Category Archives: Intellectual Property Rights

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

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

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

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

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

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

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

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

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

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

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

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

An Imperial Hangover

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

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

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

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

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

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

The End of the BTMA – A Shift to Contract

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

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

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

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

The problem of Emerging Economies

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

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

The Background – What is Parallel Importation?

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

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

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

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

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

The Potential Impact on Publishing Across Africa

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

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

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

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

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

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

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

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

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

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

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

References

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

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

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

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

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

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

An Elsevier African Megajournal Proposal Re-colonizing the university in Africa?

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In 2015, South African universities saw widespread student protests against a neocolonial heritage at universities that stood accused of a lack of post-apartheid transformation in institutional ethos, curriculum, and racial demographics. Operating under a number of hashtags, such as #RhodesMustFall, #DecoloniseTheUniversity and #FeesMustFall, the one issue that no-one seemed to speak about was the influence of the scholarly publishing system, which has a strong influence on faculty reward and promotion systems., entrenching many of the trends that students were protesting against. A series of blogs will explore the political economy of scholarly publishing and the role of Open Access in South Africa at a crucial time in its university history.

Elsevier has recently rattled the rather glum view of the prospects of African journal publishing with what looks like a major intervention – a proposal to explore the potential for the development of an African megajournal. Could this mean that Africa – which until recently has hardly been on the radar of the big international journal publishers – has something to offer this large and hard-nosed multinational academic journal publisher? Could this venture under the Elsevier banner provide the imapact and prestige that the continent’s research has been so sadly lacking? Or could it be simply that it could provide a blank slate for Elsevier, experimenting in the face of market uncertainty? Or, at its crudest, just a neo-colonial land-grab in the face of challenges in the markets that Elsevier dominates?

It is perhaps a sad commentary on perceptions of the African continent that when a big corporation targets Africa as a new market, as Elsevier appears to be doing with this proposal, one of the first questions that can be asked is, ‘Does this mean that Elsevier’s business model is under threat?’ Given that the European Union, for example, is aiming for mandating full Open access to research by 2020 – with no embargoes, and affordably – and given also that governments like the Dutch government have been engaged at national level in hard negotiations with Elsevier to reduce subscription costs at a national level, it is quite possible that the commercial publishers are indeed worrying about the future of their current very high profit business model.

This is not without it ironies, however, as these developments have also come at a time when some major OA advocates are arguing that the current vision of OA is failing, a victim of its own tendency to over-zealousness and and lack of strategy and its capture by multinational journal publishers in the wake of the adoption of ‘gold’ open access journals funded by Article Processing Charges (APCs). The field is thus very uncertain indeed.

From the publishers’ side, it is very telling that Elsevier has recently acquired SSRN, the social sciences open access collaborative platform, after buying Mendeley some years ago. The most probable motivation behind these purchases would seem to be a strategic vision of the power to leverage open data in a networked research environment in which data analysis has become a powerful strategic research tool. Controlling large data sources is likely to become a very powerful base for a commercial company that wants to provide metrics as a core competence, as Elsevier already does through Science Direct.

The main problems for African research publishing up until now have been interconnected: a general lack of interest on the part of African governments in funding or supporting scholarly publishing activities; and exclusion from the mainstream of prestigious international scholarly journal publishing, with African journals and their content being regarded as of ‘local’ interest only, with very few of them qualifying for the citation indexes. So for research institutions to be courted by Elsevier might prove very seductive, offering as it does the potential for the ‘international’ cachet of association with a big name in global scholarly publishing.

What has happened is that group of research institutions – the African Academy of Sciences, the South African Medical Research Council, the African Centre for Technology Studies, an inter-governmental think tank, and IBM Research Africa are considering the creation of an African megajournal with Elsevier. They are being courted through Elsevier’s undoubted ability to offer a high level of technological support, author and publishing training, and the potential for international profiling of African research. Given the profile of the research organisations involved, there are serious questions to be asked about what it will mean for African governments to have this scale of strategic research publication – scientific, medical, technological and research networking – placed in the hands of a profit oriented publisher as hard-nosed as Elsevier.

