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Half a century of copyright history and South Africa’s new Copyright Amendment Bill

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Introduction – a climate of contestation

A fierce row is now boiling over in South Africa with, on the side of change, future-oriented  and digital savvy copyright lawyers, academics, librarians, publishers and other creative industries. This is a community well attuned to the rapidly changing affordances in digital world we live in and familiar with the access to knowledge debates and changing publishing models that have transformed the face of copyright in the 21st century. This community seeks to understand the potential impact of the emerging concept of the Fourth Industrial Revolution with its focus on artificial intelligence and high tech futures, which, it is predicted, will be a game-changer in this regard[1]. Most of all, there are questions we could ask ourselves, as publishers and educators, about what this constantly changing environment could do to address the problems we face in growing the scope, reach, and effectiveness of our copyright industries.

On the opposing side, for the most part, are the established large commercial publishers, copyright collecting societies, and big media corporations who, for all their money and power, have seen their entrenched rules for their strict control – vertical and lateral – of content eroded in a world of increasingly rapid technological change. And, surprisingly, the South African university presses are also protesting, as well as a number of academic authors. There is also a cohort of the more conservative of the copyright lawyers, local and international – but, in my experience, this is to be expected. Particular hostility can be directed at legislation of this kind by Collecting Societies who do have something to lose in an environment that erode their area of control.

At the heart of this row is the new South African Copyright Amendment Bill, currently waiting for presidential signature and especially, among others, the provisions for the introduction of fair use into the South African creative industries, a topic that has been the subject of many angry and agitated dialogues (and monologues, for that matter). What this argument has done, I would argue, is generate a substantial diversion from what this fair use provision will really mean in the South African context, rather than the a-historical accounts that see these provisions as a potential for massive piracy. The heart of my argument depends upon a historical account of how fair use appeared in this landscape and a review of how these issues are playing out in reality in other markets relevant to our context.

As a former publisher and Chair of the PASA copyright committee in the early years of our then new democracy, and then as a researcher/consultant, I have been involved in discussions about the need for change in our publishing industry and in its now outdated copyright landscape for more than 20 years. From my perspective, this change is vital, in order to align better with an increasingly digital world and in response to the radical changes that are happening in publishing and its broader context in the creative industries.

Also of crucial importance is the very different nature of the society we live in now. We need to respond to the developmental challenges we face in a frighteningly unequal society in South Africa, using all the affordances offered by any old and new technologies and business models that could contribute to a truly responsive publishing culture, able to retain viability while making the most of traditional practices and new technological opportunities. This is a very challenging task, but, if we do not do this, we are likely to see an increasingly threatened industry environment, facing market resistance from many of its customers and even of accusations of being on the wrong side of the decolonization debate that is still on the front burner in South African universities. The price of books is a real issue, as is the question of market reach, accessibility and language, and the higher education sector, that I am so familiar with, needs to grapple with solutions that will democratize access to learning materials, while helping to protect and expand the valuable resources that we have in what is the biggest publishing media sector on the continent. Our copyright industries – publishing being the one we are most concerned with here, are very valuable national assets

The industry will also have to confront the likelihood of a more variegated context of multiple media and multiple formats; open access publishing models and open licensing; more extensively networked content provision; the transformative use of mobile phones, and not least, the provision of more flexible solutions to the problems posed in the IP environment.  All of these will require collaboration with other media sectors, as the terrain becomes more digital and more integrated.

The immediate question we have to ask is how, in the current context, copyright and broader intellectual property legislation can best respond to this opportunity – and challenge. Fair use has proved a contentious issue with various commentators – I think because of a misunderstanding of its scope. This needs to be dealt with in the historical context, not least because developments in US legislation in the early 21st century circumscribed its role.  

The Context of the South African IP legislation – a historical approach

The current South African Copyright Act dates back to 1978.  That date turns out to be highly significant – a telling indicator of the deficiencies we have inherited and standoffs we are facing. Seen from this historical perspective, the current altercation about new IP legislation is significant, in that it was the period immediately after the enactment of this Act, in the last quarter of the 20th century, that saw the steady rise and phenomenal growth of the huge global media corporations that had become the dominant feature of the media landscape by the time that apartheid ended in 1990. They were even more entrenched in the early years of a democratic South Africa. The current moment is a good one for analysis of the cycle of transformations that has taken place since the 1978 Act, from physical products to digital and from relatively small publishers and content producers to giant global media consorti, as we face yet another cycle of developments, in the form of digital disruption in the era of the Fourth Industrial Revolution.  

