October 19^th to 25^th is International Open Access (OA) Week 2020. This year’s theme is “Open with Purpose: Taking Action to Build Structural Equity and Inclusion”.

The theme invites us to recognise and redress the historical, material and social exclusion of several groups from participating in traditional spaces of scholarship. The global pandemic’s precipitation of online tuition has exacerbated this exclusion. Democratising and decolonising access to and participation in these spaces is all the more urgent – human rights can help.

Spotlight on South Africa

Apartheid South Africa’s deliberate exclusion of the Black population from quality education continues to reverberate even 25 years after democracy. Historically white schools and universities are still better resourced than historically Black schools and universities. The global pandemic has renewed the urgency around accessing educational inputs – from textbooks to internet access.

The South African Constitution guarantees a comprehensive right to education for all. For basic education, the state is obliged to provide textbooks and adjacent materials to all schools. A recent stream of litigation has tackled state incapacity and inertia in actually delivering textbooks. Still, many schools, particularly in rural and peri-urban areas remain without textbooks or libraries. For higher education, the state is obliged take reasonable measures to enable access for all. The 2016 Fee Commission Report highlighted that textbooks and other educational materials formed a significant part of the indirect costs of accessing higher education and that a number of students could not afford to purchase these materials.

The emphasis on physical textbooks and educational materials remains vital, given that only 1.7% of rural households and 19% of schools have access to the internet. This digital divide has been exacerbated by the pandemic. The closure of physical libraries, schools and universities and the move to online tuition has meant that only a small minority of the population have had digital access to educational materials.

Regulatory problems and solutions: Copyright

Despite a 14-year struggle for reforms by civil society, libraries and the disability rights movement, copyright remains a barrier to accessing educational materials for persons with visual impairments and learning disabilities and students living in poverty in South Africa. Students with learning and visual impairments are not permitted by the current apartheid-era Copyright Act to reproduce works under copyright in Braille or other accessible formats for educational purposes. Moreover, there are stringent limits on the number and proportion of excerpts of books and articles that may be photocopied from libraries. The Copyright Amendment Bill, with its progressive reforms, has been recently returned by the President and is stuck in Parliament with a well-resourced industry lobbying for the Bill to be shelved. At the time of writing, the reconsideration of the Bill by Parliament has been postponed indefinitely.

The Bill seeks to bring the regressive, likely unconstitutional apartheid-era Copyright Act into the democratic era, with emphasis on the right to education for all. It introduces exceptions for educational materials (enabling the creation of course packs, for instance), libraries and archives, for research purposes as well as fair use. It institutionalises openness by obliging publicly funded educational institutions to make research outputs freely and publicly available. Importantly, the Bill remedies the ‘book famine’ that continues to deprive persons living with disabilities from accessing printed works. Parliament has coupled this Bill with the ratification of the 2013 Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities. South Africans will not be able to benefit from the Treaty’s cross-border import of accessible format materials until the Treaty is ratified.

The Bill takes South Africa one step closer towards realising the right to equal access to educational materials for women and girls, persons living with disabilities, persons living in poverty which maps onto the majority of the Black population, and for persons whose vernacular is not English.

Human Rights and Openness

This OA week, as human rights lawyers, let us renew our commitment to realising the right to universal access to textbooks, scholarship, libraries, digital technologies and intellectual spaces. How can we ensure that we are a part of the solution? The next time we publish something, we can read our contracts carefully. Will the contract promote the access to educational materials for all? How much does the physical copy cost? How can we make our work available so that students and researchers across the world can access it? Is there an openly accessible institutional repository that we can use? Openness is a human rights issue.