To fulfil their mission in the 21st century, libraries, archives, museums and galleries must engage in a wide variety of new activities.
Libraries, for example, house collections of printed works but must now also provide access to online journals, e-books, multimedia, Africana and archival treasures, images, government publications and legal material, posters and artworks. Collection, development, cataloguing, lending, preservation and replacement must take place online as well as in hard copy.
Academic libraries – and even some school ones – are now embedded in core teaching programmes. They support education and innovation and provide services for people with disabilities. Library services include teaching, literacy programmes, research support, data management, and copyright and plagiarism awareness training.
As knowledge hubs, libraries must meet the various information needs of a country’s citizens. In addition, they promote authors and publishers by purchasing, collecting and preserving their works for perpetuity.
Without access to library and archival collections, creativity and innovation would be almost impossible.
But South Africa’s current copyright law dates back to 1978, and is completely inadequate, outdated and irrelevant in a digital world. It has been a barrier to access to information for far too long.
South Africa’s Copyright Amendment Bill is waiting for President Cyril Ramaphosa’s signature. The bill has been strongly contested. Academic Sanya Samtani, for example, supports the bill with an argument based on her PhD research. For its part, the Coalition for Effective Copyright strongly opposes it.
There is merit in all these arguments. But my view is that there is positive news in the Bill’s provisions for libraries, archives, museums and galleries. For example, it will ensure that valuable documentary records and cultural heritage can be preserved for future generations.
What has been missing
The current Copyright Act has no provisions for libraries, archives, galleries and museums. As an afterthought, limited provisions were included in Section 13 regulations for libraries and archives.
Digitisation is the main form of preserving material in the 21st century. Yet the country’s copyright law doesn’t permit it. This causes serious problems for libraries, archives, museums and galleries. They are currently unable to digitise any of their works without first having to get copyright permission, and to pay high copyright fees.
Such entities have large collections of fragile material which can no longer be handled. The only way to preserve this material – and to make it accessible – is to digitise the content. For example, there are media libraries full of Beta and VHS video tapes, film reels and other material that can no longer be accessed as the technologies are obsolete.
To convert these works to current technologies, libraries and related entities must first get copyright permission. In many instances, rights-holders ignore the requests, or are impossible to trace (making them orphan works). In some cases permission is denied. Collections end up with gaps in them.
These issues affect access to archives, which are used for research, teaching and learning, creating and innovating and sharing information. They get in the way of the civic right to access information provided in the South African Constitution.
Lack of adequate and appropriate copyright limitations and exceptions for libraries, archives, museums and galleries have inhibited or prevented them from carrying out their statutory mandates. They have large collections of valuable documents, posters, artworks, artefacts, newspapers, recordings, and images that cannot be reproduced or even accessed. Often this is because the rights-holders cannot be traced, and there are no provisions for orphan works in the current law.
On top of this, restrictive licences and contracts often prevent libraries and similar entities from carrying out their duties. Cross-border exchanges aren’t permitted. Interlibrary loans are permitted in the current law, but this does not extend to digital sharing.
The new Copyright Amendment Bill takes cognisance of existing international conventions and treaties, treaty proposals and foreign laws. It also draws on the country’s Constitution and the excellent EIFL Model Copyright law, drafted by information specialists in various countries, including South Africa. This document is a practical guide to assist librarians, as well as their legal advisors and policy-makers, when national laws are being updated. It is designed to support access to knowledge and the public interest mission of libraries.
The Bill also implements the principles of the 2015 Cape Town Declaration, signed by South Africa and 12 other African countries. This includes the commitment
to encourage the implementation of fair and balanced copyright laws to facilitate access to information for all.
The Bill doesn’t use the word “digitisation” specifically. But it will allow libraries, archives, museums and galleries to engage in preservation, digital curation and format-shifting. This will ensure their collections are preserved and made accessible for future generations.
They will be able to share information and replace lost or stolen works. They will also be able to provide information, images, recordings or other media for historical events, exhibitions and educational purposes.
Legal deposit libraries will also finally be able to carry out their statutory mandates. These include that they collect, preserve and make accessible the country’s cultural heritage and historical documentary records in the digital space.
The Bill has been given the thumbs up by the International Federation of Library and Institutions – the leading international body representing the interests of library and information services and their users. It represents over 2.3 million libraries worldwide, serving over a billion users. It has labelled the Bill both progressive and practical. The International Council of Archives, the umbrella organisation that promotes international cooperation for archives and archivists, has also formally supported the Bill.
This suggests that South Africa is about to have a copyright law that could serve as a precedent for other countries.