ACA2K's development research in eight African countries: South Africa, Mozambique, Kenya, Egypt, Ghana, Uganda, Senegal and Morocco, reflects on empirical evidence in order to find ways to ensure improved and equal opportunities for all citizens to access information, particularly in the realm of education. The project team investigated whether copyright laws in the study countries are designed in a way that is likely to help or hinder access to materials, particularly for university use, and whether in practice such laws are being followed -- or can realistically be followed given the varying contexts African learners face.
Strict copyright laws force African students to break the law
What ACA2K has been able to confirm, from its group of nearly 30 academics and researchers spanning the African continent, is that “all eight ACA2K study countries provide strong protection, in many cases exceeding the terms of minimum protection demanded by international obligations. ” In the context of the heavily-legislated copyright protection in the study countries, the researchers have documented a lack of clear and enabling flexibilities (eg, copyright limitations and exceptions) within the laws. Flexibilities in the law would help students and teachers to access textbooks and library books at reasonable cost for learning, research or teaching (without breaking the law).
This research also found that many of the practices followed by learners accessing learning materials were law-breaking acts (such as photocopying full textbooks), which users found hard to avoid because of socio-economic disadvantage. Students struggle to pay hefty book fees on top of their university tuition. It seems that from the beginning of their careers, many future African leaders violate, unwittingly or out of necessity, a legal framework (copyright law), which has, as its foundation, the twin goals of both protecting the rights of creators and of protecting and improving the lives of users. Instead, the current state of affairs skews the finely balanced principles at the heart of copyright. Following further reading of ACA2K’s research work on gender, here are some of the conclusions -- and more questions -- which the findings have opened up for me:
Does copyright law make women worse off than men?
Most of the respondents interviewed in the ACA2K country studies  say that copyright law does not discriminate against women more than men, seemingly because they interpret the law as being equally unjust to all students who are accessing educational materials. Where there is only one book available in the university library, the copyright law is not biased in its provision to not allow full book photocopies to either gender. However, further analysis can be conducted to ask: how does restrictive copyright law operate in practice for both men and women? Perhaps if one dug deeper, research would show that women and men equally make illegal book photocopies because they all need the information to pass their exams or courses.
Or perhaps further analysis would find deeper power relations at play. Although both men and women need to make course note photocopies, socio-economic conditions might make it easier for a particular gender to afford such copies over the other. More questions come to mind and remain unanswered: Do certain individuals who have more income to make book copies or have special privileges to access the materials? Do they use their power to manipulate or exclude others from such access? Do current library policies which attempt to comply with copyright law (e.g., use of reserve areas, rules for hard-copy materials, or electronic materials restricted to on-campus libraries) in fact further exclude vulnerable groups? For example, in Uganda , some women university student respondents interviewed for the ACA2K study stated that it is unsafe for them to go to the library at night.
Secondly, it can be surmised that in many countries, societal or domestic family obligations after attending university classes can restrict access to the library to daytime hours for some (usually women) students. Does the practice of copyright compliance coupled with personal safety measures cause (sometimes unintentional) gender injustice? What then is necessary in copyright law or university library policy to redress such situations? While ACA2K research has found that copyright law does not discriminate against women more than men, further investigation is required to understand the practices of power relations that exist in the current copyright environment. If power relations and inequalities prevail, these laws can extend further advantage to an elite or privileged few.
Low income constrains access to learning in Africa
While equal access to learning materials regardless of income and gender should be the case, it is hardly the reality, especially in developing countries. Both men and women find educational materials, particularly for tertiary education, expensive and usually unaffordable. But given that women often have lower income/resource levels than men, income constraints are likely to discriminate against women more than men in efforts to access educational materials.
Copyright law must be clear in its efforts to allow exceptions for affordable (or ideally unrestricted) access to materials, particularly for education and research. Until such materials become affordable and readily available to students and lecturers, there will be exclusions at various levels (whether we are able to see them clearly now or later), and the possibility of power dynamics having an impact.
Many questions unanswered: Africa needs more gender experts in copyright
It is clear (particularly from the findings of the South African ACA2K research team) that awareness of the possible intersection of gender, access to learning materials and copyright law is low, and this possible intersection is under-researched. Clearly, there is a need to improve the understanding, for both men and women, of the development outcomes if changes to copyright law and copyright-related practices, particularly changes in relation to education materials, were to be crafted in a gender-sensitive manner.
Some ACA2K research teams found low female enrolment rates in university. Special consideration or affirmative action is necessary to encourage the enrolment of women in universities in fields of study where women might be under-represented, for example in the study of copyright and intellectual property law. Even in universities where female university enrolment is greater than male enrolment (as is the case in South Africa), what action can a program take to make the field of intellectual property law more attractive to women? Kenya, for example, shows leadership by ensuring its education policies take into consideration the barriers faced by women trying to finish their educational programs. The tuition fees are paid for young Kenyan girls who are accepted to national secondary schools. At the tertiary level, a lower set cut-off mark for admission to certain university courses for women is one encouraging intervention to allow for an increase of female enrolment. Such intervention could also be applied to specific fields where women turnout are low such as in intellectual property law.
