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Notes on panel

The Certainty Principle Dalindyebo Shabalala, Research Fellow, South Centre Presentation: Panel on Limitations and Exceptions to Copyright

I want to thank the Yale ISP project for bringing us all here today and for the opportunity to present to you some thoughts on limitations and exceptions to copyright. I am also honored to share the panel with people with whose work I have become intimately familiar and for whom I have a great deal of respect.

I should note that my remarks here are made purely in my personal capacity and do not necessarily represent the views of the South Centre or its member countries.

Firstly, I should perhaps make clear some of the premises under which I am operating. My primary concern is with developing countries and how they can design and implement development appropriate innovation and cultural policies.

In developing countries, governments remain the primary economic actors in the formal economy and government action is still a large determinant of economic development. Developing country governments, whether they wish it or not, have little choice but to engage in the somewhat unfashionable task of ‘industrial policy’. At the least, they must establish the right policy conditions by ensuring the proper balance of incentives, rewards, regulations and punishments.

Innovation and knowledge policy is part and parcel of industrial policy and it must serve the ends of that industrial policy chosen by a government. That policy includes both Copyright, and Exceptions and Limitations to Copyright in its remit. Exceptions and limitations are an expression of that larger economic and development policy in which copyright is a limited grant that, on balance, should increase production of, distribution of, and access to, necessary information and knowledge. This requires a recognition that exceptions and limitations, have production aspects as well as distribution and access aspects: they are not simply a safety valve.

For the purposes of this presentation, I’ll focus on the example of education, which is a key element of economic development policy, especially in developing countries. Governments would naturally prioritize the production of, distribution of, and access to, educational materials. However, facing extremely limited budgets, developing countries must inevitably make choices, balance cost-benefit ratios and implement appropriate levels of rewards and incentives that do not, unnecessarily, shift costs from

- one budget area to another; - from public ownership to private; - or from one group of private citizens to another.

With copyright and related rights, that balance with respect to education is achieved through educational exceptions and limitations to copyright. Most developing countries have established such an education exception, but it has become increasingly clear that these have been inadequate in ensuring access to educational materials. While copyright is not the only factor, it is a major determinant of such access in developing countries. One reason for this failure is that many developing countries have made such exceptions so vague and narrow as to provide little or no guidance. From this we understand that while principles matter, implementation is everything. And, that we must consider implementation during the design phase, not afterwards.

To frame it simply: what use is an exception if the users have no idea what its scope and applicability is? The implementation problem is the problem of uncertainty. Thus not simply lack of information but even where some information exists, uncertainty in determining whether and how it applies to you.

This uncertainty has major implications for developing countries, as well as for developed, as Marjorie Heins and Tricia Beckles so clearly outlined for us in their Public Policy Report from the Brennan Centre ‘Will Fair Use Survive?’ They show that even in the most developed of countries e.g. the US, users, artists and creators have little sense of what it is that they can or cannot do with expressive works and what may be seen as ‘fair use’, ‘fair dealing’ or falling within a particular exception. You can imagine how much worse the problem is in developing countries where there is little access or education on copyright issues, and the only copyright notice that people ever see, if they ever do, is the dire and entirely inaccurate, warning contained at the beginning of, ironically enough, an illegal copy of a DVD or Video.

This problem of uncertainty is not limited to those countries that do not have enumerated exceptions. Even those countries that have an enumerated list of exceptions, as opposed to fair use suffer from the basic implementation flaw. Some countries do use regulatory processes to more specifically outline the scope of the exceptions but these are very few. In the end the main issue remains which is this:

What guidance is provided to the relevant reader to understand what range of actors and activities is covered by the exception?

Taking the example of the education exception in developing countries we can identify three levels of uncertainty in operation:

Uncertainty at the level of the individual user:

Even in those countries that have exceptions individuals in developed countries have little or no guidance as to what it is that constitutes educational activities and what it is that, narrowly conceived, a student/learner can do and what it is that a teacher/educator can do.