The growth of the big media industries across global markets

The publishing world in the years after the 1978 South African Copyright Act was one of strong copyright enclosure, with market dominance and strict copyright enforcement rules exercising heavy-handed control of this market by rapidly expanding large global media companies.

At the end of the 20th century, in 1998, the  Digital Millennium Copyright Act (DMCA) enacted criminal penalties for the hacking of digital rights encryption, that protected the products of the big corporations.

Annual reports were compiled by the US government, ranking and shaming other countries for their levels of compliance to copyright. Non-compliance could lead to inclusion in a Black List and from there a country could face a downgrade to trade sanctions. These reports were compiled by US government and media industries and the standards of compliance were skewed towards US trade interests. I was involved with the completion of one or two such questionnaires and was surprised by their lack of rigour and their neo-colonial assumptions. Nevertheless, the sanctions for failure to comply could bring serious penalties for the industries in the countries concerned.  

This sense of dominance was even stronger in media other than print – the Hollywood film makers were notorious for this, wanting to ban video cassette recorders to prevent downloads of movies, while the most notorious case by the Recording Industry Association of America (RIAA) was won against Napster, the music-to-computer streaming service which allowed the tracks on a CD to be downloaded onto a computer by the CD’s owner. What was behind this feature of the industry was the concept of a fully integrated market and industry environment, ensuring strong control of all layers of the markets facing these large corporations, an end-to-end business. The corporations sought to control not only product development, but the application of technologies at every stage of the business cycle, in an end-to-end market that extended from participating content producers and artists, including multiple media, and from artistic creation, through manufactured transmission devices, to final consumption of the end product by users.

This integrated approach was seen as the most efficient way of managing global multinational multimedia markets. CThe content was locked into physical devices, protected against hacking. In this context, IP management was a core competency and a very wide-ranging responsibility, all in the hands of the corporation concerned. What customers bought was a complete closed and sealed product, with electronic locks and digital rights management protecting against the extraction and downloading of these digital creative goods.

Piracy was a source of great concern and the expansion of digital media, which allowed for customer creation of their own libraries of digital content, was perceived as a major threat. An understanding of the transition from this integrated and highly controlled market of physical goods and the digital products we know today is a key underpinning of the new South African Bill, and an important update from the 1978 Act.

The extension of the period of copyright

The extension of the period of copyright in the Act known as the Sonny Bono Act in 1998, to life plus 70 years, was also part of this culture. Driven by the Disney Corporation and other media empires that did not want to see their corporate goldmines weakened, the first works affected by this ruling were liberated this year. It was driven in good part by the desire of the Disney Corporation not to see Mickey Mouse go out of copyright, as profitable as it was. It is hardly likely that there will be potential for any but a handful of orphan works to be accessed after such a long period. For authors and their heirs, 25 years after the death of the copyright holder is a much more practical prospect, but 70 years gives more space to collecting societies and publishing companies to extract revenue.

South Africa’s Copyright Act, given its date, although it was modified from time to time, remained in many ways, a creature of this period, of rights holder dominance over user privileges, but in the case of the South African Act, before the advent of digital media’s dominance in the creative industries. In other words, it is very thoroughly out of date.

Decolonising South African publishing – Parallel Importation Prohibition

In this period, in the second half of the 20th century, English language publishing remained divided between Britain and the US, which had, earlier in the century, forged a ‘gentlemen’s agreement’ between the big publishing companies in the UK and US that international rights were to be divided up, with the UK ‘owning’ the Commonwealth as its world market and the USA getting ‘the rest of the world’. What it meant, essentially, that the two most powerful publishing nations were dividing up the world between them, subordinating the colonies to The UK’s commercial interests. If British and American publishers had shared rights in an academic textbook, it was the British edition that would be sold in South Africa, even if the US edition was cheaper (let alone the Indian edition). There was no legal force to this mutual bargain and, from today’s perspective, the neo-colonial assumptions behind it are quite startling. It is as if the dominant nations ‘own’ the markets in South Africa and other ex-colonies.

