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

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IMG_2200The Copyright Amendment Bill of 2017 currently undergoing the consultative process in South Africa, proposes overturning the longstanding prohibition against parallel importation provided for in the present South African legislation, an action that could undo more than a century of colonially-based market manipulation.

Clause 11 of the 2017 Bill proposes the insertion of the following Section 12B into South Africa’s Copyright Act:

12B.
(1) Notwithstanding anything to the contrary in this Act, the
Trademark Act, 1993 (Act No. 194 of 1993), and the Counterfeit Goods
Act, 1997 (Act No. 37 of 1997), the first sale of or other transfer of
ownership of a transferred original or copy of a work in the Republic or
outside the Republic, shall exhaust the rights of distribution and
importation locally and internationally in respect of such transferred original or copy.’’

This proposed revision in the Bill draws attention to a longstanding issue that is not only a matter of copyright law, but also overdue for attention in the context of the fierce student protests that have been raging in South African universities in the #Rhodes Must Fall movement with its demands to #Decolonise the University, as well as raising questions relating to #FeesMustFall student activism that challenged the high cost of education, including the cost of textbooks. In student debates the questions that have arisen are why textbooks are very much cheaper in some countries than in South Africa, and why our students are not able to buy these books in South Africa for these cheaper prices? Also, what implications does the prohibition of parallel importation have for the fragmentation of trade in African publications across the different countries on the continent? Finally, how would this affect the South African publishing industry?

Reviewing parallel importation as an issue in international publishing reveals its very colonial origins and the extent to which this colonial manipulation of the market still lingers.

What does this mean in relation to the publishing industry – especially in Africa – and the international trade in books? What is meant by the ‘first sale’ and the ‘exhaustion of rights’? What are the implications of ‘exhausting the rights of distribution locally and internationally’? And what are ‘territorial rights’? In particular, what would all this mean in terms of the pricing of books, and greater accessibility to affordable publications for students and general readers?

These issues can be unpacked by reviewing what was at stake in a US court case concerning the sale of books imported into the US from the Far East at considerably cheaper prices than the US  prices for the same books. It was this case, in fact, that led to stronger demands for the right of parallel importation – the right for the free trade in books across national borders.

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

The decision to effectively move for the abolition of parallel importation prohibitions in South Africa has thus almost certainly been influenced by the judgement in the US Supreme Court case of Kirtsaeng vs Wiley, delivered in March 2013, which at long last overturned a much 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

Fast-tracking OER policy and practice in South Africa – Unisa on the move

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10172701_10153986781275257_146907157_nThe question of open access to research, teaching and learning resources in South Africa has for a long time been a somewhat paradoxical space in national and institutional policy. There has appeared to be sympathy for open access and OERs, and some government support evidenced, for example, in the Academy of Science’s partnership with SciELO for the creation of a national platform for OA journals, SciELO South Africa. At an institutional level, the number of OA institutional repositories has been growing, the University of Stellenbosch has added the creation of a lively and ambitious open journal publishing programme, and the country’s leading research university, the University of Cape Town in its Open Content Directory now takes a wide-ranging approach to the research and teaching and learning resources it hosts. What there has not been up until now is a coherent national policy framework with in-principle support for open content produced through public funds.

It is now in OER rather than OA that the question of openness has at last been mainstreamed. In an earlier post, I wrote more than two years ago, I reported on the  in the Department of Basic Education’s support for for OER learning support materials in schools and the suggestion in the Department of Higher Education and Training’s Green Paper, that it would support OER in distance and open learning. The schools initiative, with Siyavula, was a great success, with millions of textbooks printed for distribution as supplementary materials to students in grade 10 in government schools, with the text available on an open licence online and a very successful online collaboration space for teachers and learners. Since 2011, the development of open Siyavula science and mathematics has continued, with further open textbooks now available for grades 4 to 10.

