Tag Archives: Africa

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

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

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

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

The Kirtsaeng case involved a Thai student, Supap Kirtsaeng, who, when he arrived in the US, found that his college textbooks were absurdly expensive compared to the same books in his home country. So he contributed to funding the cost of his studies in the US by selling Wiley textbooks that he had purchased legally in his home country. The fact that the books were cheaper was the result of territorial rights deals struck between US and Asian publishers. These deals would have involved transactions governed by contracts – rather than copyright law – between the originating publisher in the US and the local publisher.

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

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

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

First of all, copyright is granted automatically when someone creates a work, and this copyright is recognized and enforceable in any country in the world, according to the Berne Convention. Copyright is global, not segmented locally.
Secondly, the copyright owner has monopoly rights over the work, but this is subject to a limitation – control is only granted on the first sale of a book. Once a customer has bought a book, or another copyright product, under copyright law the purchaser is free to re-sell it and the courts would reject attempts by publishers to exert control over that sale.

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

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

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

An Imperial Hangover

This hierarchical relationship in the publishing industry in the English-speaking world has its roots in an imperialist/ colonial hangover entrenched in the early 20th century. Early copyright law in the colonial context incorporated ‘Imperial Copyright’, which assumed British control over publication and dissemination in the colonial empire, even after the independence of the countries concerned. In this way, local copyright legislation in colonial subject territories functioned also to protect British copyright interests when ex-colonies, such as South Africa, drew up their own copyright laws in the form of ‘His Majesty’s Imperial Copyright Act’, as the 1911 Act was named. The purpose was to protect and perpetuate the dominance of British goods across all its dominions.

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

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

It is also interesting to note that the date of the BTMA, shortly after World War II, places these events on the same time scale as the early foundations of British dominance of the commercial scholarly journal system, laid out by Robert Maxwell and the British Information Services in Berlin, after World War II Control of scholarship and communications was clearly an important strategic imperative in a changing high-technology post-war world, where knowledge was becoming ever more valuable.

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

What needs to be acknowledged now is that any provision for copyright and international trade has to take into account that the world has changed even further and that the book industry is operating in very different circumstances as print and digital publications move towards greater worldwide integration of different media, with very rapidly changing business models. This makes it even more important to have an open system of international trade in the creative industries.

The End of the BTMA – A Shift to Contract

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

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

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

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

The problem of Emerging Economies

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

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

The Background – What is Parallel Importation?

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

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

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

For those unfamiliar with the terrain, what this meant in practice was that as a result of restrictions on parallel importation, a country like South Africa could not buy the much cheaper Indian edition of the UK or US textbook licensed with a much cheaper sales price in India, for example, with its huge market. Instead, in a country facing protests from students about the cost of education, South Africa had to buy the massively more expensive UK editions of international textbooks.

In recent years the most vociferous objections started to arise from US college students, enraged at the high prices they have to pay compared to their fellow-students in Asian countries. This began to have a serious impact on the college textbook sales in the US and internationally, in a context of rising levels of resistance to purchasing books, together with the growth of digital open textbooks.

The Potential Impact on Publishing Across Africa

These practices also give pause to reflect on the state of cross-country publishing in Africa, in the context of a colonial legacy of illogical national boundaries imposed by colonial powers in the wake of the Berlin Conference on 1884.

In Africa, the market for books has been fragmented by decades of territorial licensing between African publishers and British and US publishers. If an African publisher has a title with potential in the wider market, it will most often be licensed to a UK publisher, who would claim ‘rest of the world’ rights, while other African countries would have to buy this UK ‘world’ edition rather than the original African edition. And so, in the 1990s, after the end of apartheid, the African Literature department at a South African university often found itself having to provide photocopies of prescribed novels by African authors, as they were simply not readily available in South Africa, or only on special order at unaffordable prices, because British publishers were often reluctant to bother with distribution in as small a market as South Africa, or because the international edition was simply too expensive.

