matters to which regard shall be had, in determining whether a
dealing with a literary, dramatic, musical or artistic work or with an adaptation of a literary, dramatic or
musical work, being a dealing by way of reproducing the whole or a part of the work or adaptation,
constitutes a fair dealing with the work or adaptation for the purpose of research or study include:
(a) the purpose and character of the dealing;
(b) the nature of the work or adaptation;
(c) the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial
price;
(d) the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
(e) in a case where part only of the work or adaptation is reproduced—the amount and substantiality of
the part copied taken in relation to the whole work or adaptation.
23
Mirroring a situation generally applicable in the global south, where governments’ involvement in
curricular development is high in primary and secondary education, and less in tertiary education.
16

In South Africa, textbooks form the single highest component of student costs;
simultaneously, government is the single largest procurer of textbooks, accounting for
over half the publishing industry’s turnover
24
. In 2003, the Director General of the DoE
highlighted the book-price crisis in a report to the Minister of Education:
The price of textbooks warrants special attention, partly because textbooks
constitute such a large portion of the state’s expenditure on education…
Though there has been no proper study into the matter, some views suggest
that the textbook industry may not be sufficiently competitive, and that it is
characterized by too many sole-supplier situations to ensure competitive
prices. Higher prices could allow producers to make abnormally high profits,
or might simply sustain inefficient production processes. Thorough research is
required on this subject to inform possible responses by Government to
improve the competitiveness of the industry. Such a study might include an
assessment of the relative costs of production in South Africa compared to
those in other countries.
25
According to the DoE, South Africa, the expenditure outlay on school learning materials
in 2003 – 2004 was ZAR 2.2 billion. While government investment in education is
generally high
26
(6% of GDP), and total annual education expenditure in 2003 – 04 was
ZAR 70 billion, there are compelling – and sometimes competing – infrastructure and
human development needs in education that demand more resources. In its 2000
Register of Needs survey
27
, the DoE found that:
80% of schools did not have libraries
43% of schools did not have electricity
24
Gray, E. and Seeber, M. 2004. Print Industries Cluster Council (PICC) Report on Intellectual Property
Rights in the Print Industries Sector. Commissioned by the Department of Arts & Culture, Government of
South Africa, p. 12.
25
South Africa. Department of Education. 2003. Report to the Minister: Review of the Financing,
Resourcing and Costs of Education in Public Schools. Pretoria: Government Printers.
26
In comparison, the average OECD country spending on education was 5.6% of GDP in 2005: see
http://ocde.p4.siteinternet.com/publications/doifiles/012005061T031.xls.
27
See http://www.education.gov.za/content/documents/295.pdf.
17

88% of schools did not have computers for learning; in those that did, the students:
computer ratio was 164:1
Table 4: Case Study: Nancecol, Johannesburg
An instructive example of the failure in access to learning materials in secondary school
education can be found at Nancecol (formerly, the Nancefield College of Technology), an
adult learning centre in South Africa, where 485 students spend half their day completing
Grades 9, 10 and 12 of the secondary education system (Grade 11 is conflated into the grade
12 syllabus for adult education). Over the course of field visits conducted by the Access to
Learning Materials Project in Southern Africa and the South African Students Congress in
2005, it was observed that not one of the students or teachers at the school owned a single
textbook. The school administration itself only owned two copies of textbooks applicable for
one subject (out of 12) for one level (Grade 9).
Teachers at the school taught from old books and handwritten notes, while students relied on
their class notes for reference. The distribution of textbooks to Nancecol by the provincial
DoE had been disrupted, and conversations with the school administration suggested that
there were procedural problems in local bureaucracy that needed urgent attention. The
administrator hastened to add that even if distribution were to function efficiently, the local
education budget allowed for only something like one in five students to have access to
textbooks.
Nancecol is located in Klipspruit, a neighbourhood of Soweto, which is among the largest
black townships in South Africa, accounting for a third of the city of Johannesburg’s
population.
There are many possible interpretations on school learning materials expenditure: it is
evident that the government is not obtaining enough books for what it spends (as its own
report suggests); simultaneously, it is also likely that increasing expenditure on learning
materials would divert resources from other crucial areas – such as infrastructure and
human resources – in need of support. In either case, it is clear that a new strategy is
necessary in order to fulfil the curricular needs of primary and secondary school
students in South Africa.
18

It is important to note here that open access as a principle, and open content licensing
as a strategy, present considerable leverage to stretch tight education budgets. Open
access is an enabling mechanism for users that is typically enabled by an open content
licence. An open content licence is generally characterised by allowing the right to
(freely) reproduce and adapt, with optional considerations for attribution and ‘sharing
alike’ – that is, to make any adapted versions available under the same open content
licence terms as were available to the adaptor
28
. By actively entering the learning
materials market, either through commissions or a revised procurement policy, the DoE
could mandate that content procured or recommended by it be open-content licensed.
The ensuing open access would create several bridging opportunities, allowing for
schools, community structures and non-governmental organisations (NGOs) to cost-
effectively support the DoE’s mission. Yet, it is important to note the limits of such an
open access strategy, given the limited amount of reference material that might be thus
accessible, and the relatively scarce amounts of literary material available under open
content licenses.
While the strategy is similar to the logic of government promotion of free and open
source software (FOSS) – that is, to procure affordable knowledge goods which can be
freely adapted and improved upon going further – the actual consideration of such a
strategy, however, would have to be finely calibrated to the market dynamics of the local
publishing industry in order not to create disincentives to its sustainability, since even
though an altered publishing market would be desirable to promoting access, its
absence would be detrimental to the broad goals of education and learning. At the same
time, while the potential of FOSS is severely hampered by the average individual’s lack
of access to computing infrastructure, the usefulness of open access content is not
necessarily contingent on access to a computer or the internet. Given some institutional
access to digital content (as exists today in Southern Africa, at NGOs and universities,
among others), such intermediaries might serve as ‘proxies’ for individual users; thus,
for instance, legally downloading a print-ready textbook, printing hard copies, and
distributing them to users whose direct access to the digital domain is limited.
28
For a comprehensive survey of open content licences see Liang, L. 2005b. A Guide to Open Content
Licences. [Online]. Available:
http://pzwart.wdka.hro.nl/mdr/pubsfolder/opencontent/.
19

A related point is that resource constraints facing governments within the SACU mirror
resource constraints facing universities in the region. While government is usually (not
directly) involved in the commissioning and funding of tertiary education learning
material, universities – which rely in part on government financial support – face the
issue of having to sufficiently fund their library systems. The typical situation
29
is this:
faced with increasing enrolment and an increasing amount of physical and electronic
knowledge goods that need procurement, libraries enter into licensing agreements with
collecting societies
30
, but find, in turn, that while they are paying high fees in intellectual
property rent, they are yet unable to fully meet their students’ cumulative demand. While
fair dealing/ fair use regulations protect rights-holder interests to the general detriment of
the library’s work, paradoxically, library administrators find themselves increasingly
required to devote institutional resources towards ‘copyright education’
31
.
29
See presentations by Pauline Ngimwa and Teresa Hackett at the inaugural meeting of the African
Copyright and Access to Information Alliance:
http://www.nlu.go.ug/presentations.htm. A related example:
the University of the Witwatersrand, a leading South African institution, spent ZAR1.3 million in 2005 on
copyright rents related to adaptation and electronic dissemination of materials alone, not including other
copyright-related expenditure (correspondence via e-mail to the authors, from Nellie Sithole, Accounts
Officer, University of the Witwatersrand library, 15 February 2006).
30
In some cases, collecting societies also perform the function of a reproduction rights organisation, as in
South Africa with the Dramatic, Artistic and Literary Rights Organisation, DALRO:
www.dalro.co.za.
31
See www.dalro.co.za.
20

Table 5: Open Access Textbooks
In September 2002, a group of post-graduate students at the University of Cape Town, led by
Mark Horner (a student of physics), decided to form a collective of students, professors and
researchers who would contribute to the creation of free high school science texts. Today, the
project is well recognised and much larger than at inception; and the collective has produced
draft versions of textbooks for physics, chemistry, mathematics and biology (see
http://www.nongnu.org/fhsst/) for use in secondary schooling in South Africa.
Open access textbooks can thus be both freely available and freely adaptable, representing a
significant opportunity in accessing affordable, up-to-date texts of quality. In many cases,
international open access textbooks have local relevance and applicability. Some noteworthy
projects include:
BookPower
http://www.bookpower.org/
California Open Source Textbook Project
http://www.opensourcetext.org/index.htm
Textbook Revolution
http://www.textbookrevolution.org/
Wikibooks
http://en.wikibooks.org/wiki/Wikibooks_portal
Connexions: Rice University
http://cnx.rice.edu/
Open Course Ware: MIT
http://ocw.mit.edu/OcwWeb/index.htm
2.4 Potential trade-related changes to intellectual property
The last decade has seen the scope of copyright protection extended through recent
treaties to include both software and compilations of data, and, simultaneously, an
increase in prohibitions and related enforcement mechanisms around copyright.
Some of the industry-led changes to the copyright system are effected in international
treaties promoted by multilateral bodies like the World Intellectual Property Organisation
(WIPO) and the World Trade Organization (WTO) of which SACU countries are
21

members (though, whose treaties, they are not necessarily signatories to: for a detailed
treatment, see Section 3). The progression in international treaties that govern
copyright law can be traced from the Berne Convention (beginning in 1886) to the WIPO
Convention, (14/07/1967 (28/09/1979) WO_29) which established WIPO, through the
inclusion of IPR on the agenda of the WTO and its consequent agreement on trade-
related aspects of intellectual property rights (TRIPs) – which incorporated essential
elements of the Berne Convention (1996) – to the
WIPO Copyright Treaty (20/12/1996
WO_33) (WCT) in 2000. TRIPs and the sovereign flexibilities available under TRIPs are
most important to this discussion since TRIPs may be enforced by trade sanctions. A
detailed discussion of copyright law in SACU, vis-à-vis obligations and flexibilities under
international treaties, especially TRIPs, is presented in Section 3 of this paper.
Aside from the multilateral channel, the government of the USA, through the office of the
US Trade Representative (USTR), negotiates bilateral trade agreements with countries
and regional economic units. Negotiations for a free trade agreement between the USA
and SACU (FTA) began in November 2002 and were still awaiting conclusion at the time
of writing. Among the significant concerns around potential elements of the FTA are:
Restrictions on the use of digital content
While the idea of overcoming legal barriers to access to digital content may seem to lack
relevance in some developing countries, given the poor availability and high costs of
telecommunications and computing infrastructures, it will in fact play an important role in
determining the future of access to knowledge everywhere. New information
technologies make it feasible to extend access to massive libraries of educational,
scientific and cultural works, and as the technological costs of storing and manipulating
information fall, even the least resourced learning institutions can potentially have
something close to parity in terms of the information resources currently available in
wealthier countries. Distance learning, already accounting for a significant portion of
learning in the south, will increasingly rely on digital means for reach and delivery. The
degree to which such access is obtained, and degree to which the future will hold
equality of access, will depend upon a number of issues and tasks, including the legal
systems put into to place to protect digital content from unauthorised use, which could
22

