Access to Knowledge in Africa

Access to Knowledge in Africa

How to free a continent from the shackles of copyright*+

By Kaushik Goburdhun**

[September 2006]

*This thesis has been written under the supervision of Alan Story- Senior Lecturer at KentLawSchool- in order to fulfil the assessment requirements of the LLM in International Commercial Law at the University of Kent.

+ Total number of words excluding abstract, acknowledgment, appendices, bibliography, footnotes, list of abbreviations and acronyms, quotations and table of contents:20 371.

** The author qualified as a barrister in the UK and is, at the time of submission of the present thesis, employed as a State Counsel at the Attorney General’s Office of Mauritius. All the views expressed herewith should be construed as those of the author and should, in no circumstances, be construed as those of the Attorney General’s Office of Mauritius.

TABLE OF CONTENTS

Page No

Acknowledgment 4

Abstract5

Abbreviations and Acronyms6

Introduction9

CHAPTERS

1. An analysis of the international legal instruments governing

copyright from a legal and economic perspective

(a)The Berne Convention-An author’s monopoly on knowledge? 12

(b)Publishers’ private greed impedes upon access to knowledge in Africa 15

(c)TRIPS: ‘Turning an arcane field of law into a tiger with claws’ 18

(d)Denying access to digital information 23

(e)Bilateralism Agreements: The African continent trapped26

2. Copyright: Forcing Africa to its Knees

(a) Academic Journals: A scarcity in Africa28

(b) The prohibitive pricing of books & its social impact34

(d) Does copyright seal blind Africans fate to the darkness of ignorance?47

(e) The copyright onslaught on libraries54

3. An overview and a critical analysis of the reasons justifying copyright

(a) The Incentive Theory60

(b) The Natural Rights/ Labour Theory68

(d) The Development Theory81

(e) Is copyright necessary for building an attractive culture?85

4. A fair copyright regime for Africa

(a) Arguments in favour of abolition of copyright88

(b) Rebutting arguments for abolishing copyright90

literary works in the public domain?92

(d) Addressing the rationale behind a more relaxed copyright structure97

(i) Can there be compliance with a morally unsound law97

(ii) Public rights should be at par with copyright holders’ rights98

(iii) Contributing to a more prosperous society: A concern for all nations 98

(e) A more permissive copyright regime for Africa98

(i) Can works of major public importance be excluded from

(ii) Broadening the exceptions under the law104 (iii) Resorting to Contract and Competition law 106

(iv) Exploiting loopholes in current international legislations108

5. Conclusion109

Appendix 1113

Appendix 2115

Appendix 3117

Appendix 4119

Appendix 5120

Appendix 6121

Appendix 7126

Bibliography127

ACKNOWLEDGMENT

I wish by these few words express my whole hearted thanks to Mr Alan Story, my supervisor, whose enthusiasm of the topic was simply contagious. When I embarked on the LLM in International Commercial Law at the University of Kent, I did not anticipate that Intellectual Property Law would be a major focus to my studies. However, when confronted with evidence that commercial interests were taking precedence over the right of access to knowledge in developing countries, I suddenly find myself passionately advocating for reforms of copyright law. Of course, had it not been for the unfettered financial and emotional support bestowed by my parents I would not have been able to accede and progress through an LLM programme taught in the developed North. I cannot, in this instance, fail to remember my late grand-mother who used to pray for my well-being and success, but who sadly passed away when I was far away from home, in Kent. I also wish to thank Mr Andrew James (undergraduate law student at Kent) and Ms Lucy Barnes (Phd student in law and teaching assistant at KentLawSchool), who took much pleasure in giving me their critical views on the present topic. I also wish to extend my thanks to Ms Annie Jensen for her support in editing and to Mr Yin-Chieh Tu, for the table structure in Appendix 7.

