Abstract

The lack of works for educational and cultural literacy purposes in their own languages threatens the cultural survival of many vulnerable minority and indigenous groups worldwide. Translation could satisfy related access needs. A strict reading of international copyright law, however, does not facilitate the translation of works into other languages. Yet, it is often forgotten that, in accordance with the integration rule of treaty interpretation, the Berne Convention, and other relevant international intellectual property instruments, would have to be read in the light of internationally protected linguistic human rights in education and for cultural literacy. This mechanism could go some way towards assisting the easier translation of (parts of) works for the stated purposes into other languages. The argument made in this article, however, is that a harmonious reading of existing international copyright law with international human rights law cannot go as far as to sufficiently resolve the access needs of vulnerable groups speaking an endangered language, insofar as translated texts are concerned. In fact, it is contended that the existing regulation of translation under international copyright law is so inimical to the survival of vulnerable groups and their languages that it must be held to promote cultural or linguistic genocide. For that reason, the relevant copyright rules must be considered to conflict with ius cogens, that is, peremptory norms of international law, and to be void in their application to neglected languages. The article makes suggestions as to how countries could design national copyright law regulating translation rights and limitations and exceptions in a way that facilitates translation generally, and into neglected languages specifically. These suggestions are based on a reappraisal of the true character of translation, which must be seen to be highly transformative in nature and resulting in the creation of autonomous new works.

Keywords

Berne Convention; copyright; translation; languages rights; linguistic human rights in education; cultural rights; minorities; indigenous peoples; endangered/neglected languages; genocide; cultural genocide; linguistic genocide; persecution; ius cogens; fair use; decolonisation

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If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart. **

* Klaus D Beiter. BIur LLB (UNISA) Dr iur (LMU Munich). Professor, Faculty of Law, North-West University, Potchefstroom, South Africa; Affiliated Research Fellow, Max Planck Institute for Innovation and Competition, Munich, Germany. Email: Klaus.Beiter@nwu.ac.za. ORCiD: https://orcid.org/0000-0002-0638-3052. STIAS Fellow, Stellenbosch Institute for Advanced Study (STIAS), Wallenberg Research Centre at Stellenbosch University, Stellenbosch 7600, South Africa. I express my thanks for the research support provided by STIAS. This article further develops initial ideas on the subject, presented in the form of an editorial, entitled "Translation Rights and Exceptions under Berne, Ius Cogens, and Linguistic Genocide", published in GRUR International in 2021. Beiter 2021 GRUR Int 729-730.

** Famous Nelson Mandela misquote. What Mandela really said was, "because when you speak a language, English, well many people understand you, including Afrikaners, but when you speak Afrikaans, you know you go straight to their hearts", said in an interview with Richard Stengel on 29 April 1993 and collected in Mandela, Hatang and Venter Nelson Mandela by Himself 125.

1 Cultural survival through translation?

Our language is dying, that is the first sign of deterioration. Our native style of life has to be based on four elements – heritage, culture, values, language – and if you take one away it begins to break down. Then we have the symptoms of this breakdown, alcoholism and abuse. 1

1 Randy Councillor, Ojibway, director of a detoxification centre in Ontario, Canada, himself an earlier "street-drunk", as quoted in Skutnabb-Kangas Linguistic Genocide in Education 139.

Language is an element of cultural enrichment, but it is much more than that – it is key to the cultural survival of any nation or group. As the Inter-American Court of Human Rights emphasised in López-Álvarez v Honduras, language is "one of the most important elements of identity of any people, precisely because it guarantees the expression, diffusion, and transmission of their culture". 2

2 López-Álvarez v Honduras (Merits, Reparations, Costs) IACtHR Ser C No 141 (1 Feb 2006) para 171.

markets are too small and speakers of the languages are poor. As Shaheed, 4

4 Report of the Special Rapporteur in the Field of Cultural Rights, Copyright Policy and the Right to Science and Culture UN Doc A/HRC/28/57 (2014) para 68.

