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Bridging the gap: How copyright reform could transform access to education for all learners

Bridging the gap: How copyright reform could transform access to education for all learners
Nadiem Marthinus, who is blind, learns how to read braille at the Cape Town Society for the Blind on July 12, 2022 in Cape Town, South Africa. Braille is a system of raised dots that can be read with the fingers by people who are blind or who have low vision. (Photo by Gallo Images/Daily Maverick/Leila Dougan)
Takudzwa Pongweni
By Takudzwa Pongweni
14 Feb 2025
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From the power of music in the classroom to international standards for accessible formats, copyright reform could unlock new educational opportunities and break down barriers to creativity.

The Copyright and Public Interest Conference held in Cape Town recently served as a critical gathering for educators, students, and policy experts, who united in their call for urgent copyright reform in South Africa. With access to educational materials increasingly in the spotlight, participants — ranging from academics to union leaders — are advocating for changes that would make the system more inclusive and adaptable to the needs of all learners. 

Tobias Schönwetter, Director of the Intellectual Property Unit at the University of Cape Town, explained that the South African Copyright Amendment Bill had faced significant delays over the years, due in part to the shifting dynamics surrounding its discussions. 

“Not too long ago, copyright laws were of little interest to most of us because they just didn’t affect us much,” he said. However, with the rise of digital technologies, copyright has become a pressing issue for creators and users alike. According to Schönwetter, the Copyright Amendment Bill aims to strike a balance between various interests, including those of educators and students. It seeks to “strengthen the rights of authors”, provide “clearer and more flexible provisions” for access to works, and improve the oversight of collecting societies. 

Clearer guidelines


He further noted that provisions like section 12D, which addresses reproductions for educational activities, would benefit educators directly by providing clearer guidelines on what they are allowed to copy for classroom use. 

“Educators as creators of copyright-protected content will also stand to benefit from stronger author rights,” he said.

Despite these positive elements, Schönwetter stressed that the Copyright Amendment Bill’s passage had been hindered by a mix of genuine concerns and “lobbying and disingenuous claims”. “There was a time when things shifted and when targeted and helpful debates were replaced by lobbying and disingenuous claims,” he remarked. This situation had led to confusion and delayed progress, making it more difficult to push the bill through.

Copyright and disability: a major roadblock to equal education


A key issue raised at the conference was the difficulty students with disabilities, particularly those with visual impairments, faced in accessing educational materials due to restrictive copyright laws. Schönwetter highlighted how current legislation made it challenging and expensive for adaptations into accessible formats like braille or audio versions. 

Read more: Progress made, but obstacles still need to be removed to ensure access to books for visually impaired

This concern is further complicated by South Africa’s failure to ratify the Marrakesh Treaty, which aims to improve access to works for people with disabilities. Schönwetter expressed frustration that, despite South Africa’s pivotal role in the treaty’s negotiation, it remained unratified, unlike nearly 100 other countries. He sees the Copyright Amendment Bill, specifically Section 19D, as a potential solution, aligning local laws with international standards and improving access for students with disabilities.

Mugwena Maluleke, the president of Education International and the South African Democratic Teachers General Secretary, also addressed this issue, pointing out that South Africa’s current copyright law does not adequately support the adaptation of materials into formats like braille or electronic versions for students with disabilities. 

A pupil reads braille during the launch of the sensory garden at the League Of Friends Of The Blind in Grassy Park on World Children's Day on 20 November 2024 in Cape Town, South Africa. The sensory garden is designed to create a unique, interactive space that caters to the sensory needs of visually impaired children. (Photo: Gallo Images / Brenton Geach)



Nadiem Marthinus, who is blind, learns how to read braille at the Cape Town Society for the Blind on 12 July 2022. (Photo: Gallo Images / Daily Maverick / Leila Dougan)



“The existing copyright law does not cater to the needs of students with disabilities. It’s a one-size-fits-all approach,” he said. He advocated for amendments that would incorporate fair use and necessary exceptions to enable students with disabilities to access the same educational materials as their peers. He referenced the Marrakesh Treaty as a model for the changes needed in South Africa, emphasising that fair use provisions would ensure students in special or comprehensive schools could benefit from adapted materials.

