Author Archives: Eve

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

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

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

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

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

Copying for education in South Africa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new education right

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

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

Section 12D of the Bill provides:

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

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

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

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

Copyright Amendment Bill Section 12D(2)

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

Supporting schools, students and local publishers and authors

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

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

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

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

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

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

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

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

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

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

Copying for education in South Africa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new education right

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

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

Section 12D of the Bill provides:

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

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

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

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

Copyright Amendment Bill Section 12D(2)

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

Supporting schools, students and local publishers and authors

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

GraySouth – a new version of my blog. Publishing development research in Africa

IMG_0131My blog has been offline for a while in the wake of problems with its domain name registration. Resolution of the problem involved changing the domain name, so the blog now starts a new phase of its life as GraySouth a name that  echoes my Twitter handle.

The last blog I posted on my Gray-Area blog site was on the neo-colonial underpinnings involved in the emergence of the current scholarly journal system in the wake of World War II, a story of the entrenchment of British nationalism and language hegemony delivered through the growth of commercial scholarly journal publishing. This ultimately led to massive expansion and consolidation of the journal business, leading to the domination of the market by five hugely profitable mega-corporations, able to hold higher education to ransom with ever-increasing subscriptions.

Underpinning the growth of commercial journals has also been, of course, an increasing adherence to a neoliberal commercial view of how the world works and what values should provide the foundations of a publishing system that supports and is supported by, big money. The talk in this context, when it comes to evaluating the success of the university system, is of ‘outputs’, which do not mean the variety of real outputs that universities produce in the process of teaching, research, social, developmental and creative contributions to society, but rather are a code for journal articles and patents that are perceived as contributing to global commerce. What is striking in the discussion of global rankings and journal prestige is how seldom this shorthand is recognised for what it is.

I was due to follow up with a blog on the rise of bibliometrics and their subsequent adoption as a somewhat imperfect way of judging the performance – and influencing the careers – of the authors of journal articles. Eugene Garfield, the creator of the system of metrics, developed a way of  evaluating the status of  the leading journals according to the number of times the articles in each issue of the journal had been cited annually two years after the publication of a particular volume. This was a useful way for librarians to sift the rapidly escalating numbers of journals in order to choose their subscription choices. What was more far-fetched – and not entirely approved of by Garfield – was a very flawed way of making these metrics reflect the prestige of individual authors.

One outcome of the progressive entrenchment of these metrics has been the creation of a captive market in which scholars compete to publish in the highest ranking journals, adapting their scholarship to the ‘international’ focus of these journals. Predictably, ‘international’ in this context meant alignment with the neo-colonial ambitions that underpinned the rise of the commercial journal empires – the English language and the interests of the North Atlantic allies that won the second world war. A vicious cycle resulted in which the journals became ever more powerful and bloated and scholars from countries like South Africa ever more ambitious to be published in these prestigious publications. Given that the system has traditionally depended on strict copyright control, this has essentially meant exporting our knowledge, just as we export our mineral wealth. This heritage of the British nationalist ambitions underpinning the postwar rise of the commercial journal system have thus become an obstacle to the current pressure in South Africa for the decolonization of our universities and for the production of research that supports national development goals. And yet, I suspect, it is not recognised as a key tool in the colonisation of our universities and of our knowledge production as well as a distorting factor in the profile of academic staff in the institution.

A vivid illustration of the impact that this thinking can have on the production of research is to be found in the recent ebola epidemic in West Africa that raged from 2014 to 2016. More than 28,000 people contracted the disease and 11,000 people died in this epidemic. A massive international effort was required to bring the epidemic under control and to limit the death toll even this much. Although the disease had been known since 1976, little research appears to have been done on vaccines or cures until the 2014-16 outbreak, which incidentally also affected a handful of Western medical workers. As the WHO reported in 2016:

There is as yet no proven treatment available for EVD. However, a range of potential treatments including blood products, immune therapies and drug therapies are currently being evaluated. No licensed vaccines are available yet, but 2 potential vaccines are undergoing human safety testing.

It is hard to imagine a situation in which a disease this deadly affected the US or Europe and yet little or no research had been done on it close on 50 years later, leaving the countries concerned vulnerable to a major epidemic. It is not just a matter of African countries having impoverished research systems, lacking the means to tackle expensive and high level biomedial research, but of a lack of will in the university system to take a truly global view of research imperatives. This in undoubtedly made worse by the willingness of developing country governments and their universities to chase ‘global’ prestige and rankings through publication in highly ranked journals that have achieved these rankings by sidelining research from the two-thirds of the world that does not count as global. South Africa is surely the country with the most capacity to take on such a task, but it has also been – at least at the national policy level – also the country most hooked on ‘global’ prestige

Many of the posts that I have written have dealt in one way or another with these issues of the politics of the dominant journal publishing system and the impact of the j0urnal fetish (for the sake of prestige and promotions) on the more complex ambitions of a research system like South Africa. The focus of my blog has been in good part on the publication of what it being marginalised – research that is concerned with the most immediate issues that face the country – of local imperatives, and of  local perspectives on global issues, such as climate change, agricultural development, poverty alleviation. And in particular, what communication modes are being used – and are needed – to communicate such research. Inextricably linked to this agenda is the need to revise the way in which researchers and their research are evaluated and what ‘outputs’ (which are also inputs in this world of national and community imperatives)  are being valued. And essential to this focus is how open copyright licensing – open access to publications on a wider scale than just journals – can increase both access to knowledge from the rest of the world and the participation of our scholars in the global dialogue. At the heart of this kind of publishing is collaboration in the interests of greater effectiveness and real impact.

Finally, and possibly most importantly, the obsession with journals, now bolstered by the growth of digital journals and open access publication, has obstructed the potential for radical new models of scholarly publication and dissemination. We are stuck in an online simulacrum of a 17th century publishing model, updated in the mid-20th century.

Looking forward, I see signs that there is a renewed interest internationally and also in South African research policy in the production of research for Sustainable Development Goals, for research aligned with national and local imperatives, for greater attention paid to communities and their knowledge. Whereas European countries might measure this in terms of the journal articles published on such issues, South Africa has long had a more complex, yet under-recognised, approach to publishing development research outputs – not just ‘applied research’ and ‘grey literature’ but a more sophisticated mix of high level and rigorous research and carefully targeted publication outputs. This needs more extensive exploration and support and better alignment with the core research values of the institutions.

Photo: Eve Gray CC-BY