The Importance of Copyright Exceptions for Teachers and Learners

by Dr. Mugwena Maluleke,
President of Education International (EI)
and General Secretary of the South African Democratic Teachers’ Union (SADTU)

On 21 May 2025, the Constitutional Court in South Africa will consider the constitutionality of the Copyright Amendment Bill passed by parliament in 2019 and again in 2024. The new Bill introduces exceptions and limitations to copyright to allow educators to copy, share and adapt excerpts of copyrighted learning materials in the classroom. In this contribution to the debate, Mugwena Maluleke highlights the education crisis facing millions of learners, especially in Africa and the Global South, and the importance of copyright reforms that increase access to learning materials.

This article was first presented as a keynote input to the Conference on “Copyright and the Public Interest in Africa and the Global South on 6th Feb 2025 in Cape Town. You can watch the video recording of this presentation here.

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Dear colleagues,

It is an honour to join you today in Cape Town as we reaffirm our shared mission of ensuring equitable access to knowledge and protection of traditional knowledge for Africa. Without reiterating much of what Dr. Schönwetter has eloquently stated in his welcoming address, I extend my gratitude to all those involved in hosting this conference and to all of you attending. Thank you for your commitment to copyright law reform.

Reflecting on my childhood in rural Limpopo, we were compelled to learn in English and later in Afrikaans, which led us to stand against the apartheid government in 1976. We were never given the opportunity to learn in our own language. This experience underscores the profound impact that learning materials have on a child’s potential in school. In the quest for knowledge equity, every child deserves the right to learn in their own language.

Today, I stand before you not only as the President of Education International but also as the General Secretary of the South African Democratic Teachers Union, representing more than 70% of educators and education workers in South Africa.

Charles Darwin, the father of evolution, once said, “It is not the most intellectual of the species that survives; it is not the strongest that survives; but the species that survives is the one that is able best to adapt and adjust to the changing environment in which it finds itself.”

The Global Status of Teachers Report, launched on the International Day of Education, January 24 this year, revealed a shocking shortage of 44 million teachers worldwide. A major catalyst for this shortage is the inability to attract and retain teachers due to inadequate conditions for providing quality teaching.

Debrah Ruh, a global inclusivity strategist, noted that “accessibility allows us to tap into everyone’s potential.” UNESCO’s Framework for Action recognizes knowledge as part of the right to education for a reason: it is crucial for teachers to have access to teaching and learning materials specifically designed for educational purposes. Fair copyright legislation is essential to enable teachers to adapt and use materials, enrich them, make them context-specific, decolonize our knowledge production and consumption in education, and address an increasingly diverse student body. 

DECOLONISATION OF KNOWLEDGE and DECRIMINALISATION OF TEACHERS

Having mentioned decolonisation of knowledge production and consumption in education, I must add that this implores us to embark on a journey of decolonisation, peeling back the layers of oppression that have been ingrained in our consciousness. This is not merely an act of dismantling the physical symbols of colonialism, but a profound transformation of our mental landscapes. As we lift the veils of ignorance and prejudice, we must replace them with the light of wisdom and understanding. Decolonisation is a reawakening, a reclamation of our heritage and identity. 

May I also add that education is the bridge that connects our past struggles to our future triumphs. The right to education is a fundamental human right. Our teachers should not be criminalised for striving to provide quality education to our children. Unfortunately, copyright laws for education are often overly restrictive, creating barriers for teachers and the right to education. Global EI research shows that teachers in many Latin American and African countries are particularly disadvantaged by copyright legislation, forcing them to work in legal grey zones or stop using important teaching materials. The use of digital materials and adaptations for children with disabilities poses a particular challenge for the teaching profession. 

Among 37 countries studied in a recent report by wireless connectivity specialist Airgain, South Africa ranks as one of the worst countries for digital readiness.

THE GLOBAL EDUCATION CRISIS

Recent studies highlight the urgent need for improved access to education. The 2025 Global Estimates Update by Education Cannot Wait reveals that 234 million school-aged children in crises worldwide require urgent support to access quality education, an increase of 35 million over the past three years. Refugees, internally displaced children, girls, and children with disabilities are among the most affected. The report emphasizes that these growing needs are rapidly outpacing education aid funding and calls for urgent additional financing to address this global silent emergency.

