The crucial role of libraries and archives, more so than ever before, is recognised at an international level, including the World Intellectual Property Organization (WIPO).  International IP agreements such as the Berne Convention and the TRIPS Agreement, provide for limitations and exceptions to the exclusive rights of authors, to ensure balance in copyright laws, for the benefit of society.  Currently, Treaty Proposals for limitations and exceptions for libraries and archives form part of the development agenda of WIPO’s Standing Committee on Copyright & Related Rights.  

Libraries and archives recognise the principles of our Constitution, the African Cultural Renaissance, and the 2015 Cape Town Declaration, when our Minister of Arts and Culture and Ministers from 13 other countries, formally committed to providing the necessary resources for the development of African libraries, to respond to modern day challenges, and to provide access to emerging technologies. One of their key commitments was to ‘encourage the implementation of fair and balanced copyright laws for all’.  In the 2018 Durban Communique South Africa and other signatory countries commit to ongoing support for libraries and to ‘ensuring and protecting intellectual property rights including copyright and neighbouring rights laws and balanced implementation’.

Libraries and archives provide services to meet the information needs of our people and beyond our borders for various purposes, including personal, career and socio-economic development, political, security, health, civic and many other activities. They also provide the appropriate resources and support for research, education, creativity and innovation, people with disabilities, cross-border resource-sharing, and many more important activities for the development of our country in transformation.  They are also collectors and custodians of our documentary and cultural heritage.

The role and global impact of libraries and archives have changed tremendously. They are leaders in print and digital information collection, knowledge management and dissemination, as well as in preservation, data management, knowledge production, including publishing, literacy development, and other key professional functions.  The Web may give users thousands of hits, but libraries and archives give focused, relevant and on-the-spot information.

Apart from addressing issues such as literacy training and providing access to learning and reading materials in poorer communities, demands on libraries and archives from the growing middle-class have increased.  To meet the demands of the global society and evolving digital world, researchers, educators, students, health and other professionals, as well as corporates, government departments and non-governmental organisations across the board require up-to-date resources, such as internationally accredited journals, books, newspapers, reports, government publications, statistics, maps, images, use of technologies, e-databases, multimedia, archival and cultural heritage records, and other resources housed by libraries and archives.  Authors, creators, publishers and innovators also need access to a wide variety of material and resources to inspire them, quote from, re-use or remix, or innovate, invent, and create new works.  

As custodians of our country’s documentary heritage, libraries and archives need to digitise and preserve their collections for accessibility now and for future generations.  Unfortunately, our current copyright law is a barrier to these crucial activities which libraries and archives are statutorily mandated to do.   The current law dates back to the apartheid-era and the days of reprographic reproduction, basically photocopying or copying via a facsimile (fax) machine. It is outdated and does not address the needs of the 21st century and the 4IR. 

Despite their importance through the ages, libraries and archives have no place in the South African Copyright Act itself.  There are only limited exceptions and limitations in the Regulations, but these are embedded in the print and pre-WWW era.   Currently, libraries and archives require prior permission before they can digitise, convert or format-shift material. This is costly, time-consuming, and often unsuccessful when rightsholders deny permission or set restrictive conditions before material can be digitised. This leaves gaps in digital collections that ultimately affect accessibility, use and re-use of material, and digital curation.

Not being permitted to digitise special collections, fragile material and other valuable material without restriction, libraries and archives’ collections are at risk, but more importantly, our country’s historical and cultural memory are at risk.  They are vulnerable to natural disasters, flooding, theft, arson, vandalism, or other damage or destruction.  A very poignant example is the horrendous fire earlier this week that burned acres of fauna and floras on Table Mountain and the surrounding areas, and destroyed historical buildings, including the famous Mostert’s Mill and the internationally recognised Jagger Library at the University of Cape Town.

The Jagger Library suffered serious structural damage, but more concerning is the devastating loss of some 73,500 valuable items in the African Studies Collection, which included the vast majority of the African Studies Published Print Collection (approximately 70 000 items) and rare 19th century dictionaries from around the continent.  All the UCT university calendars and history of UCT Libraries were burned, as well as some of the heavily used Government publication documents from South Africa and across the continent. It also included manuscripts and archives kept in the Reading Room for processing or digitisation or awaiting transfer after digitisation, the original card catalogues for the Manuscripts and Archives repositories, as well as the Special Collections Archive Office and administrative records.

Ujala Satgoor, Executive Director of Libraries at UCT told Reuters “It was horrifying. It was a deep-seated sadness that this had to happen because some things are irreplaceable”. The entire African Studies Film Collection on DVD (about 3,500 items) was destroyed. “We were very fortunate to digitise the VHS and had them stored as DVDs, but because of copyright we could not replicate”, said Satgoor. She added that the process of digitisation had helped preserve other manuscripts. “Very special rare and antiquarian materials are housed elsewhere”, she said.

This disaster has highlighted the need for the Copyright Amendment Bill to be passed without further delay.  The Bill was approved by Parliament in March 2019, but the President returned it to Parliament for review in June 2020. More than 10 months have passed, but Parliament remains silent on the Bill. 

The Copyright Amendment Bill has useful exceptions and limitations for libraries and archives, which will enable them to digitise and preserve their collections, but also replace lost or damaged material, format-shift, and convert material to new technologies as older ones become obsolete. In the COVID-19 lockdown, the provisions in the Bill would also have been exceptionally helpful for teaching, learning, and research, and provide access to people with disabilities.

Impatient with inaction on the Bill, Blind SA, with assistance of Section 27, a public interest law centre, has served papers in the High Court against Parliament, the President and relevant Government officials on the basis that the current 1978 Copyright Act has no provisions for people with disabilities and is therefore unconstitutional and needs urgent redress.

In light of the above, it is hoped that Parliament and Government will finally see the urgency of this Bill and expedite the process, so that libraries and archives can finally carry out their full statutory mandates to serve the people of South Africa and beyond, and preserve our cultural and historical memory for future generations.

Photo By Dvortygirl – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=3606255

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