Promoting Education Rights In South African Copyright Reform

by Eve Gray and Desmond Oriakhogba – first published for Intellectual Property Watch under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.)by Eve Gray and Desmond Oriakhogba – first published for Intellectual Property Watch under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.)

The publishing industry is making a mad dash to defeat South Africa’s adoption of a fair use rights in Parliament on Wednesday. Their latest effort includes an alarmist petition being circulated among authors.  It is interesting to note that, while one of the most persistent and loud complaints in these protests has been that the drafting of the new legislation was badly handled, our perception, along with a number of experienced observers in the process, has been that the level of discussion and debate; the degree of participation and engagement of government representatives; and the consensus on the needs to be addressed, was of a higher standard and the debate much better informed than in previous such attempts at reform over the past decades.  It should also be noted that, while it is true that international publishers might have much to lose in the new law, local publishers, authors and students have much to gain. It is time to lower the heat and concentrate on the facts and context of what is before Parliament.

As for the persistent complaints about the proposal to adopt a fair use regime, rather than persisting with Fair Dealing, it needs to be noted that in a digital age, this is increasingly becoming the default position internationally, as digital media demand flexibility and openness to new developments.

Copying for education in South Africa

The core of the criticism being mounted by international publishers and their local affiliates is that South Africa – the most unequal country in the world – should not broaden the education rights for teachers and students. To assess this claim, one needs to know about both the proposed change in law and the current practices in South Africa.

Since its enactment in the 1970s, South Africa’s copyright law has always had strong rights to use copyrighted materials for education and study purposes. The education rights in the current law state:

12(4) (4) The copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work.

In addition to this right of educators, learners have a separate right to make private copies to facilitate their learning by virtue of the existing “fair dealing” right:

(1) Copyright shall not be infringed by any fair dealing with a literary or musical work-

(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;

Throughout Apartheid these provisions were used liberally to make copies of excerpts, and often whole books, to facilitate education in South Africa. With growing frequency in the 1970s and 80s, the construction of coursepacks and the copying of foreign books not available in South Africa were made as a “set of practical workarounds against censorship, the boycott, high costs, and inadequate distribution systems” (Gray and Czerniewicz 2018 https://mitpress.mit.edu/books/shadow-libraries ). In the more radical universities, these coursepacks also served to provide access to research content that challenged the apartheid regime, offering a different vision to the formally published textbooks.

In the new South Africa, these practices continued, with universities regularly supplying coursepacks of copied excerpts without licensing them from any copyright holder. Things began changing with an aggressive campaign by rights holders in the 2000s.

After apartheid, the primary policy goal of the publishing industry was a collective licensing agreement that would establish a flat fee for all photocopying in the universities. This process was undertaken by the DALRO—the Dramatic and Literary Rights Organization. As before, the negotiations were turbulent. DALRO threatened massive penalties for university departments that had embraced coursepack copying during the academic boycott. Protests erupted across the university sector, especially from the black rural universities that in many cases still stocked libraries with photocopied books and journal articles. Nonetheless, strong government support and EU funding granted to the poorer universities as an inducement produced agreement in 1997–1998. The blanket licensing agreement was fully implemented by 2004–2005 (Gray and Czerniewicz 2018, 133).

The DALRO blanket license gives authorization, in exchange for a per pupil fee, for the creation of multiple copies of articles for coursepacks, placement on the library short-term loan system, and storage on electronic reserves (Gray and Czerniewicz 2018, 133). It authorizes, in other words, what universities were largely doing without payment until then, raising educational costs to schools and students.

Access to education materials in the new South Africa continues to be incredibly limited, largely because of the cost of materials. Gray and Czerniewicz recount:

  • Over 40 percent of households headed by black South Africans have annual incomes under R33,000 for a family of five, while text book costs frequently exceed R6,000 a year. An imported textbook could therefore retail at a price that cost as much as some months of food for a family in the lowest percentile of the population.
  • Bursaries for books for university students only cover a fraction of the cost of books — commonly between R1,000 and R2,000 per semester.
  • Publishers, recognizing that all students do not purchase all the prescribed books, often stock for as few as 35 percent of students in a course.

70 percent of higher education students obtain the majority of their materials through informal digital sharing networks with other students. The students participating in these networks, the research made clear, were not ‘pirates’, but rather students concerned to succeed in their education but faced with severe economic and practical constraints. One student, asked about whether he had any fears about illegal downloading, answered: “No, worried about graduating.”

According to research by Juta Publishers, “a main cause of student underachievement is failure to buy textbooks.” And the underachievement in South Africa is marked. Just 25 percent of face-to-face university students, and 15 percent of distance education students, graduate on time.

The new education right

It is in this context that the Department of Trade and Industry was faced, in its drafting of a new Copyright Act, with deciding whether and how to change the existing rights of teachers and students to make use of copyrighted works for educational purposes. The changes being introduced are modest compared to the acuteness of the need.

The Bill makes a just and reasonable effort to clarify the degree to which teachers and students can lawfully make copies of excerpts to facilitate education. The practices the bill permits are more restricted than those routinely followed under Apartheid, and more liberal than are practiced at some universities that license all copying. It will usher in very little change in most primary schools where text book purchases supplemented by limited copies of excerpts of other works is the norm.

Section 12D of the Bill provides:

“a person may make copies of works or recordings of works, including broadcasts, for the purposes of educational and academic activities” as long as the “copying does not exceed the extent justified by the purpose.”

This part of the law appears to usher in no change from the existing standard, other than to clarify that it applies to all works (including, e.g., an audio-visual work).

The new aspects proposed in the Bill provide more specificity as to what educators can do in sharing materials with students, the most important of which is the explicit permission to create course packs of excerpts:

Educational institutions may incorporate excerpts of works, “to the extent justified by the purpose,” “in printed and electronic course packs, study packs, resource lists and in any other material to be used in a course of instruction or in virtual learning environments, managed learning environments, virtual research environments or library environments hosted on a secure network and accessible only by the persons giving and receiving instruction at or from the educational establishment making such copies.”

Copyright Amendment Bill Section 12D(2)

The law specifically provides that course packs or other forms of copying may not “incorporate the whole or substantially the whole of a book or journal issue, or a recording of a work” under normal circumstances. (12D(2)). It authorizes copying of full works only if “a licence to do so is not available from the copyright owner, collecting society, an indigenous community or the National Trust on reasonable terms and conditions”; “where the textbook is out of print”; “where the owner of the right cannot be found”; or where the right holder is engaged in anticompetitive conduct in the form of excessive pricing. (Copyright Amendment Bill Section 12D(3)-(4). In each case, no copying is permitted for commercial gain, (12D(5)), and the copying must be restricted to the “extent justified by the purpose.”

Supporting schools, students and local publishers and authors

The proposed new law does not ban the DALRO blanket license. But it will pressure DALRO to offer more in the license than the law makes clear can already be provided for free. Most importantly, the DALRO license, or an individual site or specific work license, may be useful to schools that seek to copy whole or substantial parts of works, especially high priced foreign works in subjects for which there is little South African production. It will liberate schools from paying fees for mere extracts, and will strengthen the hands of schools in negotiating prices for licenses with DALRO. All of this should enable educational resource budgets to stretch further and toward more uses of local produced works.

The new law should be in the interests of local, as opposed to foreign, publishers and authors. Latest publically available figures [pdf] show that DALRO collected R48 million as royalties from reprographic reproduction licenses. Collection from tertiary institutions accounted for a substantial part (R38 million) of the royalties. Currently the majority of licensing revenue goes to foreign publishers and authors. This is confirmed by the fact that the list of academic publishers represented by DALRO is mainly local subsidiaries of foreign publishers. The forgoing is further confirmed by an earlier report of the Copyright Review Commission as follows:

“in the 2010 calendar year, the total amount collected from licensing was around $4 million (R28,582,389) and the total amount distributed was $3 million (R21,601,415), of which $1.2 million (R9,477,661) was distributed to local rights holders. The low returns to domestic rights holders, moreover, have led to criticism that the system favors international publishers: most of the licensing revenue sent to DALRO leaves the country” (Gray and Czerniewicz 2018, 134, quoting Copyright Review Commission).

