For archives only: crafting copyright limitations and exceptions for archives in South Africa

South Africa’s President is yet to assent to the Copyright Amendment Bill which was presented in March 2019 after approval by the National Assembly and the National Council of Provinces (NCOP). While some commentators have urged a swift assent, others have asked the President to deny assent to the Bill and refer the Bill back to the National Assembly for a complete redraft.

The arguments for and against the enactment of the Bill have never been a general one. Instead, arguments have come from various “constituencies”: publishers, authors and creators, libraries, archives, museums, people with disabilities etc. This trend in copyright reform is not unique to South Africa. In Europe for instance, one need not look further than the debate on the Digital Single Market Directive to see various “camps” for authors, news publishers, online service providers etc. In the international copyright scene, WIPO has taken to calibrating discussions on copyright limitations and exceptions along the lines of specific entities. The Marrakesh Treaty is one example of an international copyright treaty containing limitations and exceptions that cater to a specific constituency: visually impaired persons. Also, one of the key departures in terms of the subject matter discussed at the 38th Session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) is the commissioning of a Background Paper on Archives and Copyright. Prior to the 38th Session, previous discussions and papers considered archives alongside libraries and sometimes, museums. See here, here and here.

In the light of this “new era” of separate consideration for archives, how does the South African copyright regime fare?

Archives as a separate “constituency”
In the Background Paper on Archives and Copyright, Dr David Sutton examined the copyright challenges facing archives particularly with respect to the digital environment. Besides suggesting the appropriateness of applying criteria for copyright exceptions to archival collections (rather than archival institutions), the paper did not make recommendations in respect of limitations and exceptions for archives. [See page 5].

Cats in the Archives

The Paper acknowledges the contributions of Professor Ronan Deazley and Dr Victoria Stobo (CREATe UK) to the discourse on copyright challenges faced by archives especially in digitising archival collections. Specifically, Deazley and Stobo highlighted significant differences between archival institutions and libraries and suggested that several limitations and exceptions that may work for libraries are inadequate in the context of archival institutions. See for instance, Archives and Copyright: Risk and Reform. There is recognition that while archives and libraries may serve similar goals of preserving culture, there are fundamental differences in other goals, nature of protected materials handled as well as profit models. In this blogger’s view, the argument that these differences warrant separate considerations for archives and libraries, underpins the Paper.

The Paper identified “archival activities” as including: making copies and facilitating access; digital preservation; and commercial exploitation. The Paper notes that libraries perform similar activities. However, the significance of these activities within archives differs from libraries. For one, there is usually a single and unique form of each archival material. A hypothetical scenario: there is only one paper leaf containing messages written in Nsibidi symbols to cult members in 1931. [Nsibidi is not hypothetical]. Moving such unique archival materials by lending to users would not be feasible for obvious reasons. Archival institutions would need to make copies to facilitate access.

Following from this, it was proposed that it might be sensible to digitise archival materials to enable access across borders. Furthermore, digitisation would enable/reinforce preservation especially when digital copies are kept in multiple locations. See page 9 of the Paper. Digitised copies can also cross borders to facilitate research and other purposes.

These activities may or may not be infringing depending on the permissible uses in the copyright statute of each country hence the need for limitations and exceptions that serve such activities.

Limitations and exceptions for archives (South Africa)
The current Copyright Act does not include any explicit limitations and exceptions for archives. However, section 13 allows reproduction of a work in a manner prescribed by regulation. Pursuant to this section, the Minister for Economic Affairs made the Copyright Regulations 1978.

The Copyright Regulations contain limitations and exceptions that allow reproduction and distribution of a work for the following purposes: preservation, security and deposit in another library or archives; replacement; research or study, supplying copies to other libraries or archives etc. See Regulations 2 and 3. These come with conditions such as limits as to the nature of protected work to be reproduced (short poem, article, story or essay), the number of copies (not more than one) and a copyright warning that would accompany such reproduction. There are also requirements that the reproduction and distribution be undertaken after the archive has ascertained further to a “reasonable investigation” that an unused copy cannot be obtained at a fair price. These requirements may make digitisation process difficult if not impossible especially for archives that do not operate for-profit.

With respect to the Copyright Amendment Bill, limitations and exceptions for archives are lumped with libraries and museums and there are both general and specific copyright exemptions. Clause 13 of the Copyright Amendment Bill seeks to insert a Section 12A - General exceptions from copyright protection. Section 12A(a)(vi) provides that:

(a) In addition to uses specifically authorized, fair use in respect of a work or the performance of that work, for purposes such as the following, does not infringe copyright in that work:

(vi) Preservation of and access to the collections of libraries, archives and museums…

The Bill proposes a Section 19C - General exceptions regarding protection of copyright work for libraries, archives, museums and galleries. The proposed provision permit archives to lend a copyright work incorporated in a tangible media to another archive; provide temporary access to material to which it has lawful access; make a copy of works in its collection for purposes of backup and preservation and on a publicly accessible website for preservation.

Comments
As opined here, an archive (like other institutions whose activities/purposes are specifically stated) sued for copyright infringement for acts of digitisation may argue that its use of the protected work was for the purpose of “preservation of and access to” its collection. In such circumstances, the court, taking into account the factors stated in section 12A(b) may conclude that such use was “fair”. Much would depend on how the court construes the concepts of “preservation”, “access” and “collection”. The court may take an expansive or restrictive view.

While it is possible that fair use protection would allow archives to digitise without worrying too much about copyright infringement liability, it is important to note that a use would be fair if the court interprets the use as fair. Of course, the court would only have such opportunity if an aggrieved person approaches the court. It then comes down to each archival institution and how much risk the institution is willing to take with respect to digitisation. South Africa has a National Policy on Digitisation, which enjoins archival institutions to obtain copyright clearance before proceeding to digitise copyright-protected works. See Policy 4. Whether a fair use exception for preservation and access in favour of archives will obviate this “requirement” remains to be seen.

Significantly, how this feeds into questions regarding “fairness” of digitisation undertaken for preservation and/or access would border on issues such as:

(i) Whether an archival institution is “qualified” to make decisions to digitise and make decisions regarding access to the digitised collection. Here, it may be that funding obligations require the archival institution to digitise and grant access in a manner that offends the spirit of the national policy on digitisation. Even the Marrakesh Treaty in all its “glory” developed a definition for “authorised entities” and offered leeway for Member States to define criteria for eligibility as “authorised entities”.

(ii) The “story” behind the digitisation process or the context of each digitised collection (i.e. who should tell the story?). In and of itself, materials that make up archival collections may not be self-explanatory: there is usually a need to put the materials in context both in making physical and digital archival collections. Would it be “fair” for an archive to have free rein in creating this context even when they lead to bad experiences? See for example, the audit report of digitisation initiatives, which provides examples of “bad experiences” in South Africa. See page 18.

(iii) In the case of traditional cultural expressions and traditional knowledge (with its own share of national and international debate), what digitisation project says about the copyright eligibility (or public domain status) of each work making up the digitised collection. For a country like South Africa with a colonialism and apartheid past and rich traditional expressions and culture, these issues are crucial. Discourse on crafting appropriate and enabling copyright limitations and exceptions based on an understanding of archives as distinct from other cultural institutions must take cognisance of these additional issues.