threaten the promise and potential of new technologies, and the development of and
support for new platforms for the creation of open access knowledge goods.
Of particular concern are proposed legal and technological measures related to digital
rights management (DRM) and manifested as technological protection mechanisms
(TPMs), which, taken together, impose significant restrictions on the ability to copy or
share works without explicit permission from right-owners, anti-circumvention regulation
which illegalises the fair use of digital content, and IPR and regulatory measures that
undermine free and open access development and publishing platforms. Such legal and
technological measures are currently a reality in the USA, for instance, through the
Digital Millennium Copyright Act (DMCA) enacted in 1998
32
.
Extension of the copyright term
With reference to printed material, the South African copyright act prescribes a copyright
term of 50 years on after the life of the author, as is generally the norm. But through the
recently concluded US-Australia FTA
33
, for instance, as a condition of the agreement,
the copyright term in Australia was extended to 70 years. The USTR has publicly
articulated its logic as being that copyright term extension increases the commercial
viability of copyright industries. However, any aspect relating to the extension of market
power and/or monopoly rights of the publishing industry has implications for education,
especially for the availability of ‘classic’ literary texts.
Impediments to educational licensing and adaptation
The intellectual property proposals of the FTA, as expressed by the USTR, closely
resemble the suggestions of the PICC, a South African industry lobby group
34
. Of some
32
The DMCA is considered controversial, even in the US. See, generally, the Electronic Frontier
Foundation (
www.eff.org) and specifically, http://www.eff.org/IP/DMCA/?f=unintended_consequences.html
33
For one account of the anti-consumer IPR conditions of US-Australia FTA, see Richardson, D. 2004.
Intellectual Property Rights and the US-Australia FTA. Department of Parliamentary Services, Economics,
Commerce & Industrial Relations Section, 31 May 2004. Available on the Australian Parliament website:
www.aph.gov.au.
34
The PICC brings together a number of industries in the print sector. Its members are: the Print
Federation of South Africa (PIFSA), the Paper Manufacturers Association of South Africa (PAMSA), the
Publisher’s Association of South Africa (PASA) and he Booksellers’ Association of South Africa (BASA).
23

concern here is the attempt to deter the state from exercising legal licensing options to
curb abuse on the part of rights-holders, or institute restrictive limits on the scope of fair
dealing that would negatively impact access to learning materials.
Impediments to parallel trade
As regards ‘piracy’, the FTA concluded between the US and Morocco on 15 June
2004
35
provides the following definition:
36
…pirated copyright goods means any goods that are copies made without the
consent of the right holder or person duly authorised by the right holder in the
country of production and which are made directly or indirectly from an article
where the making of that copy would have instituted an infringement of a
copyright or a related right under the law of the country of importation.
It is possible that comments on the enforcement of criminal sanctions for acts of piracy,
expressed by the USTR in initial letters to the US Congress in November 2002
37
may
be interpreted to mean that the USTR will seek an FTA that mandates the use of the
criminal law to prevent the importation of copyrighted material. Yet, the parallel trade of
pharmaceuticals, for instance
38
, is explicitly sanctioned within South African law. Even
otherwise (and with no restriction on type of commodity), TRIPs mandates that parallel
trade is a sovereign right, and that nations may decide (within limits) on how and when
to exhaust IPR, though national legislations have not necessarily taken advantage of
this flexibility
39
.
A point to consider is that potential provisions of the FTA are not publicly known. Those
FTAs which have been concluded impact on exceptions and limitations both directly and
indirectly. It is important to bear mind that exceptions and limitations need not be
35
The text of the Morocco FTA is available online at:
http://www.ustr.gov/Trade_Agreements/Bilateral/Morocco_FTA/FInal_Text/Section_Index.html.
36
The definitions are contained in footnote 19 (to Article 15.11.20) of the text of the Morocco FTA.
37
From the initial expression of the USTR on the SACU FTA: available at www.ustr.gov.
38
Section 15C(b) of the Medicines and Related Substances Act, 101 of 1965 and Regulation 7 of the
General Regulations issued in terms thereof.
39
It must be noted here that Section 23 (2) of South African Copyright Act of 1978, as amended, prohibits
the importation into South Africa of reproductions of works without the authority of the rights holder.
24

confined to those currently enacted in developed countries. For instance appropriate
exceptions and limitations to increase access to knowledge include the possibility of
government authorisation of importation of legitimate copies from other jurisdictions
without permission. In other words, state action can counter the anti-competitive effects
of market segmentation. However provisions in existing FTAs prohibit state authorised
parallel importation
40
. Mandatory anti-circumvention legislation, highly controversial in
the US but required by FTAs
41
criminalizes the exercise of fair dealing rights since
exercising fair dealing requires overcoming technical barriers to fair dealing.
3. The informal economy in knowledge goods
3.1 Copyright in the informal economy context
Copyright and education in Africa interface in unpredictable ways. While the copyright
system is generally premised on creating access to cultural goods (and providing rights-
holders with the incentive to produce, since, through exclusivity, they can sell above
marginal cost of production), the fact is, the poor are a majority on this continent, and
access through private means is not an option for most students and even many faculty.
As copyright exceptions and limitations in countries with progressive legal traditions are
being eroded through lobbying and undesirable technological regulation, the ensuing
barriers to access to learning materials can only exacerbate existing socio-economic
divides
42
.
Across continental Africa, it would be true to claim that a wide section of rural and urban
consumers, including the educated middle class, are generally unconcerned with the
details of the copyright system. Local musicians, publishers, writers and artists form
lonely voices as they agitate for stricter copyright laws to protect their output. Such
40
For instance US Morocco FTA 15.5–2: ‘Each Party shall provide to authors, performers, and producers
of phonograms the right to authorize or prohibit the importation into that Party’s territory of copies of the
work, performance, or phonogram that are made without authorization, or made outside that Party’s
territory with the authorization of the author, performer, or producer of the phonogram.’
41
(US Morocco FTA 15.5–8)
42
Okediji, L.R. 2004. Development in the Information Age: Issues in the Regulation of Intellectual
Property Rights, Computer Software and Electronic Commerce. P.11. [Online]. Available:
http://www.iprsonline.org/unctadictsd/docs/CS_Okediji.pdf.
25

agitation is perhaps understandable in the light of perceived piracy of both local and
foreign music, often with state-of-the-art reproduction technology. Contrary to popular
belief that northern influence in southern copyright policy and legal environments is
solely responsible for stricter protection, calls for stricter copyright enforcement are
being increasingly articulated by local voices, with – possibly – some help from lobbies
in the north. What we might term the ‘pro-copyright’ movement is championed mainly by
artists, driven by what they perceive as a violation of their rights. Moreover, the arts
(broadly speaking, including music) are apparently where southern countries have the
advantage in the global intellectual property system
43
. Consequently, rights owner/rights
holder interests dominate the copyright debate in much of Africa.
A key feature of Africa’s broad copyright scenario is the growing informal economy in
knowledge and cultural goods; and it is useful to note how such business activities
interface with the formal education sector. An analysis, as follows, of the informal
economy in knowledge goods among Uganda’s small (but politically significant) middle
class is instructive in understanding the relationship between formal and informal
copyright-related activities. One the one hand, public discourse tells us that the middle
class is agitated by copyright practices involving the sale of substandard or counterfeit
knowledge products, but on the other hand, it is middle-class consumption that drives
the informal economy in music and film goods.
The complex relationship between formal and informal copyright related activities, and
the way in which this impacts different copyright interests, is worth exploring, as is the
implied moral economy of the access to knowledge discourse. What is the relationship
between formal and informal economies of cultural and knowledge goods? Is the formal-
informal conceptualisation varied in practice? Does informality in knowledge goods
translate into piracy or illegality in educational settings?
43
Broadly discussed (among other texts) in Okediji, L.R. 2004. Development in the Information Age:
Issues in the Regulation of Intellectual Property Rights, Computer Software and Electronic Commerce.
P.34. [Online]. Available:
http://www.iprsonline.org/unctadictsd/docs/CS_Okediji.pdf.
26

There are no easy answers here. At the national policy level, the tension between
private-public interests is evinced in the desire by southern countries to create enabling
environments for local artists to exploit their works, on the one hand, and allow for a
more flexible copyright regime to enable access to educational material, on the other. In
jurisdictions where neighbouring rights exist, the fact that most artists’ rights are covered
under copyright keeps competing public-private interests interlocked. Consequently,
allowing for (or preserving) expansive interpretations of copyright for the purposes of
enhancing access to educational material is frequently misread in some quarters as an
infringement of creators’ rights – a widespread feeling and not just in the south,
consequent to the global political economy of IPR.
But the contribution of copyright industries to economic development in the south is
often assumed without any real assessment of the empirical evidence. When
undertaken, such assessments primarily focus on accumulating the interests of rights
holders/owners, without accounting for all the indirect ways in which copyright-
dependent public institutions contribute to the economy
44
.
Likewise, the ways in which enterprises ancillary to educational institutions may
enhance effective utilisation of the copyright system for educational purposes, is a grey
area. Sometimes it is also a grey market, and such is the case with petty photocopying
businesses in and around institutions of higher learning. This section explores
photocopying enterprises at Uganda’s Makerere University, to understand the extent to
which its ancillary informal economy contributes to access of learning materials.
3.2 The photocopier as an access mechanism
Photocopying is permissible by the copyright system to the extent that reproduction
remains within the confines of fair dealing/fair use. What constitutes fair dealing is
contentious. Even when fair dealing is defined, courts continue to assess disputes
relating to fair dealing on a case-by-case basis. Large scale (and often illegal)
photocopying is not unique to African institutions of higher learning – it is widely
44
For one example, see Okiy, B.R. 2005. Photocopying and the awareness of copyright in tertiary
institutions in Nigeria. Interlending & Document Supply, 33(1).
27