Now OER in higher education appears to be moving towards implementation. In its recently-published White Paper on Post-School Education and Training, the national department for Higher Education and Training has announced that there will be support and funding for the collaborative creation of open learning resources to be used across institutions. There is also provision for the creation of a comprehensive licensing framework for open resources within an overall IP policy framework for higher education and training. There is also support for open source software.

It now looks as if these policy ideas might be fast-tracked, ahead of national policy development, by one of the country’s biggest and perhaps most powerful institutions. Last week the distance institution, the University of South Africa (UNISA) hit the twittersphere with the announcement of a comprehensive new OER strategy. While it might seem that yet another university committing to OER is of passing interest, in this case, this policy has to be taken seriously as a potentially path-breaking move that is likely to have considerable impact beyond the confines of distance education alone.

One reason is simply the size of the institution. With 329,000 students out of a total national cohort of  938,000, according to 2011 figures, it is bigger than the Open University in the UK, is probably the largest HE institution in Africa and enrolls around 35% of all the higher education students in South Africa. It is also the longest-standing distance university in the world, and one that provided higher education opportunities to the political prisoners on Robben Island and many other Black South Africans in the apartheid years, in spite of its institutional conservatism and alignment with the apartheid government. So to have a transformed UNISA in a democratic South Africa committing to a comprehensive plan for OER – and an avowedly Afrocentric version of open learning – is an important move that will resonate well beyond the institution.

In its strategy document, which lays out a comprehensive and well thought through implementation plan, UNISA aligns its OER ambitions with the proposed government policy and sees itself as a front-runner in getting implementation going:

Although the White Paper on Post-School Education and Training states that the DHET will “develop an appropriate open licensing framework for use by all education stakeholders, within an overarching policy framework on intellectual property rights and copyright in the post-school sector”, Unisa cannot wait for this to be developed but should rather engage with developing a licensing framework and contribute the work towards the development of a national policy.

 The aim is not to produce OER resources on their own, but to shift from producing all their own teaching materials to ‘harnessing, contextualising and integrating what already exists where feasible and educationally appropriate.’

In describing this initiative, some important themes emerge in the strategy document. One is top-level support: the Pro-Vice-Chancellor’s name heads the list of participants in strategy development and the word is that he is an active supporter. Another is comprehensive planning. This new strategy is more than simply a statement of intent, but is underpinned by a set of guiding principles and strategic priorities that demonstrate cohesive thinking about capacity and institutional planning needs. It is pleasing to note the emphasis that is placed on the support that must be provided to students using the open resources.

At the heart of the guiding principles of the new OER strategy is the recognition of UNISA’s place on the African continent. Although statements of Afrocentrism in South African universities can be gestures towards political correctness, this one seems well grounded. It is not just that UNISA will address ‘African thoughts, philosophy, interests…’ but that the institution aims, through a focus on African ideas, to leverage its networks and infrastructure to address ‘the neglected and marginalized issues relevant to South Africa and the rest of Africa’.  Positioning UNISA in this regard – as the institution is capable of doing, given its size – it aims to address the imbalances in the global scholarly landscape, by ‘making African scholarship an authentic part of the global knowledge enterprise’, through making African voices widely and openly accessible.

This is particularly important, as the current global focus in the Open Access movement, for example, with its journal-centredness and its continuing insistence on the importance of impact, has not yet reversed the marginalization of African knowledge in global evaluations of research production and impact. As an open learning institution, Unisa’s use of OER falls in behind the inclusiveness and values of social justice that an institution like UNISA – and the Open University – espouse in their creation of educational opportunity for those who are otherwise excluded from higher education opportunity and advancement.

This could, of course, all be hot air, but the thoroughness of the engagement of this document with the details of what would be needed for success and its strategic awareness of the benefits that could arise, as well as solid support within the institution suggest that there is a good chance of success here. Like the Open University, UNISA sees considerable marketing benefits accruing from its own production of high-quality and relevant teaching and learning materials and the efficiencies and advantages for students inherent in harnessing content available from OER resources from elsewhere.

