Faranaaz Veriava is the head of education at SECTION27, Fatima Hassan is the founder of Health Justice Initiative, Jace Nair is CEO of BlindSA, Kaajal Ramjathan-Keogh is head of the Africa Regional Office at International Commission of Jurists, and Tshego Phala is executive director of Equal Education Law Centre.

Intellectual property (IP) laws internationally and domestically regulate innovation, creativity and knowledge through the modalities of copyright, patents and trademarks. The general rationale for patents and copyright is that by conferring a legal monopoly on the creator to use and benefit financially from their “intellectual property”, this “incentivises” the writer to write more books, the scientist to devise more inventions, or the software coder to write more code, contributing to the sum of all knowledge for the benefit of the whole community.

Ever since their inception, IP laws have always recognised the importance of exceptions to this legal monopoly that further the public interest and ensure that private interests do not harm the welfare of the public and the rights of others. Exceptions are thus key to maintaining IP laws’ balance and integrity. In this context, the public interest underlying exceptions to IP has historically included education and health. There is no copyright statute or treaty in the world that does not provide for such exceptions and limitations.

In constitutional democracies like South Africa, education and health are guaranteed as constitutional rights, obliging the government to take measures to realise them for everyone. Where the monopoly created by IP may prevent or reduce access for all to healthcare services and goods (such as medicines) or educational materials (such as textbooks), the Constitution obliges the government to devise a regulatory framework to ensure that access is not unduly restricted. Across the world, this is commonly done by including exceptions to copyright and patent laws pertaining to education and healthcare-related goods and services. Where the government fails to create such exceptions, or creates inadequate exceptions, it risks seriously limiting the rights to education and health for those who cannot afford the high monopoly prices of the marketplace in contravention of the Constitution, thus placing a price tag on access.

Accessing Covid-19 vaccines

The Covid-19 pandemic has flung the public debates about the important role of exceptions to intellectual property laws for the protection of public health into the public eye. Within South Africa, for example, the government has received near unanimous support for its joint proposal with India to the World Trade Organization (WTO) to issue a temporary waiver of the Agreement on Trade Related Aspects of Intellectual Property Rights (Trips) to urgently facilitate access to Covid-19 vaccines, therapeutics, diagnostics, technology and know-how.

We and other civil society advocates, while supporting the Trips waiver proposal, have been at pains to point out that the South African government must practice what it is preaching at the WTO here at home. With regard to health, for example, for years the Fix the Patent Laws Campaign has advocated for the government to reform South Africa’s outdated patent laws so that access to medicines is not unnecessarily limited in a context in which medicines for hepatitis C, drug-resistant TB and many cancers are unaffordable and unavailable for large numbers of people. 

The inexplicable delay in tabling the Patent Amendment Bill in the middle of a pandemic suggests that there may be vested interests at play that require further explanation, as the Health Justice Initiative has repeatedly publicly called for.

The well-known advocacy for a People’s Vaccine should therefore be understood in the broader context of the need for exceptions in IP law that allow for affordable, equitable access to medicines and medical technologies. A link often overlooked, however, is one between the struggle for access to medicines and access to educational materials. IP law and human rights are at the heart of both.

Accessing reading materials

Apartheid-era copyright legislation continues to unjustifiably limit access to educational materials, in particular for marginalised groups such as people with disabilities and people living in poverty. Although the absence of access to reading materials for people with disabilities (described as a “book famine”) is a problem across the world, it is particularly pressing in developing countries like South Africa where it has been estimated that just 1% of all books are available in “accessible format” copies that can be used by people with disabilities across the spectrum.

This status quo, which is almost certainly unconstitutional, persists in defiance of the Constitution and South Africa’s international human rights law obligations to realise the right to education, including the right of access to educational materials such as textbooks, for everyone without discrimination.

The importance of access to reading materials goes beyond the need for access to textbooks and other materials directly used in schools and other educational institutions. Without broader access to reading materials on an equal basis with others, people with disabilities are denied personal development and access to cultural and other resources in violation of their rights to participate equally and fully in cultural life. SECTION27 and BlindSA have initiated litigation (in which the International Commission of Jurists (ICJ) and Equal Education Law Centre (EELC) are seeking to intervene) challenging the apartheid-era Copyright Act 1978 on this basis.

