What principles should guide African governments in realising the right to research in Africa?

In The right to research, Appadurai made the argument to “recognise that research is a specialised name for a generalised capacity, the capacity to make disciplined inquiries into those things we need to know, but do not know yet”. Since then, various scholars have aligned with the same or similar perspective of conceptualising research as an activity that goes beyond what one does or is able to do to what one has the qualities required to undertake. Like other scholars after him, research when conceptualised along these lines, is a task that all human beings undertake and/or can undertake.

...Research?

Beyond conceptualising research from that perspective, Appadurai argues that most human beings are either part of the 50% that are not even in the “knowledge game” or part of the 30% that are willing and able to expand their knowledge but rarely get the chance to or, part of the top 20% who have the willingness, ability and capacity to benefit from knowledge and make choices based on information and options available to them. Of these 3 groups, Appadurai argues that the 2nd group (i.e., willing and able but get no chance to) is “within the framework of global knowledge societies. But their existence in this category is insecure, for many reasons, including partial education, inadequate social capital, poor connectivity political weakness and economic insecurity”. This group, he says, is capable of claiming—and ought to claim— the right to research i.e., “the right to the tools through which any citizen can systematically increase that stock of knowledge which they consider most vital to their survival as human beings and to their claims as citizens”. 

The right to the tools for the systematic increase of knowledge involves access to resources (both human and material) from which knowledge may be extracted. Copyright law, with its protection of materials ranging from literary, musical and artistic works to cinematograph films and computer programs, etc. organises access to some or even most of these resources. Access, within the field of copyright law, is a question of ownership, authorisation or exception. Ownership is (mostly) straightforward as one may either author and own a work by law or acquire ownership through the operation of law or through payment or relevant contractual processes. Authorisation is also (mostly) straightforward to the extent that one may approach the relevant copyright owner and procure a licence to use the work. When it comes to exceptions, however, everything falls on what definition or scope is ascribed to the research exception (if it exists) under copyright law. Here, some have argued that the research (and other) copyright exception(s) qualify as “user rights”. Others have argued instead for a right to research carved out within the realm of fundamental human rights.

At this point, the ‘so what’ question arises. What is it to know the meaning of research and the formulation of a right to research? This is not a minor question given the wording in various national constitutional provisions placing a duty on the executive branch of government – the State – to execute/implement legislative provisions; and international human rights regimes and national bills of rights that obligates the state to respect, protect, promote and fulfil all human rights. Section 7(2) of South Africa’s Constitution for example provides that “the state must respect, protect and fulfil the rights in the Bill of Rights”. Given the attempt made above to articulate aspects of the potential meaning of research as it features or should feature in constitutional rights or in copyright exceptions, etc., one next question to be addressed is what this suggests for the duty-bearers, especially the executive branch of government.

Within constitutional provisions and subject-specific statutes, e.g., copyright statutes, the executive including executive agencies are granted powers and a duty to exercise those powers in accordance with the principles or purposes that the statutes establish. To comply with that duty, executive agencies must conceptualise the purpose required to be pursued by the statute and choose a course of action that best actualises the purpose identified. Essentially, there is an interpretative act to be undertaken by the executive branch of government. By implication, the executive undertakes a quasi-judicial function when they articulate the purposes of a given statute and through their actions, policies, guidelines, oral and written communications, etc. expresses their interpretation of the purposes of a given statute. 

For present purposes, the executive has a duty to interpret the purposes of a right to research whether found implicitly or explicitly in national constitutional provisions or found in copyright exceptions. Where the executive conceptualises the purpose of a right to research from the perspective suggested by Appadurai and other scholars that share a similar ideal, the principles that should guide such government in realising such right to research can be found in the outcomes envisaged in a right to research. These include (1) the right to research - capacity to produce globally useful knowledge – should be within the reach of ordinary citizens; (2) research should be democratised i.e., accessible to and possible for everyone; (3) measures aimed at achieving the realisation of the right must not exclude a significant segment of society; (4) equity and not necessarily equality; etc.

With these principles to guide the government, it should be easy(ier) to select from a bouquet of executive tools – guideline documents; public notices; policy documents; explanatory memoranda; regulations (where statute confers legislative powers to so do); etc. – to best realise the right to research.

NB: The above is part of my contribution to the ongoing week of debates on copyright and access to knowledge in Africa under the “umbrella” of “A right to research in Africa?”. Interested readers may register to attend on online or in person here.