Category Archives: Digital Divide

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

 

Lies, damned lies… and metrics

Two contradictory things are happening side by side in discussion of scholarly publishing right now. On the one hand, the discourse of open access – seeking to remedy the failures of the current system – bases itself overwhelmingly on the value of the journal article as the artefact to be made open, while at the same time, stronger and stronger criticisms are levelled against journals as an effective mode of scientific communication. Questions are also being asked about the appropriateness of the metrics that are used to make judgements on the quality of the articles published, determining the reputation of authors and their institutions. It is well known that this system consigns developing country research to the periphery of a ‘global’ system, marginalising very important research issues – such as ‘neglected diseases’ that apply to large percentages of the world’s population. These concerns now appear to have a strong echo in the mainstream, even if the perspective of the global South is not clearly articulated in the discussion.

In a scathing critique of the current journal system on the LSE Impact of Social Science blog, Bjorn Brembs, a neurobiologist from Freie Universitat Berlin, lays into the ineffectual communication system provided by journal publishing in its bloated state, compounded by the distortions that result from the commonly accepted journal hierarchy and its supporting metrics. Given the vast numbers of journals, this is no longer a functional space for dialogue between scholars, he argues. Trying to establish what would be worth reading is skewed further by the use of inaccurate and misleading metrics as a proxy for quality – a blind and misplaced belief in the magic of numeric measures.

The most commonly accepted metric, Thompson Reuter’s Journal Impact Factor, is demonstrated to be lacking in transparency, not reproducible and statistically unsound. Backing up this claim with a number of analytical articles, from PLOS Medicine, the BMJ and the International Mathematical Union, he comes to the conclusion that ‘[T]he dominant metric by which this journal rank is established, Thomson Reuters’ “Impact Factor” (IF) is so embarrassingly flawed, it boggles the mind that any scientist can utter these two words without blushing.’

As Brembs quite rightly argues, there is little correlation between the impact factor of a journal, based on the number of citations in that journal, and the individual articles that might or might not have been cited in that journal. And so the extension of the journal citation count to article metrics and author evaluation constitutes a serious distortion, a blind and misplaced belief in statistics as magic.

Brembs’s critique of the current journal system – and that of the sources that he draws on – also highlights subject and language bias in the citation system and journal rankings, but does not draw attention to the way the system functions to marginalize an overwhelming proportion of the world’s scientists – those in the developing world.

This critique comes hot on the heels of another diatribe, from George Monbiot, in the Guardian on 29 August who lashed out at the paywalls and profiteering of the leading journals and their culture of greed, an article that trended on Twitter, obviously striking a nerve. Brembs endorses and reinforces Monbiot’s rejection of the profit system that drives current journal publishing.

It was therefore good to see a few hundred years of the the original English-speaking journal, Philosophical Transactions of the Royal Society, made available online by the Royal Society. Going back to the first edition, one rapidly encounters what has been lost in the commercialisation of our journals in the last half century. In his Introduction, Henry Oldenburg gives us insight into the spirit of collaboration and experimentation and the openness of communication that the journal aimed for at this time.

Scientific knowledge in this early journal is seen as a conversation, so that ‘those addicted to and conversant in such matters may be invited and encouraged to search, try, and find out new things, impart their knowledge to one another, and contribute what they can to the Grand design of improving Natural knowledge, and perfecting all Philosophical Arts and Sciences. All for the Glory of God, the Honour and Advantage of these Kingdoms, and the Universal Good of Mankind.’

This sounds much closer to what could be an African vision of research as collaboration and participation, contributing to the public good. Modern journals are very closed-up and arcane artefacts compared to this vision. In fact this first journal looks and sounds very much like a blog – with some leading scientists like Boyle, Hook and Huygens contributing – with the serious and trivial side by side, short and longer pieces, explanations of experiments and stories of odd an ingenious things, from how to kill a rattlesnake to an anecdote of old people growing new teeth.

It would be good to see some serious discussion about the tendency for southern African universities and researchers to buy blindly into dysfunctional systems like the ISI Journal Impact Factor rather than determining what our own values are and what research publication systems would best suit our goals. Saleem Badat, Vice-Chancellor of Rhodes University, taking apart the university ranking system in the UNESCO World Social Science Report 2010 finds the same kind of distortions and inadequacies that Brembs complains of.  Badat warns against the ‘perverse and dangerous effects’ than can result from ‘uncritical mimicry of and ‘catching up’ with the so-called world-class university’. Instead, he suggests that the diverse goals of different institutions and countries should be reflected in a horizontal continuum that ‘makes provision for universities to pursue different missions.’

We would do well to listen – a matter of playing catch-up with the future instead of the past.

Ebooks – ‘This title is not available in your location – Africa’

With the release of the Forrester Report on ebook futures predicting $3 billion sales by 2015, soaring sales of Kindle books, the discussions that took place at Digital World last month and the O’Reilly Tools of Change conference coming up next week, ebooks are much in the news. The question of rights limitations on books in the online environment has become a hot topic. However, much of this discussion has focused on the USA, UK and Europe, to such an extent that one begins to wonder if the rest of the world exists at all. What is the view of the ebook market as seen from the South and what promise and what frustrations are we seeing?