Uncertainty at the level of the institution Educational Institutions (primary, secondary, tertiary), by nature conservative, have little or no idea of the extent to which they are protected from litigation or other sanctions, and what uses they can make of material that they own or have access to. This is especially true with respect to the conduct of libraries within such institutions. There is also little clarity as to what accommodations they can make to enable the exercise of exceptions by students and teachers.

Uncertainty at the level of legislators in developing countries

Developing country legislators, faced with the, frankly, vague wording of obligations in the TRIPS, WCT, WPPT and the Berne Convention, do not know how far they may go in implementing exceptions and limitations in their legislation. This has led to them to seek technical assistance from developed countries who recommend constructions better suited to education systems in developed countries. A little research will reveal a basic template that many LDCs and developing countries have used that restricts the exception far beyond what is required. The recent Consumers International Asia Pacific Regional Office Report showcases this extremely well.

In the face of uncertainty, legislators will grasp at anything that they are assured will meet their international obligations and prevent them from being put on the Section 301 list, subject to any WTO dispute proceedings, or even worse, subject to threats from major bilateral donors of slow strangulation by withdrawal of aid and future trade access.

So how do we address this uncertainty at the core of the present exceptions and limitations paradigm? How we do so has implications for the questions of strategy and tactics that this panel has also been asked to address.

The answer, I think, lies in:

First, A thorough and clear enumeration of who the target audience of the exception is i.e. the categories of actors involved in the subject matter of the exception.

For education, such users could include:

Students, teachers, public schools (primary, secondary), private schools (primary and secondary), public tertiary institutions (universities, technikons, teacher training colleges etc), literacy programs, school and university libraries, public libraries.

Just doing a list like this makes it clear that we are talking about a broad group. However, I think this approach makes it difficult to argue that the one of these actors was not involved in education and to argue that they should not be covered in any education exception. At the very least such an enumeration changes the terms of the discussion from ‘who should be in’ to ‘who should be out’ and shifts the burden to those would exclude such any category or group from the list.

As a simple beginning, a survey of existing national practices (not legislation) can provide such information. This is a task that I think that we can all set ourselves by surveying the range of actors in each of our countries. This of course is a pre-copyright exercise, so that we do not do the circular exercise of defining the categories of actors by limiting it only to those who carry out what would be considered legal activities under present systems.

However, simply identifying the actors does not serve to take care of uncertainty. The uncertainty would be further reduced by:

A thorough enumeration of the categories of uses within the education subject matter. Again we carry out this exercise outside copyright concerns and simply ask what is necessary for the good functioning of educating people in the developmental context in which some countries find themselves. This reverses the equation such that the burden is on those who wish to restrict such activities to show that such restrictions on the activities will serve to increase production of, distribution of, and access to educational materials Some examples would include

Distance learning: over broadcast radio, internet classroom, webcast, broadcast television, cable television, satellite television, and mobile phones Copies of passages from books owned by the institution for students for use in classrooms. Copying of almost all or portions of books owned by teachers for use in the classroom.

Thirdly, Making it clear that the goal of any such exercise in identifying actors, and in identifying uses, is aimed at determining and signaling in the clearest way possible what is and is not available for free use. In this we can frame what we call the public domain by understanding that it is not the same for each and every actor. There are some free uses that are only available to certain actors. The signaling must indicate clearly to those concerned whether they are the kind of actor considered under the exception and if so what kinds of free uses are available to them.

In this James Boyle’s characterization of Yochai Benkler’s thesis may be most appropriate: the most important question is whether lay people would know that a particular piece or aspect of information is free for them to use or reproduce. No required license fee or fee paid to a collection agency but free to use. No permission required, no individual payment or cost per user.

If we understand this then we can begin to see how we can reduce uncertainty and even create a modicum of certainty for individuals, institutions and legislators

Creating Certainty for Individuals

Frankly, individual copying, especially in developing countries is not terribly susceptible to legislation. Many who are ignorant will continue to copy and even those who are aware will continue to do so out of sheer necessity. However, it seems sensible that we should remove the burden of illegality from people who, for the most part, would rather be law abiding. If we presume that the majority of individuals and institutions wish to abide by the law, and are aware of it, the lack of certainty results in an over-cautious exercise of their public access rights and a willingness to sacrifice such rights for safety. In this case we need a way to send strong signals to individuals as to what they can do under the education exception.