So the new business model includes ‘systematic integration and adaptation of open content produced outside Unisa into new course environments where there is no print constraint’, linked with new models of accreditation and sharing content as OER as a marketing tool to attract students researching higher education options.

In discussing licensing, interestingly, a SWOT analysis identifies as a threat the ease, in a digital environment, of people’s ability to copy and use Unisa’s resources. The proposed approach to fielding this threat of ‘piracy’ is to move to an open licensing regime, but also to build Unisa’s strength in student support and effective assessment. This looks like a strategic response to MOOCs, too – the value is perceived to be not in ownership of the content, but, particularly acutely in Africa, in providing scaffolding and support to students and creating an interactive environment where these dialogues can happen.

So things seem to be moving in South African OER. Something that interests me in particular, though, is an ancillary issue that might be missed by anyone not familiar with the publishing industry and that is how this Unisa strategy is going to impact on textbook use and thus on the textbook industry. A bigger question lies behind this, one that the more forward-looking publishers are engaging with right now; what exactly is a textbook in an integrated digital environment where even face-to-face courses are supported by extensive online environments? A textbook, after all, is a scarcity product: with not enough lecturer time to teach everything, the core of a discipline is made available in a single publication, with illustrations and case studies. Is this really needed now, in the form in which it currently exists? And could textbook material more usefully be integrated into the institutional LMS? Or provided on an online platform and customised to the course concerned?

At the annual international publishers’ meetings in mid-2008, UNISA was reported – to the concern of publishers – to be planning a move to a supply model that would consolidate the delivery of learning materials in UNISA’s own courseware packs, changing and potentially reducing its reliance on textbooks. Given the dominant position of UNISA in the local textbook market, this seen as a move likely to have a decisive impact on the availability of open resources, or on the price and range of university textbooks, depending on the directions it would take.  Currently some industry players are concerned that Unisa appears to be discouraging the prescription of textbooks in first year classes.

Because of its disproportionate size in the SA HE sector, something as big as its shift to OER and to more comprehensive provision of course materials to its students is surely going to accelerate changes in textbook publishing in South Africa. After all, with 35% of the country’s students in this one institution, it would be naive to underestimate the pull that the institution has had, over many years, for local publishers eager to corner large classes and garner good sales. This was especially the case if the publisher was able to offer a direct sale deal, so that every student in a class got a book, given that the sell-through rate in bookshops has traditionally been about 35% of students in a class.

By the end of apartheid, a tradition had developed among South African publishers of head-hunting UNISA lecturers with big classes  and offering higher than average royalties in return for a secure market (especially if the lecturer would set class tests and exams in such a way that the students had to have the book). This potentially had an impact on quality issues, if authors in this context were selected not for their academic/pedagogical excellence or their writing skills, but for the size of their classes (Gray, 2001).

Given the importance of Unisa to this sector, it is worthwhile speculating on what changes might be brought about by developments at Unisa in the coming years. Unisa provides its students with course materials that are produced by its own (large) course publication unit. Textbooks – local and imported – are often prescribed to accompany course materials and these are sometimes provided to students with their course materials, but more often purchased by students from bookshops. In a distance education institution as big as Unisa, with its students spread to the remotest areas, the logistical challenges of getting course materials and textbooks to all its students are formidable. Discussions of the potential of the internet to solve many, it not all, of these problems have been a matter of debate at Unisa for the last few decades – ever since the early days of the internet, which coincided with the early days of a democratic South Africa.

Now that this vision can be delivered, there is the promise of the availability of OER resources from across the world to supplement what Unisa lecturers produce themselves, leaving the institution to focus more strongly on learning support. As the strategy document puts it:

Unisa can benefit by shifting from authoring and producing all its own materials to harnessing, contextualising and integrating what already exists where feasible and educationally appropriate. This combination of access and exposure to high-quality learning materials will create an environment where richer teaching and learning can take place.