What is to be done: Proposed amendments to the Copyright Act

Fortunately, in the context of educational materials, Parliament has drafted the Copyright Amendment Bill (CAB) which seeks to amend the outdated current Copyright Act and bring it in line with the Constitution and modern technology. In particular, the CAB proposes exceptions to copyright law to facilitate access to educational materials for all and the digitisation and preservation of library and archival collections, among others. The president has referred this bill back to Parliament, which has, in turn, called for public inputs on particular aspects of the CAB’s content. The public hearings are taking place on 11 and 12 August and will see more than 30 stakeholders present oral submissions on these issues, including the CAB’s compatibility with international law.

As human rights organisations working toward the realisation of the rights to education and healthcare we, SECTION27, BlindSA, Health Justice Initiative (HJI), and the International Commission of Jurists, along with Equal Education Law Centre, have all made written submissions to Parliament on the Copyright Amendment Bill. In a nutshell, all our submissions argue that the apartheid-era copyright regime (the Copyright Act 1978 and its regulations) as it stands is unconstitutional and inconsistent with South Africa’s international human rights obligations.

The president raised concerns that the exceptions to copyright in the CAB relating to educational materials may potentially constitute an arbitrary deprivation of property. Notwithstanding the fact that it is an open question whether copyright is covered by the constitutional property provision. But even if it is, SECTION27’s submission directly addresses this concern by demonstrating that all exceptions for educational activities have the fundamental purpose of giving effect to the Bill of Rights to facilitate access to educational materials for the most marginalised members of society, thereby protecting their rights to education, dignity, equality and participation in cultural life. This makes any deprivation of property that may occur in terms of these exceptions exceptionally well justified and inherently non-arbitrary.

Moreover, since access to educational materials often takes place through libraries, SECTION27 emphasises the importance of those exceptions introduced to enable the digitisation, preservation and storage of library and archival collections.

BlindSA’s submission affirms that it is indeed the Bill of Rights that is the basis and motivation for the CAB’s educational exceptions. In particular, BlindSA highlights the importance of the provisions enabling accessible format shifting in order to secure access to educational and cultural materials for all, including students with disabilities, to ensure full participation in society. The submission emphasises the CAB’s compatibility with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh VIP Treaty), which South Africa intends to but has not yet acceded to.

ICJ and EELC’s joint submissions argue that the current Copyright Act is incompatible with South Africa’s international human rights obligations under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities. The submission explains that South Africa is obliged by these treaties to domestically ensure the full realisation of the right to education (including making reading materials accessible and affordable) and full participation in the cultural life of all persons with disabilities. The exceptions introduced by the CAB are a step in this direction and must be welcomed. The EELC and ICJ also note that South Africa should take all necessary steps to accede to the Marrakesh VIP Treaty.

Importantly, HJI’s submission focuses on the crucial link between education and health, including access to research materials. HJI discusses the impact that existing copyright law has on access to healthcare services including life-saving health technologies in South Africa. In its submission, the HJI demonstrates how the current Copyright Act limits:

•  The “right to repair” medical equipment, such as ventilators that are critical to saving lives in the face of Covid-19,  when the owner of such equipment cannot or will not conduct such repair expeditiously; and
• The “right to research”, by failing to eliminate copyright-based obstacles to accessing research articles, including those in peer-reviewed academic journals, which are vital to allow effective, informed responses to health emergencies such as pandemics.

The HJI therefore supports the CAB as it proposes amendments, specifically fair use, to the current Copyright Act that give effect to the right to research and the right to repair, and eliminate “unjustified barriers to equitable healthcare”.

Conclusion: improving access to life-saving healthcare services and life-changing educational materials

We write together as human rights organisations seeking to ensure that Parliament discharges its constitutional duty with a view to giving effect to the rights in the Bill of Rights, constitutional values, and the principles and standards set out in international human rights law. 

We support the provisions of the CAB under consideration in Parliament this week and also believe that amendments to the current apartheid-era Copyright Act must come into force urgently due to the high levels of inequality of access that pervades society and impacts on the healthcare and education of all people.

The CAB is compatible with international treaty obligations but is also specifically adapted to South Africa’s unique circumstances.
We urge Parliament to legislate, bearing in mind rising inequality, and not to be unduly influenced by pressure from those seeking primarily to preserve their own private and commercial interests to the detriment of the welfare of society at large, including through lengthy legislative delays. 

If the Covid-19 pandemic and the battle for equitable access to Covid-19 vaccines has taught us anything, it is that we must ensure human rights and social solidarity in face of outdated laws that would deprive marginalised groups of access to life-saving healthcare services and life-changing educational materials. While we argue here for urgent amendments to these laws, it may also be time to fundamentally reconsider the application of IP laws to medicines and educational materials to decommodify and democratise access to knowledge and ensure the full and equal enjoyment of the rights to health and education for all people. DM/MC