A ruling in the legal matter between the Education Training Provider (ETP); Dawn Bell Academy and Copyright Society of Botswana (COSBOTS) has brought an ordinary staffroom object into an unfamiliar legal spotlight: the photocopying machine. On 21 September, Mogoditshane Chief Magistrate Gofaone Morweng reportedly upheld an exception to the academy’s defence, entered final judgment for COSBOTS and awarded costs. The claim was P38,276.64 in licensing fees. Dawn Bell Academy has since filed an appeal, so the dispute is not necessarily at its end. The appeal’s grounds and eventual outcome will matter. However, the judgment should not be treated as the last word on every question raised by school photocopying.
THE
COURT CASE
The distinction between a ruling in
a particular case and a general rule for every school photocopying is
important. The case, as reported, concerned COSBOTS’s claim for licensing fees
and the legal sufficiency of the academy’s defence. It was not a comprehensive
ruling that every photocopy made for teaching is unlawful. Nor should the
court’s reasoning be reduced to a debate about whether Dawn Bell’s own
materials were original. The central questions include the scope of COSBOTS’s
authority, the nature of the works covered, the licence arrangements and
whether the defence raised a legally sustainable answer to the claim. Until the
appeal is determined, it is prudent to describe the magistrate’s decision as
the ruling under challenge, not as an uncontested final statement of the law.
THE
PHOTOCOPIER’S RELEVANCE
Across ETPs, teachers reproduce
worksheets, diagrams, extracts, reading passages and examination exercises.
Some materials are taken from published textbooks; others arrive as PDFs
through WhatsApp groups or are adapted from resources shared by colleagues.
Teachers may be responding to overcrowded classes, limited textbook supplies,
gaps in available resources and pressure to prepare learners for assessment.
These circumstances explain the practice, but they do not automatically make photocopying
lawful. A file circulating freely online may still be protected by copyright
and crediting its author does not in itself amount to permission to reproduce
it.
WHAT
THE LAW SAYS
Botswana’s Copyright and
Neighbouring Rights Act, Cap. 68:02, does provide exceptions for certain
teaching uses. Section 15(1)(a) permits reproduction of a short part of a
published work for teaching by way of illustration, provided the use is
compatible with fair practice and does not exceed what the purpose justifies.
Section 15(1)(b) separately permits limited reprographic copying for
face-to-face teaching in educational institutions whose activities do not serve
direct or indirect commercial gain. That second exception is tightly put: the
copying must be an isolated act, or repeated only on separate and unrelated
occasions, and no relevant collective licence may be available from an organization
of which the institution is, or should be, aware. The source and author should
be identified as far as practically possible.
THE
LEGAL LIMITS
These provisions are not a blanket
educational exemption. Regularly reproducing the same worksheets for every
class or compiling substantial extracts into revision packs may fall outside
the limited exception, depending on the facts. A fee-charging ETP is also
unlikely to satisfy the non-commercial condition in section 15(1)(b), although
the precise legal position depends on the activity and the particular provision
relied upon. Section 15(1)(a), however, is worded separately and should not be subjected
to the same test. That distinction is imperative: legal analysis must follow
the actual language of the statute rather than assume that every educational
use is either automatically permitted or automatically prohibited.
COSBOTS
& COLLECTIVE LICENSING
COSBOTS collective management has a
legitimate purpose. It is impractical for every author, illustrator or
publisher to negotiate separately with every school that reproduces their work.
COSBOTS says it administers reprographic rights and that its reprography licensing
activities followed the Companies & Intellectual Property Authority (CIPA) approval
of tariffs in March 2022. It identifies textbooks, articles, photographs and
other literary or artistic works among the material potentially covered. But
the existence of a collective management organization does not remove the need
for transparency. Schools should be able to understand which rights COSBOTS is authorized
to administer, which categories of works a tariff covers, how fees are
calculated and what copying the licence permits. Users, in turn, should not
assume that uncertainty about a tariff gives them an unrestricted right to
copy.
THE
PUBLIC-SCHOOL QUESTION
The practical policy question
extends beyond one private ETP like the Dawn Bell Academy. Public schools also
use photocopiers and digital files, often with limited budgets and uneven
access to textbooks. No national comprehensive agreement between the Ministry
of Child Welfare & Basic Education (MCWBE) and COSBOTS was identified in
the public material reviewed for this article. That does not prove that no
discussions or arrangements exist; it means the position should be made clear
publicly. If schools are expected to comply with licensing requirements, the MCWBE
and COSBOTS should explain how public institutions are covered, what funding is
available and how teachers can check whether a work is licensed or exempt.
STEAM
RESOURCES & CREATOR’S RIGHTS
The issue becomes more pressing as
Botswana develops a curriculum that gives greater weight to Science,
Technology, Engineering, Arts and Mathematics. Practical learning relies on
diagrams, design briefs, coding exercises, visual examples and activities that
learners can handle, adapt and test. A teacher who repeatedly prints a
copyrighted activity for a whole class may be doing so for sound educational
reasons, but repeated use is not necessarily an isolated act under the statute.
At the same time, teachers and local artists who create original worksheets,
illustrations and learning materials also deserve recognition. Copyright should
not be discussed only as a restriction on teachers; it is also a means of
protecting the work of people who produce educational content.
A
WORKABLE SETTLEMENT
Three measures deserve serious
consideration for a possible and workable settlement. First, the MCWBE could
explore a national licence for public schools, negotiated transparently and
funded centrally. Fees could reflect enrolment, ETPs level and actual use,
rather than imposing a single charge without regard to circumstances. Such
schemes exist in other jurisdictions, including the United Kingdom and
Australia, though their legal structures and licensing arrangements are not
identical to Botswana’s and should not simply be copied in totality. Secondly,
Botswana could develop a national repository of openly licensed or
copyright-cleared teaching and learning resources, including materials in
Setswana and English, with local teachers, illustrators and subject specialists
paid or credited where appropriate. Thirdly, lawmakers and education officials
could review whether the current exceptions adequately balance basic classroom
needs with creator’s rights. Any amendment should be carefully drafted so that
it does not create a loophole for systematic commercial reproduction.
AFTER
THE APPEAL
The Dawn Bell legal matter should
prompt more than arguments over a bill of P38,276.64. COSBOTS has a legitimate
interest in protecting rights-holders and schools have a legitimate need for
affordable teaching materials. Neither interest should be dismissed. The appeal
will test aspects of the matter between the parties, but it cannot by itself
settle every policy problem facing Botswana’s classrooms. That requires clear
guidance, accessible licensing, public accountability and a realistic plan for
under-resourced schools. Copying machine will remain part of everyday teaching.
The challenge is to ensure that copying is lawful and that the people who
create the material being copied are not expected to subsidize education
indefinitely without recognition or payment.
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