Elsevier publishes a number of African journals and participates in the WHO HINARI initative for the provision of free or low-cost medical journals to developing countries. It also h as its own corporate responsibility programme, offering training, conferences and workshops. It has, for example, for over a decade offered a twinning programme between African medical journals and leading biomedical journals in the US and UK, enhancing editorial and publishing skills to grow their presence and reach, as well as running mentoring programmes and skills development initiatives for African journals and their authors.

A review of of other large journal publishers shows a similar signs of an expansion of interest in research from Africa and the developing world. Taylor and Francis over the last few years has developed a long list of African journals, with an editorial office in Johannesburg, a mission to collaborate with with learned societies and institutions and partnerships for co-publication with local publishers. This has been a particular strategic focus, with active recruitment of local titles. Biomed Central has a prominent Malaria Journal, has held African capacity building workshops and conferences and runs the Open Access Africa Twitter feed. Wiley has just announced a partnership with Egypt-based Hindawi Publishing, initially for the publication of nine journals, which will be managed by Hindawi and published on their website. In this way, Wiley says that it aims to benefit from experience in OA publishing and Hindawi’s experience in what is described as a rapidly expanding market.

Should this activity perhaps be welcomed? On the whole, the continent has been sadly lacking in the exposure for its research, skills development, technology capacity and infrastructure support that Elsevier is offering. And undoubtedly, there will be many scholars and institutions who would be delighted at the profiling and potential for increased impact and reach that would be offered by one of the biggest journal publishers in the world.

According to a study of journal publishing in Africa, commissioned by African Journals Online (AJOL, covering 330 respondents, the majority of African journals are – often struggling – ‘scholar journals’ run on a voluntary basis by individuals or small groups of scholars, with only 19% of journals surveyed published by commercial publishers. Support from universities and national governments has been largely lacking. AJOL, an initiative supported by INASP, hosts 517 journals on its online platform, of which 208 are open access, offering 65,917 OA articles for download.

The South African government has been an exception to the general pattern of national -level indifference to scholarly publishing, with the Department of Science and Technology supporting the SciELO South Africa journal publishing platform through the Academy of Science of South Africa. What this offers is the provision of financial support for journals and their hosting on SciELO SA in partnership with SciELO Brazil. There is no doubt that if this were to be expanded rapidly and extended to other African national academies of science, through NASAC, this could provide a path to a powerful regional presence, on the Latin American model. This was discussed at a high level forum held in 2015, under the auspices of UNESCO and the Royal Netherlands Academy of Arts and Sciences.

Is Elsevier’s proposed megajournal likely to be of overall benefit to the continent? According to the first reports, this is likely to be an OA journal using APCs, but perhaps with a 5-year development period in which no APCs would be asked for. Elsevier claims to be planning long-term for a low-cost APC for this venture, probably with additional donor support. There could therefore be a window for the growth of the journal and whether or not the venture lands up ultimately facing Elsevier’s commercial OA model with very high APCs would remain an open question for quite a while. And would the journals find themselves part of a truly international community of scholarship, as a result of this venture, or consigned to a special-case ‘developing world’ status?

Elsevier’s aims are expressly developmental, aiming at wider exposure for African research across the African continent, applying affordable APCs without resorting to the exceptionalism of donor-funded support for distribution of journals in the developing world. Considerable support is proposed for authoring and technology infrastructure, training in the different aspects of journal publishing. The company has an extensive corporate responsibility programme with a wide variety of initiatives aiming to support and expand the discoverability and accessibility of African research. It is aiming to partner with 39 journals in Egypt, five in Nigeria three in South Africa as well as the megajournal proposal. The institutions responsible for these journals, Ylann Schemm from the Elsevier Foundation assures us, will retain full ownership of the journals, but the content will be hosted as OA on Science Direct. The proposed megajournal, in this context, Schemm describes as a joint effort with funding agencies, governments and NGOs, reliant on Elsevier’s publishing capabilities to create ‘a common platform for African research’.

But there is a negative side. There has been a considerable growth in the number of funding agencies demanding open access to the research that they fund, leading to a rise in the number of ‘green’ open access repositories; support for the payment of APCs for OA journals and for hybrid journals. In this context, a spate of complaints about the good faith of large international publishers in operating open access gives cause for concern.

