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

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Introduction – a climate of contestation

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

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

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

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

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

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

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

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

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

The growth of the big media industries across global markets

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

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

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

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

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

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

The extension of the period of copyright

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

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

Decolonising South African publishing – Parallel Importation Prohibition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The debate about the Bill and its provisions – Fair Use

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

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

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

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

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

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

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

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

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

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

Advantages of fair use

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Promoting Education Rights In South African Copyright Reform

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

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

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

Copying for education in South Africa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new education right

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

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

Section 12D of the Bill provides:

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

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

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

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

Copyright Amendment Bill Section 12D(2)

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

Supporting schools, students and local publishers and authors

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

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

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

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

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

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

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

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

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

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

Copying for education in South Africa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new education right

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

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

Section 12D of the Bill provides:

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

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

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

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

Copyright Amendment Bill Section 12D(2)

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

Supporting schools, students and local publishers and authors

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

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

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

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

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

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

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

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

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.

The policy gap – research communication in limbo in South Africa’s new Green Paper

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South Africa has a shiny new Green Paper on Post-School Education. However policy weary we might be, this is, refreshingly, a good document, with the right ambitions for the overdue overhaul of the higher and further education sector.  It quite rightly identifies the country’s huge deficit in further education and the failure to provide sufficient training for employment to meet the overwhelming need in this sector. This policy document does not appear to fall into the trap of trying to turn universities into human resource factories, but rather seeks to leverage the strengths of the most functional institutions to help upgrade the under-developed further education sector.

If the Green Paper is implemented as its stands, the universities are facing a considerable upward trend in the number of postgraduate degrees to support sector growth; greater research differentiation between institutions; enhanced attention to teaching and learning effectiveness; effective use of ICT for increased efficiencies in distance and face to face learning; expansion in the number of academics to meet increased teaching and learning and research targets; and the encouragement and nurturing of young academics. Extra funding is proposed to meet these needs. The driving ethos is that of collaboration, cooperation and intra-institutional synergy to ensure that the stronger institutions can contribute to the upgrading of the weaker ones. The Green Paper places itself firmly in the 21st century as it proposes the adoption of flexible and innovative models of teaching and learning delivery, building on the affordances of information technologies. This is articulated as a way of improving access and increasing economies of scale.

This is an enlightened view of university education that includes, gratifyingly, the endorsement of collaboratively developed open educational resources, the idea of collaborative learning networks, online student support, and the suggestion that government might support the production of open textbooks. The support of UNESCO for OER, as part of  ‘a growing international movement’ (p. 59), is clearly an important motivating force behind this radical move. Indeed, as I write, the SA government is co-hosting a UNESCO Forum on OER Policy in Africa.  The Green Paper mentions UNESCO’s work on open education resources as a motivation for these provisions, but does not respond to the more recent development in UNESCO of an Open Access programme, launched in late 2011 at the UNESCO Open Access Forum.

The UNESCO OA initiative provides some guidelines on what would constitute a more expansive vision of what needs to be done by way of national policy for the creation of a comprehensive approach to research publications and communications. The initiative focuses explicitly on Africa, saying that in spite of improvements in ICT availability, awareness of OA remains low on the continent and in other developing countries. The brochure produced to launch this initiative summarises the advantages of OA thus:

 Through Open Access, researchers and
 students from around the world gain increased
 access to knowledge, publications receive greater
 visibility and readership, and the potential impact
 of research is heightened. Increased access to and
 sharing of knowledge leads to opportunities for equitable economic and social development, intercultural dialogue, and has the potential to spark innovation.

 In other words, OA is perceived in the UNESCO programme as a driver for the development impact from research that the SA government has persistently asked for. It is also the capacity builder that the Green Paper seeks, a space in which research processes and findings can be shared and these findings made available for the creation of learning and training materials and ‘translated’ for use by businesses, social entrepreneurs, and communities. As I set out in an earlier blog on the UNESCO OA Forum ,  UNESCO follows in this initiative behind a number of other organisations and countries that are investigating and adopting new regional and national frameworks for research communication, based on rapidly-changing digital research practices.

The research communications gap in the SA Green Paper

Disappointingly, this is not reflected in the SA Green Paper – a big hole at the centre of its 21st century vision – with no attention paid to the need for national policy to address access to knowledge through the communication and publication of research. All that we get is the statement that the government wants to ‘increase the number of patents and products developed by our universities and research institutions’ (p. 44).  It looks as if we are back in the 20th century industrial economy vision of research ‘outputs’ (patents and journal articles) driving national economic development, a very limited view of the potential of research in a digital world.

It is not that our government is not aware of the advantages of OA. It has undertaken investigation of research publication in the last decade. The Department of Science and Technology commissioned evidence-based research from the Academy of Science of South Africa (ASSAF) on a Strategic Approach to Research Publishing in South Africa  (2006) and as a result supports the ASSAF Scielo South Africa programme for the creation of an open access platform for accredited local journals. The Department of Higher Education and Training has accepted and is implementing an ASSAF report on scholarly books, which includes open access proposals.

These initiatives – as valuable as they are – impact relatively little on the institutions and the ways in which they do or do not support the communication of research. Without the development of more comprehensive national research communication policy, there is room for the persistence of a free-rider syndrome that has the universities and their academics perceive publication as something that someone else does. There is no policy pressure for universities to support the communication and publication efforts of their academics nor to ensure that research investment results in access to the knowledge that has been produced. Where there have been open access initiatives, for the creation of research repositories and, in the case of Stellenbosch University, investment in the creation of an open access journal publishing programme, these have been the result of the hard work of individual champions and forward-looking administrators and so they risk remaining isolated examples in a fragmented system.

What is missing is a comprehensive, nationally-based approach to the communication of research and the infrastructure, skills and support systems  needed to support this. This could be the glue that could hold together a really forward-looking South African research effort, one that could do what it does best – operate at the cutting edge of high-technology research development, as it is doing in the Square Kilometre Array project as well as producing high-level research that impacts directly on improving people’s lives and contributes to national development.

UNESCO has outlined the different drivers that need to be addressed in a national policy of this kind – technology network infrastructure; institutional frameworks to reflect changes in scholarly communication; new business models to reflect societal expectations; collaboration within communities of researchers; and alignment with the national R&D system. These all face challenges in the existing system for institutions and governments that need to be met in comprehensive policy initiatives. I will look at these in my next blog.

* Illustration: Attribution Some rights reserved by F. Montino

 

Open Everything at UCT Open Education Week

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

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

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

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

Dr Max Price

Dr Max Price

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

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

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

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

Michelle Willmers

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

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

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

Dr Reg Raju

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

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

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

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