In October 2024, Blind SA, represented by SECTION27, filed an urgent application in the Constitutional Court after the president failed to sign the Copyright Amendment Bill by the court-ordered deadline of 21 September. 

This deadline stemmed from Blind SA’s challenge to the Copyright Act, which had criminalised the conversion of reading materials into accessible formats like braille without copyright holder consent. The court ruled in Blind SA’s favor, declaring these provisions unconstitutional and discriminatory. 

Legal uncertainty


Parliament then amended the law, but the president’s failure to sign the Copyright Amendment Bill led to legal uncertainty, particularly around the conversion of materials into accessible formats. Without a clear exception in the Copyright Act, South Africa cannot ratify the Marrakesh Treaty, limiting access to internationally accessible materials. 

In response, Blind SA sought legal action to either compel the president to sign the Copyright Amendment Bill or reinstate the interim exception (section 13A), which had been introduced during the legal process. The Constitutional Court recently issued an interim order reintroducing section 13A, outlining how accessible format copies should be created and distributed. The final ruling is pending, with hearings scheduled for 19-20 February 2025.

How the bill could be a game changer for education


When asked about the specifics of the Copyright Amendment Bill, Schönwetter was clear that many of the provisions within the bill align with global best practices. 

“Nothing about the Copyright Amendment Bill is radical,” he said. 

He explained that sections such as 12A (“Fair Use”), 12D (“Reproduction for educational and academic activities”), and 19C (“General exceptions for libraries, archives, museums, and galleries”) would address several key challenges faced by educators and students. 

“The bill is determined to address various challenges typically faced by educators, students, and researchers in their day-to-day work,” Schönwetter said. The introduction of section 12D, in particular, had the potential to be a game changer as it would allow educators to reproduce works for teaching purposes in a way that had not been clearly defined in previous versions of the law. 

For students, the bill would provide clarity on what was permissible, ensuring that materials like course packs were accessible. Additionally, section 19C would offer certainty for libraries and archives that wished to digitise and preserve works. 

“These provisions will provide clearer and much-needed answers to questions educators, students, and other stakeholders have,” he stated.

Maluleke emphasised the crucial role education played in shaping society, describing it as a powerful force for change. 

“Education is a game changer,” he said, adding that by investing in the arts and promoting their use in schools, we could reshape the narrative and equip students with essential skills for the future. However, he argued that for this vision to come to fruition, South Africa’s copyright laws must evolve. He said that only with fair use, exceptions, and a more flexible framework would educators and students be able to fully access and benefit from the creative resources they needed.

The power of music in the classroom


Maluleke’s innovative approach to teaching mathematics, which incorporates jazz music, helps students connect abstract concepts to something enjoyable and relatable. By using music to teach fractions — where one note represents one and a half-note represents half — he engages students in a fun and interactive way. However, Maluleke pointed out that this creativity was often stifled by copyright restrictions. 

“By using someone else’s music, I’m technically stealing their work, as the copyright system doesn’t allow for this kind of adaptation in the classroom,” he said. 

Maluleke emphasised that the principle of fair use in copyright law was key to supporting educators. He pointed out how countries like the United States had benefited from such provisions, where the law permitted teachers to use copyrighted material for educational purposes without facing punitive consequences. South Africa’s Copyright Amendment Bill, which included provisions for fair use, aimed to strike a balance between fairly compensating creators and allowing educators the freedom to use creative materials for teaching.

 “Fair use will help educators like me access more resources, enabling us to teach in more innovative ways,” Maluleke said.

To truly unlock the potential of South Africa’s education system, copyright laws must evolve. As Maluleke and Schönwetter both argue, the Copyright Amendment Bill presents an opportunity to address the gaps that currently limit access to creative resources for educators and students. 

With provisions like fair use and clearer guidelines for educational activities, the Copyright Amendment Bill could reshape the way education is delivered, particularly for students with disabilities and those in underserved communities. Ultimately, the bill’s passage could mark the beginning of a new era for South African education, one where creativity, inclusion, and accessibility are at the forefront. DM

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