ABSTRACT

Creating a better skilled and educated workforce in Africa is paramount for the African continent to “leap-frog” into the knowledge economy. The western model of copyright law inherited from past colonial masters, or imposed by the developed countries on the continent constitutes an extra hurdle to accessing knowledge-based materials. Copyright jealously safeguards the economic interests of copyright holders. Concessions made to the public to have access to copyrighted works have been framed too narrowly. This is detrimental to the social and economic welfare of many African states. Lately, the digital era has been hailed as a panacea for bridging the knowledge gulf between African states and the developed North. However, as copyright holders presently retain complete discretion in determining what constitutes fair dealing on the world-wide web, knowledge-based materials may still remain locked behind ‘toll-gates’ for a very long time. A number of justifications are usually made to support strong copyright protection. These justifications are either unsound or are not adequately reflected in the law. They are however used to veil the commercial interests of conglomerates. There is consequently a pressing need to reform the international copyright regime to address the economic and social needs of developing states especially those in Africa.

ABBREVIATIONS AND ACRONYMS

AGOAAfrican Growth and Opportunity Act

AJOLAfrican Journal Online

ALCSAuthor’s Licensing and Collecting Society

ARIPOAfrican Regional Intellectual Property Organisation

CISACConfédération Internationale des Sociétés d’auteurs et Compositeurs (International Confederation of Society of Authors and Composers)

CLACopyright Licensing Agency

COLCommonwealth of Learning

CDPACopyright, Designs and Patents Act (UK)

CODESRIACouncil for the Development of Social Science Research in Africa

COSOMACopyright Society of Malawi

CTACopyright Transfer Agreements

DALRODramatic, Artistic and Literary Rights Organisation,

(South Africa)

DACSDesigns and Artists Copyright Society

DOAJDirectory of Open Access Journals

EASSYEast African Submarine System

EIFLElectronic Information for Libraries

EOIEdition de L’Océan Indien

FDIForeign Direct Investment

GCSEGeneral Certificate of Secondary Education

GATSGeneral Agreement on Trade in Services

GATTGeneral Agreement on Tariffs and Trade

GDPGross Domestic Product

ICESCRInternational Covenant for Economic Social and Cultural Rights

IFRROInternational Federation of Reproduction Rights Organisation

IFLAInternational Federation of Library Associations

IRINIntegrated Regional Information Network

KOPIKENReproduction Rights Society of Kenya

LDCLeast Developed Country

MURMauritian Rupees

NCBINational Centre for Biotechnology Information

NEPADNew Partnership for Africa’s Development

OAPIAfrican Intellectual Property Organisation

OPAOnline Publishers Association

PLSPublishers Licensing Society

PPPPurchasing Power Parity

REPRONIGReproduction Rights Society of Nigeria

RoMEORights Metadata for Open Archiving

RROReproduction Rights Organisation

SASCOSouth African Students Congress

SAFE South AfricaFar East

SABCSouth African Broadcasting Corporation

SPARCScholarly Publishing and Academic Resources Coalition

TRALACTrade Law Centre for Southern Africa

TRIPSTrade-Related Aspects on Intellectual Property Rights

UNISAUniversity of South Africa

UNCTADUnited Nations Conference on Trade and Development

UNESCOUnited Nations Scientific and Cultural Organisation

UNINUniversity of the North

UKUnited Kingdom

USAUnited States of America

USDUnited States Dollars

VATValue Added Tax

WCTWIPO Copyright Treaty

WHOWorld Health Organisation

WIPOWorld Intellectual Property Organisation

WPPTWIPO Performances and Phonograms Treaty

WTOWorld Trade Organisation

ZARSouth African Rand

ZIMCOPYThe Reproduction Rights Organisation of Zimbabwe

Introduction

‘Education is the great engine of personal development. It is through education that the daughter of a peasant can become a doctor, that a son of a mine worker can become the head of the mine, that the child of farmers can become the President of a great nation.’

Nelson Mandela[1]

