The Right to Research in International Copyright Project hosted a week of conferences in South Africa, January 23-27, 2023. The week of public and private meetings in Pretoria and Cape Town featured discussions of how African researchers are using modern digital technologies to address a range of pressing research questions that require use of research exceptions in copyright law. Academics, practicing lawyers and government officials from several African countries provided the legal and policy context for the researchers’ work, illuminating both the flexibility in many African laws that permit research uses, as well as  where changes in domestic and international law could serve the public interest. 

The first two days of the Right to Research (R2R) conference  were  held on January 23 and 24 at the University of Pretoria. The conference was opened by University of Pretoria Vice Chancellor Tawana Kupe and South Centre’s Executive Director Dr. Carlos Correa. VC Kupe described the human rights implications of recognizing that research activities are “both for the good and a right.” Conceiving research as a human right, he explained, “bestows an obligation on government to invest in the field and at the same time it heightens burdens of justification when it acts in ways that deprive researchers of the ability to engage in their craft.” “Human and constitutional rights require that copyright laws be ‘balanced,’” he concluded, “including to protect the rights of researchers” and “for the removal of legal barriers to knowledge.”

Dr. Correa explained the international policy context in which rights to research and copyright are currently being discussed. Examples include a Proposal by the African Group for a Draft Work Program on Exceptions and Limitations at the World Intellectual Property Organization (WIPO) that will be discussed at WIPO’s Standing Committee on Copyright and Related Rights in March. Dr. Correa also referenced the IP Protocol of the African Continental Free Trade Area (AfCFTA) currently being negotiated among African Union members.  

Researchers from South Africa, Kenya and Senegal described digital research being undertaken in Africa that requires uses of copyright protected works. The Berne Convention requires that every copyright law permit the publication of quotations. But many modern research uses require uses of whole work. One such example involved a collaboration of researchers from multiple countries in Africa who are using text and data mining tools to train machines to translate news, research articles and other content into African languages. 

Many indigenous languages lack reading materials, especially those serving relatively small user populations. For example, one official South African language (Ndebele) has no Wikipedia page. To train digital tools to translate, one needs to feed the programs written texts in those languages. Useful sources that can be used to train translation tools include general online resources, such as newspapers. Jehovah’s Witnesses, for example, have a particularly rich source of online material in African languages. However, these materials are often under copyright protection and the rights owners sometimes refuse to allow text and data mining uses or do not respond to inquiries for permission to use the materials. Thus the question was raised — do researchers have to seek copyright permission to use copyrighted online content for their research tasks?

Legal academics from Africa and abroad helped answer the question of when using research materials is a right of the researcher. Human rights lawyers described the duties of the State to promote the ability of everyone to receive and impart information and benefit from culture and science. Copyright academics described how every copyright law in the world has at least one limitation or exception that permits uses of protected works for a “research,” “scientific,” or “private” purpose. But many of these exceptions were drafted in the pre-digital period and may fail to enable modern research technologies. Most copyright laws in Africa permit at least some research uses of whole works needed for computational research, meaning that many of the modern research methods used by African researchers are permitted without having to seek permission from copyright holders. But not all countries in Africa, or the rest of the world, have the same rights, which makes cross border research projects difficult. 

African copyright officials described copyright reform processes underway at both the domestic and international levels. Domestically, South Africa’s law is under active consideration, including to introduce a general exception for “fair use” for research and other purposes that would make clear that computational uses are lawful. Nigeria has passed an amendment with a similar general exception that is awaiting the President’s signature. Regionally, copyright exceptions are being discussed in the IP Protocol of the African Continental Free Trade Area (AfCFTA). At the international level, the African Group at WIPO has proposed a Work Programme to advance the issue, including to deal with the issue of cross border uses of works for research purposes. 

The University of Cape Town (UCT) provided a meaningful location for the discussion of preservation rights. A fire at the University in 2021 destroyed a unique physical collection of African film and media housed there. Much of the collection was not digitized or otherwise preserved off site, for reasons including perceived copyright barriers, rendering much of the content lost forever.

Practitioners discussed the need for greater rights to access and use copyrighted materials for research in the health sector, for artificial intelligence projects, and to local DJs and musicians.   

The meetings in Cape Town concluded with a discussion of how to strengthen the voices of African researchers and policy makers in global copyright and science debates. Taking stock of the discussions in Pretoria and Cape Town, participants identified principles and processes to promote a future copyright agenda focused on development, diversity and the public interest. Centrally among these, was recognition that research exceptions in copyright should be framed openly, to permit fair uses of all materials for research purposes. 

One unique aspect of the conference was a series of private side meetings organized by the Geneva-based South Centre and the Geneva office of the African Union to further distill the lessons of the meeting into action recommendations for domestic and international policy makers. Copyright officials and experts from Kenya, Uganda, South Africa, Nigeria, African Union, Senegal, and Cameroon participated in these meetings. 

The Right to Research in Africa meetings were sponsored by partners of the Right to Research in International Copyright Project including Re-Create SA, Blackstripe Foundation, Strathmore University Centre of Intellectual Property and Information Technology Law, UCT IP Unit, EIFL, Wikimedia Foundation, University of Pretoria Future Africa, South Centre, African Union, and the Masakhane research collective. Funding for the meeting was provided by support of the Right to Research in International Copyright Project by Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin, and by the Blackstripe Foundation.   

The full program is here: https://www.re-createza.org/r2r