A big question is the role that will be played by commercial publishers. Will they simply be marginalized or put out of business by the availability of OER, or will their skills be harnessed in different ways? Are open/commercial partnerships going to offer advantages? Already the trend emerging among the big international publishing companies is the purchase of online learning environments, so that their strategic focus starts to move from ownership of content to ownership of the technology, the delivery vehicle and the learning process. Wiley, McGraw Hill and especially, Pearson are already moving in this direction. This new environment offers the opportunity for content to be disaggregated, customized and localized, something that South African lecturers have been asking for, for a long time.

Or, as some commentators suggest, is this simply going to be a matter of selecting the best OER resources available and cutting out commercial products altogether?

This is going to be an interesting space to watch.

 

Eve Gray (2001)Academic Publishing in South Africa, in The Politics of Publishing in South Africa, edited by Monica Seeber and Nicholas Evans, Holger Ehling Publishers and University of Natal Press.

UNESCO takes Open Access into the mainstream – but what about South Africa?

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Paris sunset

In 2011 the last event I attended was the UNESCO Open Access Forum held in Paris in November. I came away with the strong sense that open access was at last in the mainstream, a central component of global thinking, based on access to knowledge as a fundamental human right and on arguments about the effectiveness of open access in contributing to social and economic benefits. At about the same time I was asked to compile an overview of open access in South Africa, bringing me face to face with the variety and the fragmentation of the South African open access scene. What is missing in South Africa was any coherent involvement of government in brokering policies on communication or technology policy for a 21st century vision of higher education in Africa – where South Africa could be leading the way.

As I discussed in my last blog , a new Green Paper on Post-School Education and Training in South Africa has taken quite a strong stance on policy for open educational resources, drawing on UNESCO’s OER intervention as a validation for this policy strand. But what about open access – access to research findings?  There is very little about research communication in the Green Paper – as is all too often the case with analysis of research capacity development in South Africa, or indeed in the region. And why should South Africa bother?

The UNESCO OA Forum was important not only because the organization is now putting its weight behind OA – and particularly OA policy development – but also for what we learned abut mainstream OA interventions across the world, providing insights into how OA was functioning and what benefits were emerging.

The UNESCO OA strategy was adopted by the General Conference in its 36th meeting in November 2011, building on UNESCO’s ‘resolve to build knowledge societies through the use of information technologies’. The underpinning vision is that access to information is crucial as a way of reducing the knowledge divide and increasing socio-economic development in a world in which Northern dominance of knowledge production and high prices for technology access and the high prices for peer reviewed research publications act as barriers. The OA strategy plan places a strong emphasis on the creation of an enabling environment, the fostering of collaboration and the advocacy role that UNESCO could play in national policy development (a set of OA policy guidelines will be published shortly).

On the journal front, the message was that OA journals were growing exponentially, from 560 journals in 2003 to over 7,300 in 2011, as Lars Bjornshauge of SPARC reported, but that there is a problem in the preponderance of small, single-journal publishers. For the latter problem, aggregation services are important, something that does have national policy implications, as is the case in South Africa where the Academy of Science is running the the SciELO South Africa initiative with government support. While the overwhelming majority of journals (71% in general and 87% in Latin America) do not charge article processing fees, there are questions around how to deal with the APC costs for those that do, especially for developing country authors. Again, there is a potential policy issue in setting up guidelines and financial streams for dealing with APCs.

