The new draft copyright Bill could help unlock the doors of learning and culture

If the project of decolonising education aims to shatter the barriers that keep formal learning within the province of the elite, in terms of both curriculums and spaces, then expanding access to education is a crucial piece of the puzzle. The Copyright Amendment Bill of 2017 is a move towards enabling a majority of South Africans to participate in the previously inaccessible community of scholarship.

Copyright is a monopoly over a work that grants the holder a statutory entitlement to reproduce, adapt, perform, publish, transmit, and/or broadcast the work. It is one of the few barriers to accessing educational materials that may be directly overcome through legislation. The Copyright Amendment Bill recognises this by expressly incorporating provisions enabling some free uses of copyrighted materials for educational purposes.

There is no evidence to back up this claim that stronger copyright exclusivities correlate to greater stimulation of creativity. Moreover, the traditional justification fails to understand what the process of creation looks like because creativity always builds on existing knowledge. It assumes a market logic that fails to take into account human rights and ignores major technological developments since the time of the printing press.

The Constitution commits to rectifying historical injustices through a set of fundamental human entitlements that form the “cornerstone of democracy” in South Africa. The Bill of Rights guarantees everyone the right to basic education ) and further education , subject to reasonable measures taken by the state). The centrality of the right to education to human flourishing and the realisation of the other rights in the Bill of Rights has been affirmed by the Constitutional Court.

The Copyright Act of 1978 was enacted in apartheid South Africa. At the time, there was no Bill of Rights to safeguard the rights of the marginalised and vulnerable. However, under the Constitution today, the state unequivocally commits to redressing past inequalities through the guarantees of “human dignity, the achievement of equality and the advancement of human rights and freedoms”. All legislation must be consistent with the Bill of Rights.

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