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

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

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

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

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

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

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

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

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

References

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

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

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

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

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

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

Academic spring – open access policies take the world by storm

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Photo: Eve Gray CC-BY

I would normally count the Easter weekend as a quiet time with little happening online. I was proved very wrong, to my delight. At the same time I was proved right on another front – the period of Open Access as a fringe activity, a protest from the sidelines, is definitively at an end. One reason that this pleases me enormously is that this changes definitively the largely futile game of global catch-up that research universities in Africa seem destined to play. If we really want to emulate the best practices of global scholarly publishing it is now very clear that open access publishing is something that we have to embrace. This is doubly good news, because open access offers African researchers, their universities and governments the opportunity to overcome the barriers that face dissemination of African research in its attempts to penetrate the dominant commercial scholarly publishing block. OA has the promise of real reach and impact – locally and internationally – and it now has the unequivocal backing of major international organisations. But there is also going to be some work to do to ensure that the policies we develop conform to our own needs, not just those of developed countries.

So what did happen this weekend? First of all, UNESCO’s Information and Communication Directorate published its Policy Guidelines for the Development and Promotion of Access to Scientific Information. That UNESCO has launched an Open Access policy initiative is not news – it was launched to the end of 2011. I was familiar with the draft of the policy document from our discussions at the UNESCO Open Access Forum in November 2011, but it was good to have the final version in hand, one that we can use and cite and send to our colleagues and governments.

The Policy Guidelines, written with admirable clarity by Dr Alma Swan, are comprehensive, explicitly intended to inform the development of open access policies for scientific research by national governments. What is going to be needed now is active participation by African organisations, stakeholders, institutions and individual academics so that the policymaking process is really geared to the strategic goals that have been articulated for African research efforts. And, of course, to ensure that these strategies are really aligned to our needs.

Then came the World Bank’s announcement of its Open Access initiative. It has created an Open Knowledge Repository as a one-stop shop for much of its information. An Open Access Policy will be applied from 1 July 2012, governing a range of World Bank publications and research outputs that will need to be in the Open Knowledge repository. This applies to monographs, chapters in monographs and journal articles as well as reports, with the former being deposited in their final pre-publication version. Peer review or review by project coordinators is required for all publications that are deposited.

The Creative Commons licence that has been adopted by the World Bank is the non-restrictive CC-BY that allows for copying, adaptation and distribution, even for commercial purposes. A non-commercial licence will govern only those works published by outside publishers –who will be required to comply with the open access policy.

I was just getting my breath back from these two major moves when the Guardian report on a Wellcome Trust announcement added to the seasonal celebrations. The Wellcome Trust is launching a new mega-journal, eLife, which will directly compete with the major scientific journals, like Nature and Science. One of the biggest research funders, with a strong commitment to the importance of applied research and its social and development impact, the Wellcome Trust was an early adopter of open access policies, requiring research outputs from the projects it funds to be deposited in PubMed Central. It is now going to strengthen these requirements.

It has to be remembered that these initiatives came hot on the heels of the boycott of Elsevier, now signed by some 9,000 researchers, arising out of protests against the Research Works Act – an attempt to reverse public and donor funder mandates for open access deposit of publications arising out of this research.

Why should this be relevant to us, at the other end of the world and on the margins of the global scholarly publishing system? At the beginning of this century, African universities and governments needed to rebuild their research systems after the depredations of World Bank and IMF structural adjustment programmes. The focus in this recovery period tended to be on the need to rebuild prestige and so the policy focus and reward systems for researchers gave preference to publication in the big international commercial journals, with their high-impact ratings. This has proved a futile exercise. The volume of African articles in the international indexes remains very low and a price is paid for this participation in the distortion of local research priorities, often sacrificed in order to get into Northern-focused journals.