prevalent in the south, and to a lesser extent, even in the north. The difference lies in the
extent to which educational institutions (meaning both students and faculty) rely on the
activity as a means of access.
Studies of the informal economy of knowledge and cultural goods are generally
scarce
45
. Assessments of the role of photocopying in African educational institutions that
appropriately handle the socio-economic context are, if anything, scarcer. A recent study
on photocopying and copyright in Nigeria’s tertiary institutions took a legalistic normative
approach, exploring the extent to which photocopying at such institutions conforms to
Nigeria’s copyright law. Missing entirely in this study, as with similarly motivated
investigations, is the extent to which photocopying businesses support access to
learning materials. Consequently, its findings – that petty photocopying businesses are
grossly infringing copyright law, and that students “find easy allies in operators of
photocopiers who are out to make a quick profit”
46
– were not surprising. Essentially, this
study illegalises photocopying without considering what might be permissible for
education. As noted earlier, even where fair use is somewhat defined by the law for
educational purposes, it cannot prescribe what amount is legitimate or not because not
all conceivable situation can be predicted by the law.
More interestingly, the study attributed the widespread violation of copyright law to the
limited education of photocopying business owners and operators. Missing from the
study was any conclusive insight into the demand side of this equation, which would be
likely to present compelling reasons for the existence of such operations, even if
students and businesses were aware of the law. Indeed, while the study found that a
little over 50% of the student respondents were aware of the law, an equal proportion of
students cited economic reasons for the compulsion to photocopy. The study noted that
a sizable amount of the resources photocopied came from libraries (51.5%). The
45
With some exceptions, see Liang, L. 2004b. A Guide to Open Content Licences. Piet Zwart Institute,
Rotterdam. [Online] Available:
http://pzwart.wdka.hro.nl/mdr/research/lliang/open_content_guide. Also:
Sundaram, R. Recycling modernity: Pirate electronic cultures in India. Sarai Reader 01. [Online].
Available:
www.sarai.net; and Kawooya, D. Unpublished manuscripts towards a doctoral dissertation at
the School of Information Sciences, University of Tennessee.
46
Okiy, B.R. 2005. Photocopying and the awareness of copyright in tertiary institutions in Nigeria.
Interlending & Document Supply, 33(1) 49–52, p. 50.
28

significance of this finding is that it recasts the role of libraries as important sources of
learning materials. Whether or not academic libraries are in a position to, or capable of
enforcing copyright (given the general resource deprivations that characterise southern
educational institution settings), is open to investigation. Notwithstanding its feasibility
and suitability to this situation, stringent norms for detecting and punishing copyright
violation are yet strongly endorsed by the study – and this approach is supported by
other commentaries on the subject
47
.
Missing entirely in this study (as with similarly motivated investigations) is the extent to
which photocopying businesses support access to learning materials.
To the extent that petty photocopying businesses employ only a few people and require
minimal set-up cost, they are often outside the net of state registration and taxation –
displaying the classic characteristics of an informal enterprise
48
. The relationship
between photocopying businesses and educational institutions is one of mutual
dependence. Informal sector researchers characterise this relationship as a ‘continuum
from the informal to the formal ends of the economy and thus the interdependence
between the two sides”
49
.
But beyond the strictly economic benefits accrued to society (such as employment),
petty photocopying businesses complement the work of higher education in that they
serve as a mechanism for increasing access to learning materials. Following from the
earlier discussions of affordability and excessive pricing, and contrary to the mainstream
market logic underlying the copyright system, a vast number of faculty and students in
southern educational institutions cannot afford the material they need to read and study.
At the institutional level, financial resource constraints deter libraries from adequately
updating or expanding their collections. Whereas the use of electronic domain content is
often discussed as a potential means to overcome rent collection problems in the
47
Okiy, B.R. 2005. Photocopying and the awareness of copyright in tertiary institutions in Nigeria.
Interlending & Document Supply, 33(1) 49–52, p. 37; and Ajidahun, C. 1998. Book piracy and Nigerian
copyright law. Library Management, 19 (1) 22–25.
48
This is especially so in relatively less-prosperous African economies, such as Uganda, as compared to
relatively efficient tax collection systems in countries like South Africa.
49
Becker, K. 2004. The Informal Economy. Manuscript for Swedish International Development
Cooperation Agency. P. 8.
29

copyright industry, in fact, poor infrastructure and low bandwidth, prohibitive subscription
costs, legally endorsed technological constraints (such as TPMs) and the relative
absence of open content licences combine to render digital content inaccessible or
unfeasible. Photocopying, then, fills a crucial gap: it facilitates access in an environment
where there are limited options to do so – though it must be noted that as a practice, it is
neither limited to poor students alone, nor solely evident in southern countries. . There is
need to understand the workings of informal enterprises in educational settings and their
contributions to the institutions in widening access to content. The case study in this
paper is an initial step in understanding informal enterprises in knowledge resources
located educational settings. It also demonstrates the fluid nature of piracy
deconstructing the notion that any copying constitutes illegal activities since there are
clear links between formal and informal institutions in operating under the copyright
system.
Ordinarily, the term piracy applies to the unauthorised reproduction of copyrighted
material
50
, but its strict legal application is more complicated than mere infringement of a
copyright’. An extended discussion of piracy and its moral and legal underpinnings are
well beyond the scope of this paper, but it might suffice to note that the monopolies
granted by the copyright system (and access gaps created as a result), pose a moral
challenge for the basis for blanket dismissals of piracy as an illegitimate practice.
Moving away from the moral economy of access to learning materials and education, an
examination of the informal economy in music goods reveals important complexities. On
the surface, there is rampant piracy in music goods, both on the ground and in the
electronic domain. A close examination, however, reveals a well-structured and
mutually-dependent relationship between local musicians in the south and the pirate
economies. From the early stages of the liberalisation of India’s economy, Lawrence
Liang relates an instance of collusion around the music of a popular Hindi film:
51
50
Ajidahun, C. 1998. Book piracy and Nigerian copyright law. Library Management, 19 (1) 22–25.
51
Liang, L. 2004b. A Guide to Open Content Licences. Piet Zwart Institute, Rotterdam. [Online] Available:
http://pzwart.wdka.hro.nl/mdr/research/lliang/open_content_guide. P. 36.
30

….even major players like HMV in the past dealt with the pirates. For instance
when HMV found that they could not meet the demand for one of their biggest
hits, Maine Pyaar Kiya, they are reported to have entered into an agreement
with the pirates whereby the pirates would raise their price from Rs. 11 to Rs.
13 and pay HMV half a rupee for every unit that they sold, on the condition
that HMV did not sue them or raid their businesses. Other producers are also
known to have colluded with pirates in production and marketing so that they
can minimize their cost, the taxes payable and royalties by hiding the extent
of their sales…
And, as Peter Manuel recounts
52
, in this interview with an executive from a maverick
start-up music company in India, the dependent relationship could exist between artists
of popular musical genres and pirates as well:
…I tell you that back then, the big Ghazal singers would come to us and ask
us to market pirate versions of their own cassettes, for their own publicity,
since HMV wasn't really able to keep up with the demand…
Petty photocopying businesses in Africa’s tertiary education institutions, as examined at
Makerere University, demonstrate a similarly complex, interconnected and mutually
dependent relationship between formal and informal sectors of the economy – in this
case, the producers and consumers of learning material – though in a different way. The
informal economy in photocopying supports education; by supplying texts to students
and bridging both distribution and price gaps left in the formal publishing economy, aids
the environment for the creation of authors, apart from growing the class of people who
will become consumers of the formal publishing industry.
52
Manuel, P. 2001. Cassette Culture: Popular Music and technology in North India. New Delhi: Oxford
University Press.
31

3.3 Petty photocopying businesses at Makerere University: a case study
Makerere University is, in many ways, a typical educational institution in Sub-Saharan
Africa: it balances soaring student enrolment with limited facilities and financial
resources. Started in 1922 as a technical school, Makerere became an affiliate of the
University College of London in 1949, later becoming the University of East Africa in
1963. In 1970, Makerere became an independent institution and took on the name that it
bears today.
Through the political instabilities that characterised Uganda in the 1960s, up to the
1980s, Makerere struggled to retain its consequential role in the country. Now, with a
student population of approximately 30,000, the institution’s facilities, and libraries in
particular, are not fully equipped to meet all learning needs. Simultaneously, faculties at
the university find that any desired use of published (often northern) scholarship is
fraught with access problems, such as high cost and lack of availability, thus rarely
resulting in adequate local readership through traditional means. The tendency is
therefore to make publications available through photocopying.
The following analysis is an exercise in understanding the role of the informal economy
in facilitating access to learning materials in Uganda
53
. Though the site of this case
study is located outside the SACU, it aids a continental understanding of the problem at
hand. The focus is on enumerating petty photocopying businesses and, where possible,
engaging operators to recount their concerns.
54
An initial observation is that the volume of photocopies transacted at Makerere is
considerable:
53
Data collection took place in the summer of 2005 over a period of two weeks.
54
This study did not attempt to be quantitatively conclusive, but aimed to be indicative.
32