There were some powerful players participating in the forum, including the European Commission, the FAO, WHO, donor organisations like the Wellcome Trust, and professional organsiations like IFLA and the International Association of STM Publishers, The EU commitment is to a high level vision of e-infrastrucure  and a package of policies, programmes and activities for the support of OA, spelled out by Carlos Morais Pires, Norbert Lossau and Jean-Francois Dechamp This plays out in two Communities of Practice (CoP), the Confederation of Open Access Repositories (COAR) and Open Access Infrastructure for Research in Europe (OpenAIRE). Preparatory work is being done on a European Open Data Infrastructure (for EU organizational data). The strategic vision behind all this combines the language of innovation, educational empowerment, resource efficiency, economic competitiveness, employment growth and poverty reduction. In other words, mobilizing top level support in the EU for the adoption of an internet society approach to collaboration and openness is not just an idealistic commitment to human rights, but a hard-headed strategy for competitiveness, growth and social stability.  This is based on hard and soft law, is backed up by support services and is worth investing in.

I have had discussions over the years with publishers from the FAO at book fairs over the years and so was very interested to see the comprehensive and powerful programme that is being put into place through the collaborative CIARD programme – for Coherence in Information for Agricultural Research and Development – presented by Stephen Rudgard. The CIARD partners, a wide range of agricultural organisations – will collaborate to promote common platforms, adopt open systems and create a global network of information. The aim is to ensure effective investment in agricultural research, strengthen capacity for the creation of research repositories and also for the ‘creation of networks for formal and informal networks for repackaging outputs’ – in other words for ensuring wider access and appropriate communication levels beyond the research community.

The importance of this kind of ‘translation’ emerged in Robert Kiley’s presentation on the Wellcome Trust’s open access initiative, which requires the research it funds to be published in an open access journal or placed in the PubMed Central repository. This was also endorsed by a statistic provided by Alma Swan – that 40% of the users in PubMed Central are ordinary citizens. Kiley argued that the UK would save money adopting OA publishing, if the APC fees were at the level of £2,000 and that for the Wellcome Trust to support publication of all the research outputs produced from its research that it funded would cost only 1.25% of its research funding. There are also arguments for the effect of the open availability of research as an important stimulus for innovation and economic growth, especially for small businesses, as demonstrated in a Danish study. Citing hard-headed figures, this article explores the costs that are incurred when small businesses don’t have access to research outputs and the financial benefits that accrue through open innovation when they do.

Against this background, it is striking that so little discussion – and for that matter, research – in South Africa pays attention to the importance of effective communication of research and the need for technical infrastructure and skills to support this. Instead, the discussion focuses on journal articles published in ‘leading’ journals (i.e. ISI) and the ‘impact’ status and competitiveness that this is perceived to bring. The Minister of Higher Education and Training knows the limitations of this system, as I have explored in a journal article. It would be good to open a discussion of the advantages of open access for southern Africa in the context of the Green Paper.

Scholarly publishing as a transformation issue in South Africa

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With the Higher Education Transformation Summit taking place in Cape Town on 22 April, universities have been in a reflective phase, examining their success – or lack of it – in achieving post-apartheid transformation. The report card shows that we are achieving a great deal, but could try harder. There is still a way to go before all our students and academics feel they are in institutions that are really their home.
No-one seems to have noticed the elephant in the room. In all the discussions, I see very little attention being paid to the role that scholarly communication and publication plays in the transformation process. We talk about the demographic profiles of our universities, yet we do not seem to question the communication environment that students and staff are immersed in and the values that are reflected there.
Why is it, for example, that, as the South African Minister of Higher Education and Training , Blade Nzimande, complained at the UNESCO 29th World Conference on Higher Education that ‘there is a gender imbalance throughout higher education systems especially in leadership positions.’ in his keynote address at the Transformation Summit, he picked up on the fact that the average age of academics continues to rise and that there has been a drop in the number of staff under the age of 30? Does the publishing system that is so central in determining who is promoted and rewarded play a role in these demographics? Is this an alien environment for the young scholars that the universities want so badly to attract? Do students and researchers find their own, African, world reflected adequately in the scholarly resources that they have access to? Are the values that our researchers hold reflected in the ways in which they are supported in publishing their research? Continue reading →