The Confederation of Open Access Repositories (COAR), in a statement signed by a long list of international organisations, complains that Elsevier’s OA policy, introduced in 2015, in fact restricts rights for articles placed in repositories, rather than providing fully open access. Embargoes are imposed, up to 48 months; the licence applied is CC-ND-NC rather than the open CC-BY licence; and the publication licence applies to all articles previously published and to be published in the future.

Thus Elsevier has developed its own version of OA licensing. Very few authors would understand the implications of these provisions, and the limitations they could place in the way of access, but as an Australian editor put it when he was sacked for protesting when his journal, the Medical Journal of Australia, was outsourced to Elsevier:

‘One of the fundamental questions is whether you regard the knowledge that’s generated through research as a common good… In other words, it should be there for everybody to use, paid for by the community through its taxes to research workers, or whether someone can come along and put a fence around these paddocks and say, “Well that’s actually mine.”’

There have also been complaints from the Wellcome Trust, as a major funder of the OA publication of the research it supports. Wellcome complained that more than half the articles it had paid Wiley to make open in hybrid journals were not compliant with the depositing and licensing requirements. Elsevier did not comply in 31% of hybrid journals and 26% of full OA journals. All PLOS articles were compliant. Wellcome said that it had paid for close on 400 articles published in the hybrid model that had not been deposited, as required, in the PubMed Central repository.

Lastly, as the entire editorial team of linguistics journal Lingua, found out when they opted to leave Elsevier, they could not take their journal with them – it now belonged to Elsevier – and they had to found a new journal.

It could be argued that OA status would protect the journal and its content from capture – after all open is open, surely, and the content should be accessible in perpetuity. For all this, there is surely a risk in allowing a commercial company, and one with a very strong commitment to high profit levels and to the exclusionary competitive ethos of the Impact factor, to have control of the the research publication of key African research councils. The research produced by these councils is of national and regional importance and its capture by a commercial company might put at risk the ability to leverage the research for public benefit. There are particularly hard questions to be asked about medical journals, for example.

To complicate things further, South African universities have at been facing upheaval as resistance to the neo-colonial state of the higher education curriculum has taken centre stage in a wave of student protests in the country. Campuses have been burning to the chant of #RhodesMustFall and #Decolonising the university. How does a progressive takeover of the publication of African scholarship look in this context?

Photo: Desmond Bowles – CC-BY-SA – http://jdbashton.com/rhodes-must-fall-part-2/

By Eve Gray

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is going to be an interesting space to watch.

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

OER in the mainstream – South Africa takes a leap into OER policy

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2012 looks as if it might be the year that OER and open access reach the mainstream, globally and in South Africa. In the last few months in South Africa, the national department responsible for schools had announced the take-up of a major OER science and maths resource and the Department of Higher Education and Training (DHET) has included in a new Green Paper a recommendation for the widespread use of open educational resources.

Open science

A notable shift in the mainstreaming of OER has been a decision in late 2011by the Department of Basic Education (which is responsible for schools) to adopt open science and maths books for countrywide distribution to all schools. This means the distribution of millions of print books and the availability an online version of the text plus additional resources under open licences. Mark Horner, Shuttleworth Foundation Fellow and the brain behind Siyavula and Free High School Science Textbooks blogged in late 2011 in a state of justified excitement:

‘Openly-licensed, Siyavula textbooks are being printed and distributed by the Department of Basic Education (DBE) for all learners taking Physical Science and/or Mathematics in Grades 10-12 in the whole country for 2012! I don’t know of any country doing anything like this before.’

The Minister of Basic Education has now formally alluded to this venture in a major speech announcing the school-leaving examination results, as Arthur Attwell has reported. Arthur hailed this move as a game-changer and a potential turning point in the provision of school textbooks in South Africa. He points out that publishers, who have known about this venture for a while, are very concerned that the provision of these books might undermine the sales of officially selected textbooks, although the Department says that they are intended as supplementary material. It would seem from the Minister’s speech that she sees this move as a model for potential private/public partnerships between the State and a range of non-profit and commercial partners.

The angry reaction of the publishing industry, on the other hand, seems to rest on the perception that the regulated process for the accreditation and distribution of textbooks – to which, to do them justice, they have contributed considerable sweat and tears – has been bypassed.

