Academics, Scholarly Authors and Copyright
In my 38-year career as a professional librarian, 24 years of which were managing the Copyright Services Office at the University of the Witwatersrand, Johannesburg, I often pondered why academic authors appeared to show little interest in copyright issues, and seldom came to the table when legislative reforms were proposed.
Back in 1998 and 2000 respectively, more restrictive Draft Regulations and Proposals to Amend the Copyright Act, endorsed by rightsholders, were published by the Department of Trade and Industry. These proposed amendments threatened access to information and would have negatively impacted on teaching and learning, and research. They would also have restricted libraries and archives from carrying out their statutory mandates, and failed to address the real needs of people with disabilities.
The educational sector and libraries, mandated by the predecessors of Universities SA (USAf) that represented both universities and technikons, set up task teams to challenge both sets of proposals. I was Convenor of both task teams, and a well-known intellectual property firm provided pro bono assistance to these teams for 18 months. As a result, both sets of proposals were withdrawn in toto. What was disappointing was that few academics were involved in this process.
Many academics whom I have assisted over the years appeared not to be concerned about copyright law or its reform. Possibly it was because they had so many more pressing responsibilities to attend to. Perhaps they found copyright too complex, or personally, they did not see or experience the benefits of copyright for themselves or their students. It was obvious that many found it more of an irritation or barrier, when trying to compile resources for teaching, or finding materials for research, or for resource-sharing with colleagues or fellow academics at other institutions, here and abroad. Many of them found that copyright compliance procedures created an unnecessary administrative burden for them or their staff, as they were obliged to complete and submit copyright forms for everything that they used for course materials. This attitude puzzled me at the time as I knew many of their own works were used for teaching purposes. Surely, they would be happy that records were being submitted so that when their own works were used, they would benefit from copyright fees too. This did not seem to be the case. So, I sent a survey to academics at my institution at the time, asking one question only – “Do you receive monies from the collecting societies when your works are reproduced?” Those who responded all said the same thing – “No, I have never received any copyright fees”. I was surprised because the institution’s library paid a few million Rands in licence fees annually to the reprographic rights organistion for all copies used in course-packs. The library presumed the monies were being paid to publishers and scholarly authors. Seemingly, the publishers were the beneficiaries, not the scholarly authors. Regrettably, this practice still seems to be the case today.
The academics’ apparent apathy or antagonism towards copyright became more evident during the COVID-19 pandemic lockdown in 2020, when libraries and archives were closed and access to physical books and journals and multimedia were not possible. Academics, lecturers, researchers, and students all had to switch to online teaching and learning, and library staff to online information services, at short notice. Time was of the essence, so librarians were called upon at all hours of the day and night to assist lecturers in finding resources and making materials accessible, whether through scanning material on to password-protected e-learning platforms, or digitising material, or providing e-books in place of the inaccessible hard-copies. Frequently, academics and librarians were stymied, because the making of any copyright work available through scanning, digitisation, format-shifting or conversion from analogue format to digital format had to be cleared for copyright before reproduction or sharing with students. It is very possible that through sheer frustration, some academics even ignored copyright and went ahead and reproduced material, as the local reprographic rights organisation did not have a mandate to clear digital material, and they could not wait weeks or months to obtain permission from rightsholders, many abroad.
Librarians also experienced many challenges with our restrictive copyright law in the lockdown, especially with the provision of materials to users, and their regular activities, such as reading to children or discussing books with adults in reading circles. In the analogue world, they have for decades been able to read extracts of books to users without any restrictions, and in the process, promote books and their authors. In the pandemic all this changed. Librarians had to seek permission each time they wanted to scan or digitise extracts from works, or even read extracts from books or other reading material via an online platform or YouTube. Because of lack of funding, many of them were not able to afford copyright fees so they could not offer some services or engage in reading programmes, especially for children. Others resorted to reading from out of copyright works or open access material to continue their services to their users. This was indeed unfortunate, especially since the reading abilities of many schoolchildren are below average. Also, academics and students with disabilities were in desperate need of reformatted material and were forced to do without the material or find alternatives if copyright clearance was not possible within a short period of time.
