How does Malawi’s new copyright law measure up?
EIFL’s assessment of Malawi’s new copyright law finds that while a good range of library activities are permitted, there are missed opportunities

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WIPO delegates standing up to applaud adoption of the Marrakesh Treaty.
Delegates to the 2013 WIPO Diplomatic Conference adopt the Marrakesh Treaty. Malawi has acceded to the Treaty, which enables organizations like libraries to make accessible format copies of printed works. © WIPO 2013. Photo: Emmanuel Berrod.

An EIFL review of Malawi’s Copyright Act of 2016 has 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 assesses the Copyright Act from the library perspective.

It aims to raise awareness about the law, help librarians understand what the law means for library activities and services in Malawi, and highlight areas for future improvement.

The key findings of the review are:

  • Range of library activities permitted. The Copyright Act permits a range of activities such as making copies for research, use of works in virtual learning environments, and public lending by libraries. It also recognizes the important principle of safeguarding library uses where access to a work is protected by a technological protection measure, such as a password protection or copy control system.
  • Complex conditions limit digital uses. Complex conditions, especially regarding the use of digital works, limit in practice what libraries in Malawi are allowed to do, and are more restrictive than in many other countries. 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, the issue of orphan works, where the holder of the copyright cannot be identified or cannot be found, has not been dealt with in the new law. 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 (braille, audio, large-print) is subject to a commercial availability test, a legal requirement to check if a work is commercially available in the required format before an accessible copy can be made. The problem is that it is impossible to ascertain with certainty if the work is available in that format, especially for foreign works. (And the World Blind Union estimates that 99% of published works in Africa are not commercially available in accessible formats). EIFL issued a joint statement in August 2017 on the issue with the International Federation of Library Associations and Institutions (IFLA) and the African Library and Information Associations and Institutions (AfLIA). Read the statement ‘Malawi: embrace the spirit of the Marrakesh Treaty – no commercial availability test’.
  • Two new legal concepts introduced in Malawi. 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. Adopted originally in Nordic countries, this legal technique is not widely in use.

EIFL will work with our partners, the Malawi Library and Information Consortium (MALICO) to raise awareness, and to seek opportunities for improvements so that the law best supports libraries, education and people with disabilities in Malawi.