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“Higher ambitions for education and copyright in Africa and the world”, by Mugwena Maluleke.

African nations actively participated in the development of the Sustainable Development Agenda that acknowledged the centrality of education in the achievement of all other plans for a better world. Like other nations of the world, they committed to the provision of a single, renewed education agenda that is holistic, ambitious and aspirational, leaving no one behind – Sustainable Development Goal 4.

More specifically, at the regional level, African Heads of States and Governments adopted an ambitious education strategy to help boost the continent’s development. But among other conditions required, achieving such ambitious goals rests on the right of teachers to access and use creative works and knowledge for teaching and learning. Yet, at this time, copyright laws, particularly in African countries, are the most restrictive, have high cost implications and do not address the use of digital works in education institutions. In addition, there is a lack of internationally harmonised copyright legislation that would enable educational collaboration and exchange across borders.

Source: Nobre, T. (2019). Copyright and Educational Activities in Africa. Education International.

This is also a topic of concern for South Africa where we are in the final stages of adopting a long overdue Copyright Bill that would empower educators and researchers and, at the same time, contribute to a more balanced copyright system for creators and users of creative works alike. We can see how, in our context, commercially driven actors – including big international publishing houses - spread a lot of misinformation and put the much needed bill at risk. The discussions at WIPO seem to be influenced by these commercial powers as well.

On 12 -13 June 2019, the South African Democratic Teachers Union (SADTU) took part in a WIPO African Regional Seminar on Copyright Exceptions and Limitations for Libraries, Archives, Museums and Educational and Research Institutions. The meeting brought together representatives of different groups interested in exchanging views on how to improve existing copyright laws to better serve the interests of all stakeholders involved in the chain of creation and use of creative works.

 this Nairobi seminar was a missed opportunity to tackle the challenges African education systems face in providing fair access to creative works for teaching and learning. The views expressed by representatives from libraries, archives museums and educational and research institutions were largely side-lined as government officials had been clearly influenced by discussions that took place in a two-day WIPO meeting ahead of the regional seminar. Education stakeholders were excluded from this event and commercial actors got the stage to promote the importance of commercial solutions instead of rights-based solutions including the need for good copyright exceptions for quality education and the development of prosperous societies.  

In fact, let’s imagine a world without exceptions. Then copyright holders would have a complete monopoly over access and use of copyrighted materials in education institutions. Which means that every use of a copyrighted work would be subject to permission by the owner (and/or payment). Teachers should never have to carry this kind of burden. Unfortunately, copyright laws in most African countries have not been updated in many years and are no longer fit for purpose which forces many teachers to work in legal grey zones. A recent study carried out by the French Development Agency (AFD) in 2018 on copyrights legislation in the Economic and Monetary Union of West Africa (UEMOA) found that copyright laws in these countries are outmoded and are not harmonised. The same study reveals that the major problem in the copyright field in the UEMOA countries is piracy at an industrial scale, not exemptions. It will be essential for the Heads of Copyright offices to consider these findings and start a conversation with their national Ministries of Education on how to truly work towards achieving Sustainable Development Goal 4. This discussion was clearly not facilitated by WIPO who should be reminded that Sustainable Development Goal 4 and the related Education 2030 Framework for Action is a global commitment and  effort. The vision is to transform lives through education, recognizing the important role of education as a main driver of development and in achieving the other proposed SDGs.

How do African nations expect to fulfil this vision and this commitment if they do not work for international legislative frameworks that will call for harmonisation of domestic copyright laws to enable quality education to be provided to all children?

Likewise, the fourth Guiding Principle for the implementation of the Continental Education Strategy for Africa acknowledges that “Harmonized education and training systems are essential for the realization of intra-Africa mobility and academic integration through regional cooperation” yet African countries seem the least prepared for the adoption of an international instrument to harmonise copyright laws with regard to exemptions for education and research purposes.

The question is, how does the African continent expect to fulfil the global dream of ensuring that by 2030, all boys and girls have access to inclusive quality education if teaching and learning materials are subjected to commercial licenses, thus making them in-accessible for children – particularly in developing countries.

History is there to help guide present generations towards a better future. Starting as early as 1880, the Berne Convention teaches us that we need to protect the fundamental  user rights and this this does not infringe the rights of creators. The Marrakech Treaty tells us that we need to be sensitive to the less fortunate in our effort to protect the rights of authors and producers. But the most important lesson from these two agreements is that it is easier and more reasonable to adopt an international legal framework and then domesticate it at regional and national levels. Why not do the same for education, research and cultural heritage institutions at this time when copyright laws are being changed to accommodate the digital age and when cross-border cooperation and collaboration have become the main modus operandi of education and research institutions as well as global businesses?

It is essential that education unions take an active role in copyright reforms to ensure that teachers and researchers, especially in less developed areas of the world, are not deprived of their rights to use and build upon creative works for teaching, learning and research.  This is why SADTU together with 390 education trade unions from across the world adopted an international resolution that calls for the adoption of an international instrument on copyright for education and research.


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Mugwena Maluleke

Mugwena Maluleke is the General Secretary of the South African Democratic Teachers Union, (SADTU). A former maths teacher and Principal of Tshwane’s Rodney Mokoena Junior Secondary School, Maluleke has been a member of SADTU since its inception in 1990. He is a member of the Congress of South African Trade Unions (COSATU) Central Executive Committee, South Africa’s largest trade union federation. He is also a member of the African National Congress (ANC).

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