Table 6: Photocopying at Makerere University
(Number of pages photocopied/ day)
Lecturers Students Others Total
5700 34750 2950 43400
A total of 76 photocopying machines churn out an average of 43,400 copies every day.
From the figures, it is evident that both faculty and students are equally dependent on
the informal economy for access to knowledge goods. A spatial analysis of photocopiers
revealed a heavy presence in places with high student density (see Appendix A).
It must also be noted that the figures here are conservative estimates since some
operators questioned were concerned about implications on their internal rental costs (of
the photocopying machines) in instances where the owner was not the operator. Like
other informal economy entrepreneurs, photocopying operators were concerned by
research questions as posed here, with suspicions that this was a tax collection
exercise, and as a result, in many cases, answers to volume queries were reticently
provided.
More importantly, it was evident that copyright was not a concern. Most operators
approached by the enumerator were concerned with ‘security of tenure’ and the
escalating rents at their locations. Copyright questions were deliberately left out by the
enumerator to observe if any of the operators would spontaneously flag it as a concern.
None of the 76 operators did. Since copyright is private property, such entrepreneurs
seemed not to see its enforcement as their responsibility, leave alone engage in
widespread awareness campaigns. Similar (but formal) enterprises in the north might
display copyright notices out of concern for averting possible law suits, or, where
applicable, pay the necessary royalties to collecting societies.
Underlying these demands for better fee regimes for operating locations was a
perception that the service rendered by photocopying businesses to Makerere’s
33

academic community went largely unacknowledged
55
, at least at the institutional level.
Yet, the locations which photocopying operators rent are often owned by university
departments. Photocopying businesses, in that regard, support not only access to
learning material, but also contribute to institutional budgets through rent.
The term ‘informal sector’ was first used to describe a section of the economy by British
anthropologist Keith Hart
56
in a study on Ghana in 1971. Since that time, considerable
attention has been paid to the role of the informal economy in development studies,
often with much contention. But regardless of competing recommendations concerning
the informal economy, the subject itself has become an indispensable part of policy
debates on a wide range of issues, from finance and housing to public health. The
attention signifies an acknowledgement that the informal economy – for better or worse,
and often the former – is an integral feature of economies of the south.
This analysis of petty photocopying businesses suggests that the informal economy in
knowledge goods poses several useful questions to the copyright discourse, questions
which have received scant attention thus far, in a discourse dominated by simplistic
positions regarding piracy, creator rights and consumer rights. In an environment
dominated by industry-led calls for stricter enforcement of copyright regulations, we
suggest that it is time to enrich and complicate this perspective with frank views from the
ground.
Why is an understanding of the informal economy so crucial to a larger campaign for
a2k? Firstly, because the dominant notion of copyright reform is, in fact, to strengthen
enforcement measures related to copyright violation
57
. For academics and activists
concerned with a2k, piracy is, unfortunately, the elephant in the room
58
. But it cannot
55
Interestingly, the same perception was reported in the Nigerian study: Okiy, B.R. 2005. Photocopying
and the awareness of copyright in tertiary institutions in Nigeria. Interlending & Document Supply, 33(1)
49–52, p. 37.
56
Referenced in numerous essays and books, also at www.thememorybank.co.uk/members/keith.
57
For one instance among numerous policy submissions, by one of many organisations representing the
interests of rights-holders, see the IIPA’s filing with the US Government on the enforcement of sanctions
against piracy, as part of Africa’s commitments to the US under the African Growth and Opportunities Act:
http://www.iipa.com/pdf/IIPA%20AGOA%20filing%20to%20USTR%20FINAL%2010132005.pdf.
58
Draft text of the a2k treaty (available at: http://www.cptech.org/a2k/consolidatedtext-may9.pdf), for
instance, makes no mention of the words piracy or informal economy.
34

afford to be. In 2004, an influential study in South Africa authored by the PICC, a report
on intellectual property and the print industries,
59
commissioned by government (Ministry
of Arts and Culture), reported that:
Copyright infringement in South Africa is not a matter – at least not yet -- of
the mass piracy of trade books, like the pirated editions of Harry Potter titles
that have appeared internationally, but of systematic copying of various kinds
in the educational sector, public sector and businesses. While piracy of this
kind of is causing concern to international rights holders like the IIPA
[International Intellectual Property Alliance], popular books have not been the
targets of similar piracy…
With regards to curbing educational material piracy, the PICC report recommended for:
Urgent attention to the legislative amendments to remove ambiguity on the
limits of photocopying for personal use and in the educational context; the
strengthening of enforcement measures; the provision of a stable basis for
policy-making on copyright for digital media…[and]
Education and awareness programmes among students and lecturers on the
value of intellectual property.
Secondly, it is important to integrate an understanding and acknowledgement of the
informal economy in knowledge goods, because, as our case study from Uganda
suggests, traditional production and distribution mechanisms of the copyright industries
might be inadequately geared to meet access needs, particularly in the context of the
global south.
Thirdly, the discourse on piracy provides an opportune moment to inform policy of a
system of reproduction and dissemination of knowledge goods that is both prevalent
and functional, and furthermore, is accessible to people from a range of economic
59
Gray, E. and Seeber, M. 2004. Print Industries Cluster Council (PICC) Report on Intellectual Property
Rights in the Print Industries Sector. Commissioned by the Department of Arts & Culture, Government of
South Africa, on file with the authors, p. 20.
35

classes, right down to near the bottom of the pyramid. At a time when there is concern
for education and literacy in the south, coupled with crippling resource constraints within
the state, and in an environment starved of fresh entrepreneurial ideas, we suggest that
policy structures should treat this phenomenon as a matter of some significance.
How this significance may be resolved is undoubtedly a difficult question. Any resolution
on the scope and continuance of the informal economy in copyright goods is in turn
contingent on significant political actions. Since any such actions will bear implications for
the economy at large, it is likely that a resolution – in the short term – will yet remain
elusive. Thus, our discussion of piracy in the context of access to learning materials is
less to suggest explicit policy solutions than to flag it as a possible solution itself; to
remind policy structures of a complex socio-legal context that both necessitates and
(often) illegalises the act, an especially significant point to consider when implementing
the ‘remedy’.
4. A review of Copyright Law in southern Africa
Reviewing copyright laws in SACU involves comparing a broad range of economies –
from South Africa, with its relatively large formal sector, which has attempted to emulate
the regimes of developed countries, to Swaziland, which has copyright regulations but
legislation of dubious validity.
The objective here is to consider a broad framework constituted (not exclusively) by
Articles 7, 8, 9,13 and 40 in TRIPs.
4.1 International Trade Rules
As briefly discussed earlier, the most critical international instrument dealing with
copyright is not administered by WIPO but by the WTO. This is the agreement on trade
related aspects of intellectual property, TRIPs, an annex (1C) to the Global Agreement
on Trade and Tariffs (GATT). TRIPsis perhaps the most critical instrument of all,
because it is subject to enforcement by the WTO. Members can make complaints and, if
36

an adverse finding is made against a member, trade sanctions might be imposed. Thus,
it has greater coercive power than the other copyright treaties.
TRIPs sets out what it describes as minimum standards of copyright protection, which it
requires members to implement in national legal systems (Article 1).
In Article 7 the objective of both TRIPs and intellectual property generally is set out:
The protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to the transfer and
dissemination of technology, to the mutual advantage of producers and users
of technological knowledge and in a manner conducive to social and
economic welfare, and to a balance of rights and obligations.
Article 8 sets out the principles which members, and the WTO itself, should follow in
giving effect to the provisions of the agreement.
1. Members may, in formulating or amending their laws and regulations,
adopt measures necessary to protect public health and nutrition, and to
promote the public interest in sectors of vital importance to their socio-
economic and technological development, provided that such measures are
consistent with the provisions of this Agreement.
2. Appropriate measures, provided that they are consistent with the
provisions of this Agreement, may be needed to prevent the abuse of
intellectual property rights by right holders or the resort to practices which
unreasonably restrain trade or adversely affect the international transfer of
technology.
37

It has been argued that Articles 7 and 8 operate as constitutional provisions for TRIPs; if
this is so, then there is considerable space for state action in response to abusive or
restrictive practices.
60
Article 9 requires members to comply with the substantive provisions (Articles 1 through
21) of the Berne Convention (Paris Act 1971) and the Berne Appendix. As a result the
provisions of Berne are ‘grandfathered’ into TRIPs. It is suggested that as a result, any
exceptions and limitations under Berne must be regarded as implicitly authorised by
TRIPs and therefore those limitations and exceptions are not required to pass the
exceptions and limitations test of Article 13.
Article 13 on Limitations and Exception provides that:
Members shall confine limitations or exceptions to exclusive rights to certain
special cases which do not conflict with a normal exploitation of the work and
do not unreasonably prejudice the legitimate interests of the right holder.
This provision uses the language of the (historically much older) exception provision of
the Berne Treaty, Article 9 (2)
“It shall be a matter for legislation in the countries of the Union to permit the
reproduction of such works in certain special cases, provided that such
reproduction does not conflict with a normal exploitation of the work and does not
unreasonably prejudice the legitimate interests of the author.”
This should not be confused with the provisions of Article 10 of Berne which sets out a
few specific exceptions
61
:
[Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3.
Indication of source and author]
60
Borges Barbosa, D. TRIPs art. 7 and 8, FTAs and Trademarks. March 9, 2006 [Online] Available:
SSRN: http://ssrn.com/abstract=889107
61
These exceptions resemble fair dealing as it was conceived in the colonial antecedents of current
SACU legislation.
38

(1) It shall be permissible to make quotations from a work which has already
been lawfully made available to the public, provided that their making is
compatible with fair practice, and their extent does not exceed that justified by
the purpose, including quotations from newspaper articles and periodicals in
the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for
special agreements existing or to be concluded between them, to permit the
utilization, to the extent justified by the purpose, of literary or artistic works by
way of illustration in publications, broadcasts or sound or visual recordings for
teaching, provided such utilization is compatible with fair practice.
(3) Where use is made of works in accordance with the preceding paragraphs
of this Article, mention shall be made of the source, and of the name of the
author if it appears thereon.
62
Article 13 provides considerable scope for exceptions and limitations in favour of
learning. Adaptation for sensory disabled persons and translation to marginalized
languages are readily identifiable special cases, while others can be discerned with
appropriate analysis.
In Article 40 the TRIPs agreement sets up a consultation mechanism in terms of which
members whose nationals are either involved in, or subject to an alleged violation of the
protections created by the agreement, shall consult with a view to a mutually satisfying
agreement. One possible use of this article is an agreement by countries to counter the
anti-competitive effects of market segmentation, through measures such as state
mandated parallel importation of critical supplies, whether of medicines or learning
materials.
In summary therefore, there are at least four separate grounds in the TRIPs Agreement
on which a member country may circumscribe copyright. Article 8 (2) mandates a
government measure to counter abuse of intellectual property rights which
‘unreasonably restrain trade or adversely affect the international transfer of technology’.
62
There is apparently some disagreement on the impact of TRIPs on Article 10 of the Berne Convention.
39

