Copyright reform in Malawi

EIFL supports libraries in Malawi as a major new copyright law is adopted

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Kondwani Wella, the first librarian from Malawi to participate in WIPO’s copyright committee (2010) with Kathy Matsika, EIFL Copyright Coordinator from Zimbabwe.

EIFL has been engaged in copyright work in Malawi since 2005.

We have built library capacity in copyright issues with our partner, the Malawi Library and Information Consortium (MALICO). In 2010, we supported MALICO to give input during the drafting of a new bill that aimed to update Malawi’s copyright law of 1989 to take into account technological and legal developments.

In September 2016, Malawi adopted a new Copyright Act, which repeals the law of 1989.

In 2017, EIFL conducted an assessment of the Copyright Act of 2016 to help raise awareness about how the new law affects the work of libraries, and to cooperate to seek opportunities improvements so that the law best supports libraries and education in Malawi.

Background

The Malawi Copyright Act of 1965, enacted after independence, was adopted from the British Copyright Act of 1911. In 1989, the 1965 law was replaced the Copyright Act of 1989.

In 2010 Malawi’s copyright office, the Copyright Society of Malawi (COSOMA) - that also acts as the national Reproduction Rights Organization (RRO) - began work on a new law that would take into account international developments in the area of copyright, such as the 1996 World Intellectual Property Organization (WIPO) Internet Treaties.

As a result, a new Copyright Act was adopted in September 2016.

On 14 July 2017, Malawi acceded to the Marrakesh Treaty for persons with print disabilities. The Marrakesh Treaty has implications for copyright law because it mandates having a copyright exception to allow the making of accessible copies (for example, in braille, large print and audio) and to enable sharing of accessible formats across borders, without having to seek permission from rightsholders. The Marrakesh Treaty entered into force in Malawi on 14 October 2017.

In October 2017, EIFL published an assessment of Malawi’s Copyright Act of 2016. The assessment found that while the act permits a good range of library activities, complex conditions limit what libraries can do in practice and there are missed opportunities to enable digital activities. In addition, there are restrictions on the making of accessible format copies that will affect libraries’ ability to properly serve the needs of blind and visually impaired people.

Timeline

2005 – 2017

Main activities and achievements

Building capacity of library leadership in copyright issues and advocacy

  • Between 2005-2010 EIFL Copyright Coordinators in Malawi attended four EIFL training events: Regional Copyright Training, Uganda (2005); Copyright and Libraries global conference, Istanbul (2008 & 2009); Advanced Training in Copyright, Advocacy and Presentation Skills, UK (2010).

Support of copyright law reform

  • In 2010, EIFL advised MALICO on their submission to the Malawi copyright office (COSOMA). The submission, ‘Proposals for changes in the Copyright Bill, 2010’, called for libraries to be allowed to undertake digital activities, such as supporting online education, and it advocated for the use of orphan works by libraries. However the next draft of the bill, the Copyright Bill (2011), did not fully take these activities into account. And while the concept of the ‘paying public domain’, payment of a fee for the use of works in the public domain, was removed in the 2011 Bill, a new concept affecting libraries was introduced, that is, payment of a fee for the use of works in public libraries. This concept is included in the Copyright Act of 2016.
     
  • In October 2017, EIFL published a review of the Copyright Act of 2016 from the library perspective that aimed to raise awareness of the law and increase understanding of what the law means for libraries and their activities in Malawi. The review found that although the new law permits a range of library activities such as making copies for research and use of works in virtual learning environments, it places big limits on what libraries can do in practice, misses opportunities to enable digital activities, and restricts the making of accessible format copies. The review highlights the following concerns:
    • Complex conditions limit digital uses. For example, digitization of print material for preservation and backup is not allowed unless special permission is obtained from the Minister with responsibility for copyright, and the making of digital copies for researchers is expressly barred.
    • Missed opportunities. For example, orphan works (works where the holder of the copyright cannot be identified or cannot be found) have not been dealt with at all in the Act. Therefore works of high social and cultural value will likely remain largely undiscovered in library collections. In addition, the preservation of websites, blogs and other public online media, known as web archiving, is not covered placing Malawi's valuable web heritage at risk of being lost.
       
    • Restrictions on the making of accessible format copies. The making of accessible format copies is subject to a commercial availability test, a legal requirement to check if a work is commercially available before an accessible format copy can be made. However it be difficult to ascertain with certainty if an item is commercially available in the required format at any given time (checking would be needed every time a copy was requested). For international works, it is impossible because the tools to check do not exist.
       
    • Two new legal concepts introduced. Two new legal concepts have been introduced: Public Lending Right (PLR) and Extended Collective Licences (ECL). On PLR, a fee for the free use of works in public libraries is to be paid by the government into a newly established Copyright Fund. (EIFL does not support the introduction of PLR in low income countries, such as Malawi). ECLs give reproduction rights organizations a mandate to authorize use of works for authors they do not represent, and to collect monies on authors’ behalf.

Next steps

EIFL will work with MALICO to raise awareness of the new law, engage in discussions with policy-makers, and to seek opportunities for improvements so that the law best supports libraries, education and people with disabilities in Malawi.