One of the pleasures of year-end is scanning the ‘books of the year’ lists in the media, in search of good holiday reading for the southern hemisphere summer. This year there was an additional list – the 10 best books from Amazon Kindle in a variety of categories. The particular attraction of a ‘best of Kindle’ list is the opportunity to do some impulse shopping, with current books that can be delivered immediately at a reasonable price, something that up until now has been a remote option for readers living a long way from the major book centres of the global North. It was thus deeply irritating when, one after the other, these books registered on the Amazon screen as ‘This title is not available in your region – Africa’. This was even more frustrating when, for example, a shortlisted author for a major book prize was an African, yet – you guessed it – ‘This title [i.e. Kindle ] is not available to customers in your location – Africa’.

The frustration is aggravated by the fact that such problems of regional supply are a denial of the promise that digital books could offer in overcoming the serious limitations of print distribution ‘in my location – Africa’ (not of course that I have ever thought of Africa as a ‘location’). One limitation of living in Africa that we cannot access to a wide range of internationally published books, because of problems of market size and transport costs in the traditional print model. In the digital world, even with the restrictions on the Kindle list in countries outside the the US and UK, I have been able to buy a good number of books, for pleasure and work, that I would not have readily found in local bookshops.

Ebooks work off mobile networks and Africa is very good at mobile technology, with high connectivity levels. This is therefore a distribution system that could work effectively, right away, in spite of Africa’s broadband connectivity problems.

This matters, because the small size of local reading markets and the thinly-spread population of countries like South Africa, combined with the period of international business consolidation that has been a feature of the communications industries in the last 30 years has led to a flattening of the book market. In South Africa, imported books in the big bookshops tend to be selected according to the dictates of a homogenised middlebrow mass market global publishing industry. With the exception of a few (exceptional) independent booksellers, it can be hard to get specialist or niche market books, or even not-so-specialist books. Nor would you find that much from Nigeria, or Egypt, or India, or even Australia, although the bookshops do try to stock a range of the mainstream internationally-selling African authors. And yes, at least some of the unavailable books could be ordered from Amazon or through local booksellers, but this involves long shipping delays and very high shipping costs, often as much as the book itself.

Another issue is transport costs. The price of books here tends to be very high; a combination of being very far from the major supply centres in the North, high transport costs; high risk levels for local booksellers; and the addition of VAT.

It is telling, though, that right now there are very few African books – not even those by world-famous authors – available on Kindle including very few from South Africa, the biggest publishing presence on the continent. Even Nobel authors like Coetzee and Gordimer and iconic African authors like Chinua Achebe either have one or two or none of their novels available on Kindle. Instead there are lists of translations or critical works by other (Northern) authors. So the thinking about markets is decidedly North-centric.

When it comes to South African companies like Kalahari.net, which offer online sales of digital downloads and ebooks, the titles available appear to be the same kind of titles that are available in the mainstream bookstores and the digital prices look more expensive than print. So, where I would pay $11 for a Kindle book, I might pay $30 for many of the Kalahari titles (and some of these appear to be PDFs, not even ebooks).

I have just discovered a situation of even greater absurdity. The excellent South African weekly, the Mail and Guardian is now available on Kindle, But…. you guessed it! – ‘This title is not available in your location – Africa’.


In spite of my anger about unavailable Kindle books (which is not Amazon’s fault) I am enthusiastic Kindle user and purchaser of the many books that I can buy through Amazon. Amazon has designed a reader, which, although still fairly primitive technology, is low-cost, practical and effectively geared for the role it is intended for – reading books. I do get a substantially expanded range of books that I would otherwise not be able to access and these are delivered instantaneously, at a lower cost than I would pay for a print edition. And no, I do not like Amazon’s DRM model nor the fact that I am tied to one vendor. What Amazon has done, though, which few if any other vendors have, is to take the trouble to work through the thicket of territorial rights arrangements to facilitate sales in a number of world regions. It would be interesting to know the contribution being made by eager readers in these generally under-served regions to the fact that Kindle sales have now overtaken Amazon’s paperback sales (after all, I repeat, we make up more that 80% of the world’s population.

What UK and US publishers seem to be missing is that if they were to recognise the ability of digital delivery to seamlessly transcend geographical boundaries, there could be very real potential in developing world markets, where, after all, more than 80% of the world population lives. Instead of that, we have a world divided by rights regimes inherited from the print world that are often of baroque complexity. Moreover these rights regimes are, I will argue in a follow-up blog, an inheritance of a colonial mentality and are designed to boost the prices and protect the sales of UK and US publishers.

An interesting exception to this pattern would seem to be Bloomsbury Publishing, which is restructuring itself for global markets, structuring the company according to areas of interest rather than regions, and aiming for global and electronic rights for all the books they commission.