It arises from this agreement, to a large extent, that we owe the prohibition against parallel importation, embedded in our 1978 Copyright Act. This inherited assumption is from the first South African Copyright Act which identifies its provisions as a matter of ‘His Majesty’s Imperial copyright’ holding sway across the Commonwealth.  It is this colonial assumption which the new Bill aims to reverse. The prohibition of parallel importation restrictions in the new legislation has produced a loud reaction from publishers and creative industries, with claims that a flood of cheap products from the East, in particular, will drown out our markets, destroying local publishers. The provisions for protection against parallel importation, by banning sales in South Africa (and other ex-colonies) of cheaper international co-published editions (brokered mostly in India), when a British edition is available, were in fact a neo-colonial provision, helpfully protecting the sale of higher priced UK books in their colonial markets. Equally, when this provision is applied to territorial rights of African books licensed to UK publishers, the British publishers concerned often make a proviso that the licence for their edition (which will be more expensive than the originating publisher’s edition) should apply to the ‘the rest of Africa’, so that the British edition becomes the one for sale in other African countries, almost inevitably limiting availability across Africa.

In spite of this neo-colonial background, the idea of the lifting of the prohibition against parallel importation has caused vehement protests from the publishing industry, obviously unaware that this is not only a colonial relic, but also has been effectively outlawed in the wake of the Kirtsaeng vs Wiley case in the USA. The judges in the latter case pointed out that if this parallel importation prohibition were to be applied to other copyrighted products, this would also apply to motor cars, that these days contain banks of computer software that are subject to copyright

From fair dealing to fair use – the new South African Copyright Bill

That is why the last few years of copyright reform efforts in South Africa, resulting in the new Bill, have been so encouraging. The drafting process was the most detailed and collaborative I have seen in all my years in the industry, and it is an achievement that we have got to this point, where a new dispensation is at last in sight, after many false starts. It was also a process informed by the wisdom contributed by local and international scholars, familiar with developing world contexts, and who are in touch with very rapidly changing digital environment, with its changing copyright models.  This has helped to address the very real copyright challenges that face creative industries in a developing country like South Africa and its severe inequality gap. The Bill was further informed by international treaties, proposals for treaties, the 2013 Marrakesh Treaty, the EIFL model copyright law, as well as international, regional and local copyright research, progressive copyright regimes, and various national policies and other relevant sources.

It needs to be borne in mind that, since the early 2000s, major USA universities, such as Harvard, Yale and the American University in Washington, have held extended annual or biennial workshops and conferences with a wide range of developing country participants – academics, IP lawyers, writers and musicians – from Africa, India, Latin America and the Caribbean, brainstorming possible IP futures in the broadly based Global Copyright Alliance. These meetings addressed the ways in which the current regime was dominated by the major powers, leaving colonial residues in the copyright legislation and practices that prevailed.

There are rich resources to be found in the workshop and conference records of these meetings that could be mined in taking the new South African copyright regime forward after implementation.

Recent international collaborative projects, such as the EU-SA Open Science initiative, also played a part. Pushing for a much more international view of South Africa’s place in the world and engaging with international movements such as open scholarship, globally shared data and open licensing, these ventures seemed to suggest that the time was right for moving forward in IP legislation and in South African-focused scholarship in general, as South Africa became a recognised player in global science.

Others who contributed to the drafting process were the smaller – but nevertheless very important – participants, like the documentary film-makers, who have, over the last decades, negotiated themselves into the heart of a new and more enabling technological environment, in the face of threats of lawsuits for infringement or even piracy from big rights-holding companies. And so, for example, part of the discussion around the adoption of fair use – an important part of the new legislation – has involved the assertion of the right, to include in a documentary film shoot the painting hanging on the wall of the room where an episode was being shot, or allowing the inclusion of the music that backed up a dancer in a street parade, or even the right to film the buildings in the street, if they were of artistic or historical value and subject to panorama rights.

These documentary film-makers, with the music and film streaming community, have been at the heart of brokering an understanding of a more collaborative and democratic approach to leveraging copyright compliance to make more space for smaller creator companies and bigger audiences and to be more responsive to creator and audience needs. This environment promoted the idea of fair use, focused on user needs, rather than fair dealing, which protects the rights holders. Of course, the line between users and creators in a digital environment has become blurred. Fair use broadens the scope for users, creators and rights-holders, who all need access to copyrighted works to use, re-use, re-mix, transform or innovate to create new works.

