WHY IT IS SO IMPORTANT FOR SOUTH AFRICA?
On 2 October 2020, South Africa and India petitioned the World Trade Organization (WTO) to allow all WTO members to waive or bypass granting or enforcement of patents, trade secrets, industrial designs, and copyrights on COVID-19-related drugs, vaccines, diagnostics and other medical technologies for the duration of the pandemic.
Member countries, especially developing countries, urgently need the freedom and flexibility to find treatments and vaccines for the COVID-19 pandemic. They also need to expand production of health products to address and treat COVID-19, secure lower prices and expedite equitable distribution of such products and related information globally.1
Unfortunately, the race to find treatments and vaccines has become politicised and a playing field for the greedy. Rich countries, such as the US, UK and EU, are blocking proposals at WTO that will help poorer countries get vaccines more quickly. Some developed countries have bought up stocks of vaccines which far exceed the numbers they need for their own citizens. This has left most developing countries in a waiting queue for supplies. Rich nations are vaccinating one person every second while the majority of the poorest nations are yet to give a single dose. In addition, in a recent letter to President Biden, pharmaceutical giants berated South Africa and India for pushing the vaccine property rights waiver.
As we all know, the COVID-19 pandemic has highlighted the glaring omissions and inadequacies of copyright laws around the world, especially in developing countries. So many challenges arose or were exacerbated when millions of libraries and archives around the world suddenly had to close their doors because of strict COVID-19 protocols. Libraries and archives had to continue their essential services by overnight conversion to online platforms to meet the increased demand from users as they battled to access information in the confinement of their homes. These are some examples of the challenges encountered by librarians, educators, researchers, people with disabilities, data analysts, authors and creators during the pandemic:
- ongoing lack of access to information and data.
- restrictions or prohibitions relating to data analysis and text and data mining,
- no provisions to allow access to or modification of software to repair ventilators and related equipment for COVID-19 patients.
- restrictions on the conversion of printed materials to digital formats for support of teaching, learning and research, particularly around COVID-19 symptoms, protocols, treatments, etc.
- problems caused by paywalls, restrictive licences, technological protection measures and restrictive copyright laws.
- lack of access via accessible formats for people with disabilities.
- no provisions for digital reading interventions for children and literacy classes.
- lack of limitations and exceptions for digitisation, preservation and digital curation of collections, archives, and cultural heritage and documentary records for perpetuity.
Through dedicated services and endeavours to promote access to knowledge, millions of researchers, educators, libraries, archives and museums around the world have contributed to the prevention, containment and treatment of the COVID-19 pandemic. However, their noble efforts have constantly been stymied or prevented by outdated or restrictive copyright laws, technological protection measures and restrictive licences.
Many organisations around the world, representing millions of researchers, educators, librarians, archivists and other information service practitioners, as well as individuals concerned about the issues raised above have signed a Waiver Statement for submission to WTO today. Important representative organisations in South Africa that added their support to this Waiver include:
- Academy of Science of South Africa (ASSAf)
- Blind SA
- Committee of Higher Education Libraries of South Africa (CHELSA)
- Creative Commons South Africa
- Documentary Filmmakers’ Association of South Africa
- IP Unit (University of Cape Town), South Africa
- Library and Information Association of South Africa (LIASA),
- ReCreate South Africa
- Right 2 Know Campaign
- Section 27 South Africa
- Universities of South Africa (USAf)
- Wikimedia ZA
In support of the Waiver Statement, Dr. Linda Meyer, Director of Operations and Sector Support at Universities South Africa (USAf), the representative body for 26 public universities, stated that “USAf supports the TRIPS waiver proposal as an endorsement to open research and access to knowledge for society’s greater good and to eradicate the COVID 19 pandemic nationally and internationally.”
It is ironic that at the international level, via the WTO, South Africa has joined India in a noble call for a TRIPS Waiver, yet at the national level, its own Department of Trade and Industry’s copyright reform initiatives have already been stalled for two years. On 28 March 2019, Parliament approved an updated and progressive Copyright Amendment Bill. This Bill was formally supported by many international, regional and local organisations, research and educational institutions, archives, libraries and other information services, government departments, non-governmental organisations, teacher unions, authors and creators, people with disabilities and other stakeholders. The provisions in the Copyright Amendment Bill in fact underpin and corroborate the motivation for a TRIPS Waiver.
However, after unwarranted pressure from the USTR and European Commission, due to protests from multi-billion-dollar conglomerates, and in response to a Constitutional Court action brought against him by Blind SA, President Ramaphosa sent the Bill back to Parliament on 16 June 2020. He cited ‘’constitutional concerns” as the reason for the Bill to be reviewed.
The limitations and exceptions in the Bill would have served stakeholders well during the strict lockdown levels in 2020 and the ongoing restrictive protocols in 2021. My article entitled How SA’s Copyright Bill Would Benefit Citizens During Covid highlights how South Africans would have benefitted had the Copyright Amendment Bill been enacted in 2019.
Despite the urgency of the Bill to align the copyright law with the 21st century and 4th Industrial Revolution, and to address pandemic-related challenges, Parliament has to date, failed to act on the Bill. As a result, and despite its Waiver proposal, the South African Government perpetuates a 1978 apartheid-drafted copyright law that is a major obstacle to access to information, particularly in the digital world.
Together, the Waiver and the Copyright Amendment Bill would certainly enhance research and access to information and address the many serious challenges highlighted above. They would help expedite South Africa’s endeavours to find suitable treatments and vaccines against COVID-19 and to add to global knowledge through academic and other publications.
If South Africa is serious about a TRIPS Waiver, it is incumbent on Parliament to refer the Bill back to the President for assent as a matter of urgency.