Category Archives: Uncategorized

Promoting Education Rights In South African Copyright Reform

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

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

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

Copying for education in South Africa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new education right

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

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

Section 12D of the Bill provides:

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

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

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

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

Copyright Amendment Bill Section 12D(2)

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

Supporting schools, students and local publishers and authors

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

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

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

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

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

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

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

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

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

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

Copying for education in South Africa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new education right

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

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

Section 12D of the Bill provides:

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

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

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

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

Copyright Amendment Bill Section 12D(2)

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

Supporting schools, students and local publishers and authors

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

4980421657_5278242c15_zHow to become a Professor

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

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

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

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

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

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

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

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

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

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

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

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

A matter of language dominance and regional power

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

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

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

Robert Maxwell and the 20th century commercial journal system

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

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

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

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

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

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

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

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

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

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

Consolidation and capture

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

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

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

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

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

Photo: Barry Silver

CC Attribution 2.0

 

References

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

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

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

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

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

Open Everything at UCT Open Education Week

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.

Medical Journal Ghostwriting

The New York Times has published an article about the use of ghost writers from drug companies to produce journal articles that then go out under the names of academics in US universities. This is yet another example of problems in the ethical standards of the big journal publishers and the morality in pockets of the global scholarly prestige system.

Senator moves to block medical ghostwriting

A growing body of evidence suggests that doctors at some of the nation’s top medical schools have been attaching their names and lending their reputations to scientific papers that were drafted by ghostwriters working for drug companies — articles that were carefully calibrated to help the manufacturers sell more products.

Experts in medical ethics condemn this practice as a breach of the public trust. Yet many universities have been slow to recognize the extent of the problem, to adopt new ethical rules or to hold faculty members to account.

Read the rest of the article here