As er have seen, the Digital Millennium Copyright Act made it illegal to break the encryption on DVDs or CDs. This has increasingly been challenged by remix artists – and the rise of YouTube has made obsolete the idea that online film content is all proprietary.  Alongside this, the rise of open licensing and Creative Commons has created different IP possibilities in open culture circles. There are now a number of activist organisations and lobby groups that work in this field. What has to be realised is the extent to which opposition to rights enclosure and even piracy has opened up new horizons in the ways in which technology supports markets– for example the unbundling of collections on hard disks in order to download individual music tracks of movies.  

In the classroom, lecturers of cultural studies wanted to be able to use clips from documentaries or popular films, or even the whole film, or series of pictures of artwork from a particular period. In fair use now, the debate can be about the limits of freedom for whole movies or musical symphonies to be played in the classroom for educational purposes – in other words, the limits of fair use for educational purposes.

Thus, for universities, the fair use provision in the new legislation makes space for more effective teaching and learning.

The fair use doctrine of copyright law allows, when social benefit is more important than the (relatively minor) loss of the rights holder, that a copyrighted work can be quoted without permission. And so, groups like the documentary film makers collaboratively built statements of best practice in fair use in order to circumvent niggling interpretation of the law that served only to impede theit work. It is therefore perplexing and saddening that such a negative reaction is now emerging in the online discussions raging in South Africa right now about the new Copyright Bill, and particularly on its adoption of fair use, for documentary films, or for Media Literacy, with the freedoms it offers, without the penalties of infringement for what are for the most part minor.  

The debate about the Bill and its provisions – Fair Use

At the heart of this fair use environment is the need for trust and mutual respect. It is thus a great pity that the discussions about the new legislation have degenerated into a slanging match in South Africa with sweeping accusations being made about the damage that the legislation could cause. The truth is that, like any new legislation, there are bound to be places where the drafting could be tightened up, or provisions adjusted if they really do not work. However, what we are seeing from the Bill’s opponents often looks suspiciously like the protection of entrenched situations, a reversion to the heavy enforcement climate of the second half of the last century. The attacks on the Bill have been backed up by consultancy reports by Price Waterhouse Coopers (PWC.) in Australia and South Africa. PASA commissioned one such report that contained dire predictions of what could happen if this legislation were to be introduced, quite out of proportion to the real impact that fair use would be able to have and with little understanding of what fair use is.

This is not the first time this consultancy has been involved in defences against fair use copyright provisions. PWC’s findings have been remarkably similar in different situations, most recently for the Australian Productivity Commission. They tend to point to Canada, where they claim that fair use damaged the publishing industry. For the record, Canada does not have fair use.  It has an expanded form of fair dealing, so comparisons to fair use are not helpful in this debate.  The PWC claims have been dismissed by Canada as being incorrect.

Canada itself has roundly dismissed the PWC Australian report, which uses Canada as an example of the failure of fair use and the decline of the Canadian publishing industry when it adopted some ‘fair use’ practices in its copyright system.  On the contrary, the Canadian industry has done very well and, where there have been some problems, they are to do, rather, with the closeness of Canada to the huge markets of the USA, a daunting situation at the best of times.

PWC’s methods have also been challenged: here, for example, is some of the commentary from the deputy Director of the Australian Productivity Commission, relating to the PWC findings: [3]

There was a disclaimer that the report was actually written for a list of other organisations and would not necessarily be appropriate to any organisations other than those – something the Productivity Commission commentator said sharply was ‘an accurate disclaimer’. [4]

This speech in fact ends with a strong plea for the necessity for Fair Use: T

The challenge for policymakers is to focus on the near-silent majority of users, of adapters, of educators and creators that will need fair use to bring about the next wave of innovation, jobs and equitable prosperity. For its absence will simply foster a society of less haves and more have nots.

So for the Commission, fair use has become not a nice to have, or even a good to have, but a policy must have. At the end of the day we asked and answered a simple question – what is fair?

