Category Archives: Intellectual Property Rights

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, 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?

World Cup Trade Marks rule – but what about trade?

As the World Cup opening date looms and the fever mounts, South Africans are being subjected to heavy propaganda to jolly them into becoming patriotic supporters of the event, demonstrating their pride in the nation. Mostly this seems to be interpreted as buying something – a t shirt, sweatshirt, cap, scarf, flag…. This would be good for South African trade I would have thought, and for an embattled local textile industry, but a short excursion last week into World Cup land suggested that it is only good for trade marks.

I had decided that I did not want to enter into the hype by jumping up and down in a yellow shirt and blowing a horn. My unwillingness did not have to do with any lack of support for soccer, but rather with the way in which FIFA appears to have hijacked our country, forcing us into its own very commercialized and Eurocentric version of what a soccer World Cup should be, rather than the very much livelier and more democratic event that a truly South African soccer cup would have been. And so I decided that I would instead appoint a surrogate supporter, in the form of a soccer-mad seven-year-old in Khayelistsha and buy him some of the gear so that he could be an enthusiastic supporter.

Thus I found myself shopping for a child-sized yellow Bafana soccer shirt in a very big shopping complex in a suburban centre one weekday afternoon. Trailing from shop to shop, I rapidly realised that I was accompanied by a throng of other potential customers all engaged in the same exercise. South African shops are pretty good and you can normally find what you want. However, here we all were, all shapes, sizes, ages, income levels, potential customers every one of us, all vainly seeking the holy grail of a world cup t-shirt for some soccer-crazy child. A wonderfully large captive market, I would have thought, a really good revenue-earner, a boost for local trade.

It soon became apparent what the problem was – Trade Marks. Only goods branded with the ‘official FIFA product’ status could be sold. But why were they not everywhere, so that all these shoppers could buy them? Because they are too expensive. And boring. But surely Trade Marks are supposed to promote and not inhibit trade? And in any event, the fashion trade seems to operate better without this IP apparatus, as Johanna Blakely made so gloriously evident in her recent TED talk about how well fashion does without the apparatus of IP protection. Continue reading

‘I have measured out my life with coffee spoons.’ Thomson Reuters’ myopic vision of African research capacity

T S Eliot’s damning metaphor for the narrowness of social conventions came to mind when I read Thomson Reuters’ Global Research Report Africa, ostensibly a report on the state of African research, but in fact a very limited analysis based solely on the performance of African countries in the Thomson Reuters ISI journal indexes. I was alerted to this report by University World News, which has now published two totally uncritical articles on Thomson Reuters’ ‘global’ analysis of African research.
This is insidious stuff. The Global Research Report Africa is indeed measuring out the lives of African researchers in coffee spoons, basing itself on an unproblematized assumption that the number of journal articles published and citation analysis of these articles can be an adequate measure (let alone the only measure) of the state of national research systems in Africa. It uses scientific-sounding language to equate these ‘outputs’ – ISI-listed journal articles – with research capacity and then in turn equate this measure with the potential for improved global economic performance for African countries.
The intent of this this report is pretty clear. The report starts off with an explicit statement: it is designed ‘to inform policymakers and others about the landscape and dynamics of the global research base’. Although its concluding remarks have a modest disclaimer, that ‘it would be inappropriate to suggest that the preliminary analysis in this report can provide a clear direction’, nevertheless the intent is again made clear – to ‘help provide a further context to that set by the OECD’s economic reports, while also furnishing background against which to view the pertinent regional dispatches in the UNESCO Science report 2010…’ We should not forget either that the criteria and analysis for the Times Higher Education university rankings are now to be managed by Thomson Reuters. Is the company positioning itself even more strongly as the sole arbiter of scholarly excellence and the sole source of data for the measurement of research development? Continue reading

Public Health and IPR Act in the headlines – at last

Business Day yesterday published my story on the clash between WHO’s Public Health strategy and the South African IPR Act (see the gray area blog article on the same topic a few weeks ago for a different version of the same argument). I am glad that there is at last some discussion of these issues in the media, which tends to treat IPR issues as too arcane to engage with, although the Treatment Action Campaign has gone a long way towards dissipating that view.

In the mean time, the discussion on IPR and public health in developing countries continues unabated. There is an interview in the IP Watch newsletter with Ellen t’Hoen, the senior advisor on intellectual property and medicines patent pool at UNITAID, a financing mechanism for the scale-up of treatments for HIV/AIDS, tuberculosis and malaria.  t Hoen recently published a book entitled, The Global Politics Of Pharmaceutical Monopoly Power.

