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Comparative Study of Copyright in Brazil, India and South Africa
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This article is an introduction to the BISA Copyright Review project, a comparative project being run by FGV, The Alternative Law Forum and iCommons.
An Introduction
By Lawrence Liang
Any study that attempts to investigate three of the most important countries from Asia, Latin America and Africa has a rather heavy representational burden placed on it. Before embarking on the study, it would be useful to outline the motivations behind such a study, the advantages, the pitfalls and the methodological issues that may arise from such a comparison. Some of the questions that we need to bear in mind include:
- Why is a comparison desirable at all?
- What is it about these three jurisdictions that makes a comparative study interesting?
- What new questions are raised through a comparative study as opposed to a study of individual national examples?
- What are the similarities in these jurisdictions that make a comparison possible?
- What are the differences between the three jurisdictions that we need to be aware of?
- What are the ways in which these jurisdictions can learn from the experience of the other jurisdictions (conceptually as well as in terms of policy and strategy)?
In our case, we have taken upon ourselves the rather ambitious task of comparing the intersection of copyright and public interest in Brazil, India and South Africa. We can take a cue from existing projects that seek to look at a comparative constitutional analysis of the three countries. Despite the fact that three countries have had a very different constitutional history, both in terms of time as well as in terms of the nature of the legal system, the work of scholars like Upendra Baxi point us to ways in which a comparison of the three countries can take place.
Comparing India, Brazil and South Africa
Legal scholar and Professor of Law in Development at the University of Warwick, United Kingdom, Upendra Baxi argues that the constitutional imagination of Brazil, India and South Africa are all premised on a shared history of violence and sharp inequalities. In the case of India, the birth of the constitution was preceded by the experience of colonialism and the violence of partition, in Brazil the traumatic experience of military dictatorships and in the case of South Africa the experience of apartheid. In other words, in all there countries the constitution emerged as a text of hope against a traumatic past, and the constitution was not merely a liberal document of governance, but a promissory note for a more just and equitable future. Baxi terms these as “transformative constitutions” whose responsibility to history is documented in the kind of promises made in chapters of the rights of individuals, as well as in the recognition of collective rights.
Although our area of enquiry is copyright law, I find it useful to start with an account of a comparative constitutional law approach for two reasons.
Firstly, this approach shows us that a comparative approach can enable a new way of thinking about constitutional law, which is different from a standard liberal account of republican democracies. It can similarly be argued that what is needed at the moment is an account of copyright from these three countries that helps us rethink the way copyright policy should shape out in developing and transitional economies. Rather than accepting a “one size fits all” approach advocated by WIPO, we can leverage on the experience of these three countries to argue for an approach towards copyright that is sensitive to the differential needs of countries.
Secondly, it reminds us of the larger normative commitments that should animate our discussion of copyright and public interest. Brazil, India and South Africa are complicated countries, which defy any neat and easy definitions such as developed, and developing, global north and south. All three countries are marked by a sharp distinction between the constitutional elite who enjoy all the privileges of a global knowledge economy, and a constitutional underclass who are left out of the imagination of the information economy.
Refocusing the Global Copyright Debate
A study of these three countries can also reshape the focus of the global copyright debate. Progressive scholarship and activism in the realm of copyright has largely been informed by developments in the US, where a First Amendment approach has dominated the debate. While a freedom of speech and expression approach to the study of copyright is certainly valuable, the experience of Brazil, South Africa and India has shown that alongside a commitment to individual rights, there is a deep commitment to the idea of collective rights. For instance, the commitment to universal education in these three countries provides us with a very different entry point from a free speech approach. A study of copyright in these three contexts helps us articulate better the idea that copyright is not merely a private law system designed for an optimal maximization of private property rights, but can instead be seen as a system that can be harnessed for the realisation of public interest in the domain of knowledge and culture.
In a sense a comparative study in the domain of copyright is easier than a comparative constitutional study. Constitutions have not faced the same pressures of globalising themselves in the way that copyright regimes have. The establishment of the Berne convention and the TRIPS agreement has meant the establishment of a common global standard of copyright. And yet, we see that each of these countries have had a different history of copyright development, both in the doctrinal level as well as in the real-world experience of how copyright has played out in these countries. At the doctrinal level, we see differences in the treatment of rights; the ways in which each country has made use of exceptions and limitations within their copyright statues and the judicial interpretations that have taken place. At the level of the real-world experience of copyright, each of the countries have a distinct history of enforcement or non-enforcement, distinct institutional experiences of copyright reform as well as unique experiences of activism around access to knowledge and culture. A comparative account will succeed only to the extent that it is able to provide a narrative of copyright that accounts for both the similarities and differences in the doctrinal and practical history of copyright in these three countries.
What Makes This Study Different?
This study aims to be different in three important areas.
Firstly, it is a comparative study. There is no current comparative report looking at the copyright laws of the three countries. Looking at these three countries in comparison is interesting because they all have an inherited colonial copyright system, they are all developing countries that are facing similar challenges with regards to restrictions that copyright places on them in trying to service the education, health and innovation needs of their populations, they are all key countries in their particular regions and as such, all have a potential to set the groundwork for more visionary policy-making in the future.
Secondly, it will be human-readable. Most reports on the subject are relatively dry and inaccessible, and don't tell the story of the people involved in the processes. We want to make this an accessible, interesting read, with a focus on the people, their motivations etc as well as the legal compulsions involved in any policy review process.
Thirdly it will be iterative: This report is unique because it will be developed by three organisations in an 'extreme programming' type process. In other words, instead of writing three separate reports in one period and publishing the entire report at the end, the team will divide the project into monthly 'articles', they will review one another's work, and they will amend the work as they receive comments, thus developing a final report that is of a consistently high quality, has been developed collaboratively - not just with the team, but with the larger community - and potentially has greater impact and has a wider distribution.
tags: johannebsurg-bangalore-rio-de-janeiro south africa policy-law copyright-review alf fgv icommons lcgc bisa research local-context-global-commons
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