Access to appropriate learning materials is a key strategy for achieving the first means of implementation (4a) under SDG4. The supporting Framework for Action Education 2030 highlights access to learning materials as one of the core strategic approaches for implementing the goal: “Education institutions and programs should be adequately and equitably resourced, with safe, environment-friendly, and easily accessible facilities; sufficient numbers of quality teachers and educators using learner-centered, active, and collaborative pedagogical approaches; and books, other learning materials, open educational resources, and technology that are non-discriminatory, learning conducive, learner-friendly, context-specific, cost-effective, and available to all learners – children, youth, and adults.”

At the heart of Education International’s Go Public, Fund Education campaign is the principle of putting people before profit. The message is clear: we want creators and authors of material to be compensated fairly, but we do not want intermediaries in the copyright business, such as publishers and streaming executives, to create profit margins that deter access to learning materials and indirectly hinder access to quality public education.

FAIR USE OPENS THE DOOR

Fair use in education is the key that unlocks the door to a world of knowledge and creativity. By allowing educators to utilize copyrighted materials in their teaching, we empower them to inspire, innovate, and ignite the minds of future generations. Through fair use, we create a bridge that connects students to a wealth of information, fostering critical thinking and lifelong learning. In the classroom, fair use transforms copyrighted content into powerful tools for teaching and learning, ensuring that education remains a dynamic and inclusive space, where every student has the opportunity to thrive.

So, what is fair use, and what does it mean for copyright laws? In its guide to Copyrights and Copywrongs in Education and Research, Education International explains that fair use and fair dealing are general exceptions that apply a flexible balancing test to determine what is “fair” for various purposes such as criticism, review, quotation, and news reporting. 

Some fair use and fair dealing rights (e.g., U.S. fair use, Nigeria recently and Singapore fair dealing) are open, meaning they can be applied to any purpose (e.g., for teaching and learning) as long as the use itself is fair. Other fair use and fair dealing rights (e.g., Uganda fair use and UK fair dealing) are closed, applying only to a limited number of defined purposes. The more open the right, the more useful it is to teachers, researchers, and others as time and technology evolve. Fair use in education is not just a legal necessity; it is a moral imperative to ensure no child is left behind.

COPYRIGHT REFORM

For South Africa and other nations, global collaboration through WIPO is crucial in addressing the complexities of copyright in the digital era. The digital revolution has transformed the way we create, share and consume content. While this has opened new opportunities, it has also posed significant challenges that require collaborative efforts by all stakeholders. By working together, countries can develop and implement fairer copyright practices that balance the interests of creators and consumers.

As I conclude let me refer to  Amílcar Cabral as one of the philosophers who influenced my political and educational activism in the apartheid era, when he reminds us that, a people’s culture is both a product of their history and a determinant of their future. Education, deeply tied to culture, is both a tool for resistance and a beacon for equity. 

The Copyright Amendment Bill in SA does not permit the piracy of learner-teacher support material for profit; it allows a fair use policy that enables reproduction so that a child in Limpopo can learn content in their own language of Xitsonga and excel based on their abilities. For the teacher of that learner, it ensures they do not struggle to find support materials due to budget constraints in rural schools, which would further disadvantage the previously marginalised and exacerbate inequalities that prevent quality public education for all children.

As we move forward, colleagues, it is imperative that we commit and continue to strengthen our commitment to global collaboration. We must work together to address emerging issues such as digital piracy and the need for equitable access to knowledge and culture. By doing so, we can create a more just and inclusive global copyright system that benefits everyone.

When I was teaching mathematics, I used music as a form of repetition and a fun way for learners to remember calculus and algebra. I used to say, we need to protect our arts, because if we don’t invest in arts, we will not be able to improve mathematics and science.  And we know from South Africa, many children are not taking pure mathematics, and therefore we need to protect our arts, our music, our drama, and everything we need to protect. This method made learning enjoyable and helped learners not only to retain information but applied it. Was I an innovative teacher with limited resources, or a criminal for using a piece of music without paying for the rights? I leave you with that thought.

Thank you.