The converse is true with book purchasing, especially in the large market for school books. When budgets are spent on books, instead of licensing, the majority goes to local publishers and authors (PASA 2013, reporting that 60 percent of text books used in South African schools are locally produced). Thus, a policy to reorient resources toward local interests should seek to reduce licensing costs of education to make room for local book purchases, which the law does.

When Canada recently expanded its fair dealing rights to include educational purposes, the general trend was for schools and universities to shift from blanket licenses that required fees for copies of small excerpts toward a mix of site licenses for specific uses and works and an increase in book purchasing, with particular benefits to local Canadian publishers (Geist 2018, http://www.michaelgeist.ca/2018/05/copyrightfairdealingeducationpartone/). If the same occurs in South Africa, local authors and local publishers stand to gain.

Finally, the new law may help promote the use of so-called open educational resources. These are materials developed under a different model – where authors are paid up front for their work and the product is made freely available without copyright restrictions – permitting students and teachers to change and adapt the works freely. The recent announcement of the Digital Open Textbooks for Development at UCT, with substantial grants on offer for their production is just one example of a radically changing university textbook environment.

One barrier to the use of open educational resources can be legal ambiguity around the extent to which such texts can include excerpts of other works. The new educational right combined with the proposed adoption of a fair use model will make clear that open educational resources producers have a green light to produce the best possible materials. These provisions are in line with the Department of Education’s 2013 policy documents calling for more locally relevant materials and wider use of open educational resources and open licensing to address the chronic dilemmas of high cost and poor access (DHET 2013, 54–60; Gray and Czerniewicz 108, 142-3).

At its foundation, the Copyright Amendment Bill takes appropriate incremental steps to clarify the educational rights of teachers and every student. It should benefit, not harm, local publishers. It deserves all of our praise.

The publishing industry is making a mad dash to defeat South Africa’s adoption of a fair use rights in Parliament on Wednesday. Their latest effort includes an alarmist petition being circulated among authors.  It is interesting to note that, while one of the most persistent and loud complaints in these protests has been that the drafting of the new legislation was badly handled, our perception, along with a number of experienced observers in the process, has been that the level of discussion and debate; the degree of participation and engagement of government representatives; and the consensus on the needs to be addressed, was of a higher standard and the debate much better informed than in previous such attempts at reform over the past decades.  It should also be noted that, while it is true that international publishers might have much to lose in the new law, local publishers, authors and students have much to gain. It is time to lower the heat and concentrate on the facts and context of what is before Parliament.

As for the persistent complaints about the proposal to adopt a fair use regime, rather than persisting with Fair Dealing, it needs to be noted that in a digital age, this is increasingly becoming the default position internationally, as digital media demand flexibility and openness to new developments.

Copying for education in South Africa

The core of the criticism being mounted by international publishers and their local affiliates is that South Africa – the most unequal country in the world – should not broaden the education rights for teachers and students. To assess this claim, one needs to know about both the proposed change in law and the current practices in South Africa.

Since its enactment in the 1970s, South Africa’s copyright law has always had strong rights to use copyrighted materials for education and study purposes. The education rights in the current law state:

12(4) (4) The copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work.

In addition to this right of educators, learners have a separate right to make private copies to facilitate their learning by virtue of the existing “fair dealing” right:

(1) Copyright shall not be infringed by any fair dealing with a literary or musical work-

(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;

Throughout Apartheid these provisions were used liberally to make copies of excerpts, and often whole books, to facilitate education in South Africa. With growing frequency in the 1970s and 80s, the construction of coursepacks and the copying of foreign books not available in South Africa were made as a “set of practical workarounds against censorship, the boycott, high costs, and inadequate distribution systems” (Gray and Czerniewicz 2018 https://mitpress.mit.edu/books/shadow-libraries ). In the more radical universities, these coursepacks also served to provide access to research content that challenged the apartheid regime, offering a different vision to the formally published textbooks.

In the new South Africa, these practices continued, with universities regularly supplying coursepacks of copied excerpts without licensing them from any copyright holder. Things began changing with an aggressive campaign by rights holders in the 2000s.

After apartheid, the primary policy goal of the publishing industry was a collective licensing agreement that would establish a flat fee for all photocopying in the universities. This process was undertaken by the DALRO—the Dramatic and Literary Rights Organization. As before, the negotiations were turbulent. DALRO threatened massive penalties for university departments that had embraced coursepack copying during the academic boycott. Protests erupted across the university sector, especially from the black rural universities that in many cases still stocked libraries with photocopied books and journal articles. Nonetheless, strong government support and EU funding granted to the poorer universities as an inducement produced agreement in 1997–1998. The blanket licensing agreement was fully implemented by 2004–2005 (Gray and Czerniewicz 2018, 133).

The DALRO blanket license gives authorization, in exchange for a per pupil fee, for the creation of multiple copies of articles for coursepacks, placement on the library short-term loan system, and storage on electronic reserves (Gray and Czerniewicz 2018, 133). It authorizes, in other words, what universities were largely doing without payment until then, raising educational costs to schools and students.

Access to education materials in the new South Africa continues to be incredibly limited, largely because of the cost of materials. Gray and Czerniewicz recount:

  • Over 40 percent of households headed by black South Africans have annual incomes under R33,000 for a family of five, while text book costs frequently exceed R6,000 a year. An imported textbook could therefore retail at a price that cost as much as some months of food for a family in the lowest percentile of the population.
  • Bursaries for books for university students only cover a fraction of the cost of books — commonly between R1,000 and R2,000 per semester.
  • Publishers, recognizing that all students do not purchase all the prescribed books, often stock for as few as 35 percent of students in a course.

70 percent of higher education students obtain the majority of their materials through informal digital sharing networks with other students. The students participating in these networks, the research made clear, were not ‘pirates’, but rather students concerned to succeed in their education but faced with severe economic and practical constraints. One student, asked about whether he had any fears about illegal downloading, answered: “No, worried about graduating.”

According to research by Juta Publishers, “a main cause of student underachievement is failure to buy textbooks.” And the underachievement in South Africa is marked. Just 25 percent of face-to-face university students, and 15 percent of distance education students, graduate on time.

The new education right

It is in this context that the Department of Trade and Industry was faced, in its drafting of a new Copyright Act, with deciding whether and how to change the existing rights of teachers and students to make use of copyrighted works for educational purposes. The changes being introduced are modest compared to the acuteness of the need.

The Bill makes a just and reasonable effort to clarify the degree to which teachers and students can lawfully make copies of excerpts to facilitate education. The practices the bill permits are more restricted than those routinely followed under Apartheid, and more liberal than are practiced at some universities that license all copying. It will usher in very little change in most primary schools where text book purchases supplemented by limited copies of excerpts of other works is the norm.

Section 12D of the Bill provides:

“a person may make copies of works or recordings of works, including broadcasts, for the purposes of educational and academic activities” as long as the “copying does not exceed the extent justified by the purpose.”

This part of the law appears to usher in no change from the existing standard, other than to clarify that it applies to all works (including, e.g., an audio-visual work).

The new aspects proposed in the Bill provide more specificity as to what educators can do in sharing materials with students, the most important of which is the explicit permission to create course packs of excerpts:

Educational institutions may incorporate excerpts of works, “to the extent justified by the purpose,” “in printed and electronic course packs, study packs, resource lists and in any other material to be used in a course of instruction or in virtual learning environments, managed learning environments, virtual research environments or library environments hosted on a secure network and accessible only by the persons giving and receiving instruction at or from the educational establishment making such copies.”

Copyright Amendment Bill Section 12D(2)

The law specifically provides that course packs or other forms of copying may not “incorporate the whole or substantially the whole of a book or journal issue, or a recording of a work” under normal circumstances. (12D(2)). It authorizes copying of full works only if “a licence to do so is not available from the copyright owner, collecting society, an indigenous community or the National Trust on reasonable terms and conditions”; “where the textbook is out of print”; “where the owner of the right cannot be found”; or where the right holder is engaged in anticompetitive conduct in the form of excessive pricing. (Copyright Amendment Bill Section 12D(3)-(4). In each case, no copying is permitted for commercial gain, (12D(5)), and the copying must be restricted to the “extent justified by the purpose.”