Public-funded institutions through blanket licences and transactional licences pay millions of Rands to a reprographic rights organisation for copyright clearance annually. One would therefore assume that monies collected (after deducting their 25% plus admin fee) would be paid over to publishers, who in turn, would pay at least 50% of that money to the authors. I knew that Wits Press paid authors 50% of all monies received from the reprographic rights organisation, so I naturally assumed this was normal practice amongst all publishers. Unfortunately, this is not the case.
Because of the Copyright Review Commission’s Report (2011) about the failure of collecting societies to pay fair royalties to creators, and the many submissions and oral presentations made by collecting societies on the Copyright Amendment Bill, I thought it would be interesting to ask some academics the same question I had asked many years before: “Do you receive copyright fees when your works have been used for educational purposes?” I asked at least 15 senior academics, some with A-ratings from the National Research Foundation, or highly cited scholarly authors. All of them had the same response: “No – I have never received a cent for the use of my publications”.
The question must therefore be posed: “If this is the case, who benefits from the millions of Rands collected from the public universities by collecting societies every year?” Not authors, so it must be the publishers (mostly international) as nearly 70% of monies collected by the reprographic rights organisation in South Africa flows out to developed countries. How exactly does copyright protect and benefit scholarly authors? Clearly, it does not!
It is difficult to understand how some academics strongly oppose copyright reform in South Africa. Our current copyright law has already been found to be unconstitutional by the Constitutional Court with regard to people with visual disabilities. Arguably, it is also unconstitutional relating to the lack of exceptions for musuems and galleries, orphan works, temporary copies, and the very limited exceptions for research, academic activities and education, and libraries and archives. Surely, they do not request copyright permission and pay fees for each and everything that they need to use for their research, teaching, or writing, or resource-sharing with colleagues and fellow researchers, especially in the digital space. This would be a huge hindrance to their work and productivity if they had to wait for permission before using or reusing any digital copyright material. The current copyright law is very limited and essentially print-based, so the fair use provisions and limitations and exceptions for education and academic activities, libraries, museums and archives, and for people with disabilities in the Copyright Amendment Bill would be extremely helpful to all academics, authors, creators, lecturers, researchers and students.
I found this very interesting and telling article from Peter Lor, an internationally recognised academic, scholarly author, researcher, lecturer and professional librarian. Perhaps he speaks on behalf of many scholarly authors who do not verbalise this, or those who fear ‘rocking the boat’ with publishers. Having worked in the US for some years, Lor was fortunate to experience the benefits of fair use in his research, teaching, and when publishing. Fair use allowed him access to information, use of other copyright works for teaching, resource-sharing and research, without having to apply for copyright permission and pay copyright fees every time he needed to write an article or use material for teaching or research purposes. He could access works around the world, including South African publications under fair use. Unfortunately, without fair use, South African academics, researchers and others cannot do the same, as fair dealing is very limited.
Lor has authored over 200 published articles and book chapters. His work has quite often been prescribed or recommended by universities that have had to pay copyright fees to reproduction rights organisations here and abroad. Yet, he has never received a cent from any of these organisations, nor any communication in this regard. He just presumed that the money was sent to the publishers. Copyright clearly has not benefitted him as a scholarly author, academic, researcher or librarian.
Lor’s view about scholarly publishing is clear (excluding student textbooks). He believes that “the currency of scholarly authors is not money, but recognition, especially recognition in the form of citations”. In other words, scholarly authors’ main incentive when doing research, writing, and publishing is not to earn money or lock their works behind paywalls, but to share their knowledge so that it reaches a wide audience and is cited and used around the world for the benefit of society.
In his article he writes: “Access to information and knowledge is a precondition for quality education, internationally competitive research, R&D, and innovation. The barriers to access that are enshrined in our outdated legislation and that certain well-meaning parties seek to retain if not augment, prevent us from being internationally competitive. We are, as it were, fighting with one hand behind our back”.
