Government Role in Realising A ‘Right’ to Research in Africa

Development agendas and plans such as World Intellectual Property Organisation (WIPO) Development Agenda, African Union Agenda 2063, South Africa’s National Development Plan 2030 and Nigeria’s National Development Plan 2021 – 2025, etc. indicate the need for and benefits of research for development. Research as an activity is needed for countries to sharpen their innovative edge and contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions implementing a right to research in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of a right to research has been limited by a copyright legislative framework that may be challenging to interpret especially given issues arising from technological advancements, new modalities of using copyright-protected subject matter and new sites and outcomes of research. There are also hinderances to realising a right to research, posed by limited access to courts for interpretation due to limited resources and also as a result of the inherent institutional limitations of courts to only the case pleaded by parties before them. In this environment, the role of the executive arm of government in driving the realisation of a right to research is crucial. Yet, there has not been executive action providing much-needed clarification to concretise and promote a right to research in order to actualise development goals. Focused on Nigeria and South Africa, this paper explores the duties imposed on executive government institutions and applies administrative law principles to indicate a policy toolkit within copyright statutes that may be deployed to realise a right to research and engender guidance for researchers, copyright owners, users and audience of research