Supporting schools, students and local publishers and authors

The proposed new law does not ban the DALRO blanket license. But it will pressure DALRO to offer more in the license than the law makes clear can already be provided for free. Most importantly, the DALRO license, or an individual site or specific work license, may be useful to schools that seek to copy whole or substantial parts of works, especially high priced foreign works in subjects for which there is little South African production. It will liberate schools from paying fees for mere extracts, and will strengthen the hands of schools in negotiating prices for licenses with DALRO. All of this should enable educational resource budgets to stretch further and toward more uses of local produced works.

The new law should be in the interests of local, as opposed to foreign, publishers and authors. Latest publically available figures [pdf] show that DALRO collected R48 million as royalties from reprographic reproduction licenses. Collection from tertiary institutions accounted for a substantial part (R38 million) of the royalties. Currently the majority of licensing revenue goes to foreign publishers and authors. This is confirmed by the fact that the list of academic publishers represented by DALRO is mainly local subsidiaries of foreign publishers. The forgoing is further confirmed by an earlier report of the Copyright Review Commission as follows:

“in the 2010 calendar year, the total amount collected from licensing was around $4 million (R28,582,389) and the total amount distributed was $3 million (R21,601,415), of which $1.2 million (R9,477,661) was distributed to local rights holders. The low returns to domestic rights holders, moreover, have led to criticism that the system favors international publishers: most of the licensing revenue sent to DALRO leaves the country” (Gray and Czerniewicz 2018, 134, quoting Copyright Review Commission).

The converse is true with book purchasing, especially in the large market for school books. When budgets are spent on books, instead of licensing, the majority goes to local publishers and authors (PASA 2013, reporting that 60 percent of text books used in South African schools are locally produced). Thus, a policy to reorient resources toward local interests should seek to reduce licensing costs of education to make room for local book purchases, which the law does.

When Canada recently expanded its fair dealing rights to include educational purposes, the general trend was for schools and universities to shift from blanket licenses that required fees for copies of small excerpts toward a mix of site licenses for specific uses and works and an increase in book purchasing, with particular benefits to local Canadian publishers (Geist 2018, http://www.michaelgeist.ca/2018/05/copyrightfairdealingeducationpartone/). If the same occurs in South Africa, local authors and local publishers stand to gain.

Finally, the new law may help promote the use of so-called open educational resources. These are materials developed under a different model – where authors are paid up front for their work and the product is made freely available without copyright restrictions – permitting students and teachers to change and adapt the works freely. The recent announcement of the Digital Open Textbooks for Development at UCT, with substantial grants on offer for their production is just one example of a radically changing university textbook environment.

One barrier to the use of open educational resources can be legal ambiguity around the extent to which such texts can include excerpts of other works. The new educational right combined with the proposed adoption of a fair use model will make clear that open educational resources producers have a green light to produce the best possible materials. These provisions are in line with the Department of Education’s 2013 policy documents calling for more locally relevant materials and wider use of open educational resources and open licensing to address the chronic dilemmas of high cost and poor access (DHET 2013, 54–60; Gray and Czerniewicz 108, 142-3).

At its foundation, the Copyright Amendment Bill takes appropriate incremental steps to clarify the educational rights of teachers and every student. It should benefit, not harm, local publishers. It deserves all of our praise.

The Swamp Beneath the Sand – Cape Town’s Water Crisis and the Question of Open Data


One thinks of Coleridge’s Ancient Mariner: “Water, water everywhere, nor any drop to drink.” Cape Town is a city surrounded by water: a peninsula at the southernmost tip of Africa, all around are vast expanses of clear blue and turquoise sea – scenically one of the most beautiful cities in the world. Its most striking physical feature is an imposing mountain range rising in the centre of the city, with numerous mountain streams running down it, to eventually drain into the sea. It is associated with water – that is why the Khoisan, the first people of this lovely peninsula called it //Hui !Gaeb,”, the place where clouds gather. Another phrase associated with the early city is its Khoisan description as the ‘place of sweet waters’, hence its choice as a watering place for ships sailing from the East to Europe, the premise for the first colonial settlements.
It is therefore startling to find the city now in a position in which it is threatened with becoming the first major city in the world to completely run out of water. Using disaster rhetoric, the city council has coined the phrase ‘Day Zero’ for the day on which the piped water supply to the city will be turned off, as the catchment areas run out of water, and citizens will be obliged to queue for water at water dispensing sites, each dealing with tens of thousands of people per day, to claim their limit of 25 litres per person per day.
A striking feature of the way this crisis has played out is the extent to which the citizens of the city, who could have expected their elected government, at the different levels – city, provincial and national- to have taken care to ensure that they had adequate water supplies, instead found themselves, as consumers, cast as the villains. The citizens of the city were subjected to a sustained rhetoric of vilification for reckless consumption of water, a startling reversal of the usual order. The problem was, the city government announced, that the wealthy end of the urban community was using too much water, in the prosperous suburban areas which, they said, were responsible for 60% of water use. And in general the wealthy end of the urban population was careless with water, consuming it recklessly. This from a city that has never, for example, encouraged, or provided subsidies for water-saving interventions, like boreholes and well points, or for the installation of rainwater tanks to reduce reliance on potable water use; rather, for a long time it prohibited them.
The residents were by no means blameless in their water consumption habits – it is overdue for much more attention to be paid to the use of what is now a scarce resource and for more attention to water use, first of all through more rational water consumption behaviour, paying attention to its scarcity, but also to more rational water supply systems, for example through the recycling of waste water for non-potable uses. The citizenry has become much more water aware and water consumption had dropped radically, something that will have to be maintained in the water-scarce environment that will now be a permanent feature of life in the city.
The next city tactic was scare language- ‘Day Zero”, with its dystopian vision of a city semi-paralysed by queues of tens of thousands having to queue to lug home a dead weight of water every day in order to stay alive, with major disruption in business and the normal running of the city. Then there was the language of apocalypse: the ‘worst drought in 30 years’ became ‘the worst drought in 50 years’ finally landing up as ‘the worst drought in 1,000 years’ (even though the there are certainly not weather records to be able to make that claim).

So what went wrong? And where does the truth lie?

There were a number of factors that contributed to this dire situation. One was certainly the massive expansion of the city’s population that has taken place over the last decades. But most critical seems to have been the disconnect between the different levels of government, with their different responsibilities for management and distribution of water; an over-optimistic reliance on continuing good rains in spite of repeated warnings to the contrary; the failure to take seriously enough the impact of global warming on the normal weather patterns of a vulnerable region. And an over-reliance on a single form of water source: dams in the mountain range that lies inland of the city and reliance in planning their replenishment on a single source of weather information – the commercial weather reports managed by national government.

One aspect of this disaster that has not been discussed that much by laypeople is the question of weather information and climate data made available for analysis and how this is presented, in order to reduce the level of unexpected crisis. This is critical, as Groundup set out in a Daily Maverick article:

There is nothing better to create trust than availability of data and information, and transparency of how that information is used in the process of planning and decision-making. Importantly, that information has to be understood and internalised. Cognitive psychology and journalistic experience shows that to effectively achieve such a goal, information has to be suitably packaged. It should ideally be visual, interactive, contextualised, and accompanied by a narrative referring to our experiences.

