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

Limitations and Exceptions for
Education and Research
African-Arab perspective
Judge Dr. Bassem AWAD
African-Arab Seminar on limitations and exceptions
Cairo, Egypt
November 2nd 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.
Balanced copyright
system
Grant of exclusive
rights to authors
+
Facilitate users access
to protected works
One of the most controversial challenges facing
the international copyright system today is:
How to maintain balance between author rights
and public interest.
Total: 53 countries
African facts
 Population: with almost one billion people,
Africa is considered the second mostpopulous 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….
Country
UNDP Education
Rank (out of 182)
Guinea-Bissau
173
Burundi
174
Tunisia
98
Chad
175
Egypt
123
Congo (DRC)
176
South Africa
129
Burkina Faso
177
Morocco
130
Mali
178
Kenya
147
Central African
179
Ghana
152
Sierra Leone
180
Nigeria
158
Niger
182
Senegal
166
Mozambique
172
Source: UNDP (2007)
This means that national education systems in Africa are failing to
meet the needs of the vast majority of their citizens.
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….]
www.aca2k.org
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
educational exceptions:
two
types
of
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 “threestep 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 farreaching 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 visuallyimpaired 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
[email protected]
www.aca2k.org