Article 9 requires countries to comply with the substantive provisions of the Berne
Convention, including Article 10. Article 10 (1) requires an exception for quotation.
Article 10 (2) permits an exceptional use: illustration for teaching. Article 40 authorises
member countries to adopt ‘appropriate measures to prevent or control’ abusive
‘licensing practices or conditions’ which adversely affect competition. In addition to their
individual impact, these four provisions may operate cumulatively to authorise mitigation
of the obligatory copyright requirements of the TRIPs agreement.
As discussed earlier in Section 1 of this paper, the other important treaties in this area
are the WIPO Convention, (14/07/1967 (28/09/1979) WO_29) which established the
WIPO, and the
WIPO Copyright Treaty (20/12/1996 WO_33) which imposes further
obligations on signatories in respect of some aspects of copyright.
4.2 Multilateral agreements and SACU
All SACU members have entered into the WTO agreements, and the Berne Convention
– details are set out more specifically in the table below.
It is important to note that Lesotho is classified as a least developed country. According
to the Uruguay Round Agreement (GATT/WTO) Decision on Measures in Favour of
Least-Developed Countries, “the least-developed countries, and for so long as they
remain in that category, while complying with the general rules set out in the aforesaid
instruments, will only be required to undertake commitments and concessions to the
extent consistent with their individual development, financial and trade needs, or their
administrative and institutional capabilities”.
Lesotho is currently exempt from applying most of the TRIPs Agreement, including
Article 63.2, until 2013
63
(see Article 66), with the possibility of further extension of the
transition period.
From the available records it does not seem that any of the SACU
countries have attempted to use the cumbersome procedures of the Berne Appendix,
63
The time period of exemption for least developed countries was extended until July 2013 at the Hong
Kong Ministerial Conference. The extension was the subject of heated debate.
40

which is intended to assist developing countries in facilitating access to educational
material but widely considered a failure.
Table 7: International Copyright Agreements
COUNTRY Berne
Convention
Berne
Appendix
WIPO
Convention
WIPO
Copyright
Treaty
WTO TRIPs (WTO
administered)
Botswana 15 April 1998 No WIPO
record of
use
15 April 1998 27 January
2005
31 May
1995
Acceded
1 January 1995
Copyright
apparently
compliant
Lesotho 28
September
1989
No WIPO
record of
use,
declaration
of
availment
of facilities
28
September,
1989
18 November
1986
Not a party
as of 20
July 2005
31 May
1995
No Information
from WTO, least
developed
country
Namibia 21 March
1990
No WIPO
record of
use
23 December
1991
Signature
20
December
1996
1 January
1995.
1 January 1995
Copyright
apparently
compliant
South
Africa
3 October
1928
No WIPO
record of
use
23 March
1975
Signature
12
December
1997
1 January
1995
1 January 1995
Not clear if fully
compliant
Swaziland 14 December
1998
No WIPO
record of
use
18 August
1988
Not a party
as of 20
July 2005
1 January
1995
No information
from WTO
Note: A simple date means that the instrument is in force; any other status is specifically indicated.
4.3 Copyright law review
To what extent do the primary and secondary copyright laws of SACU countries utilise
the flexibilities of the TRIPs agreement?
The legislative history of the five SACU countries is interwoven with the fact that they
are all former British colonies, although Namibia (then South West Africa) was never
administered directly by Britain, but only through South Africa. They share a common
legal system: Roman Dutch common law with English common and commercial law
influences. Indigenous (customary law) plays a role in all systems, however a much
greater role in Botswana, Lesotho and Swaziland. These latter three, known as
41

Bechuanaland, Basutoland and Swaziland respectively, were known as the High
Commission Territories, and shared common law reports, legislative imports from Britain
and parallel administrative structures prior to independence. The regional economy, still
partially based on migrant labour in mining and agriculture, is largely regionally
integrated, and the political boundaries are somewhat artificial, due to accidents of
colonial history.
The copyright laws in SACU all ultimately derive from the British 1911 Copyright Act. Far
less attention has been paid to copyright in the former High Commission Territories,
while in South Africa, and Namibia (which was administered as an integral part of South
Africa) there have been successive copyright acts. These, however, have largely
catered for the interests of the small local publishing industry and the international
publishing industry. Namibia’s legislation is based on the current South African
legislation, while Botswana passed new legislation in 2000, with the intent to comply
with all of its international obligations.
Botswana, Lesotho and Namibia all have constitutions that protect first generation rights,
and give some limited constitutional reference to a right to education. South Africa has
what may be the first truly third generation constitution in which socio-economic rights
are fully justiciable. A justiciable right to education requires the state to take steps for the
progressive realisation of the right, depending on available resources. This may
ultimately form the basis for a legal obligation to compel the state to issue a compulsory
licence for learning material.
The legislative survey which follows identifies fair dealing, and similar provisions as the
primary exceptions and limitations which affect access to knowledge, especially learning
materials, found in current SACU legislation. This serve to highlight both the deficiencies
of fair dealing, as presently formulated, but more significantly the failure of legislative
schemes to properly utilise the sovereign flexibilities afforded under international law,
particularly TRIPs,
42

Table 8: Comparison of legislation impacting on access to learning materials
COUNTRY Constitutional
Right
Copyright
Statute
Copyright Regulations Other
legislation
Botswana 12. Protection of
freedom of
expression
Copyright and
Neighbouring
Rights Act No. 8
of 2000
Lesotho Section 14
Freedom of
Expression
Principle of State
Policy, Section
28, Provision for
Education
Copyright Order
No. 13 of 1989
Printing and
Publishing Act 10
of 1967 (Gazette
13, 10 May
1967)
Namibia Article 20
Education
Article 21 (a)
freedom of
expression
Article 21 (b)
academic
freedom
Copyright and
Neighbouring
Rights
Protection Act 6
of 1994
South Africa S 9 (3)
discrimination on
disability not
allowed
S 16, Freedom
of Expression
1 (b) receive
information
1 (c) freedom of
creativity
1 (d) academic
and scientific
S 32 Right to
Information
S 29 Right to
Education
1976 Copyright
Act
RGN50/16930/20,19Jan96
(corrected by:
RGN368/17008/10,1Mar96)
Counterfeit
Goods Act 37 Of
1997
Electronic
Communications
and Transactions
Act [No. 25 of
2002]
Swaziland Draft 99
Constitution
1912 Copyright
Act.
4.4 Copyright regimes at a glance
Botswana
Botswana has passed the most recent legislation in SACU: the Copyright and
Neighbouring Rights Act No. 8 of 2000, intended to comply with Botswana’s obligations
under the TRIPs agreement. The Act was drafted with WIPO technical assistance.
43

Lesotho
As a High Commission Territory, Lesotho acquired the 1912 Copyright Amendment Act,
Proclamation 33. During 1989, while Lesotho was under military rule, Copyright Order
No. 13 of 1989 was passed. This Order is based on and similar to the UNESCO
sponsored 1976 Tunis Model Law on Copyright for Developing Countries, which focuses
on indigenous copyright. Most of the protection in this law is extended only to lawfully
published works; lawful publication is decided by reference to the Printing and
Publishing Act 10 of 1967.
Namibia
The Copyright And Neighbouring Rights Protection Act 6 Of 1994 is based on the 1978
South African Act, and is thus up to date with the 1971 Statute of the Berne Convention.
The WIPO assisted Namibia in updating the 1994 Copyright Act. The Act was amended
in 2000, apparently to make it TRIPs compliant
64
.
South Africa
The Copyright Act 98 of 1978 has been amended fairly frequently to bring it up to date
with international treaties and to protect the interests of commercial publishers, although
there is still some doubt as to whether it complies with TRIPs in all particulars. Despite
the amendments it is often criticised as “outdated”, a criticism apparently originating
from international software lobbyists, due to the lack of criminal penalties on infringing
software end-users.
The Act is, unfortunately, unconscious of development imperatives, and little use has
been made of the flexibilities offered under TRIPs. This enables the current market
structure in South Africa (in which most cultural goods are priced for the affluent, largely
white minority, and are unaffordable to the majority), even though equivalent products
64
See the statement by Ministry of Foreign Affairs, http://www.op.gov.na/Decade_peace/mfa.htm, last
accessed 4 April 2006
44

may be affordably priced in other markets, for example, India. A project to draft new
copyright legislation has been mooted.
Swaziland
There is some confusion on the legal position in Swaziland, the Copyright (International
Conventions) Act 1911 of the United Kingdom, was applied to Swaziland by an Order-in-
Council and the Copyright Act 1912 (containing the substantive provisions), similarly
applied by an Order in Council, as was the 1933 Copyright (Rome Convention) Act. The
latter was essentially an amendment of the terms of treatment of foreign (non-British
Commonwealth) works of Rome Convention signatories.
However, according to the Registrar General for the Ministry of Justice, the acts have
never in fact been implemented
65
.
According to Swaziland’s Notification to the World Trade Organization, Of Laws and
Regulations Under Article 63.2 of the Agreement, the following laws are in place in
Swaziland:
- The Copyright Act No. 36 of 1912.
- Copyright (Prohibited Importation) Act No. 35 of 1918.2. The Act makes
provision for the operation within Swaziland of Section 14 of the Copyright Act
1911 of the United Kingdom.
- The Copyright (Rome Convention) Act No. 1 of 1933. This is an act to
implement the Rome Convention in Swaziland.
The Ministry of Justice began drafting a Copyright Act, based on the World Intellectual
Property Rights Organisation (WIPO) model in 1999.
65
We are of the opinion that as a matter of law, the 1912 Copyright Act is in force in Swaziland, never
having been repealed. There does not seem to be a basis for implied repeal as there is no competing
legislation; it may have become derogated through disuse. Furthermore, Swaziland has entered into all
the major Copyright Treaties with the result that a legislative or executive policy to have no copyright law
is a difficult inference. As there are no reported cases on copyright in the Swaziland Law Reports, the
status of the law has not been tested by the courts.
45

Assessment
The history of copyright regimes in SACU reveals that these legislative instruments have
been formed primarily through attempts to comply with a succession of international
instruments. Although some ‘limited use’ of international schemes to assist developing
countries has taken place, in the large part, these schemes have not had any noticeable
positive impact.
Three of the five SACU countries, including the largest, will probably pass new copyright
legislation within the next few years. The legislative process will, however, be subject to
intervention by technical assistance which will in all likelihood reify the current
multinational corporate agenda as the standard to emulate, and is likely to ignore
development imperatives unless there is a concerted policy effort to ensure that these
issues are placed on the agenda.
4.5 Legislative provisions which impact on access to learning materials
The primary provisions in SACU copyright legislation which impact on access to learning
materials are specific limitations and exceptions clauses (especially fair dealing), import
provisions, and provisions concerning digitisation.
Exceptions and limitations need not be confined to existing exceptions, such as the fair
use and fair dealing provisions currently enacted in developed countries. Developing
country contexts and challenges require innovative exceptions and limitations.
While exceptions and limitations are not necessarily confined to fair dealing provisions
the survey of SACU legislation shows that most of the exceptions and limitations
currently in force are fair dealing provisions. While fair dealing has historically, in
Anglophone jurisdictions, focused largely on private use and study, this seems to be a
consequence of colonial history and thus of Western individualism. No conceptual basis
has been advanced allowing historical accident to define fair dealing. Indeed the related
US tradition’s formulation of fair use formulates exceptions differently to fair dealing.
46