He believes that “opposition to the exceptions and limitations to copyright by parties arguing for the interests of foreign copyright holders is hypocritical in the extreme. All we want in the Bill is the fair use provisions that are already in place in the wealthy Western countries. They became wealthy at least in part because they had untrammelled access to information and knowledge when their economies were developing, but now they place obstacles in the development path of countries of the Global South. These obstacles are immoral and must fall”.
As a scholarly author, academic and professional librarian myself, I must agree with Lor and all those academics, librarians, authors, creators and others who do support the Copyright Amendment Bill currently before the National Council of Provinces and Provincial Legislatures. They all want to see South Africans empowered and able to enjoy similar benefits to those enjoyed in many developed and some developing countries around the world.
In the current copyright reform process, I have noticed that more academics have got involved in the debates and deliberations about the Copyright Amendment Bill. However, the numbers are small in relation to the large number of academics in our public and private tertiary institutions who are all affected by copyright, directly and indirectly. A few academics have aggressively opposed the Bill, whilst others have strongly supported the Bill. One group of progressive IP academics from various institutions has provided three joint Opinions on the Bill, made many written submissions, and have presented at public hearings. Others have provided legal advice at the request of Parliament, to help edit and assist with drafting of revisions. Their contributions have been constructive and very helpful.
The Bill has been strongly supported by organisations, institutions, library associations and many more, internationally, regionally and in South Africa. Universities South Africa (USAf) and its Committee of Higher Education Libraries in South Africa (CHELSA) have both supported the Bill, as well as the National Council of Library and Information Services (NCLIS), the Higher and Further Education Disability Services Association (HEDSA), the Library and Information Association of South Africa (LIASA) and the Congress of South African Trade Unions (COSATU), the South African Democratic Teachers’ Union (SADTU) and many other organisations, institutions, NGOs, creatives, as well as Blind SA, DEAFSA, and other communities serving people with disabilities.
Fearmongering and disinformation have been the strategy of many who oppose the Bill. This is unfortunate as it has caused confusion for the public. Many have never read the Bill, nor have they made submissions or participated in the public hearings, yet they believe false tales about fair use and other exceptions in the media. This has been evident in many of the public hearings in the provinces. Once they have read and understood the complexities of the Bill, some have seen the benefits for themselves and others, and are now supporting the Bill.
The Copyright Amendment Bill is a progressive piece of legislation designed for the benefit of all South Africans. It was not designed to threaten livelihoods of authors or creators, or to weaken their protections or rights. It was not designed to cause catastrophic damage to the publishing and other creative industries, or to encourage plagiarism or piracy, or to erode contract law, or to damage our already fragile economy. This has not happened in any other country that has similar exceptions. In fact, the creative industries in countries with fair use in their copyright laws continue to flourish. One of the countries, the US, boasts the largest and wealthiest publishing, entertainment and IT industries in the world. The fair use economy accounts for 16% of U.S. GDP and employs roughly 1 in 8 Americans. Nigeria has recently passed its new Copyright Act which has adopted the 4 factors of fair use and the words ‘such as’, to allow for flexibility and future-proofing, although they still call it ‘fair dealing’.
The Bill was designed to bring South Africa’s copyright law in line with our Constitution and other progressive countries that already benefit from similar provisions and exceptions.
South Africa has for many years been supporting the African Group’s proposals at WIPO for a Treaty on Limitations and Exceptions. We hope that the Provincial process will move quickly, and that Parliament will pass the Bill soon – or else it will create an incongruent situation, where South Africa’s own copyright laws cannot do domestically, what it is asking for at the international level.
I trust that facts, common sense, and the interests of all South Africans will prevail in the consideration of this Bill. Through this Bill, our copyright law takes a quantum leap into the 21st century and anticipates changes for SA to embrace the Fourth Industrial Revolution.
It would be a sad day indeed if this Bill is ‘derailed’, due to misunderstanding, ongoing disinformation, political tactics, and/or pressure from industry and multinationals that favour huge profits over the critical needs of education, research, libraries, archives, and museums, authors and creators, and people with disabilities, particularly in the context of a developing country in transformation.
Photograph acknowledgement: https://www.hippopx.com/en/library-book-school-education-literature-learn-knowledge-410551 – License to use Creative Commons Zero – CC0