Fostering Information and Knowledge Access in the Digital Environment: A Situational Analysis of Legal-regulatory Frameworks in ARIPO Region

Principal Investigators: 

A/Prof. Dick Kawooya, School of Information Science, University of South Carolina, USA, [email protected]   

A/Prof. Tobias Schonwetter, Department of Commercial Law, University of Cape Town, South Africa, [email protected] 

Co-Investigators: 

A/Prof. Desmond Oriakhogba, Department of Private Law, University of the Western Cape, South Africa, [email protected]  

Dr. Anthony Kakooza, Lecturer, Commercial Law Department, Makerere University, Uganda, [email protected]  

Dr. Chijioke Okorie, Lecturer, Department of Private Law, University of Pretoria, South Africa, [email protected]  

1. Introduction 

This research project is part of a multi-study initiative,  Regulation for Innovation: Inclusive and Sustainable Knowledge Governance in Lower-income Countries, under the auspices of the Open African Innovation Research (Open AIR) network, https://openair.africa, and funded by the International Development Research Centre (IDRC), https://idrc-crdi.ca/en. 

2. Study background and overview 

The recently-adopted African Continental Free Trade Area (AfCFTA)¹ Protocols on Intellectual Property Rights (IPRs), on Competition, and on Digital Trade, aim to deepen the continent’s economic integration in accordance with the African Union (AU) Agenda 2063.² Strategic objectives that will lead to attainment of the overarching aspirations of Agenda 2063 include ensuring a well-educated citizenry and fostering a skills revolution underpinned by science, technology and innovation (STI) for a knowledge society. These objectives also align with achievement of United Nations Sustainable Development Goal (SDG) 4: Quality Education.³ 

The Harare-based African Regional Intellectual Property Organisation (ARIPO),⁴ an inter-governmental entity with 22 Member States, has, for a number of years, been engaging its members, and building the capacity of IP rights-holders in member countries, in order to optimise regulation of  rights protections under national IP laws. However, advancement of the aforementioned continental innovation and human development objectives relies, in part, on achieving a balance, in IP and related knowledge governance regimes, between the interests of rights-holders and the needs of innovators and other users. Balanced knowledge governance requires, among other things: strong public-interest limitations and exceptions (L&Es), calibrated to the digital environment, in national copyright laws and regulations; laws and regulations that ensure competition among the collective management organisations (CMOs) that manage licensing of copyrighted materials on behalf of rights-holders; and legal and regulatory measures to facilitate digital preservation—by libraries, archives and museums (LAMs)—of information and knowledge materials.  

Operationalisation of the AfCFTA IPR, Competition and Digital Trade Protocols will offer opportunities for countries in the ARIPO Region to revisit their knowledge governance regimes and, where necessary, to take steps to ensure better balance of the needs of rights-holders and of users. In addition to ensuring fair rewards and incentives for creators of information and knowledge materials, countries in the ARIPO Region will have the opportunity to ensure the presence, in their national copyright policies, laws and regulations, and in related instruments, of: 

• L&Es ensuring public-interest access—e.g., educational access, access for persons with disabilities— to copyrighted works held by LAMs, including works whose copyrights are controlled by CMOs; 

• measures ensuring competition among CMOs; 

• L&Es ensuring LAMs’ ability to engage in effective digital preservation of heritage materials; and 

• L&Es, and other measures targeted at the digital realm, that prevent digital barriers to public-interest access to online information and knowledge resources. 

This research project will—through an in-depth situational analysis grounded in secondary literature, primary documents, stakeholder interviews, and stakeholder knowledge co-production focus groups—explore and document the current status of national policy, law and regulation in ARIPO with respect to governance of information and knowledge. The research will also explore areas and ways in which ARIPO’s regional structures can collaborate with national IP offices, CMOs, LAMs and other user groups in shaping knowledge governance regimes that foster inclusive education and innovation for sustainable socio-economic development. 

3. Research questions 

The overarching question is:  

• In which areas and ways can national IP offices in the ARIPO region fruitfully collaborate with CMOs, LAMs, and other user groups towards fostering legal-regulatory regimes that optimise public-interest user access to information and knowledge materials in support of education, innovation and inclusive socio-economic development? 

The research sub-questions include:  

• To what extent are the current copyright L&Es in national legal-regulatory regimes in the ARIPO region optimising user access? 

• To what extent do national legal-regulatory regimes for information and knowledge governance in the ARIPO region promote access-enabling behaviour by, and competition among, CMOs?  

• To what extent are national legal-regulatory regimes for information and knowledge governance calibrated to the digital environment in the ARIPO region (e.g., on matters of digital preservation by LAMs,  data protection, privacy, computer misuse, anti-circumvention of technological protection measures)? 

