Some time ago I posted links to reporting on the Internet Archive’s ‘National Emergency Library.’ The National Emergency Library caused a lot of controversy and legal issues for the Internet Archive. In this post there will be two sets of links, the first on the initial response to the library and the second set to the closing down of the library.
The links below are to articles reporting on the legal issues facing the National Emergency Library.
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But South Africa’s current copyright law dates back to 1978, and is completely inadequate, outdated and irrelevant in a digital world.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.
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.
Ghana has a rich folkloric tradition that includes Adinkra symbols, Kente cloth, traditional festivals, music and storytelling. Perhaps one of Ghana’s best known folk characters is Ananse, the spider god and trickster, after whom the Ghanaian storytelling tradition Anansesem is named.
Ghana also has some of the world’s most restrictive laws on the use of its folklore. The country’s 2005 Copyright Act defines folklore as “the literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by an unidentified Ghanaian author”.
This suggests that the legislation, which is an update of a 1985 law, applies equally to traditional works where the author is unknown and new works derived from folklore where the author is known.
The rights in these works are “vested in the President on behalf of and in trust for the people of the republic”. These rights are also deemed to exist in perpetuity. This means that works which qualify as folkloric will never fall into the public domain – and will never be free to use.
The 1985 Act only restricted use of Ghana’s folklore by foreigners. The 2005 Act extended this to Ghanaian nationals. In principle, this means that a Ghanaian artist wishing to use Ananse stories, or a musician who wants to rework old folk songs or musical rhythms must first seek approval from the National Folklore Board and pay an undisclosed fee.
This is deeply problematic. Following independence in 1957, many artists have explicitly and habitually drawn on Ghana’s folk traditions to develop today’s creative industries. The 2005 Act means that the current generation of cultural practitioners must either seek permission to use and rework their cultural heritage, or look elsewhere for inspiration.
There is clearly a balance to be struck between safeguarding and access when it comes to the protection of a state’s cultural heritage. However, it is important to acknowledge that while Ghana’s legislation appears to tip towards protection at the expense of access, it restricts growth in the creative industries by discouraging artists from engaging with their national cultural heritage.
History of protection
Ethnomusicologist and musician John Collins has noted that the development of the 2005 Act was partly in response to US singer Paul Simon’s use of a melody taken from the song ‘Yaa Amponsah’ for his 1990 album ‘The Rhythm of the Saints’.
Simon attributed this melody to the Ghanaian musician Jacob Sam and his band the Kumasi Trio. But on further investigation the Ghanaian government asserted that the melody was a work of folklore and so, belonged to the state.
From this, two things are clear. Firstly, in Ghana folklore belongs to the state and not the originating communities that predate the modern state. Secondly, Jacob Sam received no recompense for Simon’s use of the work, with all royalties owed on the work flowing back the government.
There are a number of issues here that set Ghana apart from other African states.
Many states allow for the use of folklore by nationals and if a fee is applicable then it is paid as a royalty based on revenue raised. This is the case in all three states bordering Ghana: Togo, Burkina Faso and Cote d’Ivoire. Consequently, if an artist in one of these countries reworks folklore but makes no money, then no money is paid for that use. If the work becomes successful then the artist and the rights holder benefit.
However, in Ghana, the law states that payment is paid prior to use and so prior to any profits made. This potentially adds to the cost of production and so discourages use of folklore.
The other issue here is who owns the rights in national heritage. In many countries, such as Kenya, the originating communities retain the rights to their expressions of cultural heritage.
However, in Ghana the rights are vested in the office of the president. This means that any moral or financial benefit that results from uses of folklore flow to the office of the president, rather than being used to support continued safeguarding and growth of cultural heritage within communities.
Guarding against exploitation
Though Ghana’s present regime may appear draconian, there are compelling reasons why such protective measures are required.
Firstly, Ghana’s cultural heritage – its traditional knowledge and traditional cultural expressions – have been and continue to be exploited by non-Ghanaians in international markets with no beneficial interest flowing either to the state or to the originating community.
To give this some context, Simon’s use of Yaa Amponsah was only one use of Ghana’s cultural heritage in the developing of a new, and commercially successful, work. More recently, there were a number of press reports in Ghana that the Ghana Folklore Board intended to sue the producers of Marvel’s Black Panther for the unauthorised use of kente cloth in some of the characters’ costumes.