What we have found in our Scholarly Communications in Africa Programme is that the universities we are working with are in fact particularly interested in the potential for the development of scholarly publications that can contribute to their strategies for research contribution to national and local development imperatives. That means working not only with journal articles but also with a range of other research papers as well as ‘translations’, for policy or community impact. The major international policy announcements of the last week offer a powerful affirmation not only of open access, for reasons of human rights and greater social justice, but also for a broader vision of what a research reward system should focus on. In this regard, we are likely to be involved in a policy dialogue in which developing country research organisations can engage in dialogue about the focus of global open access policy initiatives, contributing to the debate rather than just playing follow-on.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An African citation index? The AFC-Codesria conference on digital publishing

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Around 65 delegates met in a mild and sunny Leiden in early September, as guests of the African Studies Centre of the University of Leiden, to
discuss the the North-South divide and scholarly communication in Africa in the digital era. This was a follow-up to an initial conference on the topic in Dakar two years ago. The differences between the two conferences were telling: while the 2004 event consisted largely of informative and explanatory papers, laying the ground for an understanding of the terrain, this time there was a much more confident interrogation of the assumptions that underlie international scholarly communications systems and the power relations at play in the scholarly community. The papers were of a very high standard and the conference teased out many key issues facing African scholarly publishing, bringing delegates up short against of the major challenges that face the continent, yet not descending into the abyss of Afro-pessimism that so often characterises meetings of this kind.

Appropriately, given the venue, collaboration and partnership were very much on the agenda. As Adebayo Olukoshi said in his opening speech, global knowledge dissemination is characterised by asymmetries from previous systems of knowledge production. The conference was designed to
address these asymmetries, he said, with the aim of developing strategies for using CODESRIA’s CODICE documentation centre to help
leapfrog institutional practice across the continent. In this context, CODICE is seen as a pioneer centre on the African continent
for the development of digital media and online resources in the social sciences. The main lines of discussions that emerged at the conference were cogently summarised in this opening speech – the inequalities inherent in the scholarly system and the marginalisation of African knowledge in that system; the problematic yet ultimately liberatory role of technology; the need for leapfrogging disadvantage; and the vital importance of collaboration and resource sharing.

Open Access publication seemed to have ready acceptance across the board as the most enabling dissemination model for African scholarship, offering greater citation impact, greater efficiency and, most important, more democratic access to knowledge. Given that a number of speakers identified distribution problems as the major barrier to research dissemination, the potential for Open Access digital distribution was doubly attractive, leading to an increase in impact factor of between 56% and 227%, according to Marlon Domingues of the ASC.

The conference agreed that Codesria should propose the creation of an African citation index as a way of addressing the inequalitites that characterise the marginalisation of African publication. The particular occasion for this event was the launch of Connecting Africa, an ASC initiative to harvest African Studies data by building links to repositories across the world. As an example of North-South collaboration, this initiative builds on existing resources to leverage access to a body of African Studies content, fostering partnerships between institutions in the North and in Africa. The resultant collaboration aims to redress the knowledge divide by balancing access to research content produced in Africa and that
generated in the global North.

Providing a perspective from the global South, Subbiah Arunachalam gave an eye-opening account of the ways in which Open Access knowledge dissemination to rural knowledge centres in India had contributed to poverty reduction and the delivery of development goals – as well as saving the lives of coastal fishermen through the provision of weather and tidal information. These networks translate knowledge from the research environment to local communities – ‘lab-to-land’ as Arun described it – using digital, print, and broadcast media to get the message across in projects in some 40,000 villages. Although researchers in developing countries face severe disadvantages, it was clear that technology could help
bridge the gap between rich and poor. Given the challenges that face us, such as SARS, avian flu, and tsunamis, he argued, the improvement of ICT access and the building of research networks must be seen not as a luxury but a necessity.

A number of speakers, however, asked the question ‘Open Access to what, for whom?’ In a closely argued paper, Paul Wouters of the Virtual Studio in the Royal Netherlands Institute of Humanities and Social Sciences, challenged delegates to interrogate many of the assumptions behind Open Access, including its seemingly uncontroversial value as a public good. OA also has a history, he argued, based mainly in the library and information sciences and is based on assumptions about the scientific systems, knowledge produced in the systems, and practices in the system. Scientific knowledge is closely connected to local circumstances, he argued, not valid universally. Universality is the result of a lot of work, not only in dissemination but in an active act of translation. There are, moreover, under-recognised difficulties in sharing data, he argued including emotional differences between, for example, physicists working with less personal data and social scientists. The question therefore is how to
turn the humanities and social sciences to more collaborative methods.