What has probably been most strikingly absent from the discussion of the water crisis between the city and its residents, is this kind of reliable and detailed information, managed and presented in such a way as to encompass constant change. Rather, there have been a series of articles by various commentators and climate and water specialists expressing, as Piotr Wolski does in the Daily Maverick article mentioned above, deep frustration with the failure of information – weather forecasting, rainfall records for different regions over different periods, comparative historical data, or weather data for the appropriate geographical locations that affected water supply. In many cases, it sounds as if the information really needed is scattered all over the place and that the historical records do not cover the same periods from one set of data to the next. Climatic and rainfall data is a national responsibility and one blockage that comes in for strong criticism – for example by the consultant Tian CLaassens – is the fact that the provision of weather data has been outsourced by the national weather department to a commercial unit – WeatherSA – that charges very high fees for the provision of such information. It seems extraordinary that a national weather service should, in a digital age, see something as critical as weather information as something that needs to be a closed IP model used as a profit-making exercise.
The politicians at provincial and local levels responsible for water policy have repeatedly complained that the 2017 long-range weather forecast was for good winter rains, so that they did not think they needed to make contingency plans, assuming the best. In reality, long range forecasts are these days unstable and unreliable and the 2017 forecast was in any event updated not long after the official government forecast in January 2017, with its prediction of good rains. A month or so later, forecasts from other services came in, saying that changing conditions in winds and tides in the Pacific Ocean meant that the pattern of fronts pushing rain along the Cape coast had changed and would pass too far south, bypassing Cape Town, to disgorge rain further up the East Cape Coast. Why did the city and provincial authorities miss this vitally important update, which came in early enough to allow for remedial action? Probably because, if one pays (expensively) for information, the presumption is that this is definitive and reliable. On the other hand, information that is openly available is much more likely to be updated when needed.The question of open information raised by Groundup is therefore critical. Faced with the fluidity and unpredictability of climate change, rigidity is the wrong answer.
Having failed to recognise the instability of weather forecasting, the city faced what came to be called ‘Day Zero’. the day on which the water supply fell so low that the taps would have to be turned off and citizens would have to queue up on a daily basis to collect a minimal water allowance that would be their daily water ration. City managers were scrambling to try to conceptualize this system, but also – on the back foot – to identify and implement alternative methods of water supply to stave off Day Zero. These included drilling into aquifers, of which there are many, but also with many potential ecological issues; wastewater treatment and small desalination plants, also with their risks. However, it is very late in the day to have to start such ventures, against a ticking clock and with the added complication of a national water department that should be providing the financing and capacity to do all this, but which has apparently radically overspent its budget and has no funds to offer. Thus there is a compound failure at different levels of government to fully understand that climate is now about unreliability and change, needing flexible approaches involving open collaboration between multiple partners, powerful openly licensed data systems, with care taken in the provision of uniform protocols and effective metadata for the sharing of information.

It would be interesting to compare this situation in South Africa with the efforts now being made in Canada, which faces floods rather than droughts, to build a wide-ranging collaboration between universities for open approaches to managing the threat that faces them, on the other side of the world. Something for another blog.

Parallel Importation Prohibition and the ‘Politics of the Copy’ in Africa

IMG_2200The Copyright Amendment Bill of 2017 currently undergoing the consultative process in South Africa, proposes overturning the longstanding prohibition against parallel importation provided for in the present South African legislation, an action that could undo more than a century of colonially-based market manipulation.

Clause 11 of the 2017 Bill proposes the insertion of the following Section 12B into South Africa’s Copyright Act:

12B.
(1) Notwithstanding anything to the contrary in this Act, the
Trademark Act, 1993 (Act No. 194 of 1993), and the Counterfeit Goods
Act, 1997 (Act No. 37 of 1997), the first sale of or other transfer of
ownership of a transferred original or copy of a work in the Republic or
outside the Republic, shall exhaust the rights of distribution and
importation locally and internationally in respect of such transferred original or copy.’’

This proposed revision in the Bill draws attention to a longstanding issue that is not only a matter of copyright law, but also overdue for attention in the context of the fierce student protests that have been raging in South African universities in the #Rhodes Must Fall movement with its demands to #Decolonise the University, as well as raising questions relating to #FeesMustFall student activism that challenged the high cost of education, including the cost of textbooks. In student debates the questions that have arisen are why textbooks are very much cheaper in some countries than in South Africa, and why our students are not able to buy these books in South Africa for these cheaper prices? Also, what implications does the prohibition of parallel importation have for the fragmentation of trade in African publications across the different countries on the continent? Finally, how would this affect the South African publishing industry?

Reviewing parallel importation as an issue in international publishing reveals its very colonial origins and the extent to which this colonial manipulation of the market still lingers.

What does this mean in relation to the publishing industry – especially in Africa – and the international trade in books? What is meant by the ‘first sale’ and the ‘exhaustion of rights’? What are the implications of ‘exhausting the rights of distribution locally and internationally’? And what are ‘territorial rights’? In particular, what would all this mean in terms of the pricing of books, and greater accessibility to affordable publications for students and general readers?

 

These issues can be unpacked by reviewing what was at stake in a US court case concerning the sale of books imported into the US at considerably cheaper prices than the US  prices for the same books. It was this case, in fact, that led to stronger demands for the right of parallel importation – the free trade in books across borders.

Kirtsaeng vs Wiley (2013) – a Case that Changed the Playing Field

The decision to effectively move for the abolition of parallel importation prohibitions in South Africa has thus almost certainly been influenced by the judgement in the US Supreme Court case of Kirtsaeng vs Wiley, delivered in March 2013, which at long last overturned a much neglected but controversial aspect of global trade in copyright goods, long entrenched in US (and UK) copyright practice – the question of first sale rights and exhaustion of rights in international territorial deals negotiated between large US publishers and developing world markets.

The long persistence of this prohibition in the copyright legislation of ex-British colonies and the US is essentially a colonial hangover involving mostly large UK and US publishers using the imposition of nationally-based differential pricing as a way of maximising profits across the world.

The Kirtsaeng case involved a Thai student, Supap Kirtsaeng, who, when he arrived in the US, found that his college textbooks were absurdly expensive compares to the same books in his home country. So he contributed to funding the cost of his studies in the US by selling textbooks that he had purchased legally in his home country. (These were not pirated books).  The fact that the books were cheaper was the result of territorial rights deals struck between US and Asian publishers. These deals would have involved transactions governed by contracts – rather than copyright law – between the originating publisher in the US and the local publisher.

Such a deal would have authorised the right to reprint a set number of titles of a particular book in order to create a local edition of a this title. Or it could have been a matter of printed books from Wiley provided in bulk. The foreign publisher buying these rights would be able to set a price for a local edition that was considerably lower than the US publisher’s price and yet was profitable for the company concerned. The books would be sold under the imprint of the local publisher. However, such a deal would have been constrained by Wiley’s control over the territory in which these books could be sold.

This is what is meant when publishers talk about ‘territorial rights’ – the segmentation of the market in different territories – a matter of contractual agreements rather than copyright law. Part of the deal would have been the prohibition of sales beyond the agreed licensed territory, both through the rights contract signed between the two parties and quite probably also enshrined in national legislation prohibiting ‘parallel importation’.

A territorial deal such as this one is manipulating international copyright law and treaties in more than one respect.

  • First of all, copyright is granted automatically when someone creates a work, such as writing a book, and this copyright is recognized and enforceable in any country in the word, according to the Berne Convention. Copyright is global, not segmented locally.
  • Secondly,  the copyright owner has monopoly rights over the work, but this is subject to a limitation – control is only granted on the first sale of a book. Once a customer has bought a book, or another copyright product, whether this be a single book, or a number of books granted in a licence to a publisher in another country, under copyright law the subsequent sales are not part of the copyright monopoly, and the courts would reject attempts by publishers to exert such control.

The term used is that of ‘exhaustion’, a ‘technical term used to denote the concept that, once a copyright holder has sold or distributed goods then the rights conferred by copyright, patent or trademark do not give the copyright, patent or trademark holder the right to control sales of the goods which she herself has authorised’ (Rens 2010; 54). These are also referred to as ‘first sale rights’ – once a copyrighted work has been sold, the copyright owner can no longer claim rights over subsequent sales. It is the right of the purchaser to sell second hand copies.

Kirtsaeng was sued by US-based global publisher Wiley, at first successfully, until the Supreme Court reversed the preceding judgements in 2013, with some harsh words for the US publishers’ expectation that it was their right to control global pricing to enforce different prices in different regions of the world and to try to block trade in these lower-priced products across other countries. One comment by the judges was that second hand car sales across different countries would become impossible if such conditions were applied given the quantity of copyrighted computer code contained within modern cars.

This practice is also in extreme contrast to the plea by Francis Gurry, the Director-General of WIPO, for a world that could not only provide a seamless global environment for copyright and the trade in creative goods, ensuring that creators can be rewarded for their work, but could also leverage the potential for digital media to democratise culture. The point is that the fragmentation if markets that is caused by this practice, runs counter to the fluidity and flexibility of modern markets and their technologies.