• Where deficiencies are present in any of the three areas cited in the first three sub-questions: 

• In which areas would national IP offices, CMOs, LAMs, and other user groups most benefit from collaboration with structures in the ARIPO region, and what would be the most useful modalities of collaboration? 

• To what extent can improvement of national legal-regulatory regimes for information and knowledge governance in the ARIPO region be fostered by operationalisation of the AfCFTA Protocols on IPR, Competition, and Digital Trade? 

4. Aims and objective 

Aims 

• to document the current status of national policy, law and regulation in the ARIPO region with respect to governance of information and knowledge access; and 

• to explore the areas, and ways, in which structures in the ARIPO region can potentially collaborate with national IP offices, CMOs, LAMs and user groups towards ensuring access-enabling information and knowledge governance regimes. 

Objective 

• to generate research findings and recommendations that can be of use to the research participants, their organisations, and to the broader public-sector, private-sector, civil society and research/scholarly communities engaging with matters of information and knowledge policy, law and regulation at African national, regional and continental levels, and at the global level. 

5. Data collection and analysis 

Collection 
The vast majority of the data collection for this research project will be virtual and thus will not require physical access to research sites. In addition to desktop literature reviews of secondary sources, the researchers will collect primary data from three sources, as follows: 

Primary documents 

The research team will make virtual contact with national IP offices of countries in the ARIPO region in order to seek direction towards (and, ​​​​where the materials are not online such as WIPO Lex, access to) the following types of documents: 

• National policies, laws and regulations that impact public-interest L&Es and other measures fostering access to copyrighted works, including access via LAMs and by persons with disabilities; 

• National policies, laws and regulations that impact on information and knowledge access in the digital environments, including measures relevant to digital preservation by LAMs, data protection, privacy, computer misuse, and anti-circumvention of technological protection measures (TPMs); and 

• National policies, laws and regulations that impact the activities of CMOs, with a focus on competition among CMOs. 

Virtual interviews and knowledge co-production focus group discussions (FGDs) 

The research team will seek introductions, via national IP offices, to representatives of knowledge governance stakeholders such as CMOs, LAMs and user groups. Virtual interviews and/or knowledge co-production FGDs will be conducted with these stakeholder representatives and with national IP office representatives. In addition, where possible, virtual interviews and/or knowledge co-production FGDs will be conducted with relevant high-level policymakers operating at national and/or ARIPO regional levels.  

In-person interviews and knowledge co-production FGDs 

The research team will, where possible,  conduct in-person interviews and knowledge co-production FGDs with stakeholders and high-level policymakers. Examples of events where in-person interviews and/or knowledge co-production FGDs could occur include high-level Ministerial Conference on L&Es of IP organizations like ARIPO’s. 

Analysis 

All primary document data will be analysed in terms of its features related to governance of information and knowledge access. All transcript data from the recordings of interviews and FGDs will be transcribed using automated audio transcription software, and each transcription will be checked/amended for accuracy. The transcript data will then be thematically coded using qualitative data analysis software.  

6. Study population and consent procedures 
 

Participants 
The participants will be national policymakers, representatives of national IP offices, and representatives of CMOs, LAMs, and other user groups in the countries studied in the ARIPO region. 

Informed consent process 

Participants in the virtual and in-person interviews/FGDs will be informed, in writing or verbally, of the contents of the project’s Participant Information Letter and will be required to provide written or verbal consent to participate in the study. Where the consent is written, it will be via a written message or via signature of the project’s Participant Informed Consent Form. Where the consent is verbal, it will be audio/video-recorded or noted in writing by a member of the research team. The interviews/FGDs will be semi-structured and conducted in terms of the project’s Interview/FGD Schedule. 

7. Project timeline 

• Obtain ethical clearances (Feb. 2024) 

• Official start meetings – core project team. July-August 2024 

• Confer with national IP Offices in the ARIPO Region on the project and its planned activities (September – December  2024) 

• Establish contact with, and secure necessary permissions from, participating national IP offices, CMOs, LAMs,other user groups (Request for Permission to Conduct Research template attached) (January – February  2025) 

• Literature review and primary document collection and analysis (March  to May 2025) 

• Virtual interviews and/or knowledge co-production FGDs with research participants (June –  to September 2025) 

• In-person interviews and/or knowledge co-production FGDs with research participants (October  to December  2025) 

• Data analysis (Jan to March 2026) 

• Write up findings (April to May  2026) 

• Wrap up and spill-over activities, e.g., book publication, journal articles, and conference presentations on findings (June 2026 onwards) 

8. Data management and safety 

All written and audio data will be stored, in anonymised fashion, in a password-protected cloud storage space accessible to only the principal investigators, as per the project’s Data Management Plan (DMP).  

9. Publication of study findings 

In accordance with the policies of the funders of this study, the IDRC, all published research findings based on this study will be published on an open access basis.