But, that is not all – translation into these languages is also not adequately catered for by international copyright law. This would be crucial, because, where no works in the original languages are published, translations into these languages are important to satisfy educational and all other cultural literacy needs. The literature widely acknowledges that translation is of eminent importance to facilitating access to knowledge, especially in developing countries. 5

5 See, eg, Basalamah and Sadek 2014 The Translator 407 ("[T]ranslation's mandate is the dissemination of knowledge and the promotion of the sharing of information and cultural difference"); Edwards and Ngwaru 2011 Int J Biling Educ & Biling 589 (holding that translation may help solve the problem of the dearth of educational materials in African languages); Kelly The True Interpreter 1 (remarking that Western Europe owes its civilisation, rooted in the Roman Empire, to translation); Ketzan 2007 Tul J Tech & Intell Prop 221-222 (in the context of addressing the potential of machine translation, pointing out its importance to the survival of minority languages); Talagala Copyright Law and Translation 13 ("[D]eveloping countries need to translate these materials into the local languages. Translation facilitates access to knowledge."). There are, however, also certain dangers in naively viewing translation as being able to facilely solve all access needs in developing countries. In this regard, see Section 6, fns 131-133 and accompanying text, below.

national level, but do this adopting a wider perspective of how copyright law could, generally, facilitate translation into any language, and thus afford enhanced protection to recognised linguistic human rights (Section 5). Crucially, this part of the discussion incorporates insights from the field of translation studies. These insights necessitate a reappraisal of copyright's orthodox understanding that a translation is a reproduction or, at most, a close adaptation of an existing work. Finally, the importance of translation – and accordingly a reform of relevant copyright law – is emphasised from the viewpoint of achieving a decolonisation of the educational curriculum and cultural life in Africa (Section 6).

2 Copyright law under the Berne Convention

Article 8 of the Berne Convention for the Protection of Literary and Artistic Works of 1971 (hereinafter Berne Convention or Berne) accords authors the exclusive right to translate their works, but no express limitations and exceptions (L&Es) to their translation rights have been laid down. 6

6 Article 8 of the Berne Convention for the Protection of Literary and Artistic Works (1971) (the Berne Convention). For analyses of the complicated history of the author's translation right in Art 8, and generally translation rights and limitations and exceptions in international copyright law, see Bannerman International Copyright and Access to Knowledge 100-113; Hemmungs Wirtén Cosmopolitan Copyright 17-67; Talagala Copyright Law and Translation 126-155.

reproducing a work. 9

9 Ricketson and Ginsburg International Copyright and Neighbouring Rights paras 11.35 ff, 13.83. Considering translations to be mere reproductions of the original works is problematic, however. In this regard, see Section 5, fns 85-97 and accompanying text, below.

Obtaining voluntary translation licences is difficult practically, and also beyond the resources of many of the language groups concerned. There is an Appendix to the Berne Convention of 1971, providing for a compulsory licensing scheme for developing countries that envisages translation (and reproduction) licences for whole works. Under a translation licence, a work may be translated, and copies of the translation be published. 14

14 Article II of the Appendix to the Berne Convention regulates translation licences. Reproduction licences are directed at the supply of reasonably priced copies of a work in a country. Art III of the Appendix regulates reproduction licences.

restrictive manner. 15

15 For detailed accounts of this restrictive regulation, see, eg, Basalamah 2000 IDEA: J L & Tech 511-522; Silva 2013 J Copyright Soc'y USA 589-612; Talagala Copyright Law and Translation 150-155.

There is widespread scholarly consensus that the Appendix has been a gross failure. 25

25 See, eg, Chon 2007 UC Davis L Rev 829, 835 (remarking that the Appendix "contains provisions so complex and arcane that very few developing countries have been able or willing to take advantage of them", and further that its provisions are unworkable, unfair, and require compensation for educational use that is covered by fair use in the USA); Okediji Limitations, Exceptions and Public Interest Considerations 15 ("By all accounts, … the Berne Appendix … has been a failure."); Silva 2013 J Copyright Soc'y USA 590 ("[T]he Appendix comes across as an obsolete, inappropriate, bureaucratic, and extremely limited attempt to provide an air valve for developing countries.").