The concern t’Hoen expresses relates to potential problems with the availability of cheaper generic medicines in developing countries. The countries that use the DOHA provisions for the import of generics for public health reasons (mostly for HIV AiIDs) rely heavily on imports from India.  Now , she says, there is a change looming that is likely to threaten this (perfectly legal) supply:

Indian producers are able to make generic versions of these medicines because of the 1970 Indian Patents Act which excluded product patents for medicines. As of 2005, India has to comply with the TRIPS Agreement and has started to grant product patents on medicines. So very soon this is going to change. Generic versions of newer drugs will not become available automatically until after the 20-year patent term has run out. Unless of course India starts granting compulsory licences or other mechanisms are put in place to ensure that generic producers can continue to play this role, such as the patent pool.

‘t Hoen has sharp words to say about the fact that special provisions for affordable drugs in developing countries, at the insistence of the rights holders,  apply only to neglected diseases and exclude non-communicable diseases. Asked whether there was significance in this distinction, she replied, ‘Well from a medical point of view, of course there isn’t – it’s whether you die of AIDS or whether you die of heart disease… well, you’re dead. It’s just as serious.’  She is equally sharp with the argument that patent protection is needed to ensure research and development of new drugs and limit the supply of new drugs for developing country diseases:

In the past pharmaceutical companies have en masse abandoned research into neglected diseases. That’s why they became neglected diseases. Much of the innovation for tropical diseases comes from military research and government research that comes out of the old colonial systems: the tropical disease centres and the Vietnam War, which gave for example a number of malaria drugs.

So I don’t quite see that argument. I don’t think that if we close down the generic industry in the developing world that big pharma will spontaneously start reinvesting in tropical neglected diseases.

This is disturbing but very cogent stuff about why IPR does matter – read it.

The plan for innovation, IPR and public health is adopted at the WHO. How can this be reconciled with the IPR Act?

It is not unusual in national policy for the right hand not to know what the left hand is doing. There is now a looming clash of priorities for the new Cabinet that goes to the very heart of the ‘better life for all’ mandate on which President Zuma’s government came to power. This  could cause embarrassment to a number of new ministers, in the DST, Higher Education, the DTI and Health. What is at stake is the way the South African government secures benefits from its investment in public research and how the country and its universities make research work for national development and the betterment of people’s lives.

What has happened is the IPR  Act, with its Draft regulations (due for final comment tomorrow) is on a collision course with a landmark resolution passed after years of debate at the  61st World Health Assembly at the World Health Authority. The South African delegation at the Assembly was headed by the Deputy Minister, Dr M. Sefularo and was attended by a delegation of 16 delegates and alternates from the Department of Health. The problem is a radical difference of views on how best to achieve benefit through innovation and intellectual property management.  The IPR Act requires universities and other publicly funded research organisations to secure intellectual property rights and patent as much research as possible, frowning upon open innovation and open source. The WHO, on the other hand promotes the idea of a collaborative world public health regime that uses patenting, but in a responsible way, and combines this with support for a number of open approaches to the shared dissemination of public health research.

The WHO resolution, passed on 22 May, finally agreed the way forward on the recommendations made to the Assembly by the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property. The purpose of the Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property that has now been voted through, aims to  ‘secure.. an enhanced and sustainable basis for needs-driven, essential health research and development relevant to diseases that disproportionately affect developing countries, proposing clear objectives and priorities for research and development.’ While many people glaze over as soon as intellectual property is mentioned, it is clear that this is a vitally important issue for South Africa, quite literally a matter of life and death.
The recommendations of the Global Strategy contain a vision of the scientific endeavour that stresses global collaboration and the sharing of research information and data. This is also the way forward that President Barack Obama proposed in his speech to the National Academy of Sciences in the US a few months ago. The way forward that he sees for US  science is a vision of collaborative science for the public good:

In biomedicine… we can harness the historic convergence between life sciences and physical sciences that’s underway today; undertaking public projects — in the spirit of the Human Genome Project — to create data and capabilities that fuel discoveries in tens of thousands of laboratories; and identifying and overcoming scientific and bureaucratic barriers to rapidly translating scientific breakthroughs into diagnostics and therapeutics that serve patients.

The WHO plan of action, which the South African government is now called upon to implement, contains a number of provisions that provide for the use of open source development, open access to research publications and data, voluntary provision of access to drug leads, open licensing, and voluntary patent pools. This runs alongside a more traditional approach to the patenting of drug discoveries and vaccines, but with the proviso that there must be measures in place to ensure that patents are managed in such a way as to be appropriate to public health goals. This includes delinking the costs of research from the price of health products, so that they can be affordable in developing countries.

The burning question now is how this can be implemented – presumably by the Department of Health – when the IPR Act and its Regulations will effectively block the WHO provisions for sharing research results and using open licensing and open access for the benefit of public health delivery.

It would perhaps be appropriate for public health departments in our universities and their researchers to submit a request to the DST for the withdrawal of the Regulations for further consideration of the issues at stake by all the government departments that might be involved in this potentially embarrassing clash.