Review of copyright related writings in the age of COVID19

The imposition of social distancing and self-isolation in an effort to slow the spread of COVID-19 has resulted in many things, of particular relevance in this piece – the increased consumption, reproduction and creation of various content, digital media and consequently, its copyright implications. In relation to the educational sector, the discussions on these implications have broadly been set in the context of online distance learning and from that, ancillary issues such as the relaxation of copyright licenses, transnational issues, censorship as well the role of artificial intelligence have been brought to light. Moving to a heavily digitised approach to teaching and learning is breeding ground for copyright claims and infringement concerns so it is befitting that the discourse around COVID-19, copyright and the educational sector be centred around online distance learning.

Evident from the written discourse on this matter is the discourse regarding the value of copyright exceptions, particularly “fair use” or “fair dealing”. Unlike the latter, fair use exceptions provide an open-ended list of purposes that may constitute fair use. Its applicability in nations such as the United States is suggestive of this limitation being accommodative of a digitised society and its subscribed country being better prepared for the transition to online distance learning. Due to the principle’s technological neutrality and open-endedness, the determination of whether reproduction of certain materials online by educators and the subsequent consumption of these by students constitutes copyright infringements, is dependent on the four factors of fair use. These factors are arguably broad enough to allow a favourable outcome in a situation such as the present –an emergency transition to online distance learning.

In contrast, South African by virtue of s12(1) of the Copyright Act 1978 subscribes to the fair dealing exception. This exception is supplemented by s12(4) which provides copyright exceptions for literary or musical work ..., ‘to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching’. Under s12(1) learners and students are afforded some degree of immunity from copyright infringement as the section allows for reproduction and use of literary or musical work for the purposes of research or private study by, or the personal or private use of, the person using the work. The caveat to this protection is the justifiability of the purpose of their use and the corresponding limitation on the amount of work that can be reproduced. This is a recurring feature in many jurisdictions using the fair dealing exception. The usual justification is that without it, copyright holders will be prejudiced as they may not be adequately remunerated for uses of their works. Whilst South Africa’s copyright exception provisions do not directly address nor cater for the implicit mass reproduction of literary and musical materials that online distance learning requires, it is plausible that a more flexible approach in considering the fair dealing exception will be favoured during this time. Notable concessions being made during this time include academic publishers making various ancillary materials such as case studies, PowerPoint slides and diagrams available for free to students and universities where possible. On a larger scale, the extension of blanket licenses to universities, albeit at a considerable expense, so as to allow the dissemination of course material to students. 

Cognisant of the fact that COVID-19 is a global pandemic that has reshaped the world as we once knew it, more attention should be paid to making copyright laws work in the public interest by balancing the rights of copyright holders and owners with those of users, in this case, the public. Also, there should be more unity and consensus with respect to addressing the transnational copyright issues in the context of online distance learning.

Sanelisiwe Mthalane, 23 October 2020