The Australian commentary also challenged the figures in the PWC report, suggesting, rather, that fair use would be very beneficial financially.

Then there are the advantages of fair use mentioned in the Australian review:

Advantages of fair use

Australia’s copyright system will better adapt to technological change and new uses of copyright material, without compromising incentives to create.  Improved access to copyright works would increase economic activity and community welfare. Material gains include: 
• In the case of orphan works, flexible exceptions that improve access are conservatively estimated to generate new economic activity worth between $10 million and $20 million per year. 
• Consumers would enjoy better access to archived, commercially-unavailable, or otherwise hard-to-access works. 
• Fair use would end the practice where education and government users
pay statutory licence fees for freely available online material, saving
taxpayers an estimated $18 million per annum. 

Fair use would put Australian universities on a level playing field with universities in comparative jurisdictions such as the USA, Singapore, Israel, and South Korea. It would mean: 

• Australian academics being able to take full advantage of innovative new technologies such as data mining and text mining 

• Australian universities having greater flexibility when creating MOOCs [Massive Open Online Course] 

• Australian universities no longer having to cut third party content from student theses before making these publicly accessible online 

• Australian academics being free to include small amounts of third party content in conference papers 

In fact the discussion of fair use contains so much information – facts and figures – on its benefits that we would need a separate paper to list all its advantages.

In short, it is very difficult to understand why the analysis provided on fair use in the South African report is so out of line with these examples. The critics look as if they have not done their reading. The conclusion would seem to be that we should be very cautious of the veracity of the sources being cited and rather look to the benefits potentially to be experienced, according to the careful and detailed analysis provided in the Productivity Commission’s report and by the teams that were involved in the revision of South Africa’s very outdated copyright legislation.

What is also significant is that the PWC report on the South African situation does not make reference to, or even seem to be aware of, the various studies commissioned by the DTI, one in particular being the “The Economic Contribution of Copyright-Based Industries in South Africa” which recommends fair use for South Africa.  Dr. Owen Dean, in his Handbook of South African Copyright Law, also states that “the America and Australian approaches to fair use are commonsensical and reasonable and should be followed by the South African courts” [5]  It is also interesting to note that IFRRO and PASA, both opponents of the current Bill, did not object to fair use when they urged the SA Government [6] to adopt the proposals to amend the Copyright Act in 2000.  These proposals included fair use (with five factors at the time, but the 5th factor has since become redundant).

With the level of negative responses being seen to the proposals for the new Bill, it would appear that there are some deeply vested interests at play here. The critical question is whether these interests are those of South Africa’s IP future, or rather, a backlash from the past. 

The role of Google here is of interest. One attack on Google in the South African debate, this time in the Mail and Guardian, in an extraordinarily ill-informed article from such a reputable publisher, claimed vehemently, several times, that Google was behind the introduction of fair use as a way of undermining the industry sector. Dig a little further, and what emerges is that at one stage, when the big digital multimedia companies were building and consolidating their empires, Google was a prominent partner, given its role in information dissemination. However, in the wake of the DMCA, as these corporations expanded their distribution networks and now their control over content distribution, putting it all behind a locked and pay-walled barrier, Google moved across to partnerships with the kinds of organisations that were investing in distribution beyond the limits of the enclosed corporate empires.

In practical terms, there is a four-factor test to decide whether or not the reproduction of an art work, or other elements, falls under fair use. Judges look first at the purpose of the use; then at the nature of the copyright work itself; then to the amount of the work reproduced; and finally at the effect of the use upon the market.[7]

What is extraordinary is that opponents of the Bill have suggested in the media that anyone who supports the Bill is part of “Google’s lobby” or is working for Google.  This is mischievous and misinformation.

Transformative use is also a good fair use argument, so that using an extract to demonstrate a scholarly argument about popular entertainment would function as a transformative use. There are also a large number of Fair Use Policies and Guidelines[8], including those from scholarly organisations, of which one is the Society for Film and Media Studies Statement of Fair Use. [9]

Most of all, the Fair Use Guidelines for use are now enshrined in a very large number of codes of practice, many of them with direct application to the academic sphere. The adoption of fair use provisions would allow South Africa to expand its involvement in a powerful network of researchers, documentary film-makers, media studies teachers, cultural researchers and activists, among many others, to build much-needed capacity for the development of, and free access to, teaching and learning and practical resources.

