Limitations and Exceptions for Education and Research African-Arab perspective Judge Dr. Bassem AWAD African-Arab Seminar on limitations and exceptions Cairo, Egypt November 2 nd 2009

Copyright systems: scope and character  Copyright systems around the globe suppose to maintain a just and balanced system between the right holders and the public interests.  Copyright systems mean Protection;  Copyright should also take into consideration the issues of Access to Knowledge.

One of the most controversial challenges facing the international copyright system today is: How to maintain balance between author rights and public interest. Balanced copyright system Grant of exclusive rights to authors Facilitate users access to protected works +

Total: 53 countries

African facts  Population: with almost one billion people, Africa is considered the second most- populous continent on earth. It represents more than 14% of the world’s population.  Research: 2.3% of world researchers (41.4% in Asia; 28.4% in Europe and 25.8% for Americas).  Education system….

This means that national education systems in Africa are failing to meet the needs of the vast majority of their citizens. CountryUNDP Education Rank (out of 182) Tunisia98 Egypt123 South Africa129 Morocco130 Kenya147 Ghana152 Nigeria158 Senegal166 Mozambique172 Guinea-Bissau173 Burundi174 Chad175 Congo (DRC)176 Burkina Faso177 Mali178 Central African179 Sierra Leone180 Niger182 Source: UNDP (2007)

A2K environment in Africa  Two forces dominate the national context in most of the African countries:  The pro-copyright protection movement: -advocate and call for stringent general application of copyright protection. -very forceful and influential, mostly concerned with musical and artistic works.  Several pro-A2K initiatives: call for increasing access to protected works. [“Reading for All” program in Egypt; A2K Bibalex; AAKA; ACA2K….]

Objective: to understand the relationship between national copyright environments and access to knowledge (A2K), specifically access to learning materials. to identify best policies and practices that would broaden and deepen A2K in Africa. ACA2K research focuses on 8 African countries: Egypt, Ghana, Kenya, Morocco, Mozambique, Senegal, South Africa and Uganda.

Copyright laws in Africa  Most, if not all African countries have recently modified or codified their national copyright laws.  Creative works are strongly protected by national copyright laws in all the African countries.  Core rights: Economic and Moral rights are conferred to Right holders.  Duration of protection: there is a movement in several African countries to exceed the standard term of protection of 50 years after the death of the author for most creative works!!! ( Ghana, Morocco, Mozambique, Senegal…).

Limitations related to teaching and learning  International treaties allow two types of educational exceptions: the first type is uncompensated, and does not require government intervention, whereas the second is compensated and depends on a compulsory license issued by the government. (I) Uncompensated or automatic limitations (II) Compensated limitations

(I) Uncompensated limitations  Most of the African countries have adopted this type of limitations in their national copyright laws. Performing the work in meetings with students within educational institution… Reproduction of short extracts from a work for teaching purposes… Reproduction of an article, a short work or extracts for teaching purposes in educational institutes…  Other African countries have restricted the automatic limitation for educational purposes. [e.g., Kenya copyright Act allows the reproduction of not more than two short passages of a copyright-protected work in a collection of literacy or musical works that are for use by an educational institution (section 26(1)d)].

(II) Compensated limitations  International treaties have conferred members the possibility to obtain compulsory licenses for reproducing protected works for the purposes of education with respect to some conditions (the “three- step test”). Protected works should be (a) used for fulfilling the requirements of education; (b) against payment of fair compensation to the author; and (c) such license should not contradict the normal exploitation of the work and unreasonably prejudice the legitimate interests of the author or the copyright-holders.  Some African countries have not made use of this type of limitations in their national laws by negligence (Mozambique and Senegal) or sometimes by obligation (Morocco).

Minors exceptions for education and research  Photocopying for personal use (a single copy for exclusive personal use);  Parallel imports of books and educational materials are permitted under national copyright laws of a few African countries and prohibited in others (Morocco, Mozambique, Uganda, Kenya and Senegal) ;  Berne Appendix provisions (articles II and III of the Appendix): Translation of foreign to local languages.

Berne Appendix: Article II  “If after 1-3 years from the date of first publication, translation has not been published in a language in general use in that country by the owner of the right of translation, any national of such country may obtain a license to translate the work into such language and publish the translation in printed or analogous forms of reproduction”.  Yemen, Syria, UAE, Oman and Jordan have availed article II of Berne Appendix (limitations on the Right of translation).  Algeria, Bahrain, Tanzania, Egypt, Lesotho, Liberia and the Niger have not renewed their initial declaration.

Are the limitations and exceptions for Education and Research which are stated in most of national African and Arab copyright laws fulfilling the objective of facilitating access to educational materials? Are these limitations and exceptions sufficient enough to maintain the balance between the interests of right holders and public users (professors, students and researchers)?

General findings  Copyright limitations and exceptions are too narrowly and/or vaguely defined to facilitate access in a balanced and effective manner. In many cases the law is not reflecting the practical needs of the African countries.  Absence of copyright limitations and exceptions dealing specifically either with distance learning or access for disabled learners.  Lack of awareness of existing copyright limitations and exceptions contained in the law.  Enforcement of the law: unpunished copyright infringement is the main channel for A2K in African countries. However, the situation is changing….

Recommendations on The way forward…  Legislative amendments to national laws should be undertaken to ensure that the laws reflect local interests of African and Arab countries (e.g. by allowing far- reaching limitations and exceptions including those applicable to e-learning and ICTs).  Increasing awareness of access to knowledge initiatives and movements among different stakeholders in general.

Recommendations on the way forward…  Eliminate non-legislative hurdles to access to educational materials in general, such as library lending policies….  Providing specific exceptions on copyrighted works for individuals with disabilities and special needs, such as exceptions to allow access for visually- impaired persons (e.g., Braille or audio formats).

Finally..  For developing countries such as those in Africa and the Arab world, which are net importers of the intellectual property products covered by copyright rules:  it is frequently stated that failure to take advantage of the exceptions and limitations allowed by international copyright treaties can lead to restricted access to educational materials and to education in general.  We need more balanced copyright regimes with more appropriate exceptions taking into considerations our practical needs.

Thank you for your attention Judge Dr. Bassem AWAD Egyptian Ministry of Justice