Appropriate exceptions and limitations could include allowing sensory disabled persons
to make appropriate adaptations of works themselves, without permission, to allow
libraries to make copies of works in their holdings for the purposes of providing access,
to allow minority language speakers to translate works without requiring the author’s
permission.
Table 9: Current Copyright legislative provisions which impact on access to learning
materials (Reference is to primary legislation unless stated otherwise)
COUNTRY Exceptions Limitations Import Other
Relevant
Provisions
Botswana
66
s12 Exceptions
s13 Private Reproduction
s14 Quotation
s16 Teaching
s16 Libraries
s28 Non
application of s24,
25, 26, 27 to
certain uses
s32 Powers of
Customs
Officials
Lesotho
67
s9 Free Use s10 Limitation of
right of Translation
(Schedule 1)
11.Limitation of the
Right of
Reproduction
(Schedule 2)
s30 Limitation of
Protection of
Neighbouring
Rights
s 30
Ministers
General
Regulation
Power
s18 Use of works in
public domain
requiring
authorisation
s19-22 Utilization of
folklore requiring
authorisation
Namibia
68
s15 Fair Dealing
s16 Prescribed Exemptions
s29 (2)
unauthorised
import
s34 prohibition
of import
s81 General
Regulation powers
South
Africa
69
s12 General Exceptions
music and literary works
s13 Prescribed Exceptions
s15-19B
application of general
exceptions to
other types of works
23 (2) (a) import for
personal use allowed
Swaziland
70
s 4(1) (a) (d) (f)of the 1912
Act?
s6 Compulsory licence
s26 bis Deposit of
1912 Act
66
Unless otherwise stated, sections referred to in this row are in the Botswana Copyright and
Neighbouring Rights Act No. 8 of 2000.
67
Unless otherwise stated, sections referred to in this row are in Lesotho Copyright Order No. 13 of 1989.
68
Unless otherwise stated, sections referred to in this row are the Namibia Copyright and Neighbouring
Rights Protection Act 6 Of 1994.
69
Unless otherwise stated, sections referred to in this row are in the South African Copyright Act 98 of
1978.
47

4.6 Limitations and exceptions including fair dealing/free use
The difference between exceptions and limitations is somewhat arcane in practice. This
report classifies rights that are introduced with language such as “notwithstanding the
[exclusive rights of copyright holders] provisions the following shall be permitted” or
similar phrases as exceptions. Where legislation has words to the effect of “copyright
shall not extend to”, it might be classified as a limitation. Both might appear under the
subheading of exceptions.
Many of the regulatory provisions refer to “fair practice”. The concept of fair practice is a
contested one, with rights-holders urging a narrow interpretation. In this respect, it is
particularly pertinent to note that rights-holders from developed countries insist that fair
practice is a universal norm, rather than one which takes into account local
circumstances in developing countries, such as relative price, scarcity and even
unavailability of material, especially in translation or a form suitable for use by sensory
disabled persons.
As explained earlier, the relative strength of SACU currencies compared to those of
developed countries results in most knowledge goods carrying a relatively higher price
in SACU countries. This results in smaller markets for knowledge goods, which in turn
reduces the incentive to produce local editions within SACU, and instead to source
editions from outside SACU, thus raising prices further. One consequence of this is that
while there may be considerable demand (locally speaking) for an educational work, the
potential profit may be deemed insufficient by international publishing business models.
Botswana
Botswana has the most extensive provisions on exceptions to copyright. Part III of the
Copyright and Neighbouring Rights Act 2000, Section 12 of the Act provides that certain
‘dealings’ shall be permitted without authorisation. A number of ‘dealings’ are listed in
each case subject to the relevant section setting out the circumstances.
70
Unless otherwise stated, section referred to in this row are in the Copyright Act No. 36 of 1912.
48

12. Notwithstanding the provisions of section 7, the following dealings with a
work shall be permitted without the authorisation of the author or other owner
of copyright –
(i) private reproduction for personal purposes subject to section 13;
(ii) quotations subject to section 14;
(iii) reproduction for teaching subject to section 15;
(iv) reprographic reproduction by libraries and archives, subject to section 16;
(v) reproduction and adaptation of computer programmes subject to section
17;
(vi) reproduction, broadcasting and other communications to the public for
information purposes, subject to section 18;
(vii) temporary reproduction, subject to section 19;
(viii) importation for personal purposes subject to section 20; and
(ix) display of works, subject to section 21.
Section 13 is pertinent to education (broadly defined) since it suggests that personal
use includes individual study and research.
13. (1) Subject to subsection (2) the private reproduction of a published work
in a single copy shall be permitted without the authorisation of the author or
owner of copyright, where the reproduction is made by any person exclusively
for his own personal purposes.
(2) The permission granted under subsection (1) shall not extend to
reproduction –
(a) of a work of architecture in the form of a building or other construction;
(b) in the form of reprography of the whole or a substantial part of a book or of
a musical work in the form of notation;
(c) of the whole or a substantial part of a data base;
(d) of a computer, except as provided in section 17; and
(e) of any work in cases where reproduction would conflict with a normal
exploitation of the work or would otherwise unreasonably prejudice the
legitimate interests of the author or other owner of the copyright.
49

The formula set out in (e) is analysed below.
Section 14 provides for quotation provided there is attribution. This section on its own is
useful for the provision of educational materials as it allows the use of quotations. It
refers to fair practice, which introduces a flexible standard.
Section 15 deals with the use of works for teaching:
15. (1) The following acts effected for the purposes of teaching shall be
permitted without authorisation of the author, or other owner of copyright-
(a) the reproduction of a short part of a published work for teaching purposes
by way of illustration, in writings or sound or visual recordings, provided that
reproduction is compatible with fair practice and does not exceed the extent
justified;
(b) the reprographic reproduction, for face-to-face teaching in education
institutions the activities of which do not serve direct or indirect commercial
gain, of published articles, other short works or short extracts of works, to the
extent justified by the purpose, provided that-
(i) the act of reproduction is an isolated one occurring, of repeated, on
separate and unrelated occasions, and
(ii) there is no collective licence available, offered by a collective
administration organisation of which the educational institution is or should be
aware, under which such reproduction can be made.
(2) The source of the work reproduced and the name of the author shall be
indicated as far as practicable on all copies made under subsection (1).
This section sets out in detail the circumstances in which reproduction for educational
purposes may take place. The section carefully limits the exceptions (apparently to
comply with the requirements of Article 13 of TRIPs) to confining these provisions to
‘certain special cases’ and attempting to ensure that these ‘do not conflict with a normal
exploitation of the work’. The latter objective is pursued by attempting to ensure that the
exceptions will not allow reproduction where there is a market for the reproduction in
50

question. However, the section fails to make provision for situations where works would
be more widely used than envisaged in s15 (1) (b) (i), but when there is nevertheless
insufficient demand for the publisher to set up or engage in a collective licensing
scheme. A teacher/lecturer may annually require the reproduction of a substantial
portion of a textbook, but a publisher may choose (for economic reasons) to refuse to
establish a collective licensing scheme to cover that work. Thus, the work could be
unavailable from the publisher, while reproduction of that work for educational purposes,
to the extent necessary, is illegal.
Further, the section fails to address the issues of translation and adaptation for sensory
disabled persons, and reproduction of extracts, digital reproduction or works in distance
education. It is unfortunate that the most up-to-date copyright legislation in SACU fails to
address these rudimentary barriers to access to learning materials.
Section 16 is also relevant to education since it regulates non-profit libraries, including
educational libraries:
16. Any library or archive whose activities do not serve direct or indirect gain
may, without the authorisation of the author or other owner of copyright,
make a single copy of the work by repro-graphic reproduction-
(a) where the work reproduced is a published article, other short work or a
short extract of a work, and where the purpose of the reproduction is to
satisfy the request of a person provided that-
(i) the library is satisfied that the copy will be used solely for the purposes of
study, scholarship or private research;
(ii) the act of reproduction is an isolated case occurring if repeated, on
separate and unrelated occasions; and
(iii) there is no collective licence available, offered by a collective
administration organisation of which the library or archive is or should be
aware, under which such copies can be made; or
(b) where the copy is made in order to preserve and, and if necessary
replace a copy, or to replace a copy which has been lost, destroyed or
rendered unusable in the permanent collection of another similar library or
51

archive, provided that it is impossible to obtain such a copy under
reasonable conditions, and provided further that the act of reprographic
reproduction is an isolated case occurring, if repeated, on separate and
unrelated occasions.
Like section 15, this section grants considerable power to copyright collection societies.
Where non-profit libraries may have an interpretation of the legislation that is different
from that of well-resourced collection agencies, libraries are already at a disadvantage.
This section puts the onus of proof on the library. It is unlikely that a non-profit library will
choose to contest almost any interpretation of the exception by a collection agency,
however narrow it may be.
Lesotho
Section 9 of the Copyright Order 1989 sets out general exceptions.
Free Use
9. Notwithstanding section7, the following uses of a protected work, either in
the original uses of a protected work, either in the original language or in
translation, shall be permissible [sic] without the author’s consent and
without the obligation to pay remuneration for the use of the work,
(a) in the case of any work that has been made whether or not that work has
been lawfully published;
(i) the reproduction, translation, adaptation, arrangement or other
transformation of such work exclusively for the user’s personal and private
use;
(ii) the inclusion, subject to mention of the source and the name of the
author, of quotations from such work in another work:
Provided that such quotations are compatible with fair practice and their
extent does not exceed that justified by the purpose, including quotations
52

from newspaper articles and periodicals in the form of press summaries;
and
(iii) the utilization of the work by way of illustration in publications,
broadcasts, distribution by cable, sound or visual recordings for teaching, to
the extent justified by the purpose, or the communication for teaching
purposes of the work broadcast of distributed by cable for use in schools,
education, universities and professional training:
Provided that such use is compatible with fair practice and that the source
and the name of the author are mentioned in the publication, the broadcast,
the programme distributed by cable or the recording;
(f) the reproduction by photography, sound or video- recording of electronic
storage, by public museums, non-commercial documentation centres,
scientific institutions and educational establishments of literary, artistic or
scientific works which have already been lawfully made available to the
public:
Provided that such reproduction, the number of copies made, and the use
thereof are limited to the needs of the regular activities of the entity
reproducing the work, and neither conflict with the normal exploitation of the
work nor unreasonably prejudice the legitimate interest of the author;
Subsection 9 (a) (iii) allows the use of works by way of illustration in teaching. Unlike the
Botswana legislation, it allows the use not only in face-to-face teaching but also via
information and communication technologies (ICTs). The use is subject to fair practice.
The phrase ‘fair practice’ suffers from the same problems of definition as the phrases
‘fair use’ and ‘fair dealing’, all of which are the subject of contesting interpretations by
copyright holders and users. If ‘fair practice’ can be construed as ’providing access to
learning materials’, this is a useful provision.
Section 10, together with the First Schedule to the Order, allows a person other than the
rights holder (once certain time periods have elapsed, and no translation of a work into
English or Sesotho has been made) to apply to the Minister for a licence to make a
translation.
53