Now that the relevant rules on language and translation of one international legal regime, international copyright law, have been described, the rules on language rights of international human rights law, the other crucial regime of international law at stake here, will be identified.

3 Linguistic human rights, in education, and for cultural literacy

According to the United Nations (UN), about 6,700 languages are believed to exist today. Of these, over 3,000 are in serious danger of disappearance. Indigenous peoples' languages represent at least 4,000 languages and most of these are seriously endangered. 26

26 OHCHR, Human Rights Legal Framework and Indigenous Languages, International Expert Group Meeting on Indigenous Languages Doc PFII/2008/EGM1/15 (2008) para 2. According to Rymer 2012 National Geographic 60, "[o]ne language dies every 14 days".

sector. 32

32 Le Roux, Tshuma and Harvett South African Book Publishing Industry Survey 2021-2022 12 (based on revenue). As it were, fewer than 4% of all titles in the education books sector are published in African languages. Le Roux, Tshuma and Harvett South African Book Publishing Industry Survey 2021-2022 11.

It is well known today that the duration of teaching in (not only of) the mother tongue is the most important factor for the educational and life success of students. 34

34 See, eg, UNESCO The Use of Vernacular Languages in Education 11 (already in 1953 pointing out that, psychologically and sociologically speaking, "the best medium for teaching a child is his mother tongue"); Language Rights of Linguistic Minorities: A Practical Guide for Implementation (UN Special Rapporteur on Minority Issues, 2017) 7 ("When the mother tongue is used as the medium of instruction for at least 6-8 years, the results are impressive: enhanced self-confidence, self-esteem and classroom participation by minority children, lower dropout rates, higher levels of academic achievement, longer periods in school, better performance in tests and greater fluency and literacy abilities for minority (and indigenous) children in both the mother tongue and the official or dominant language" (footnotes omitted)). Generally, for an account of the research demonstrating the importance of mother tongue education for the educational and life success of children, see, eg, Baker Foundations of Bilingual Education and Bilingualism; Cummins Language, Power and Pedagogy; Skutnabb-Kangas Linguistic Genocide in Education.

Safeguarding of the Intangible Cultural Heritage in 2003, and a Convention on the Protection and Promotion of the Diversity of Cultural Expressions in 2005. 39

39 Convention for the Safeguarding of the Intangible Cultural Heritage (2003); Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005).

However, international human rights law does protect linguistic human rights. Article 14 of the UN Declaration on the Rights of Indigenous Peoples of 2007 protects the right to education in the mother tongue for indigenous children in public and private schools, within and outside indigenous communities. 41

41 Article 14(1) states, "Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning." Art 14(3) states, "States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language." Art 14(1) and (3) of the UN Declaration on the Rights of Indigenous Peoples (2007).

UN Convention on the Rights of the Child of 1989 guarantees the right of minority and indigenous children "not to be denied" the right, in community with other members of their group, to use their own language. 43

43 Article 30 of the Convention on the Rights of the Child (1989).

If the language model of the Hague Recommendations has essentially been devised for minority (or indigenous) children and young adults, its logic applies more generally to all persons in education, also those speaking the state or dominant language at home or choosing it in education. The Explanatory Note to the Hague Recommendations makes it clear that neither teaching in the state language nor in the minority language only is in accordance with international law – an appropriate mix of languages is required. 45

45 OSCE "Explanatory Note – Hague Recommendations" 14. This mix should even be reflected at individual subject level. The latest research on language of instruction shows that "translanguaging" – the judicious use (dynamic "mix") of the home language with the target language – not only helps learning a second language, but also creates "a more emotionally grounded learning environment" for students. See, eg, Back, Han and Weng 2020 Lang & Educ 387-406 (furnishing evidence of how translanguaging plays a key role in reducing anxiety and improving acquisition of content); Patterson and Gardyne 2022 Environ Sci Proc 1-9 (similarly providing evidence of how translanguaging helps teachers connect with the culture of students, ensure the latter's emotional well-being, explain abstract concepts in an inclusive way, and enhance engagement in learning).