This tension between ‘international’ and ‘local’ knowledge was interrogated by a number of speakers, along with the implicit hierarchies that underlie such a concept. Arguing that many development consultants do not understand the knowledge of their subjects very well, development consultant Mike Powell pleaded for an understanding of the multiplicity of knowledges in the environment and for applied research in navigating this diversity. He challenged the easy assumption that African knowledge is ‘indigenous knowledge’ and US and European scholarship ‘global knowledge’. African scholars were encouraged to resist the devaluation of African knowledge – for example, depending on circumstances, Mike argued, a doctor trained in Maputo could be more valuable than one with a more prestigious Harvard qualification.

Williams Nwagwu of the University of Ibadan tackled the local/international issue from another perspective, making the case for the creation of an African citation index, arguing that African research is for the most part, ‘unavailable and inaccessible’ as a result of the selection criteria imposed by the mainstream Northern citation indexes. These exclude most research done in Africa and, in particular, deny the importance of locally or nationally-focused research, which tends to be applied research, understandably enough, given African circumstances. Peter Lor, a former National Librarian in South Africa and a keynote speaker, concurred, arguing that the South African system places excessive emphasis on the USA ISI citation index and disadvantages local journal output as a result.

Marlon Domingues cited the “;Matthew effect” in citation – “for every one that hath, to them shall it be given”’. The South American example of the SCIELO database was cited by a number of speakers as a valuable coordinated cross-national policy initiative that has substantially increased the exposure of research from the participating countries – and if Cuba can do it, so can African countries.

The proposal for an African Citation Index was taken up enthusiastically by the delegates and a proposal was accepted for Williams to prepare a model for CODESRIA, for the idea to be taken up with the AAU and NEPAD. Terms of Reference should be ready by October-November 2006.
There was broad agreement on the ways out of the impasse faced by African research dissemination. Common themes were the need for the recognition of grey literature, – the inclusion of content (as is the case in SCIELO) that is not peer reviewed, as a means of evaluating social impact. Garry Rosenberg provided a clearly articulated account of the case study of the HSRC Press, arguing that Africa’s future cannot be found in the glbal North’s past, but that Africa needs new publishing models that honour the social purpose of publishing. It is an ethical responsibility to make research findings available, he argued. it was possible to buck global trends, he said – for example, 22% of the citations from the President’s
office were from HSRC publications.

Interventions suggested were : training in info-literacy and information management; education in copyright (from the perspective of educational institutions rather than that of publishers); the creation of much greater awareness of scholarly communication issues; the building of collaborative networks; the fostering of a new role for African libraries; and the creation of Africa’s own electronic publication and dissemination tools, policies and practices.

In the final keynote address, Olivier Sagna, from Cheik Anta Diop University in Dakar, but recently appointed to a strategic position in CODICE at CODESRIA, pulled together a number of these themes. Africa had been outside most developments he said, but now research knowledge had to come from out of Africa. The continent was disadvantaged by global institutions like the WTO and WIPO; libraries had non-existent budgets, there was a digital divide and a scientific divide. Most of all, he said, there was a lack of public policies and no civil society movement for higher education. What was happening in Africa, he said, was the growth of FOSS, the localisation debate, the establishment of repositories and research archives, Creative Commons SA, with Nigeria to follow, NRENs. What needed to be done was awareness-raising; policy creation (Open Access, FOSS, etc.); training programmes in electronic dissemination; customised and innovative information products and services; information management leading to knowledge management and from STM dissemination to knowledge and communication strategies. The challenge, then, would be to move from national to regional programmes. Most important, African universities needed to create communication links and collaborative networks so that efforts are no longer fragmented. Perhaps, he said, in 2007 there should be a Timbuktu Declaration on African Open Access.

graysouth

Open access – a view from the South