10. Limitation of right of Translation
Notwithstanding section 7, it is lawful, even without the author’s authorisation,
to translate a work into English or Sesotho and publish the translation in
Lesotho under a licence accorded by the Minister by regulations and under
the conditions specified in the First Schedule.
The statutory scheme allows licensing only for purposes of teaching, scholarship and
research (First Schedule, 4 (a)) and reproduction only by means of printing. This
provision is intended to allow translation of works, especially into Sesotho, where the
rights holders cannot be traced after reasonable efforts; or in cases where permission
has been refused by the rights holders, but the rights holders themselves do not
translate the work in question. Detailed procedural steps are set out. The provision, as it
stands, could be subject to attack as failing to comply with Article 13 of TRIPs, because
the Minister’s discretion to grant licences is too wide. Since Lesotho, as a least
developed country, is currently exempt from applying the provisions of TRIPs, this does
not currently pose a problem.
The provision could be retained if amended so that the Minister could only exercise his
discretion in accordance with the international obligations of Lesotho, or alternatively, if
the specific circumstances in which such licences would be granted, were set out.
Section 11 and Schedule 2 set up a similar scheme for the reproduction of printed
works, in situations where the rights holders cannot be traced after reasonable efforts, or
in cases where permission has been refused by the rights holders, but the works
themselves are not generally available for systematic instruction.
11. Limitation of the Right of Reproduction
Notwithstanding section 7, it is lawful, even without the author’s authorisation,
to reproduce a work and publish a particular edition thereof in Lesotho under
a licence accorded by the Minister by regulations and under the conditions
specified in the Second Schedule
.
54

Licensing is only for “systematic instructional activities”, for reproduction by printing. This
scheme could be subject to attack as insufficiently specific to comply with TRIPs. Like
the Section 10 translation scheme, however, it could be retained.
Sections 10 and 11 together with Schedules 1 and 2, are designed to take advantage of
the Appendix to the Berne Convention, which sets out Special Provisions regarding
Developing Countries.
Section 18 contains a surprising provision:
Use of works in the public domain
18. (1) In the case of works in the public domain, only the Registrar, or a
person duly authorised by him has the right to authorise the acts mentioned in
section7, with the restrictions referred to in sections 9 and 12.
(2) For the purposes of subsection (1) the following works shall be considered
to be in the public domain,
(a) works whose term of protection has expired;
(b) works whose authors have no successors in title;
(c) works whose owners have renounced copyright protection.
This section is contrary to the right to freedom of expression set out in Section 14 of the
Constitution of Lesotho. It is also difficult to see a valid legal basis for the provision,
since the works (at least those listed in (2) (a) and (c)) are, by definition, works in which
no copyright subsists, and hence there is no protection granted by the Act. A purely
negative prohibition such as 18 (1) cannot be construed as granting a positive right or
even expressing a legitimate legal interest. The provision is of dubious legal validity. If
valid, it is an unnecessary barrier to access to learning materials in Lesotho. There is
also no question of prejudice to rights holders, since the provision deals only with works
where there are no rights holders.
55

Namibia
Section 15 of the Copyright and Neighbouring Rights Protection Act 6 of 1994 sets out
general exceptions:
15 General exceptions regarding protection of literary and musical works
(1) Copyright shall not be infringed by a fair dealing in the use of a literary or
musical work-
(a) for the purpose of research or private study by, or the personal or private
use of, the person using the work;
(b) for the purpose of criticism or review of the work or of another work; or
(c) for the purpose of reporting on a current event-
(i) in a newspaper, magazine or similar periodical; or
(ii) by means of broadcasting or in a cinematograph film,
provided, in the case of paragraphs (b) and (c) (i), the source and the name of
the author, if that name appears on the work, are mentioned.
(3) The copyright in a literary or musical work which is lawfully available to the
public shall not be infringed by a quotation therefrom, including a quotation
from an article in a newspaper, magazine or similar periodical that is in the
form of a summary of that work, provided-
(a) the quotation is compatible with fair practice;
(b) the extent of the quotation does not exceed that justified by the purpose;
and
(c) the source and the name of the author, if that name appears on the work,
are mentioned.
(4) The copyright in a literary or musical work shall not be infringed by the use
of such work by way of illustration in a publication, broadcast or sound or
visual recording for teaching purposes, provided-
(a) such use is compatible with fair practice;
(b) the extent of such use does not exceed that justified by the purpose; and
(c) the source and the name of the author, if that name appears on the work,
are mentioned.
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(6) The copyright in a lecture, address or other work of a similar nature
delivered in public shall not be infringed by its reproduction in the press or its
communication in a broadcast, if such reproduction or communication is
made for an informatory purpose, but the author thereof shall have the
exclusive right of making or publishing a collection of such works.
9) Subsections (1) to (7) shall apply also with reference to the making or use
of an adaptation of a work.
(11) Subsections (1), (2), (3), (4), (6), (7) and (10) shall be construed as
including the right to use the work in question either in its original language or
to make a translation thereof in a different language, and, in the latter case,
the right of translation of the author shall be deemed not to have been
infringed.
Although 15 (1) (a) provides for reproduction for study, this provision is too narrow, since
it does not encompass the full range of activities necessary for teaching. Meaningful
access to learning materials requires (at minimum), exceptions or limitations for the
following: use by way of example, reproduction of extracts in educational materials, use
in evaluation, translation and adaptation for sensory disabled persons, and use in
distance education.
16 General exceptions in respect of reproduction of works
In addition to reproductions permitted in terms of this Act reproduction of a
work shall also be permitted in such circumstances as are prescribed, but in
such a manner that the reproduction is not in conflict with a normal
exploitation of the work and is not unreasonably prejudicial to the legitimate
interests of the owner of the copyright.
Although section 16 does allow other exceptions to be created by regulation, it is largely
unsatisfactory. Without clear, stable statutory boundaries, it is difficult to establish
efficient educational practice.
57

South Africa
Section 12 sets out the general exceptions to copyright:
12. General exceptions from protection of literary and musical works
(1) Copyright shall not be infringed by any fair dealing with a literary or
musical work-
(a) for the purposes of research or private study by, or the personal or private
use of, the person using the work;
(b) for the purposes of criticism or review of that work or of another work; or
(c) for the purpose of reporting current events-
(i) in a newspaper, magazine or similar periodical; or
(ii) by means of broadcasting or in a cinematograph film;
Provided that, in the case of paragraphs (b) and (c) (i), the source shall be
mentioned, as well as the name of the author if it appears on the work.
S 12(1) (a) which allows private study and 12 (1) (b) which allows criticism, are both
useful to access to learning materials, but insufficient. Section 12 (1) (a) seems to permit
the copying of an entire text by a learner. However this reading, although it is submitted
that it is correct, is strongly contested by the publishing industry. Given the massive
disparity in power between individual learners and the publishing industry, any provision
which does not grant an unequivocal right to a learner does not grant sufficient access.
Even if it is accepted, the difficult issue of agency – that is, who may make the copy – is
not resolved.
(3) The copyright in a literary or musical work which is lawfully available to the
public shall not be infringed by any quotation therefrom, including any
quotation from articles in newspapers or periodicals that are in the form of
summaries of any such work: Provided that the quotation shall be compatible
with fair practice, that the extent thereof shall not exceed the extent justified
by the purpose and that the source shall be mentioned, as well as the name
of the author if it appears on the work.
58

(4) The copyright in a literary or musical work shall not be infringed by using
such work, to the extent justified by the purpose, by way of illustration in any
publication, broadcast or sound or visual record for teaching: Provided that
such use shall be compatible with fair practice and that the source shall be
mentioned, as well as the name of the author if it appears on the work.
Subsection (4) allows use of work via publication or ICTs for teaching. However, this
leaves unclear the use of works in face-to-face teaching, and for teaching, other than for
illustration. As previously noted, meaningful access to learning materials requires, at
minimum, exceptions or limitations for the following: use by way of example,
reproduction of extracts in educational materials, use in evaluation, translation and
adaptation for sensory disabled persons, and use in distance education.
(9) The provisions of subsections (1) to (7) inclusive shall apply also with
reference to the making or use of an adaptation of a work.
(11) The provisions of subsections (1) to (4) inclusive and (6), (7) and (10)
shall be construed as embracing the right to use the work in question either in
its original language or in a different language, and the right of translation of
the author shall, in the latter event, be deemed not to have been infringed.
Subsection 11 allows translation for the purposes of the exceptions. However, since the
exceptions themselves do not encompass the full range of activities necessary for
meaningful access to learning materials, this is insufficient. Subsection 9 similarly allows
the adaptation of works for sensory disabled persons, but only to the inadequate extent
of the current exceptions.
13. General exceptions in respect of reproduction of works
In addition to reproductions permitted in terms of this Act reproduction of a
work shall also be permitted as prescribed by regulation, but in such a
manner that the reproduction is not in conflict with a normal exploitation of the
work and is not unreasonably prejudicial to the legitimate interests of the
owner of the copyright.
59

Regulations have been promulgated under section 13. However, in the absence of
guiding principles, a general regulation making power is insufficient to guarantee
meaningful access to learning materials.
Sections 15 – 19B apply some of the exceptions set out in Section 12 to artistic works,
cinematographic films, sound recordings, broadcasts, published editions, programme-
carrying signals and computer programs.
Swaziland
The 1912 Act reproduces the ‘fair dealing’ provision of the 1911 UK Copyright Act, the
first fair dealing provision in Anglophile copyright systems. It is not a separate provision
but a proviso incorporated into section 4 on infringement of copyright.
The relevant portions of section 4 (1) state the following:
Provided that the following acts shall not constitute an infringement of
copyright:
(a) any fair dealing with any work for the purposes of private study,
research, criticism, review, or newspaper summary;
(d) the publication in a collection, mainly composed of non-copyright matter,
bona-fide intended for the use of schools, and so described in the title and in
any advertisements issued by the publisher, or short passages from
published literary works not themselves published for the use of schools in
which copyright subsists:
Provided that not more than two of such passages from works by the same
author are published within five years and that the source from which such
passages are taken is acknowledged.
60