It seems clear that awareness levels around intersections between gender and copyright law need to be increased. Mentorship and leadership programs (by gender-aware individuals) could take awareness of gender issues in copyright to a higher level. The ACA2K team is to be commended for already taking the first steps toward raising awareness of this potential field of gender research.
Distance Education: Second best scenario for women’s tertiary education
When distance from home to school deters a student from participating in university (an example given in the Mozambique ACA2K report), provisions must be considered to adjust to these realities. While the ultimate prize would be to improve affordable transport systems, or to free up time for students through shared domestic responsibilities (or daycare) within a household, deeply ingrained cultural domestic practices as well as low income and poor transport make such change difficult to achieve in the short term. Gendered practices, such as unpaid child-minding and performing other household chores, continue to be an obstacle to women’s opportunities for education and access to educational resources. A second-best scenario would be to ensure distance education initiatives are designed to address the realities faced by women. Equality advocates thus need to lobby to ensure that national copyright laws are revised to allow access to distance education materials. ACA2K has already identified, in its research, that copyright laws in the ACA2K study countries do not usually cater specifically to distance education initiatives .
What power relations occur in copyright law violations?
A key question is: under what circumstances is a person willing to take the risk of violating copyright law, even when it is widely perceived that one can break the law without threat of prosecution? If the individual believes that women copyright holders are less likely to take copyright violators to court than men, would the individual be more likely violate a female copyright-holder’s rights? Ugandan university students interviewed by ACA2K, as well as a Ugandan judge, said anecdotally that they felt men were more likely to violate copyright than women9. This perception needs to be investigated further. If further research were to verify that more vulnerable groups are targeted in copyright infringements (and perhaps less able to defend their rights), it is important to equip such groups with the knowledge, resources and plans for action that they need to ensure they can protect their rights.
My perception of what constitutes the ultimate development goal of copyright law is where copyright law affords equal access to educational learning materials regardless of race, ethnicity, gender, disability or age. Copyright law can, and must, be adjusted to include flexibility where there is discrimination against vulnerable groups. Copyright law must also be drafted and reviewed in consultation with both men and women, and also reviewed by lobbyists, researchers, activists and community members supporting marginalized groups, to ensure inequities are redressed and access to educational materials is the same for all.
Conclusion: A strong future in gender justice in copyright law
The recommendations from the ACA2K research were clear at the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) meeting in December 2009 . The ACA2K network called for national copyright limitations and exceptions which would improve content access via distance learning, improve materials access for the visually-impaired, and allow libraries and archives to meet the needs of students, teachers and education staff. Clarity has been much sparser, however, in terms of gender recommendations, but I believe that the beginnings of this new evolution in how one can think about copyright law and practice, all within the context of access to knowledge, could lead to many contributions, and much future guidance, towards greater gender justice in the global networked society.
1 Special thanks to Chris Armstrong and Jeremy de Beer for their reactions to this piece.
2 Schonwetter et al., (forthcoming)
3 Schonwetter et al., (forthcoming)
4 All ACA2K’s 2009 research reports can be found here.
5 See the Uganda ACA2K country report (2009)
6 See ACA2K 2009 country reports for Mozambique and Kenya.
7 See ACA2K 2009 country report for Mozambique
8 In ACA2K’s Briefing Paper 3 (Dec. 2009), their conclusions state that “all eight countries need to incorporate clear and access-enabling copyright L&E (limitations and exceptions) specific to distance learning into their copyright frameworks, as such provisions are currently absent”
9 See the ACA2K Uganda Report (2009).
10 See ACA2K’s Briefing Paper 3(Dec. 2009).
- ACA2K. (2009) Research Findings from Africa Relevant to WIPO SCCR 19. ACA2K Briefing Paper 3 – December 2009.
- ACA2K.(2008) ACA2K Methodology Guide - African Copyright and Access to Knowledge (ACA2K) Project. April 2008.
- dos Santos, F., Nhane, J., and F. Sitoi. (2009). ACA2K Mozambique Country Report. July 2009.
- Kawooya, D., Kakungulu, R., and J. Akubu. (2009). ACA2K Uganda Country Report. May 2009.
- Ouma, M., and B. Sihanya. (2009). ACA2K Kenya Country Report. June 2009.
- Schonwetter, T., Ncube, C., and P. Chetty. (2009). ACA2K South Africa Country Report. August 2009.
- Schonwetter, T., de Beer, J., Kawooya, D., and A. Prabhala. (forthcoming) Copyright and Education: Lessons on African Copyright and Access to Knowledge. African Journal of Information and Communication. Will be available at: http://www.sajic.org.za/index.php/SAJIC.