Prof. Faith Majekolagbe on copyright law in today’s world

New publications shed light on Indigenous translation and online compensation

Benjamin Lof - 05 September 2023

Assistant Professor Faith Majekolagbe of the University of Alberta Faculty of Law has timely new work published in two academic journals this month.

The right to translation

“Copyright Law, Access to Translations, and Indigenous Peoples: Towards Inclusive Education and Development in Australia and Beyond” is co-authored by Majekolagbe and Kunle Ola of Australian Catholic University, and features in the latest edition of Indigenous Law Journal.

In the context of preserving Indigenous languages and cultures which are under threat worldwide, the article examines Indigenous Australians’ lack of access to copyrighted works and inclusive education in their own languages, which constitutes a significant barrier to their development.

“Copyright law can play a role in enabling access to copyrighted works and inclusive education for Indigenous peoples,” the article states. “However, in many countries, the copyright system does not provide an enabling framework for addressing legal barriers to translations.”

Majekolagbe and Ola show how Australia’s copyright framework can and should be adapted in order to facilitate translation of works into Indigenous languages for educational purposes.

They also look at international copyright framework and propose reforms which would improve access to translated works for Indigenous peoples around the world. 

Ultimately, the article “argues for a translation exception at both national and international levels to overcome the current access and translation restrictions.”

The authors identify flexibilities within national and international copyright frameworks which would bring those exceptions forward and help deliver more works to Indigenous peoples in their own languages. 

“Translation facilitates access to knowledge, which is crucial to quality education for Indigenous peoples,” Majekolagbe and Ola contend. “For all to have equal access to knowledge embedded in copyrighted works, access must be possible in a language beyond the language in which the work was originally published.”

In favour of an ‘umbrella solution’

Majekolagbe also features in the new issue of American Journal of International Law, with her article titled, “Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association.”

The publication recaps the Supreme Court of Canada's 2022 decision that, under the World Intellectual Property Organization Copyright Treaty, individual states can but are not required to provide additional rights for the online publication of an author’s work.

The SCC was asked to clarify in SOCAN v. ESA after the Copyright Board of Canada interpreted Section 2.4(1.1) of the Copyright Act to mean that making a work available online should be compensated separately from streaming or downloading a work, effectively meaning two royalties would be paid to the author.

Using an ‘umbrella solution,’ which Majekolagbe argues is the preferable path, the court’s decision opted for a balance between authors’ and users’ rights in copyright law, meaning the same scope of an author’s rights regarding creative works distributed in physical forms should apply to works distributed online to ensure technological neutrality in the scope of rights granted to authors and the application of copyright rules.

“The umbrella solution involves the use of a combination of existing rights in a domestic copyright law,” the article states. “This is as opposed to granting a new right to copyright owners (‘additional right solution’)… at the expense of users as it imposes an additional cost of access in the online environment that is absent when works are distributed in physical forms.”

More broadly, Majekolagbe notes that “the decision affirms that international copyright treaties afford states some discretion in deciding how to maintain the right balance between private interests and public interests in copyrighted works.”