In the current age of globalisation, no one disputes the fact that education unlocks the doors to better social and economic welfare. Higher education institutions in the developing world, especially those in Africa, have an important role to play in shrinking the knowledge gulf between developed and developing countries, by providing quality education[2] to an increasing student population.[3] Rising to such a challenge is proving to be a Herculean task to African Universities, as they are plagued by inadequate funding,[4] poor electricity supply, unreliable internet connections[5] and loss of both academic staff and students as a result of the Aids pandemic.[6] However, shrinking the knowledge gulf is not solely the duty of tertiary education establishments. Governments should aim at combating rampant illiteracy[7] by enrolling more students within primary and secondary institutions. Enabling the African continent to ‘leap-frog’ in the knowledge economy also necessitates the construction of more schools,[8] the employment of more teachers[9] and the enhancement of access to knowledge-based materials. Unfortunately, intellectual property law has evolved without paying heed to the fact that, in many developing countries, knowledge is considered a common heritage to the community[10] and not a mere trading commodity that is made available only to those who can pay the requested sale or licensed price. Chapter one of this thesis, focuses on the evolution of copyright law in the international sphere, from the Berne Convention to TRIPS-plus agreements. It illustrates how the said law, which was meant to protect the interests of authors, has evolved into a tool that protects the financial interests of copyright holders. By focusing on various states in Africa, chapter two then illustrates how copyright actually impedes upon access to various knowledge-based materials. It is also argued that librarians in Africa have a challenging role in trying to comply with stringent copyright legislations on the one hand and fulfil their role as disseminators of information on the other. Chapter two also proposes immediate amendments that can be made to certain copyright legislations of African states and suggests policy measures that can be implemented to ease access to knowledge-based materials. In light of the difficulties set by copyright, chapter three then looks at the reasons justifying copyright law in its present structure. It is queried whether these reasons are indeed credible and whether they are actually being met by the law. It is also argued that these reasons are generally voiced by commercial entities to better protect and enhance their financial interests. Before concluding, chapter four queries whether copyright law should be abolished or whether it should be amended. I propose a new copyright structure that would strike a fairer balance between the rights of copyright holders and public rights. I argue that such a new copyright structure, if implemented, would improve access to knowledge-based materials in developing countries and especially in African states.

CHAPTER 1

An analysis of the international legal instruments governing copyright from a legal and economic perspective

(a) The Berne Convention: An author’s monopoly on knowledge?

During the nineteenth century, authors of artistic and literary works in Europe were concerned that property rights within their work were being overlooked. As literary and artistic works could cross over national boundaries, there was a pressing need to ascertain that such property rights were being adequately acknowledged within legislations of all ‘civilised’ states.[11] In order to address this issue, the Congress on Literary and Artistic Property, held in Brussels in September 1858, provided an international platform from which authors advocated for a Universal Copyright Law that would allow

‘authors to…enjoy, during their lifetime, the exclusive right to publish and to reproduce their works, to sell them, to have them sold or distributed, and to assign in whole or in part, their property or the right of reproduction.’ [12]

Although the initiative behind such proposed copyright law was laudable, it inadvertently recognised a knowledge-based literary work as property that could be commercially exploited on an international scale. Further lobbying from the International Literary and Artistic Association brought about the drafting of the Berne Convention for the Protection of Literary and Artistic works which came into force on December 5th 1897. The Berne Convention has vested authors with exclusive rights to authorise and make (i) translations of their work,[13](ii) reproductions of their work, [14] and (iii) adaptations, arrangements and other alterations to their work.[15] The period during which these exclusive rights can be enjoyed has been fixed to the lifetime of the author and fifty years thereafter.[16] The said Convention also grants the author a right to object to any distortion, mutilation or modification of his/her work that could be prejudicial to his/her honour or reputation.[17] The monopoly rights attributed to authors were however not absolute. The public interest was also taken into account, albeit in a restrictive manner, through various amendments made to the Convention.[18] From the provisions of the Convention referred to, one may be inclined to infer that the author’s property right within his/her work is heavily safeguarded. However, making such an inference would be wrong for two reasons. Firstly, the success of the Berne Convention should not be judged from the number of states that are signatories to it,[19] but rather by the ability to police any infringements arising from the breaches of its provisions. Article 33(1) of the Berne Convention allows member countries to resort to the International Court of Justice, to resolve disputes arising from the Convention’s interpretation or application. However Ricketson[20] states that: ‘Such provision had never been invoked and that its effectiveness…was substantially eroded by the facility provided to Member States to declare that they were not bound by the jurisdiction of the Court.’[21] Consequently, it can be said that the purported rights bestowed on authors are but theoretical in nature as the Convention does not seriously clamp down on breaches of its provisions. Secondly, as remarked by the International Federation of Library Associations and Institutions,