An Imperial Hangover

This territorial dispensation in the publishing industry in the English-speaking world has its roots in an imperialist/ colonial hangover entrenched in the early 20th century. Early copyright law in the colonial context incorporated ‘Imperial Copyright’, which assumed British control over publication and dissemination in the colonial empire. In this environment, copyright legislation functioned to protect the consumption of British copyright products in colonial subject territories. This thinking was carried over into national legislations when ex-colonies, such as South Africa, drew up their own copyright laws in the form of ‘His Majesty’s Imperial Copyright Act’, as the 1911 Act was named. The purpose was to protect and perpetuate the dominance of British goods across all its dominions.

The ongoing history of this story of colonial dominance is quite extraordinary in terms of the casual assumptions that underpin it. In 1947, an updated version of this ‘ownership’ of colonial markets was entrenched in the British Traditional Market Agreement (BTMA). The agreement, which addressed the growing rivalry between the long-established British publishing industry and the threat of the burgeoning US industry, embodied an understanding brokered between British publishers that they would not license American publishers’ books for the British market unless rights were granted to all the colonies or former colonies of Britain, regarded as Britain’s ‘traditional market’. In other words, Britain behaved as if it ‘owned’ its colonies and ex-colonies and their markets. An American publisher granting a publication licence to a British publisher would have to extend this licence to these territories, or there would be no deal.

In the same way, a British publisher licensing the UK edition of an African publishers’ title would often insist in ‘rest of the world’ rights, or no deal, something that lingers on to this day.

It is also interesting to note that the date of the BTMA, shortly after World War II places these events in the same time scale as the early foundations of British dominance of the the commercial scholarly journal system were laid by Robert Maxwell and the British Information Services. Control of scholarship and communications was clearly an important strategic imperative in a changing high-technology post-war world, where knowledge was becoming ever more valuable. What needs to be acknowledged now is that any provision for copyright and international trade has to take into account that the world has changed even further and that the book industry is operating in very different circumstances as print and digital publications moves towards greater integration of different media, facing very rapidly changing business models. This makes it even more important to have an open system of international trade in the creative industries.

In the longer run, as the US publishing industry grew in size and strength this became an agreement in which the British claimed a traditional right to markets in its ex-colonies and the US could operate in the large US market, its dependencies and the Philippines. The ‘rest of the world’ was an open market.

The End of the BTMA – A Shift to Contract

The BTMA became the subject of an anti-trust investigation by the United States Department of Justice in 1974. It was formally ‘terminated’ in 1976 by British publishers, who subsequently and vehemently insisted that there was no longer a ‘gentleman’s agreement’ to divide up the world markets in this way. However, both sides largely continued these practices through individual licence agreements and contracts, and through the mutually agreed practices of the British and US branches of multinational companies, so that the pattern persisted until at least the end of the 20th century. The prohibition of parallel importation became an important tool in these practices.

Essentially, two dominant publishing powers had agreed to carve up the world market between them, formally or informally. These practices also represented a shift from copyright to contract and licence to control international markets.  The anti-competitive aspect of these practices has been vigorously debated in the context of the patenting practices and the ‘evergreening’ of patents in the pharmaceutical industry, and territorial limitations – or ‘geoblocking’ – on the release of digital products, but much less in publishing.

The history of the BTMA is illuminating, therefore, because it was simply the most overt form of a scheme that persists into the present: the leverage of scarcity market models for market dominance and the maintenance of high prices wherever possible through a system of ‘territorial rights’. yet very few people have paid much attention to this.

Rather than pricing products at the median price across markets and trying to attain affordability together with economies of scale, the publishers preferred to preserve price levels that were as high as possible in their richer Northern markets and then, if desirable or necessary, negotiate special deals for larger markets which could not pay the premium price. In these markets, predominantly in South and East Asian markets, profitability was achieved through very high volume sales at low prices.

The problem of Emerging Economies

In the copyright laws of ex-colonial countries, South Africa included, these territorial practices are protected by the prohibition of parallel importation, carried over from the concept of British imperial copyright. This provision, not required by the WTO’s TRIPS Agreement, prohibits the importation of goods licensed by the originating publisher in one country, into another country.

This essentially violates the principle of exhaustion of rights after the first sale, substituting it with ongoing contractual control of price and distribution by the originating publisher. Hence the problem with a South African bookseller wanting to buy the much cheaper Indian editions of US and UK university textbooks into the South African market. The Indian publisher would also face a clause written into the contract for the Indian edition, limiting sales to an agreed territory – in other words, the first sale exhaustion of rights was being over-ridden by contracts and PIR provisions in national legislation.

The Background – What is Parallel Importation?

For those unfamiliar with the terrain, the question of parallel importation arises (when it comes to copyright goods rather than patented products) at the boundaries of copyright law and commercial practice across international markets. It has to do with the granting of ‘territorial rights’ by one publisher to its own subsidiary, or to another publisher in a different country in order to allow for differential pricing related to affordability in that particular market, as in the Kirtsaeng case.

These rights are not in fact part of copyright law, as the copyright that, according to the Berne Convention, is automatically granted to the author when a work such as a book is created, is recognised and enforceable in every country that has ratified the convention. That applies to most countries in the world. These deals are very dependent on market size and do not necessarily take account of market needs.  Given the size of the Indian market, the cost per copy is likely to be low and the selling price much lower than the British publisher price, but still allowing for profits for both parties, given India’s population of around 1,4 billion people. An African market may face the same level of need, given poverty levels, but cannot offer the same market size in a single market.

The way in which the differential pricing in these deals is protected is generally provided by legal provisions written into national copyright legislation that prohibit ‘parallel importation’. This means that items – in the case that we are studying, primarily books – made in one county under licence from a copyright holder, cannot be sold by booksellers, publishers or other individuals in a second country if that country has parallel import restrictions (PIR) in its legislation (as is the case with most ex-British colonies). This is not a matter of copyright law, which, as we have seen, is global in its scope. Nor are these provisions required by the Berne Convention or TRIPS.

For those unfamiliar with the terrain, what this meant was that as a result of restrictions on parallel importation, a country like South Africa could not buy the much cheaper Indian edition of a UK or US textbook licensed with a a much cheaper sales price in India, for example, with its huge market. Instead, in a country facing protests from students about the cost of education, we had to buy the massively more expensive UK editions of international textbooks. In recent tears the most vociferous objections have come from US college students, enraged at the high prices they have to pay compared to their fellow-students in Asian countries. This has begun to have a serious impact on the college textbook market in the US and internationally, given rising levels of resistance to purchasing books and the growth of digital open textbooks.

The Potential Impact on Publishing Across Africa

These practices also give pause to reflect on the state of cross-country publishing in Africa, on a contact with a colonial legacy of illogical national boundaries. In Africa the market for books has been fragmented by decades of territorial licensing between African publishers and British and US publishers in order to get international market reach for the African publisher. If an African publisher has a title with potential in the wider market, it will most often be licensed to a UK or US publisher, who would claim ‘rest of the world’ rights, while other African countries would have to buy this UK ‘world’ edition rather than the original African edition. And so, in the 1990s, for example, the African Literature department at a local university often found itself having to license photocopies of prescribed novels by African authors, as they were simply not readily available in South Africa, or only on special order at unaffordable prices, because British publishers were often reluctant to bother with distribution in as small a market as South Africa, and also because the international edition was simply too expensive.

The questions of first sale and the exhaustion of rights mentioned addressed in s12B of the Bill will effectively undo the prohibition of parallel importation that currently protects these practices and will allow booksellers to order books from the countries and editions that offer the best value.

This market mechanism results in commercial illogicalities. While one could make the assumption that territorial licences are exercised in order to rationalise prices in line with circumstances in different countries, this is by no means always the case. While low prices have often been negotiated for territorial deals in the very large Indian (and other Asian) markets, these deals have not been extended to Africa, where lower prices are much needed, but markets are smaller and more fragmented. Nor do publishers authorisze the sale of cheaper Indian editions into the African market.