Education in minority or indigenous languages requires textbooks in those languages. Many studies have shown that the availability of books is particularly consistently associated with higher levels of achievement, when compared with other potential correlates of school achievement. 48

48 See Read Where Have All the Textbooks Gone? 33 (referring to this fact).

However, language rights are also relevant for cultural literacy purposes beyond education. Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights of 1966 protects the right to take part in cultural life. 50

50 Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (1966).

The next section examines the interaction of the relevant rules on language and translation of international copyright law, on the one hand, with the rules on language rights of international human rights law, on the other, further contemplating the consequences of the fact that some rules of international law protecting vulnerable cultural groups enjoy a superior status as ius cogens under international law.

4 Harmonious reading, ius cogens, and linguistic genocide

International copyright law needs to be read in the light of international human rights law. This follows from the principle of systemic integration applicable to

the interpretation of treaties in international law. 53

53 See Art 31(3)(c) of the Vienna Convention on the Law of Treaties (1969) (When interpreting a treaty, "[t]here shall be taken into account, together with the context … any relevant rules of international law applicable in the relations between the parties".).

However, the author wishes to make another point here. There is an exception to the rule of the absence of formal hierarchy in international law: a treaty (provision) (but also, for example, an obligation created by an act of an international organisation) may not conflict with a peremptory, an ius cogens norm of international law. These are norms of general (usually customary) international law, 57

57 ILC, Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of General International Law (Jus Cogens), with Commentaries (2002) (hereinafter ILC Draft Conclusions on Jus Cogens) Conclusions 4(a) and 5(1).

permitted. 59

59 ILC Draft Conclusions on Jus Cogens Conclusions 3 and 4(b); Art 53 of the Vienna Convention on the Law of Treaties (1969).

The prohibition of genocide also constitutes ius cogens. 63

63 ILC Draft Conclusions on Jus Cogens Conclusion 23, Annex, (b).

genocide claims. 65

65 Schabas "Cultural Genocide and the Protection of the Right of Existence" 123-124. This notwithstanding, "even after the cultural genocide provisions had been voted out of the Convention, many drafters expressed their belief that the Convention continued to protect a group's cultural existence". Mundorff A Cultural Interpretation of the Genocide Convention 249.

Similarly, Skutnabb-Kangas and Dunbar 69

69 Skutnabb-Kangas Linguistic Genocide in Education xxxi-xxxiii, 202, 314, 316-317, 327, 369, 652; Forms of Education of Indigenous Children as Crimes against Humanity? Expert Paper Prepared for the Permanent Forum on Indigenous Issues UN Doc E/C.19/2008/7 (2008) paras 34-52.

education in its language. 70

70 See Forms of Education of Indigenous Children as Crimes against Humanity? Expert Paper Prepared for the Permanent Forum on Indigenous Issues UN Doc E/C.19/2008/7 (2008) para 44 (discussing force in the form of a "use of ideas").

It is the mens rea, the mental element, of genocide that distinguishes it from other international crimes, such as war crimes or crimes against humanity. Genocide requires dolus specialis or special intent, in the form of the "intent to destroy" a group, to be proven. 74

74 For analyses of the mens rea of genocide, see, eg, Behrens "The Mens Rea of Genocide" 70-96; Schabas Genocide in International Law 241-306.

of perpetrators of that policy or plan, to be established. 76

76 Schabas Genocide in International Law 242-243, 252. Schabas holds that, while such a policy or plan may not be a formal legal requirement of genocide, its existence will effectively have to be established (see at 243-256).

Even in cases where the specific dolus of genocide cannot be established for acts of cultural genocide, the conduct concerned would often still constitute an international crime, namely, a crime against humanity, here in the form of "persecution". 78

78 For some detail on the international crime of persecution, see Cerone "Persecution" 794-798.

5 Copyright reform

International copyright law may well be considered complicit in achieving such linguistic genocide in relation to many vulnerable cultural groups. The Berne