A number of South Africans are already involved in processes such as these. I was surprised to read a hostile rant about fair use from a South African teacher of media studies. She clearly did not know that there is in fact a set of Fair Use Guidelines for Media Studies teachers in South Africa that would empower local teachers in understanding how they can use clippings of films and other media in their teaching; what the limits of copying are and how the materials may be used. The Documentary Film Makers Association was involved in the discussions about the drafting of the new Copyright Bill.as they were working on their Code of Best Practice.

When it comes to plays, the situation would be the same. A University Press, for instance, could interact with educators wanting to use materials relating to the plays that it has published and agree on the terms of production. Fair use normally would not involve the right to copy a whole publication or to make multiple copies of a whole work.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that evidence the poor fit between today’s copyright policy and today’s creative practices. In a world where the public domain has shrunk drastically, it creates a highly valuable contextually defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming the full meaning of copyright policy – not merely protection for owners, but the nurturing of creativity, learning, expression… a crucial part of constructing a saner copyright policy.

[1] Ruth Okediji: Creative Markets and Copyright in the Fourth Industrial Era: Reconfiguring the Public Benefit for a Digital Trade Economy. Infojustice.org : ICTSD Issue Paper No.43, August 22, 2018. http://infojustice.org/archives/40247

[2] https://www.alrc.gov.au/publications/copyright/4-case-fair-use

[3] https://www.pc.gov.au/news-media/pc-news/pc-news-august-2017/intellectual-property

[4] https://www.pc.gov.au/news-media/speeches/fair

[5] Dean. O.H. (2015). Handbook of South African Copyright Law, para. 9.2.3, pg. 1-96

[6] http://www.ifrro.org/sites/default/files/Resolution-South-Africa.pdf

[7]  Noah Berlatsky, Fair Use Too Often Goes Unused.   Chronicle of Higher Education May 10 2017

[8] See various Fair Use Best Practice Guidelines at: https://libguides.wits.ac.za/Copyright_and_Related_Issues/fairuse_fairdealing

[9] https://www.cmstudies.org/page/fair_use

Promoting Education Rights In South African Copyright Reform

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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

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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.

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

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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.

Open Everything at UCT Open Education Week

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The first global Open Education Week took place from 5-10 March.  One of the questions that I found myself asking when I was asked to participate in some of the UCT events was ‘What is open education?’  Is it the use of  OER – putting course materials online – or something broader? The answers that emerged from panelists at the University of Cape Town moved well beyond the narrower frame of courseware to a challenging and interesting discussion of the interconnectedness of communications for the university’s different missions in a rapidly evolving digital environment.

This is in line with the Open Education Week’s aims:

Open education is about sharing, reducing barriers and increasing access in education. It includes free and open access to platforms, tools and resources in education (such as learning materials, course materials, videos of lectures, assessment tools, research, study groups, textbooks, etc.). Open education seeks to create a world in which the desire to learn is fully met by the opportunity to do so, where everyone, everywhere is able to access affordable, educationally and culturally appropriate opportunities to gain whatever knowledge or training they desire.

At UCT, the key event was an afternoon-long Western Cape-based panel discussion on Tuesday 6 March involving speakers from UCT, the University of the Western Cape and Stellenbosch University.  A gratifying number of people attended, filling the seminar room on what was a mid-term working afternoon. My impression was that ‘open everything’ is a much more mainstream cause that has been the case in the past and is attracting wider attention than before.  Of course, attitudes to open approaches havereceived a boost in South Africa with the Department of Higher Education’s adoption of OER policies in its new Green Paper, as I wrote in a recent blog and the Department of Basic Education’s adoption of OER resources in schools.

Dr Max Price

Dr Max Price

The UCT Vice-Chancellor, Dr Max Price, opened the panel discussion. This was significant in itself – a Vice-Chancellor lending support to an open education event. Commenting on the mainstreaming of OER policy internationally, Price identified the challenges facing wider open education practices as not only technical, but residing principally in the attitudes of staff. There are a number of fears that have to be dealt with, he argued – IP issues, fear of loss of control, of the work required. Very usefully, Price suggested the need for the creation of incentives, a citation system for OERs and career credit awarded to participating academics.