Instead, International Student Editions, discretionary lower-cost editions – but more expensive than the Indian versions – are offered by UK and US publishers for some of the larger-volume titles in these markets, and for the rest, students have to pay the full US or UK price for their textbooks – something applying particularly to upper-level specialist textbooks, which tend to be excluded from international rights or discretionary price reductions in these smaller markets.

Another discretionary practice was a British ‘charitable’ scheme for the provision of heavily discounted books into African markets, the Educational Low-Priced Book Scheme (ELBS).  As a charitable initiative, these books were bought at wholesale prices from British publishers and sold in some African countries (excluding South Africa) at very heavily discounted prices. This effectively undermined regional publishing, as publishers in more affluent African countries such as South Africa could not compete with the low pricing levels. And so, for example, as an unintended consequence, an Africa-relevant obstetrics textbook could not sell across African borders in the mid-1990s, as the British edition, with little African relevance, was much cheaper.

While the international publishing industry has long regarded these practices as a natural right, it is interesting to note the tone of the Kirtsaeng vs Wiley judgement, which draws attention to the wide-ranging implications of the overriding of first sale rights in a world in which manufacturing of print and electronic goods takes place across the globe and in which IP rights pertain to a wide array of products. ‘[T]he Constitution’s language nowhere suggests that [the] limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, say to increase or to maximize gain’, the judgment argued.

From an IP perspective, this industry manipulation of territoriality raises the further questions of first sale rights and the exhaustion of rights at a national level in the context of the rise of new media and changing market circumstances. The ‘first sale right’ that was at the heart of the Kirtsaeng case is the right of the purchaser of a copyrighted product to own it fully once it has been legally purchased. This means being able to sell it to someone else, lend it, rent it, or give it away. means Thus, you can sell on not only a book, but also a a CD, or a car stuffed full of computer programmes that you have legally purchased; a library can lend books without worrying about where they were manufactured; and video rental companies can hire out movies. These are free of PIRs. Why are books different? the judges in the Kirtsaeng case asked.

An International View on the Abolition of PIRs – the Case of Australia

Now, with South Africa proposing the abolition of PIR from our copyright legislation, and the Productivity Commission in Australia producing yet another report that argues for the lifting of parallel import prohibitions on books, a closer look is needed at the impact that this has had in other countries: will it lead to higher prices, or set up a more competitive local industry at a time of very rapid digital change? And what impact has the Kirtsaeng case had on changing practices in international trade?

Although publishers (and Australia is no exception in this regard) have tended to raise vehement objections to the lifting of restrictive copyright practices, the questions that have to be asked require a realistic evaluation of the likely impact in the light of current market circumstances. First of all, book markets are currently made up of a mixture of print and digital products, so that a consumer already has the choice to buy a book from a local bookseller, or order a digital version from an overseas provider. The supply chain includes services for printing on demand across national borders, with a digital file in one country being printed – via Lightning Source, for example – in another. Altogether, market possibilities are expanding, but PIRs could threaten this, as is witnessed by the conflict about interrnational pricing of Kindle books.

The biggest fear of publishers appears to be that the removal of PIRs would be that the market would be flooded with very cheap goods, to the detriment of the local publishing industry. The Productivity Commission, after an extensive financial analysis of the market conducted by Deloitte in 2012, concluded that, in a comparison between New Zealand, which removed PIRs in 1998 and Australia, this appeared not to be so. Overall, the finding was that Australian booksellers could have sourced and supplied international trade titles from overseas for less than what they were charged for by Australian publishers. This at a time when Australian book prices were between 20 and 33 per cent higher than the UK for the same titles. Another finding was that ‘PIRs ‘impose an implicit tax on Australian consumers that largely benefits foreign copyright holders.’Most of all, however, it would be very instructive to evaluate whether there would be greater potential for the expansion of publishing across southern Africa, with the removal of PIRs and the potential for greater cross-country collaboration for market growth using mixed-media strategies.

Overall, it looks as though abolition of PIRs would be of benefit, rather than harming the book trade and its customers. In Africa, I would argue. it would almost certainly increase trade and broaden the reach of African books and other copyright goods across the continent. A detailed study of this tangled web is well overdue.

References

Donoghue, Peter 2015. Parallel Importation and Australian Publishing: Here we Go Again. The Conversation (blog article) https://theconversation.com/parallel-importation-and-australian-book-publishing-here-we-go-again-51249 .

Karjiker, Sadulla 2015. The first sale doctrine: Parallel importation and beyond. Stellenbosch University. http://blogs.sun.ac.za/iplaw/files/2016/04/The-first-sale-doctrine-Parallel-importation-and-beyond.pdf

Owen, Lynette Clarke’s Publishing Agreements: A Book of Precedents. 9th Edition, 2013. London, Bloomsbury.

Productivity Commission Australia, 201i6. Intellectual Property Arrangements. Productivity Commission Enquiry Report No 78, 23 September 2016. Canberra, Commonwealth of Australia

Rens, Andrew. The Legal Context for Publishing in South Africa and Uganda. In Gray, Eve; Rens, Andrew and Bruns, Karen (2010) Publishing and Alternative Licensing Models in Africa: Comparative analysis of the South African and Ugandan PALM Studies. Ottawa, IDRC, 2010

Shaver, Lea, Copyright and Inequality (February 18, 2014). Indiana University Robert H. McKinney School of Law Research Paper No. 2014-3. Available at SSRN: http://ssrn.com/abstract=2398373

GraySouth – a new version of my blog. Publishing development research in Africa

IMG_0131My blog has been offline for a while in the wake of problems with its domain name registration. Resolution of the problem involved changing the domain name, so the blog now starts a new phase of its life as GraySouth a name that  echoes my Twitter handle.

The last blog I posted on my Gray-Area blog site was on the neo-colonial underpinnings involved in the emergence of the current scholarly journal system in the wake of World War II, a story of the entrenchment of British nationalism and language hegemony delivered through the growth of commercial scholarly journal publishing. This ultimately led to massive expansion and consolidation of the journal business, leading to the domination of the market by five hugely profitable mega-corporations, able to hold higher education to ransom with ever-increasing subscriptions.

Underpinning the growth of commercial journals has also been, of course, an increasing adherence to a neoliberal commercial view of how the world works and what values should provide the foundations of a publishing system that supports and is supported by, big money. The talk in this context, when it comes to evaluating the success of the university system, is of ‘outputs’, which do not mean the variety of real outputs that universities produce in the process of teaching, research, social, developmental and creative contributions to society, but rather are a code for journal articles and patents that are perceived as contributing to global commerce. What is striking in the discussion of global rankings and journal prestige is how seldom this shorthand is recognised for what it is.

I was due to follow up with a blog on the rise of bibliometrics and their subsequent adoption as a somewhat imperfect way of judging the performance – and influencing the careers – of the authors of journal articles. Eugene Garfield, the creator of the system of metrics, developed a way of  evaluating the status of  the leading journals according to the number of times the articles in each issue of the journal had been cited annually two years after the publication of a particular volume. This was a useful way for librarians to sift the rapidly escalating numbers of journals in order to choose their subscription choices. What was more far-fetched – and not entirely approved of by Garfield – was a very flawed way of making these metrics reflect the prestige of individual authors.

One outcome of the progressive entrenchment of these metrics has been the creation of a captive market in which scholars compete to publish in the highest ranking journals, adapting their scholarship to the ‘international’ focus of these journals. Predictably, ‘international’ in this context meant alignment with the neo-colonial ambitions that underpinned the rise of the commercial journal empires – the English language and the interests of the North Atlantic allies that won the second world war. A vicious cycle resulted in which the journals became ever more powerful and bloated and scholars from countries like South Africa ever more ambitious to be published in these prestigious publications. Given that the system has traditionally depended on strict copyright control, this has essentially meant exporting our knowledge, just as we export our mineral wealth. This heritage of the British nationalist ambitions underpinning the postwar rise of the commercial journal system have thus become an obstacle to the current pressure in South Africa for the decolonization of our universities and for the production of research that supports national development goals. And yet, I suspect, it is not recognised as a key tool in the colonisation of our universities and of our knowledge production as well as a distorting factor in the profile of academic staff in the institution.