Convention/Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) system, as seen, does not provide for L&Es specifically and adequately catering for the legitimate translation needs of such groups. The Berne Appendix, including its compulsory translation licences mechanism, is dysfunctional. Translation for those that otherwise do not have such access to educational and all other cultural literacy materials in their own language as would be necessary to ensure their survival as a cultural group has consequently been rendered impossible. This could lead one to argue that Article 8 of Berne is void for being in conflict with ius cogens, at least in its generality, because it does not take vulnerable cultural groups into account. Similarly, the Berne Appendix conflicts with ius cogens insofar as its many regulatory restrictions and complex and burdensome administrative procedures render the compulsory licences mechanism useless for endangered language groups needing bulk (and affordable) access to whole works in translation. 82

82 Also Berne's so-called "ten-year regime" of Article 30(2), envisaging early translation rights for users after ten years, an arrangement referred to further below, reflects the conflict with ius cogens, as that specific regime has no genuine significance today anymore. See fns 100-103 and accompanying text below.

One might contend that speakers of endangered languages do have access to works in the public domain that could be translated. Nevertheless, apart from the fact that this argument condones discrimination based on culture or language – as speakers of the world's major languages have access to "millions" of (more affordable) books (those originally written in their language as well as those translated into it from both copyrighted sources as well as sources in the public domain), but speakers of endangered languages only access to "very few" 83

83 See fn 4 above. Hence, the analogous disparity of access to copyright-protected works that previously prevailed for the blind, visually impaired, or otherwise print disabled was considered to be of such a discriminatory nature that states, ten years ago, adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (2013), to ensure equality of access to copyright-protected works for the group concerned.

whose copyright has expired after fifty or seventy years. Especially educational textbooks will be so outdated after such a period that they cannot genuinely contribute towards securing the resilience or survival of any group. Moreover, a reliance by public education systems on what are open educational resources (OER) ab initio, will, for a long time to come, not constitute standard practice, also because many of the leading textbooks are still "the copyrighted ones". By the time OER are more openly embraced, many indigenous groups might have ceased to exist.

Where does this leave us? It would mean that the field of translation into neglected languages is once again effectively unregulated under international copyright law. 84

84 Alternatively, one would have to argue that the legal situation as it prevailed prior to Berne 1971 would have to resume. Apart from general L&Es to copyright holders' rights that did not specifically cater for, but might potentially have benefited, translation in a limited measure, Berne, since its adoption in 1886, in its various versions, had provided for the following translation regimes: a translation right limited to ten years (1886); a translation right granted for the whole period of copyright protection that would, however, be limited to ten years for a particular language if no translation into that language had been effected by the author or with his or her authorisation during the ten years (1896); a translation right granted for the whole period of copyright protection to which countries could express a reservation that would make the 1886 or 1896 arrangement applicable (1908); and a translation right granted for the whole period of copyright protection with regard to which previously made reservations could be carried forward or with regard to which new members to the Berne Union could declare their intention to apply the 1896 arrangement (1928, 1948, 1967). The latter also reflects the current position under Berne 1971. For a historical account of these arrangements, see the sources referred to in fn 6 above. Hence, even under these arrangements, translation could, at best, be effected ten years after the publication of a work. As has correctly been pointed out, this waiting period is too long, certainly for "scientific and technical books and learning materials". Talagala Copyright Law and Translation 135. As for the neglected languages, the conflict with ius cogens would essentially remain.

Ricketson and Ginsburg hold that the provisions of Berne are inconclusive as to the exact relationship between reproductions and translations under the Convention, that is, whether translating a work amounts to reproducing it. 85

85 Ricketson and Ginsburg International Copyright and Neighbouring Rights paras 11.35 ff, 13.83.

imitative, potentially contaminating or false". 91

91 Venuti 1995 The Translator 4.

Interestingly, there exist historical examples demonstrating that translation can also be seen differently. In 1853, a US court, in the case of Stowe v Thomas, held with regard to an unauthorised German translation, published in the USA, of a popular book in English that the translation did not infringe copyright as it merely transcribed ideas. In the words of the court, "[a] translation may, in loose phraseology, be called a transcript or copy of … thoughts or conceptions, but in no correct sense can it be called a copy of [a] book". 93