From the other end of the telescope, from the perspective of publishing in Africa, by Africans, if ebooks were supplied in a seamless global market, this could offer opportunities for levelling the global playing field, creating the prospect, for example, of bigger markets for African books across Africa and globally. This is important, as cross-African trade is inhibited by tariff barriers and difficult distribution across often arbitrary boundaries, while African publishers are constrained from reaching global markets by a neocolonial territorial rights regime in which Africa – along with other Commonwealth countries – is regarded as a natural part (subject) of the British market. According to  UNESCO 2002 statistics, high-income countries accounted for 86.7% of all exports of books, while Africa’s share was 0.3%. I would argue that this is not a matter of natural market forces, but of a manipulated market and as long as this is so, there is a very serious access to knowledge problem in the world.

The question, then is why the world is not taking advantage of the democratic (and business) potential of digital book delivery. Why are we still being constrained by out-of-date business models and unequal market practices?

Biomed Central and Open Access Africa

Open Access Africa convened by Biomed Central, with Computer Aid International, and held at Kenyatta University in Nairobi on 10-11 November 2010, challenged me to revise my generally negative perceptions of large international journal publishing companies.Open Access is different, in other words.

My engagement with Biomed Central prior to this Conference involved questions put to us by colleagues in the biological and medical sciences at the University of Cape Town some time ago: how developing country authors can afford the article processing fees that are often charged by commercial open access journals (South Africa being too rich to qualify for a waiver). The researchers concerned were attracted by the ethos of open access and the prospect of much wider exposure, particularly in Africa – an important issue for them – and even better impact factors in these mainstream commercial, but open, journals.

While supportive of open access, these researchers asked why a university like UCT should pay high fees for open access publication, particularly at a time when it still has to commit itself to maintaining its subscription to the bulk of the mainstream international journals? To ask hard-headed questions, what would the costs be, and how would these be offset by the benefits? And who would pay? Is this a library responsibility, like a subscription, or part of the research process?

Biomed in its own blog on the conference poses its arguments for open access in Africa, including the need to address the abnormally low volume of research findings from sub-Saharan Africa and the surprisingly low representation of African open access journals worldwide, in spite of the advantages that they offer to developing countries. The conference, however, provided a wider view that. I am pleased to say, defused much of my doubts.

What I got from the outset of the conference was an immediate realization that there are important differences between the ethos of open access and subscription big commercial journal companies. The picture that emerged from Matt Cockerill’s introduction to the company was that of a publisher that did care about development issues, was conscious of the divides of privilege built into the traditional journal publishing system and was prepared to try to address them. Open Access, Matt Cockerill argued, provides a global partnership for development. Moreover, the health issues that are of vital importance to the developing world and that Biomed supports in its journal publishing are at last getting global support and funding.

Some important differences between open and closed access journals, from our African perspective, as demonstrated by Biomed in various presentations at this conference:

Copyright

Authors publishing in Biomed journals do not only get to keep their copyright, but the articles are published under a Creative Commons Share-Alike licence. This means that the author can re-version the information in the article for audiences other than fellow-scholars. The latter is very important: it emerged strongly from this conference and at the UNESCO workshop that I attended a week later, that many African researchers are concerned to get the maximum development impact out of their research and value the ability to ‘translate’ research results. This means that they are conscious of the need to write popularizations, policy papers, guidelines for health and agricultural workers, and provide local language translations, among others .My presentation, on the strategic benefits of open access for African universities, stressed the need to address the developmental goals of research in Africa, producing publications that addressed these needs, rather than focusing on journal articles alone.This was well received by the African conference participants and led to some discussion of the need for alternative research impact metrics.

Accessibility and the public good

There does not seem to be the exclusive emphasis on ‘mainstream’ or ‘international’ research that characterizes many of the large subscription journals. Accessibility is an important issue for journals in the Biomed stable, its publishers argue, and not only prestige (although its journals are performing very well in the rankings and the number of journals in the ISI rankings are growing annually). The commitment of a journal like the Malaria Journal, articulated by its Editor, Bob Snow, to medical research for the public good is a case in point and it is worth noting that this is by no means incompatible with a high-performance impact factor. This kind of publishing is more sympathetic to African authors and their concerns, while still offering the competitive advantage of a large international journal.

Open peer review experimentation

Experimentation in open review processes in some Biomed journals appears to show a commitment to more democratic systems of research evaluation – again something that resonated with the audience. These experiments include more transparent peer review processes with review reports published alongside the journal article and more experimental approaches with rapid publication accompanied by post-publication comments.

Open data and other media

An interest in the publication of supporting data as well as multimedia materials offers advantages for research sharing – important to Africa with its scarcity of resources.

A developing world focus

The focus of a number of journals and journal articles on developing world issues and its website on Open Access and the Developing World demonstrate a commitment to developing world issues and an engagement with the community of people involved. Biomed is interested in picking up what they see as expanding markets in Africa.

All this suggests that universities like UCT need to address the question of their support for open access publishing as a university-wide strategy for the preferment of open access, policies, funding and support. And in the longer run, perhaps we will be asking questions about the relationship between the local and the global in a more democratic digital world. Will there be a divide, or a continuum?