Evidently, these provisions are inadequate for meaningful access to learning materials.
It is not clear to what extent proposed draft legislation provides for access to learning
materials.
4.7 Important legislative provisions: importation
Namibia
Section 34 of the Act provides for the restriction of importing of infringing copies. In
terms of this section, the owner of copyright for any published work may give notice to
the Commissioner of Customs and Excise informing the latter that he/she is the owner of
the copyright in that work, and request that the Commissioner treat as prohibited goods,
during a period specified in the notice, any copies of that work. The Commissioner is
then empowered to prohibit the import of the works, at the behest of the copyright
holder, even if the works could otherwise be legitimately imported into Namibia.
This creates a barrier to access to learning materials since the Commissioner is not
obliged to consider the necessity for importation of learning materials in exercising
his/her discretion and such consideration might be ultra vires (beyond legal power).
Further the Commissioner may only react to complaints and may not on his/her own
initiative, classify certain imports of learning materials as permitted.
This provision allows the prohibition of legitimate parallel imports of educational
materials into Namibia, and consequently constrains the flexibility which Namibia might
exercise under TRIPs.
Botswana
Section 20 permits the importation of a copy of a work by any person for personal
purposes. This is a model provision for an exception which allows an individual to import
works for personal purposes.
61

South Africa
Section 23 (2) prohibits the importation into South Africa of reproductions of works
without the authority of the rights holder. This constitutes a barrier to access to learning
materials, which is particularly acute because of the structure of the publishing industry,
as examined in Section 1, which is currently geared towards selling a lower number of
works to a small minority. These provisions also limit the ability of the Minister to pass
regulations which allow parallel importation of alternative (and legitimate) copies of
works from other markets.
4.8 Important legislative provisions: digitisation
This paper cannot do full justice to the challenges and opportunities of digitisation for
copyright generally, and with respect to development and education in particular. As
noted previously, relatively unaffordable access to digital content means that copyright
issues around digitisation pose both a current opportunity and a potential problem. As a
potential problem, it is of some regional importance to note possible clauses embedded
in the US FTA, also discussed previously. Currently, of the effects of legislative
provisions for digitisation, the impact on distance education is of the most concern since
it is a significant system of education in the region. Only South Africa and Botswana
have legislation dealing with the issues of digitisation and copyright law. These are
scanned briefly, if only to point out the difficulty of addressing issues raised by
digitisation in an isolated manner.
South Africa
Section 2(2)
(2) A work, except a broadcast or programme-carrying signal, shall not be
eligible for copyright unless the work has been written down, recorded,
represented in digital data or signals or otherwise reduced to a material form.
In South Africa, as in most but not all jurisdictions, copyright is confined to works
reduced to a material form. This section seeks to reduce any uncertainty as to whether
62

digital works enjoy copyright protection. It does not, however, deal with the issues raised
by imposing a copyright regime developed for an analogue environment onto a digital
environment. Foremost amongst these issues is that of the liability of key parties (such
as telecommunications providers and Internet service providers) for making copies,
usually through automatic processes, while providing Internet and other communications
services. Persons who serve as conduits for information may be liable for indirect
infringement of copyright. Historically, this liability attached to publishers who had the
resources and responsibility to ensure that they did not publish infringing material.
Imposing such liability on communications service providers leads to the increased cost
of communication, which could in turn impact on its viability and availability. A possible
consequence of imposing liability on communication service providers is that the
continuation of such services to large populations in Africa might be threatened.
In South Africa, the liability of electronic communication service providers is dealt with by
Chapter XI of the South African Electronic Communication and Transactions Act 25 of
2002, which is discussed below in comparison with Botswana.
Botswana:
Section 19.
19. the temporary reproduction of a work shall be permitted if all of the
following conditions are met -
(a) the reproduction is made in the process of a transmission of the work or
an act of making the work perceptible;
(b) it is caused by a person or entity that, by virtue of authorisation by the
owner of the copyright or of operation of law, is entitled to make that
transmission or make the work perceptible;
(c) it is an accessory to the transmission or making perceptible that occurs
during the normal operation of the equipment used and entails the automatic
deletion of the copy without enabling the retrieval of the work for any other
purpose than those referred to in paragraphs (a) and (b).
63

Like the DMCA in the United States, this provision seeks to deal with the liability of
electronic service providers. Unlike the provisions of Chapter XI of the South African
Electronic Communication and Transactions Act 25 of 2002, which also seeks to
insulate service providers from liability, this section provides protection only from
copyright liability. It is suggested that the cumulative requirement of the section (that all
the subsections be met) is unduly burdensome, and that it would be more efficient to
provide that if an act falls into any one of the categories, it should then be authorised by
the section.
5. Conclusion
Our scan of the learning environment in southern Africa suggests a serious problem in
respect of access to knowledge goods. While there are several factors complicit in
producing this access gap, several of the identified problems (excessive pricing,
unavailability and unsuitability of material, and government/ institutional resource
constraints) can be traced, in significant part, to intellectual property law.
While noting that progressive copyright licensing movements in the region are yet
nascent, we suggest that open content licensing policies can offer significant benefits to
access to learning materials. However, our analysis of another market phenomenon,
namely piracy, suggests that important policy lessons may be learnt from a closer
understanding of the contributions of the informal economy in knowledge goods to
societies of the south.
A comprehensive review of copyright law and regulation within SACU suggests that in
the interests of access to learning materials, it is necessary to develop guidelines for fair
practice which take into account the specific circumstances prevailing in developing
countries, and which acknowledge disparities between member countries in a regional
economic unit, differentiating relatively industrialised countries (in the context of SACU,
Botswana, Namibia, South Africa) from the less industrialised, such as Lesotho and
Swaziland.
64

The survey findings suggest that fair dealing as a means of access to knowledge could
be considerably enhanced by the introduction of clear, detailed, progressive provisions.
However fair dealing provisions are by their nature limited in their impact, and it is other
exceptions and limitations such as state sponsored parallel importation which require
proactive steps by SACU governments.
It is also important that civil society organisations, universities, library associations,
student associations and teachers unions organise themselves on a regional basis.
Most the organisations and institutions asserting rights to use materials in a manner that
is contrary to the desires of publishing industries, lack both capacity and information.
There is an urgent need for collective action in defining an appropriate, detailed uniform
list of the exceptions and limitations appropriate to southern African conditions.
We conclude that currently, neither does copyright legislation in SACU countries make
significantly positive provisions for access to learning materials, nor does it take full
advantage of the flexibilities provided by TRIPs. Ironically, it is precisely in this disabling
legal environment that the SACU countries are being asked – by domestic and
international publishing industry lobbies – to strengthen the enforcement of criminal
sanctions for certain copyright violations, even as they constitute an access mechanism
in a context that offers few alternatives.
65

6. Bibliography
Ajidahun, C. 1998. Book piracy and Nigerian copyright law. Library Management, 19 (1)
22–25.
Andrew, J. 2004. Publishing Market Profile: South Africa. British Council and the
Publishers Association, UK.
Becker, K. 2004. The Informal Economy. Manuscript for Swedish International
Development Cooperation Agency. [Online]. Available:
www.sida.se/publications/.
Berger, J. and Prabhala, A. 2005. Assessing the impact of TRIPs-plus patent rules in the
proposed US-SACU Free Trade Agreement. Oxfam GB, South Africa. Report on file with
the authors and with Oxfam GB. [Online]. A draft version is available at:
http://www.who.int/3by5/amds/capacity/tza2_oxfamreport_pricing_financing.pdf
Borges Barbosa, D. 2006. TRIPs art. 7 and 8, FTAs and Trademarks. March 9, 2006.
[Online] Available: SSRN:
http://ssrn.com/abstract=889107.
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67

Appendix A: Data from petty photocopying businesses, Makerere University
(All figures represent daily averages in number of pages photocopied)
Lecturers Students Others Total Department
0 0 0 Law
150 100 250 MISR
600 IACE
200 CCE
0 300 300 Psychology A
250 B
100 500 600 Science & Technology
2300 Education A
2 500 502 B
75 350 425 C
500 100 600 D
200 500 50 750 Library School (EASLIS)
600 300 900 Main Library
850 Mary Stuart*
250 Lumumba**
150 St. Francis
+
250 600 850 Institute Languages
500 1000 1500 Food Sciences
300 300 Technology
500 1000 100 1600 Arts (Faculty)
500 1500 2000 Arts
700 700 Arts
2000 2000 Arts
500 500 Arts
100 500 50 650 Nature and Forestry
450 50 500 St. Augustine
+
200 600 800 Agriculture
300 50 350 Agriculture
200 50 250 Agriculture
300 500 800 Science
400 100 500 Science
200 400 600 Chemistry
100 200 300 Math
100 200 50 350 Botany
150 50 200 Botany
200 Physics
100 300 400 Physics
200 Languages
500 Languages
700 700 Main Library
500 Main Library
100 100 Main Library
200 150 350 Building Unit
200 500 700 Economics
100 1000 1100 Gender
Gender
500 1500 100 2100 Gender
200 500 700 Music Dance and Drama
68

2000 2000 500 4500 Social Sciences
Social Sciences
500 1500 2000 Social Sciences
Computer Science
100 50 150 Statistics
Senate
++
550 100 650 Senate
++
800 100 900 Senate
++
500 150 650 Mitchel**
750 50 800 Mitchel**
1500 1500 Mitchel**
Mitchel**
200 100 300 Swimming Pool
1000 1000 Nkrumah**
Nkrumah**
800 50 850 Nkrumah**
Nsibirwa**
500 Nsibirwa**
800 Livingstone**
500 Veterinary Medicine
500 700 1200 Veterinary Medicine
750 Statistics
200 1000 50 1250 Statistics
800 Statistics
200 500 700 Environment & Natural Resources
800 800 Nkrumah**
1000 200 1200 Nsibirwa**
650 Africa*
1000 300 1300 Senate
++
*Female student residential apartment block
**Male student residential apartment block
+
Student community centre
++
Academic Registrar’s block
69