93 Stowe v Thomas, Circuit Court, ED Pennsylvania, Oct 1853, 23 F Cas 201 (1853) 208. See also the discussion of the case by Aufderheide and Jaszi Reclaiming Fair Use 29-30, the authors describing the court's reasoning as "amazing".

highly transformative in nature. 97

97 See Basalamah "Translation Rights and the Philosophy of Translation" 122 (stating that translation is "doubly transformative … [o]n the one hand, the language (the form) of the work changes, and, on the other, the work passes from one set of culturally-influenced potential interpretations or readings to another, thereby adding a supplementary dimension to the original"); Ketzan 2007 Tul J Tech & Intell Prop 232 ("Translation is certainly transformative, insofar as it transforms words from one language to another."); Shaver 2014 Wash U L Rev 157 ("'[T]ransformative' use … is generally interpreted to require altering the underlying work in a way that adds new meaning and message. … Translation has not yet been recognized as a form of transformative use under U.S. copyright law, but arguably it should be."); Venuti 1995 The Translator 18-19 ("[T]he peculiar kind of writing involved in any translation forces a distinction[;] … [the] linguistic and cultural features are sufficiently distinct to permit [original and translation] to be considered autonomous works.").

Consequently, how should copyright law provide for translation generally and for translation into endangered languages specifically? One could think of affordable translation licences for commercial and non-commercial translation into any language, automatically granted on (easy) application under a statutory collective licensing scheme where standard rates (which may be higher for commercial translations) are negotiated between a regulatory body and right holders, or determined by independent royalty judges. 98

98 Making a similar suggestion, see Shaver 2014 Wash U L Rev 156 (proposing an arrangement similar to the US statutory licensing scheme for musical compositions and recordings).

As an alternative to such a statutory collective licensing scheme, copyright law could provide that exclusive translation rights regarding a work terminate for a specific language, if (say) five or seven years, three years in the case of educational textbooks, after the first publication of the original work, no translation into that language has been effected by the author or with his or her

authorisation. 100

100 Making a similar suggestion, see Ncube "Calibrating Copyright for Creators and Consumers" 274-275 (proposing "[r]educing the duration of the translation right"). Also Venuti 1995 The Translator 19-20 approves of this idea and recommends a term of five years. If, within the term, a translation into a specific language has been effected by the author or with his or her authorisation, the duration of the translation right with regard to that language would remain that of the full duration of copyright.

In addition to either of the above schemes, or perhaps even as an alternative to these, copyright law should accord translated texts, or text parts, robust protection as a form of fair use or fair dealing. The reference here is to statutory L&Es that permit (mostly) unremunerated use without authorisation within legally defined bounds. Protection should be particularly robust for translations into neglected languages. 104

104 See Basalamah 2000 IDEA: J L & Tech 535 (arguing that translations into the languages of least developed countries should be covered by fair use); Shaver 2014 Wash U L Rev 157 ("[F]air use doctrine might be developed to accord greater freedom for translations into neglected languages.").

interest". 106

106 Reichman and Okediji 2012 Minn L Rev 1386.

A translation does not copy in the sense of repeating that text verbatim; rather, the translation enters into a mimetic relation that inevitably deviates from the foreign language by relying on target-language approximations. Even though a contemporary translation is required to imitate the entire foreign text, their linguistic and cultural features are sufficiently distinct to permit them to be considered autonomous works.

This serves to confirm the point made earlier, namely that translations are highly transformative in nature. Accordingly, the translation of whole works for educational or cultural literacy purposes, specifically if into a neglected language, even if for commercial purposes, could often be held covered by fair use. Whereas fair use means a broad open clause exemption to copyright protection, covering uses that may be considered fair, fair dealing enumerates more narrowly, notably in respect of the purposes, what may be considered fair

forms of use. In principle, however, "the two terms are synonymous". 113

113 Dean Handbook of South African Copyright Law 1–95,-1–96, para 9.2.3.

Three further points need to be made. Firstly, the above suggestions for copyright reform may, at first sight, appear to treat commercial translations into endangered languages too benevolently. However, it should be remembered that also commercial translations can serve the public interest in education and cultural literacy. 114

114 By way of analogy, Reichman and Okediji 2012 Minn L Rev 1440-1441 argue that a broad research exemption in copyright law should not distinguish between commercial and non-commercial research because "basic scientific research results are … a public … good".

