Friday, April 28, 2006

Copyright or Copyleft

I recently listened to the Head of Copyright Society of Malawi (Cosoma) on “TVM Mwatidzutsa”. Unfortunately, the interview left me with more questions than answers. In fact, it only confirmed my long time fear that policing agents like to be feared than being part of the communities they police. They want to manage by creating fear rather than trust in the public. We all know how that approach failed the Malawi Police Service. In Malawi, talk of ‘copyright’ and everyone will associate it with the music industry. Presumably, that is the reason why some sections of the copyright seem to be more important than other disciplines of intellectual property that are seldom talked about. In addition, copyright societies are set up to balance the rights of copyright owners and the rights of users but societies all over the world spend more time on the former. Malawi is a member of World Intellectual Property Organisation (WIPO), together with about 181 other countries. The behaviour the Copyright Right Society of Malawi is largely controlled by WIPO. Much as the rules enforced by WIPO are widely accepted as good among the membership, developing countries such as Malawi are disadvantaged. Some of the rules WIPO tries to get its members to obey are the 1961 Rome Convention, the 1967 Amendment of Berne, the 1971 Geneva Phonograms Conventions and the 1996 WIPO ‘Internet Treaties.’ Malawi is a signatory to these although they are tailored to benefit developed countries more than a developing country like Malawi. There should be something wrong with us if we apply them uncritically without considering our situation.For any academic discipline to thrive, access to research information is a must. Access to research information is more critical to delivery of education. Until now, the exception to the use of copyrighted materials in Malawi has been through ‘fair use’. This is not clear in the Copyright Act of Malawi and COSOMA has demanded payment for photocopying of copyright protected materials from educational institutions. Have these institutions exceeded the limits of ‘fair use’? How much use is ‘fair use’? It is my view that this kind of policing is detrimental to the development of our country. The ‘fair use’ exception to the use of copyright protected materials was put there to benefit some vital sectors of the society which would not afford to access information critical to their survival. It should be appreciated at this point that some of these issues are critical in developing countries than they are in the developed world. After all, developing countries need research information more than our counterparts in the developed world. We need research information to strengthen our economies. Further, I was also captivated by the way the head of Cosoma explained how a song falls into the ‘public domain’. Whether the definition was full or partial is immaterial but the fact that songs will wait until 50 years after the death of the musician to fall into the public domain is an issue. I guess this also applies to all other works of art, including publications, at least from understanding of the WTO TRIPS. I believe Malawi will also support the upcoming “WTO TRIPS Plus” and change the expiry of copyright protection to 70 years after death. Yes, it ensures that the creators of works of art are protected but how about performing arts students in Chancellor College using a song for educational purposes? Will Cosoma take it as ‘fair use’? What about a student wanting to access results of research done by some professor to adapt them for Malawi, will that be considered ‘fair use’? It might look justifiable when we talk about research in general, but consider publicly funded research. A university college in Malawi will pay dearly to access knowledge generated by research done in Malawi but published in an international journal. I consider it restrictive that when I renounce my rights (in writing) the minister can still charge fees on my work. In my view, it should not be this difficult to access works in the public domain. People do not have to be rich or belong to the elite to access works in the public domain. In fact, developing countries should have worked hard to enrich the public domain. If indeed we will have to wait 50 or 70 years after the death of the creator of a piece of work for it to fall into the public domain, then it will be full of obsolete pieces of work. There is need to balance the rights of copyright owners and the needs of the society, especially education and research

I published this article in the Nation Newspaper

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