More than 250 education and research organisations and experts, representing millions of researchers, educators, libraries and support organisations, are backing South Africa’s call on the World Trade Organisation (WTO) to temporarily suspend its rules on intellectual property, where needed, to support the prevention, containment and treatment of Covid-19. 

This is the first time a large group of stakeholders in the copyright system has supported South Africa’s proposal.

Their statement, publicly released and delivered to the WTO last week, demands that access to copyrighted works – in addition to patents and know-how – be addressed urgently to realise an equitable response to Covid-19. 

Sean Flynn, director of American University’s Program on Information Justice and Intellectual Property, who endorsed the statement, said: 

“The need for intellectual property policy to accommodate emergency measures to prevent and treat Covid-19 is not limited to patent law. Preventing the spread of the pandemic requires taking research and learning online. The discovery, development and utilisation of treatments for Covid-19 require high-technology uses such as text and data mining, artificial intelligence and reverse engineering of software. But these modern uses are not recognised in many outdated copyright laws around the world.”

A temporary waiver of WTO copyright rules will make it clear to all countries that they may adopt emergency measures to overcome copyright barriers to the prevention, containment and treatment of Covid-19. 

“We urge all WTO members to endorse the TRIPS (Trade-Related Aspects of Intellectual Property Rights) waiver proposal, including provisions on copyright. Such a move will reflect the emergency that Covid-19 presents. It will give vital reassurance to governments that they may issue urgent edicts, adopt emergency interpretations of their laws, and amend and otherwise overcome copyright hurdles to access to knowledge needed to address the pandemic,” the statement reads.  

The pandemic has exacerbated the fault lines of inequality the world over, and the signatories – which include more than 100 organisations and more than 150 international academics and other experts – have underscored the “deep inequalities in access to knowledge” that have been “aggravated” by Covid-19.”

The statement clarifies: “In some countries with flexible copyright systems, residents are able to access and use essential materials in remote educational, learning and research activities, virtually access and use the collections of libraries and other institutions, and contribute to research on treatments using advanced processes such as text and data mining. But these activities are not taking place everywhere because they are not lawful everywhere.”

In South Africa, the Copyright Amendment Bill, drafted by the Department of Trade and Industry, amends the outdated Copyright Act of 1978 and came into being after a decade-long process of consultation.

The amended bill and the linked Performers’ Protection Amendment Bill had been passed by the National Assembly and were sent to the President in March 2019 to be signed into law.

However, the process was stalled when in a letter dated 16 June 2020, President Cyril Ramaphosa referred the bills back to Parliament for further consideration, suggesting they may not “pass constitutional muster and may therefore be vulnerable to constitutional challenge”.

Since then the bills have been deliberated by MPs but have now been delayed again and it is unclear when a decision will be made.

Signatories to the statement sent to the WTO include the largest library and education federations globally. Supporters include Education International, representing more than 30 million teachers globally; and the International Federation of Library Associations and Institutions, which represents more than 1,500 library and research institutions in more than 150 countries including South Africa. Leading copyright and intellectual property academics as well as health researchers have also endorsed the statement.

Catherine Stihler, CEO of Creative Commons, explained further: “The global health crisis triggered by the Covid-19 pandemic has highlighted the deep imbalances of the WTO’s intellectual property [intellectual property] rules enshrined in the TRIPS agreement. At Creative Commons we believe international copyright rules should not stand in the way of accessing and sharing knowledge to help fight the pandemic. Instead they should provide equitable access to and use of essential materials in remote educational, learning and research activities; virtual access and use of library collections; and research on treatments using advanced processes such as text and data mining. We also believe the international [intellectual property] system should enable broad and early public access to medicines, treatments and vaccines. We thus call on WTO members to endorse the TRIPS waiver proposal and to act urgently to guide countries in addressing copyright barriers to access to knowledge and to uphold fundamental rights and the public interest.”

While some publishers have responded to the Covid-19 crisis, signatories to the statement say these voluntary measures have been inadequate in meeting the need the pandemic presented.

Teresa Hackett, Copyright and Libraries Programme Manager at Electronic Information for Libraries, clarified: “At the start of the lockdown in March 2020, the International Coalition of Library Consortia requested publishers to temporarily lift certain licence restrictions for e-resources to facilitate the overnight shift to online teaching and learning. Many publishers responded, for example, by providing access to additional content and by making certain Covid-19-related content freely available. Some publishers lifted paywalls to their entire portfolios, while others waived restrictions on concurrent access or allowed remote access. However, over 40% of expanded access has already expired, and just two publishers waived relevant licence restrictions for the duration of the Covid crisis. As a result, access is inconsistent and unpredictable. The proposed TRIPS waiver would lift barriers to certain uses of copyright-protected content during the pandemic for education and other essential public-interest purposes.” 

In addition, supporters of the statement have highlighted the human rights aspect of promoting access to knowledge.

Beatriz Busaniche, Presidente and Director of Fundación Via Libre and Intellectual Property and Human Rights Professor at the Latin American Faculty of Social Sciences in Argentina, explains;

“In international human rights doctrine it is clear that the right to health, education and the right to enjoy the benefits of science take precedence over commercial interests and the intellectual property trade agenda. In a situation like the current one, interposing artificial barriers to the indispensable knowledge to fight the Covid-19 pandemic is blocking the exercise of human rights of a substantial part of humanity.” DM/MC