It was good to hear such a direct message of support from the leader of a university that I have long seen as ambivalent about these issues, but which is now clearly moving steadily towards a more comprehensive institution-wide open agenda.

The panelist’s presentations revealed different approaches in the participating institutions, with Stellenbosch standing out for the strength of the open access programme it is able to implement as a result of top-level logistical and financial support. From UCT, a narrative emerged of longstanding commitment to open dissemination by individual academics and departments, often going back decades. There was also a lively introduction to citizen science initiatives taking place at UCT. There is also a sophisticated understanding of an understanding of what is now an integrated research communication. From UWC also, insight into a long tradition of open source, open education and open access and the increased capacity that this brings.

The two chief challenges appear to be the question of institutional buy-in and top-level championing, and the challenge now being posed to a silo approach to the three university missions of research, teaching and learning and community engagement.

Michelle Willmers

This emerged clearly in the presentation by Laura Czerniewicz from the Open UCT Initiative and Michelle Willmers from the Scholarly Communication in Africa project, also at UCT. They presented a dynamic vision of developments in the ways in which research is now communicated. There is a shift from from a linear model of research publication as the end point and terminus of a research programme to a dynamic networked research environment in which communication takes place at every stage of the research cycle and the distinction between different outputs is diminished. The boundaries are blurring between research outputs as formal publications, research reports and other ‘grey literature’; enhanced publications such as  ‘translations’ for policy purposes or community impact; and teaching and learning resources. This also allows for the development of alternative metrics for valuing research contributions.

Dr Marion Jacobs, Dean of the UCT Faculty of Health Sciences, spoke, from her perspective as the Dean of a world-leading medical faculty, of a strong political and context-driven Afrocentric approach to communications in health studies. This involves recognition of excellence in research publication alongside commitment to meeting the needs of the SA health system in which access to health services is of primary importance. She provided examples of a number of online resources that contribute to public health care, ensured effective communications between health workers and patients in a multilingual country, and ensured the production of students fit for purpose in the South African context.

 Ed Rybicki , an A-rated virologist at UCT, confirmed an unacknowledged tradition – that there are a number of academics at UCT and other SA universities with a long record of putting research and teaching resources online for free access. Ed said that Africa produces just 0.7%v of global research, 66% of that from South Africa. We need to share it, he insisted. Ed says everything that he produces is and has long been open. He described a productive relationship with an Australian illustrator combining free and commercial provision of high quality scientific illustrations and the value of new developments like Apple’s iTextbook formatting tools.  The advantages that have accrued have been wide global takeup of open resources and the immediacy of web exposure of new developments.

Dr Reg Raju

Dr Reggie Raju, the Director of Library IT and Communication at Stellenbosch University  (SUN) described the impact of institutional support at Stellenbosch in creating a shared research space. The goal is to create a research footprint for the university, through an institutional repository, Sun Scholar , now ranked 165 out of 1,200  repositories internationally, and through an investment that has allowed the creation of a suite of online journals published by SUN and hosted on an OJS platform. The results of this programme, instituted in 2011 have been immediate, with rapid and substantial increases in journal readership and impact and growth in international submissions to the journals.

Mark Horner, of Siyavula told a story of a fairly common occurrence – a public interest project that emerges from a university but finds its space for expansion outside the walls of the institution, in Mark’s case with the Shuttleworth Foundation. A programme for open access science textbooks from schools has, in a 9-year trajectory, taken off from the basis of a collaborative postgraduate effort to becoming a mainstream government-supported resource now aiming for independent sustainability. The success story is that 2.5 million print copies of open access science and maths textbooks for high schools are being distributed by the Department of Education.

The afternoon ended with vivid overviews of citizen science programmes in biodiversity, presented by Tali Hoffman and Prof Les Underhill from the Avian Demography Unit in the Zoology Department and the Department of Statistical Science.

What was clear is that open education is alive and well in a number of centres in the Western Cape. However, there is fragmentation and too much dependence on often unacknowledged departmental and individual contributions. The SUN example, demonstrating the power of institution-level investment could usefully be explored in other institutions.  Institutional and government policy development to support open education in its widest sense would go a long way towards delivering the our national goals of growing participation in higher education and the enhancing university contributions to national development.