Secondly, translations into neglected languages will only be useful if they can be accessed and used or reused for free or affordably and without undue restrictions flowing from copyright law, licensing, or technical protection measures (digital locks and fences). Ncube says with regard to translations into local languages effected under schemes such as those discussed above that provision ought to be made for copyright eligibility exclusions to enable the creation of a commons. 115

115 Ncube "Calibrating Copyright for Creators and Consumers" 275-276.

Thirdly, limitations and exceptions to the exclusive rights of right holders must comply with the three-step test of international copyright law. Hence, limitations and exceptions would, firstly, have to be confined to certain "special" cases, secondly, not conflict with the normal exploitation of a work, and, thirdly, not unreasonably prejudice the legitimate interests of right holders. 116

116 See fns 8 and 11 above.

test, must be read in the light of international human rights law. 117

117 See Section 4, fn 53 and accompanying text, above.

What then would be the implications of the three-step test for the various schemes of translation rights and limitations and exceptions presented above? Insofar as they address translation into languages that are not endangered, it is submitted that, without adjudging this in any detail here, but when duly taking into account relevant human rights norms, the above schemes could potentially be considered compliant with the three-step test. Insofar as they address translation into languages that are endangered (and for these languages far more drastic reforms have been urged above), it is important to appreciate that the suggested regulations cannot be considered to be subject to the three-step test. As international copyright law, to the extent that it purports to regulate translation into endangered languages, conflicts with ius cogens – thus the argument made in this article – the relevant provisions will, to that extent, be void. This means that also the three-step test loses its applicability.

6 Language and decoloniality of knowledge and education in Africa

It is often said that in many developing countries there is "no reading culture" and that, for that reason, it does not make much sense to produce books for these markets. This argument is particularly also made for Africa, alleging that,

in African countries, the oral tradition is prevalent. 121

121 See Edwards and Ngwaru 2011 J Multiling & Multicult Dev 442 and Shaver 2014 Wash U L Rev 130-131 (all referring to the fact that this argument is often (falsely) made).

The translation of works holds an enormous potential to address the dearth of reading materials in African languages. 127

127 See, generally, Edwards and Ngwaru 2011 Int J Biling Educ & Biling (confirming this potential).

countries holds a danger of remotely perpetuating dominance and colonialism, as such translations may also involve the advocacy of Western ways of thought and ways of life. 132

132 Bannerman International Copyright and Access to Knowledge 99.

The assertion that Africans do not have a reading culture and that, for that reason, African book markets can largely be ignored reveals a latent racism. 137

137 See Shaver 2014 Wash U L Rev 131 (remarking that there is "a thinly veiled racism lurking behind the invocation of 'culture'").

should strive. It is the particularist model of a very specific type of society with very specific values. 140

140 Manthalu and Waghid "Decoloniality as a Viable Response" 34.

What then would a decolonisation of education entail? The goal must be the installation of an open-ended curriculum that provides room for a mix of epistemologies, in which the local epistemology enjoys prominence of place. 143

143 Roughly in this sense, Manthalu and Waghid "Decoloniality as a Viable Response" 35.

the idea of individual autonomy, autonomy in Africa is always restrained by the responsibility towards others. 148

148 Manthalu and Waghid "Decoloniality as a Viable Response" 33.

7 Online machine translation and the future

As we are entering the fourth industrial revolution, the translation of works will only gain traction in the future. Machine translation has been around for some time. This makes translating texts easier than ever before. As yet, it is uncertain whether machines will ever produce texts that satisfy the criteria of not only being good, but of also achieving the vernacularisation just referred to – but maybe they will. Already in 2007, Ketzan 150

150 Ketzan 2007 Tul J Tech & Intell Prop 205.

translations where right holders have not expressly reserved their copyright? 154

