Copyright reform in Malawi

EIFL supports libraries in Malawi in copyright law developments

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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 in the WIPO assembly hall.
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 provided training and built capacity among librarians in copyright and advocacy with our partner, the Malawi Library and Information Consortium (MALICO). We provided input during the drafting of a new copyright law to replace the 1989 Copyright Act. After the new Copyright Act was adopted in 2016, we published an assessment on how the law affects the work of libraries.

We also supported take-up of the Marrakesh Treaty for persons with print disabilities (Malawi domesticated and ratified the treaty in 2016 and 2017 respectively).
 

Background

Since independence in 1964, Malawi has had three copyright acts: 1965, 1989 and 2016. The Copyright Act of 1965 was in essence carried over from the British Copyright Act of 1911. The Copyright Act of 1989 was influenced by the 1976 Tunis Model Law for Developing Countries (see EIFL blog, 'Fair dealing: to replace or reinstate?') while the objective of the Copyright Act, 2016 was to update the law for technological and legal developments (such as Malawi's accession in 1991 to the Berne Convention for the Protection of Literary and Artistic Works).

In addition, in anticipation of joining the Marrakesh Treaty for persons with print disabilities, the new law contained provisions in line with the treaty. In July 2017, Malawi deposited its instrument of accession at WIPO (that administers the Marrakesh Treaty), and the treaty entered into force in Malawi on October 14, 2017.

In 2017, EIFL published an assessment of the new Copyright Act. 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, unnecessary restrictions on the making of accessible format copies will reduce take-up of the treaty in Malawi, discourage entities in other Marrakesh countries from engaging in cross-border sharing with Malawi, hampering the ability of libraries in Malawi 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 seek opportunities to remove the restrictions on the making of accessible format copies in the Copyright Act of 2016, and to clarify and improve the library provisions.