‘Copyright is often sold or assigned, in whole or in part, to a commercial publisher…or to someone else who will exploit the work commercially. As a consequence copyright often benefits commercial interests’ more than individual authors.’[22]

The absence of any provision guaranteeing minimum rights to authors entering into licensing or assignment agreements is a major weakness[23] of the Berne Convention. As a result of this lacuna, corporate publishers may make use of their strong bargaining position to include within such agreements, terms that are favourable to their own financial sustainability rather than to the authors’ interest. Therefore, it can be argued that the said Convention has missed its prime objective, namely that of protecting, ‘in an effective and uniform manner the rights of authors.’[24] Geiger further states that, ‘the continental term “author’s right” is no longer appropriate, since it suggests that the system of protection benefits above all the author.”[25] The Berne Convention however, had set up a legal framework that would, at a later date, be implemented within another leading international legal instrument governing intellectual property namely: the TRIPS Agreement.

(b) Publishers’ private greed impedes upon access to knowledge in Africa

Zegeye notes that, from primary to tertiary level, books play a central role in the dissemination of knowledge in Africa.[26] Ironically, the African publishing industry has not been thriving given the various challenges it has been facing due to shortage of capital and skills, poor marketing and distribution infrastructures and the prevalence of repressive and unfavourable state policies.[27] The net result is that most Anglophone[28] and Francophone[29] countries in Africa have not been able to undo the shackles of their long dependency on imported books from developed nations since colonial times. In fact, when African states gained independence from their colonial masters, they were not only inexperienced in copyright issues, but were also totally dependent economically and culturally on their former colonial ruler.[30] As such, they did whatever they were dictated to do. They adhered to the Berne Convention too. However, it did not take them long to realise that the intellectual property regime imposed by the said Convention did not suit their development needs and they sought to make amendments to its provisions. The Brazaville meeting held in 1963 was the first of a series of meetings where African states discussed amendments that had to be brought to the Berne Convention. The said discussions gave rise to the Stockholm Protocol in 1967, which provided for a relaxed copyright regime. The new developing states were to benefit from (i) a reduced term of copyright protection of no less than 25 years,[31] and (ii) the ending of translation rights on works after 10 years from the date of publication of an original work.[32] Furthermore, subject to certain conditions,[33] licenses were to be granted on a non-exclusive basis to allow the translation and publication of a work,[34] as well as the reproduction of a publication of a literary or artistic work in its original form.[35] If implemented, the Stockholm protocol would also have allowed developing countries to restrict copyright protection on literary and artistic works for uses other than translation, reproduction or broadcasting, provided that such uses were made exclusively for the purposes of teaching, study and research in all fields of education.[36]As British Multinational publishing houses such as Longman, Heinman, Nelson, Macmillan, Evans Brothers and the Oxford and Cambridge University presses were dominant in the markets of Anglophone Africa at the time of independence of many African states,[37] giving away such broad copyright concessions, meant incurring potential financial losses. Unsurprisingly, a robust campaign was mounted by the British publishers to oppose the concessions granted within the Stockholm Protocol. Sir Alan Helbert, Chairman of the British Copyright Council was reported to have stated that the Protocol was, ‘a delayed action bomb of dangerous principles into the flagship of copyright; a tunnel under the wall of copyright fortress.’[38] The richer and developed countries had the final word in the negotiations that ensued. Numerous provisions of the Protocol, including those relating to reduced duration of copyright and provisions for educational use, were simply dropped.[39] The resulting document, commonly referred to as the Paris Appendix 1971, sets out lengthy and complex procedures for compulsory licensing. Such a document has barely been used by developing countries.[40] The long struggle for greater access to knowledge-based materials by African states spanned over six years, and resulted to no positive outcome. As there were no rigorous provisions to ensure compliance with the Berne Convention,[41] failure by the African states at the negotiating table did not entail disastrous consequences to the average African in his/her daily life. Story stated that, ‘The Berne Convention was just “there”, perhaps a keystone to international copyright relationships, but hardly a source of either cutting-edge conflict or a topic for cutting edge analysis.’[42] However, this was about to change. The fate of access to knowledge-based materials within the African continent was to take a turn for the worse, with the coming into force of the Agreement on Trade Related Aspects on Intellectual Property Rights (TRIPS).[43]