The Folklore Board clarified these reports in a press release, saying it did not intend to sue – but rather, wished to discuss attribution. Kente is specifically named as an object of protection under the 2005 Act and the current proliferation of unauthorised cheap kente designs entering global markets from China presents a significant challenge. Attribution, in this case, would ensure that cinema goers across the world would associate kente with Ghana, bringing a traditional craft to a global audience.
The board faces a particularly complex challenge. It must balance safeguarding traditional heritage with allowing creative artists room to reuse and rework elements of that heritage in a way that does not add to the cost or complexity of production.
Though the threat of unfair exploitation is real, equally real is the potential threat to the creative industries and the future development of Ghana’s living heritage if the country’s artists move away from their cultural heritage.
Currently, creating accessible formats from existing works is only possible with the permission of the copyright owner or if there are exceptions limiting the copyright owner’s rights. Combined with a lack of infrastructure and the high cost of producing accessible works, this has created a global “book famine” for visually impaired people.
This affects not only those who read for leisure but also students and researchers, especially in developing and least developed countries. This lack of access to books and other copyright material is a hurdle to the realisation of several human rights, including the right to education, access to information, the right to participate in culture and to enjoy scientific progress, as well as the rights to health and employment. This is reflected in the Marrakesh Treaty’s focus on human rights and equality for the visually impaired.
The treaty’s provisions are designed to address problems such as long waits for authorisation or accessible format copies from a copyright owner, unreasonable restrictions imposed on accessible formats, and barriers to cross-border exchange of available accessible works that often result in duplication of production efforts.
Access to copyright works and higher education
Australian research found that when universities provided their visually impaired students with access to essential or prescribed texts, students generally obtained readings late. For instance, only 50% of print disabled first-year students had access to prescribed textbooks before the semester started.
Some universities reported far more substantial delays. In such cases, students would receive their essential readings only very late in the semester or after the semester is over. The reasons for delays vary, with some students not notifying the university that they require assistance. Additionally, reading lists are often not finalised until the first week of semester and publishers fail to respond to requests to provide accessible texts in a timely manner.
Publishers generally require students to buy a print copy of the work before they will provide access to an electronic version. Some are willing to provide download links, while others, particularly in the United States, often prefer to mail disc copies. Sometimes works are only available as preprint versions, which require a considerable amount of editing before they can be provided to students. This is a drain on university resources.
Consequently, not all students who would benefit from accessible formats currently obtain them. This means their chances of demonstrating their full potential are often compromised.
New Zealand’s Marrakesh Treaty implementation bill
The bill is part of a broader review of New Zealand’s copyright legislation to ensure “the copyright regime keeps pace with technological and market developments” since its last significant amendment in 2008. It expands the reach of section 69 of the Copyright Act 1994 that addresses the reproduction and distribution of accessible works.
One of the main changes is to broaden the scope of current exceptions and improve access for visually impaired New Zealanders. The bill also introduces measures to facilitate international sharing of accessible works. These changes help realise visually impaired people’s “right to read”.
A contentious issue for the implementation of the treaty in New Zealand and elsewhere is the so called “commercial availability test”. The test is currently a requirement in New Zealand for an “authorised entity” to make reasonable efforts to obtain an accessible copy at an ordinary commercial price. By far the cheapest, fastest and most convenient means of obtaining accessible format works is if they are available for sale through the normal channels.
The proposed changes to copyright legislation would allow people with a print disability to make accessible format copies or to receive those made by an authorised entity in New Zealand or elsewhere, without infringing copyright. While broadening the scope of the current exceptions, the bill has checks and balances in place that protect reproduced accessible formats, contrary to a misconception of allowing free-riding on copyright works.
This is of significance to university students as some may self-declare disabilities while others are reluctant to disclose an impairment. Universities emphasise that they provide a safe place for disclosure, but speedy provision of services remains an issue.
The increase in the availability of electronic texts has helped to meet needs, but it is not keeping pace with student demand and expectation. As part of an increasingly technology savvy student population, students with impairments now request electronic versions of texts and use technology to adapt them to their needs. Students no longer want enlarged or scanned material as this is much harder to manipulate. The amendments in the bill would enable them to create their own accessible formats, or source them without having to identify as print disabled.
Overall, the proposed law change is a positive step towards improving access to copyright works for visually impaired New Zealanders. It also helps New Zealand maintain its good global citizen status by allowing an exchange of accessible works with other Marrakesh Treaty members.