154 See Ketzan 2007 Tul J Tech & Intell Prop 229-232 (suggesting implied licences as a potential defence).

However, already now, translation rights and limitations and exceptions require attention. Urgent attention is required to address facilitating translation into the neglected languages. This is necessary to ensure linguistic human rights in education and for cultural literacy, to protect linguistic and cultural diversity, and to secure the survival of vulnerable cultural groups. Many neglected languages face extinction, one such language "vanishing" every 14 days. 158

158 Rymer 2012 National Geographic 60.

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Case law

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Campbell v Acuff-Rose Music Inc 510 US 569 (1994)

López-Álvarez v Honduras (Merits, Reparations, Costs) IACtHR Ser C No 141 (1 Feb 2006)

Stowe v Thomas, Circuit Court, ED Pennsylvania, Oct 1853, 23 F Cas 201 (1853)

Legislation

17 US Code (Copyright Law of the United States and Related Laws) (USA)

Copyright, Designs and Patents Act, 1988 (UK)

International law instruments

Agreement on Trade-Related Aspects of Intellectual Property Rights (1995)

Berne Convention for the Protection of Literary and Artistic Works (1971)

Convention for the Safeguarding of the Intangible Cultural Heritage (2003)

Convention on the Prevention and Punishment of the Crime of Genocide/ Genocide Convention (1948)

Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)

Convention on the Rights of the Child (1989)

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1992)

Framework Convention for the Protection of National Minorities (1995)

International Covenant on Economic, Social and Cultural Rights (1966)

Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (2013)

Rome Statute of the International Criminal Court (1998)

UN Declaration on the Rights of Indigenous Peoples (2007)

Vienna Convention on the Law of Treaties (1969)

WIPO Copyright Treaty (1996)

Other international legal materials

Advisory Committee on the Framework Convention for the Protection of National Minorities, Thematic Commentary No 3: The Language Rights of

Persons Belonging to National Minorities under the Framework Convention Doc ACFC/44DOC(2012)001 rev (24 May 2012)

CESCR, General Comment No 21: Right of Everyone to Take Part in Cultural Life (Art 15(1)(a) of the ICESCR) UN Doc E/C.12/GC/21 (21 Dec 2009)

ComRC, General Comment No 11: Indigenous Children and Their Rights under the Convention UN Doc CRC/C/GC/11 (12 Feb 2009)

Forms of Education of Indigenous Children as Crimes against Humanity? Expert Paper Prepared for the Permanent Forum on Indigenous Issues (Dunbar R, Skutnabb-Kangas T et al) UN Doc E/C.19/2008/7 (11 Feb 2008)

Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (Koskenniemi M) UN Doc A/CN.4/L.682 (13 Apr 2006)

Hague Recommendations Regarding the Education Rights of National Minorities (1996) in OSCE High Commissioner on National Minorities, The Hague Recommendations Regarding the Education Rights of National Minorities & Explanatory Note (OSCE Office of the High Commissioner on National Minorities The Hague 1996) 5-8

ILC, Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of General International Law (Jus Cogens), with Commentaries (2002), adopted by the ILC at its 73rd Session, in 2022, and contained in Report of the International Law Commission, UN Doc A/77/10 (2022), paras 43-44.

Language Rights of Linguistic Minorities: A Practical Guide for Implementation (Handbook by the UN Special Rapporteur on Minority Issues, March 2017) https://www.ohchr.org/sites/default/files/Documents/Issues/Minorities/SR/LanguageRightsLinguisticMinorities_EN.pdf

OHCHR, Human Rights Legal Framework and Indigenous Languages, International Expert Group Meeting on Indigenous Languages Doc PFII/2008/EGM1/15 (Jan 2008)

Report of the Special Rapporteur in the Field of Cultural Rights, Copyright Policy and the Right to Science and Culture (Shaheed F) UN Doc A/HRC/28/57 (24 Dec 2014)

UNESCO Guidelines on Language and Education (2003) in UNESCO Education in a Multilingual World (UNESCO Position Paper) (2003) 28-33

UNESCO, Language Vitality and Endangerment, UNESCO Ad Hoc Expert Group on Endangered Languages Doc CLT/CEI/DCE/ELP/PI/2003/1 (Mar 2003)

List of Abbreviations