Policy recommendations – Research Publication Policy in SA

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My Policy Paper for the OSI International Policy Fellowship concludes with a number of policy recommendations, at international, national and institutional level. Here is a brief summary of these recommendations:

Summary of policy recommendations

Advocacy and research

There is a need for advocacy to promote the importance of effective and broad-based research dissemination as a way of
achieving greater impact for African research, nationally, regionally and globally. Such advocacy would argue for the recognition of a wider range of publications, addressed not only to scholars, but aimed at the broader
community. Alongside this, advocacy is needed to spell out the advantages of Open Access – particularly in the developing world context – in increasing research impact and reach.

Advocacy campaigns would need to be accompanied by the development of effective case studies to provide working
examples of how research dissemination can be transformed and what impact this transformation is having.

International and regional policies

Access and participation: At an international level, policy initiatives that address the global knowledge
divide need to move from an approach driven by the idea of access – in other words the idea that developing world problems would be solved by providing greater access to global knowledge resources – to
a recognition of the need for greater participation by African countries in knowledge production. This would also require international policy documents to move beyond narrowly-focused proprietary and commercially-driven metrics for the evaluation of research performance to recognition of the importance of non-proprietary, collaborative approaches to knowledge production and dissemination.

Access to publicly funded research: An important strand of such a policy environment would be the creation of policies
supporting Open Access to publicly funded research, along the lines proposed by the OECD Declaration and the Salvador and Bangalore Declarations.

The WIPO Development Agenda: This programme (which is now showing signs of being accepted for implementation[1]) if implemented, could deliver a less punitive and more open international IP dispensation, offering more equitable access to knowledge and more flexible regimes for the fostering of innovation and creativity in developing countries.

Regional collaboration: Regional collaborative initiatives for the advancement of scholarly communications, such as SciELO are recommended, as is the development of an African citation index.

National Policy

Intellectual Property Law: Greater openness for research dissemination could be achieved without the need for
changes in IP law. However, there is a need to address the inconsistencies in South African IP legislation in relation to Fair Dealing and special provisions for educational and library use. It would be desirable to investigate the
question of territorial rights and their impact on the cost of imported books.

Access to research from Public Funding: Policies for Access to Research from Public Funding could provide mandates for the deposit of research publications in institutional repositories, for national harvesting, opening up the availability of research knowledge.

Support for Open Access research publication: As recommended by the Academy of Science of South Africa, there needs to be financial and logistical support for scholarly publication at a national level. This could include the provision of funding derived from top-slicing a small percentage of the Department of Education remuneration for research publication in accredited journals. An alternative listing and indexing system for journals could contribute to raising quality standards while at the same time ensuring the national relevance of journals. Support for Open Access publication would increase visibility and impact.

Support for a wider range of publications: However, support for research dissemination needs to go beyond the traditional focus on journal articles if research publication is really to impact on national development goals. At national
level, a more positive rating for publication in books and conference proceedings is needed as well as the recognition of the importance of other, less traditional publications, such as research reports and popularisations. Electronic publication needs clearer recognition.

Social impact measures: There is a need to initiate research into the development of social impact criteria as opposed to the current, proprietary and commercially-focused metrics.


Institutional policies

Academic reward and promotions: If research publication is to be development-focused and not only geared to
international prestige, then institutions would need to address a wider range of criteria for academic reward and promotion, more closely geared to the development-focused goals of national higher education research and innovation policies.

Integrated communications management: There would be a good deal to be gained if institutions were to take an
integrated approach to scholarly communications and the use of digital media. This could include policies for the creation and management of institutional Open Access repositories; support for the management of the contracts signed by academic authors; and addressing the publishing needs of the institution and providing support for research dissemination and publication. In other words, the institutions would endorse the centrality of research dissemination and publication, as well as access to research knowledge.

[1] See, for example,
the Knowledge Ecology International Statement on the conclusion
of the Development Agenda negotiations in June 2007.