A vivid illustration of the impact that this thinking can have on the production of research is to be found in the recent ebola epidemic in West Africa that raged from 2014 to 2016. More than 28,000 people contracted the disease and 11,000 people died in this epidemic. A massive international effort was required to bring the epidemic under control and to limit the death toll even this much. Although the disease had been known since 1976, little research appears to have been done on vaccines or cures until the 2014-16 outbreak, which incidentally also affected a handful of Western medical workers. As the WHO reported in 2016:

There is as yet no proven treatment available for EVD. However, a range of potential treatments including blood products, immune therapies and drug therapies are currently being evaluated. No licensed vaccines are available yet, but 2 potential vaccines are undergoing human safety testing.

It is hard to imagine a situation in which a disease this deadly affected the US or Europe and yet little or no research had been done on it close on 50 years later, leaving the countries concerned vulnerable to a major epidemic. It is not just a matter of African countries having impoverished research systems, lacking the means to tackle expensive and high level biomedial research, but of a lack of will in the university system to take a truly global view of research imperatives. This in undoubtedly made worse by the willingness of developing country governments and their universities to chase ‘global’ prestige and rankings through publication in highly ranked journals that have achieved these rankings by sidelining research from the two-thirds of the world that does not count as global. South Africa is surely the country with the most capacity to take on such a task, but it has also been – at least at the national policy level – also the country most hooked on ‘global’ prestige

Many of the posts that I have written have dealt in one way or another with these issues of the politics of the dominant journal publishing system and the impact of the j0urnal fetish (for the sake of prestige and promotions) on the more complex ambitions of a research system like South Africa. The focus of my blog has been in good part on the publication of what it being marginalised – research that is concerned with the most immediate issues that face the country – of local imperatives, and of  local perspectives on global issues, such as climate change, agricultural development, poverty alleviation. And in particular, what communication modes are being used – and are needed – to communicate such research. Inextricably linked to this agenda is the need to revise the way in which researchers and their research are evaluated and what ‘outputs’ (which are also inputs in this world of national and community imperatives)  are being valued. And essential to this focus is how open copyright licensing – open access to publications on a wider scale than just journals – can increase both access to knowledge from the rest of the world and the participation of our scholars in the global dialogue. At the heart of this kind of publishing is collaboration in the interests of greater effectiveness and real impact.

Finally, and possibly most importantly, the obsession with journals, now bolstered by the growth of digital journals and open access publication, has obstructed the potential for radical new models of scholarly publication and dissemination. We are stuck in an online simulacrum of a 17th century publishing model, updated in the mid-20th century.

Looking forward, I see signs that there is a renewed interest internationally and also in South African research policy in the production of research for Sustainable Development Goals, for research aligned with national and local imperatives, for greater attention paid to communities and their knowledge. Whereas European countries might measure this in terms of the journal articles published on such issues, South Africa has long had a more complex, yet under-recognised, approach to publishing development research outputs – not just ‘applied research’ and ‘grey literature’ but a more sophisticated mix of high level and rigorous research and carefully targeted publication outputs. This needs more extensive exploration and support and better alignment with the core research values of the institutions.

Photo: Eve Gray CC-BY

 

A Neo-Colonial Enterprise – Robert Maxwell and the Rise of the 20th Century Scholarly Journal

4980421657_5278242c15_zHow to become a Professor

In one of the many discussion forums on the decolonization of the university held between academics and students in South Africa over the last months, a report of the following – apparently trivial – exchange struck me forcibly. The context was a discussion about the persistence of neo-colonial concepts of  university curriculum and research, and the sense of alienation experienced by many students in the face of distortions caused by this bias in institutional culture.

The exchange went like this: a student asked university staff members how, post-doctorate, a lecturer comes to be promoted to professor. There was a short silence, then the replies came in: ‘It takes time’ … ‘You publish journal articles’ …. “articles in international journals’. Murmurs of approbation. Then another voice concurred and yet another, after a pause, said, “You also need to get a high rating from the National Research Foundation” (which of course also depends to a good extent on the volume of journal articles produced by the candidate and the ranking of the journals concerned). Only then did someone talk about more complex issues of performance in the exercise of teaching and learning and public engagement, as well as administrative and managerial duties. And then the discussion moved on.

It would thus appear that the default perception, in the eyes of South African academics at one of South Africa’s most prestigious universities, is that academic promotions depend primarily – or almost entirely – on publication in [international] journals. In other words, promotion, prestige and publication are intimately linked and only one form of publication output really appears to count – the journal article. In addition, the hierarchy of values places ‘international’ over ‘local’, relegating issues of national concern, however urgent, to a secondary position, behind the lofty aspirations of becoming ‘international’.

The question is how something as esoteric and obscure (in the eyes of outsiders) as publishing journal articles could play such a central role in promotions and in university rankings and prestige. And also how the emphasis on international publication (meaning publication in journals in the US and UK/Europe) lines up with the development imperatives that provide such challenges for South Africa in its local context.

In all the issues that have arisen around questions of the decolonization of universities, this is probably the most ignored in public discussion. Yet I would argue that this competitive race for publication in prestigious overseas journals that is evident in South African academic promotions is a very powerful factor in entrenching the dominance of the research concerns of the North Atlantic powers and of the English language as the medium of communication for scholarly publication worldwide. Through the conjuncture of these two driving forces – the dominant power and its language – the persistence of neo-colonial hierarchies and values is entrenched, in a very familiar paradigm.

This blog – the first in a series exploring the role of scholarly publication – seeks to provide some insight into the historical origins of this rather extraordinary publication and ranking system by looking first of all at the genesis of the current journal system, a 20th century post-war development that – anachronistically – lingers on to this day. It is in political aspirations and the business models that emerged in the wake of the Second World War that one finds the mechanisms that tied journal development to the English speaking North Atlantic allies and turned journals into big business, entrenching neo-liberal economic thinking into the supposedly esoteric sphere of scholarly publication.

The rise of the 20th century journal system and the origins of its values

This situation can be most readily understood by looking at the genesis of the current journal system, in mid-20th century post-war developments – and not, as many would like to think, in a proud collaborative yet competitive scholarly tradition forged in 17th century London, in the Philosophical Transactions of the Royal Society of London, first published in 1665 [1] . Scholars often hark back, when they justify the preeminence of journals, to the idealised and disinterested aims of this original establishment of what became the journal system in the English-speaking world. As the Introduction to the first issue of Transactions expressed it, this was an exercise in collaborative knowledge sharing for the sake of the growth of scientific knowledge, admittedly with an element of national aggrandizement included. The aim was ‘All for the Glory of God, the Honour and Advantage of these Kingdoms, and the Universal Good of Mankind’.

The tradition of Transactions, so often invoked in relation to the modern journal corporations, identifying the business as an altruistic contribution to knowledge. However, there have turned out to be at least two traps in these aspirations that are at odds with the realities of the current journal regime and render any comparison with current journals largely false.

One finds the motivation for the new publishing business models that emerged in the late 1940s and 1950s in national aspirations for strategic control of the fruits of new scientific knowledge for the purposes of national dominance and economic development.  This link with national aspirations embedded a commercial ethos in this supposedly esoteric sphere, entrenched the English language as the language of science, and the English-speaking North Atlantic allies as the leading powers.

The modern journal system is built upon the expansion, in the wake of World War I, of  research that fed into national-level coordination of scientific research for strategic and business purposes. Telecommunications, military technology, aeronautics and transport, nuclear physics, early emerging digital technology, had grown and contributed to nationwide big business between the wars, expanded even further during World War II, and were key in ensuring the victory of the Allies. These intellectual developments had become the focus of considerable debate about research and commercialization and the role of intellectual property in driving big business. They promised substantial economic growth in peacetime but also – critically – the enhancement of national and international strategic political and military power and status.

The commercialization of the journal publishing industry postwar was a direct outcome of these developments, increasing the ability of the victorious allies to exploit the expanded role of scientific research and its strategic and commercial potential and to harness this to their national interests and regional ambitions.