The best way to achieve such signaling is information at the point of contact, something that Creative Commons licenses provide and that copyright notices should also provide. That notice could either provide the information as to actor and uses covered by the exception directly, or direct individuals to where such information can be found by, for example, requiring each cultural content sales point, be it library, bookshop, video store, etc to carry a notice outlining what educational actors and uses are covered. In a digital world, the burden is even lighter by asking each digitized product to carry such information with any copyright notice. Goodness knows copyright notices are on everything at the moment, it would be little added burden to rights holders.

Creating Certainty for Institutions

While individuals are important, the uncertainty problem is especially acute in developing countries for the institutions that have the most interaction and interface with copyright and related rights law and policy: tertiary education institutions and universities. In developing countries, the role that these play cannot be over-emphasized. They form the backbone of every educational system, from

• the generation of teaching and other education materials, • to the production of teachers, • to the education of academics and policymakers and government officials • to developing and executing long-distance education problems for secondary education (a good example of this is the University of Botswana)

These institutions are the most likely to have photocopiers, computers, internet access, libraries, faxes, phones, all the tools necessary to take advantage of the explosion of material available on the internet and in digital form.

However, they also present, in most developing countries, the largest concentrated market of purchasers of text-based content, both digital and analog. Because of this, they have been the target of rights-holder’s organisation and have been paying exorbitant fees both for purchases of texts, and subscriptions to journals and other material. Julien Hofman may say something about the subject but the example of South Africa is a case in point, where because of a lack of a clear and stated education exception, universities find themselves paying exorbitant fees for photocopying for students even for texts which the professors themselves wrote.

These institutions are clearly the kind of actor envisioned within any education exception. Their problem lies in knowing what activities they may properly engage in. These will be helped by a full and proper enumeration of what consists of educational activities deemed necessary to educate not just their own students, but to carry out their role in the national education mission in developing countries.

Therefore, in addition to the point of contact requirement as for individuals above, these kinds of institutions need such a list of activities to be enumerated in legislation or regulatory instruments.

Creating Certainty for legislators in developing countries

For legislators, what is required is to have these enumerations of actors and activities placed in international agreements. Thus in addition to Ruth Okediji’s proposal that exceptions and limitations need to be included in international agreements, at the same level as rights, these exceptions and limitations must enumerate a non-exhaustive list of actors and activities.

This is necessary information that legislators can then use to choose from the full universe of possibilities. What may therefore be most helpful to developing countries in the short term is a survey of existing actors and practices in the subject matter of the exception as carried out in different countries. This provides good legal cover and makes the argument clearer as to what proponents of more limited exceptions would be excluding.

Of course, the question arises: what about those very products whose primary market is educational. Surely this approach would kill any such market in developing countries? While this makes assumptions about the nature of the educational book market in developing countries that I don’t think are accurate, I think that argument reflects exactly what I’m talking about. The approach I’ve outlined changes the discussion and focuses on which actors may properly form part of the market for educational publishers: it will revolve around normative issues such as, from whom such publishers may expect to make a profit. I think that is a discussion that has yet to take place and I think it is one that is more likely to be conducive to ensuring access as well as ensuring viable publishing industries in developing countries. It may in fact lead to alternative models for developing educational materials such as one-time production tenders by governments.

Conclusion

This presentation has focused on the education exception as a way to illustrate an approach that I think can and should be applied to how we approach the issue of exceptions and limitations.  Implementation matters and certainty or an attempt to ensure certainty needs to be carried out at the policy design phase, addressing all three levels. As a varied group here, I think we can rely on the academics among us to extract general principles and rules that may be applied.  Developing countries, however, may best be served over the next decade by us carrying out the task of identifying categories of actors targeted by each exception, and categories of uses covered by each exception, and making sure that these are enumerated at the point of contact; at the legislative level, and at the international level in international standards, models and agreements.

Resources and papers

Copyright & Access to Knowledge (Consumers International,2006) [1]