A matter of language dominance and regional power

The world of modern journals is thus built on the scientific-military-economic power of the victorious Allies in World War II.  It is in their postwar political aspirations emerging in the late 1940s and the 1950s that one finds the mechanisms that embedded a big-business ethos in the supposedly esoteric sphere of journal publishing. This entrenched the dominance of the English language as the language of science, and the English-speaking North Atlantic allies as the leading powers in this scientific world. In the universities, this has also translated into a highly competitive culture, in which scholars’ prestige and status and that of their universities depends upon publication of high-impact findings in the right journals. It is backed by an ethos that draws on postwar English language nationalism and North Atlantic commercial power, with the role of research publication being to forge a link between the two.

In this period, African countries were of course still colonies and their research interests – if there were any in a continent in which many countries in this period did not have any universities – would have been subsumed into those of the dominant powers rather than having any identity of their own. The imposition of the English language and the prioritization of the interests of the major powers are at the heart of the colonial enterprise.While there has been discussion of the English language as a vehicle of colonial dominance in university education in the course of debates about the decolonisation of South African universities, there has not been much recognition of the key role that journals have played in this regard.

The result of these postwar developments has been to effectively sideline research from the developing world, to this day. It is research from the North Atlantic that merits the label of ‘international’, or ‘global’, the interests of developing country research relegated to the status of ‘local’. ‘Visibility’ means being published in an ‘international’ journal, as does promotional potential.

Robert Maxwell and the 20th century commercial journal system

I will track the development of this system through the story of Robert Maxwell’s career in building up journal publication as a large-scale and ultimately very profitable business after his death.  He was not the only new-minted journal publishing magnate in the period, but certainly one of the more colourful.  Best known as the media mogul owner of the UK Daily Mirror, a member of Parliament, a larger than life character, rumoured by some to have been an international double (or treble) agent, he died after falling off his yacht in obscure circumstances, a mystery not resolved to this day, although the dominant theory is that it was suicide in the wake of serious accumulated debts.

Maxwell was not the only player in the postwar regeneration of scholarly publishing, but he was central, his links with British government are telling, and his strategic thinking carried weight and his story is illustrative. What this side of Robert Maxwell’s turbulent history does reveal very vividly is how the development of the political economy of this publishing sector post-war, driven by the British as a strategic national enterprise, entrenched the English language as the dominant medium and the principal English-speaking Allies who won the war as the dominant powers whose views and ideologies would inform the sector. Their potential national advantage was built into the journal system as a central target at a time of intense language nationalism.

Before the war German was a dominant language in global science and the country was a major force in scientific discovery. When Robert Maxwell emerged on the scene, immediately post-war, German publishers, who had been hit hard by the war, saw their content scattered, their publications expropriated and reproduced outside of the country without payment (Henderson 68-9). At the same time the war had consolidated the prewar understanding that research knowledge, and particularly technological research, was an economic force that would be of vital strategic importance in the reconstruction of postwar commerce and political power.

Maxwell, from a background of poverty what is now Czechoslovakia, fought for the Allies in Europe,  and after the war – by then a decorated war hero – landed up working in the British Zone in Germany for the British Information Services. The British recognized the value of German scientific publications in the prevailing context, given that prewar German was probably the dominant language of scholarship. They saw the opportunity that this could offer the UK, with German science on its knees, content scattered and publishing materials difficult to access and lacking distribution networks.

The British government had in 1946 established a committee to review the creation of a scientific publishing house in the UK and Butterworth was chosen for this role, implementing it in 1949 in collaboration with Springer and with a former Springer editor joining this new venture (Miranda, p.79). At the same time, Maxwell, recognising the potential of German information,  approached Springer Verlag with an offer to market their publications outside of Germany. Given his connection with the British Information Services, he was in a position to help the company with essential supplies and find ways through bureaucratic obstructions in complicated times.

From this base, Maxwell moved to the UK with the scholarly resources that he had secured from Springer and other German publishers, to set up an international marketing company for scientific publications. The content that Maxwell was able to release, after the blockages caused by the war, was voluminous. This led to Maxwell joining the newly created Butterworth-Springer venture as a manager in 1949 and then in 1951 buying the company out as a joint venture and renaming it Pergamon Press, with its headquarters in an historic estate on the outskirts of Oxford, Headington Hall (Cox 1998; p.135 Henderson 2004, p.67, Miranda, p.79), a visual embodiment of his new-found respectability and the ambitions of his journal business.

What is also clear from the history of this venture is the extent to which it was connected, directly and indirectly, to British national strategic ambitions.

Maxwell, with his shrewd business brain and mercurial temperament, was able to leverage the business and marketing skills that he had acquired in the course of his wartime career and build them into a commercial enterprise that was a long way from the gentlemen publishers in learned society journals that dominated the British academic publishing scene at that stage. In this process, Maxwell moved on from what was a conservative focus on traditional subject areas in the current journal businesses, an unwillingness to embrace emerging research areas, and a reliance on society membership as readers (Cox, Henderson). Instead, he collared papers on the emerging field of atomic energy, bought up translation rights in Soviet and Chinese journals, and, most important, supported the creation of large numbers of new journals in emerging subject areas. Many of the journals that were created were called ‘The International Journal of….”, signaling the expansive global ambitions of the enterprise[2].

What had happened was that journal publishing had been professionalized and made more business-focused and more responsive to the needs of editors and authors, as well as the needs of the market in the university sector and at the national level. Maxwell had created a commercial publishing model with strong marketing and production values, responsiveness to technological developments, recognition of the importance of data management and a strong vision of strategic directions in scholarship. It was also a business that he had made very responsive to the needs and aspirations of its editors and authors, unlike many of its scholarly society predecessors (Henderson).

Most importantly, with its new-found efficiency and commercial status, this rapidly growing journal business could become a strategic tool for the enhancement of the economic power of knowledge and prestige in the two dominant English-speaking allies in the aftermath of the war. Knowledge in this post-war world was power – represented symbolically in the dramatic pictures of the explosion of the atomic bomb at Hiroshima – and that power was ‘metropolitan’ and built on the economic potential of research as a driving force of 20th century capitalism, with copyright protection and patenting an important component of national and international business growth.

Consolidation and capture

After considerable expansion, but a turbulent financial history, Robert Maxwell sold his journal empire to Elsevier for $770 million in 1991, probably to help fund his newspaper investments. By this time the company had launched some 700 journals and was publishing thousands of reference works and scholarly books.

After Maxwell’s death, the consolidation of large companies increased, so that now there are essentially five huge and exceedingly profitable journal companies that dominate the scholarly publishing environment – Reed Elsevier, Wiley-Blackwell, Springer, Taylor and Francis and Sage – with large commercial journal publishing now one of the most profitable businesses in the world.

What remains very much in place, is the focus of the journal system the English language, and on the interests of the UK and US. The journal retains its print-based format, in spite of digitization and remains a neo-colonial business, one that has to be played by the rules of the major powers, while the interests of the countries that were still colonies when this business model was conceived remain at the margins. And yet this is the system that dominates reward and promotion systems in our universities, without much attention being paid to the disconnect with the a now much changed digital and political environment, as we shall see in discussion of Eugene Garfield’s development of metrics and citation impact systems, in the next blog.

[1] Transactions is now accessible online, with all issues available.

[2 Ironically the Open Access -hating Jeremy Beall has these days identified as the main give-away that a new Open Access  journal is ‘predatory’ the naming of a number of journals the ‘International Journal of….’ -plus the fact that the journals are based not in England but from Africa or Asia.

Photo: Barry Silver

CC Attribution 2.0

 

References

Brian Cox, The Pergamon phenomenon 1951-1991. Logos: the Journal of the World Book Community 9 (3) 1998, 135-140.

Albert Henderson, The dash and determination of Robert Maxwell, champion of dissemination.         Logos: the Journal of the World Book Community 15 (2) 2004, 65-75.

Achille Mbembe, Decolonising Knowledge and the Question of the Archive:  

Robert N Miranda, Robert Maxwell: Forty-four Years as Publisher. In E. H. Friedriksonn (Ed): A Century of Science Publishing, pp. 77-89. IOS Press 2001

Ngugi wa Thiong’o, Something Torn and New. Basic Books, New York, 2009.