Although this is not the first time that pupils have been provided with supplementary materials by the national department, my impression has been that in the past these have been workbooks, not necessarily in competition with textbooks. The books being provided through FHSST, on the other hand, are building on a long and careful collaborative textbook development programme at the Shuttleworth Foundation. I do not see this as a matter of state publishing: the FHSST programme was developed independently and was picked up by the Department of Basic Education after its completion.

Horner describes the extensive consultation that took place with the Department in to agree on the necessary revisions and the hard work that followed in delivering to the departmental brief. The books are now freely available on the web, as Everything Science and Everything Maths. The licence (CC-BY-ND) governing the use of the materials is accompanied by a clearly articulated statement of what is allowed:

You are allowed and encouraged to freely copy this book. You can photocopy, print and distribute it as often as you like. You can download it onto your mobile phone, iPad, PC or flash drive. You can burn it to CD, e-mail it around or upload it to your website. The only restriction is that you have to keep this book, its cover and short-codes unchanged.

One benefit of this open licence is that the online versions of the textbooks are now available beyond the borders of South Africa, and could be of great value to pupils and teachers in other African countries. It will be very interesting to see how widely they are taken up and what further ventures arise from that potential.

The books provide a rich resource, with the conventional PDF/print text supplemented by video materials, for students and teachers, links to support services and to a wide range of open resources, with further enrichment and support material due in March. This should provide a level of interactivity absent from conventional textbooks and potentially a higher level of support in an educational system badly in need of upliftment. The open model should allow for this potential to be leveraged as widely as possible.

Arthur is right about the disruptive potential of this venture. One level on which the disruption plays out is that this venture is being undertaken at national level, allowing for the printing and distribution of millions of books for countrywide distribution. The normal textbook provisioning and distribution model for books purchased from publishers, although based on a national catalogue, is a painfully fragmented provincial process, full of grief for publishers and booksellers, as the latest issue of the bookselling industry magazine, Bookmark, spells out.

Another disruptive aspect of this venture resides in the availability of digital enrichment materials and additional online resources. It would be interesting to compare the Siyavula digital material with the teacher resource materials provided by the publishers. My guess would be that the Siyavula material is likely to be richer, taking into account the interactivity and social networking potential of the Web. Another telling comparison would be with the resources available in in the higher education system, in open source online learning systems such as Vula at the University of Cape Town (a member of the Sakai consortium), underpinned as they are by high levels of pedagogical and research skills.

The latter comparison becomes even more relevant in the light of another bold move in the SA educational system. No sooner had we got on top of the implication of OER in school education, than the DHET Minister announced the launch of a consultation period for a new Green Paper on Post-school Education and Training. In this document, an argument is made for national support for the development of OER resources as a capacity-building exercise, drawing on the existing digital learning environments already available in many universities and citing mainstream national initiatives by UNESCO, the Commonwealth of Learning, and the initiatives by the governments of Brazil, New Zealand, and the US as role models.

[T]he DHET will support efforts that invest a larger proportion of total expenditure in the design and development of high quality learning resources, as a strategy for increasing and assuring the quality of provision across the entire post schooling system. These resources should be made freely available as Open Educational Resources (OER) for use with appropriate adaptation. This would be in line with a growing international movement, supported heavily by organizations such as UNESCO and the Commonwealth of Learning (CoL) that advocate the development of OER (p. 59).

Key motivations for OER, the document argues, lie in ‘the potential improvements in quality and reductions in cost’. What is proposed is that DHET will:

Determine ways to provide support for the production and sharing of learning materials as OER at institutions in the post schooling sector. In the first instance all material developed by the promised South African Institute for Vocational and Continuing Education and Training will be made available as OER.

Consider the adoption or adaptation, in accordance with national needs, of an appropriate Open Licensing Framework for use by all education stakeholders, within an overarching policy framework on intellectual property rights and copyright in higher education.

This is heady stuff and we are certainly in for a turbulent year. The question going forward will be how to make the potential of open educational resources and open textbooks work alongside the commercial provisioning model, which represents a considerable investment in materials development in South Africa, particularly in the schools system. As the publishers point out, the country needs to preserve the variety and choice that is provided by a successful industry, in the interests of quality education. But how ready are commercial publishers to break out of their conventional space to take risks with new models?

Then, to complicate things, yesterday provided another wild card: announcement by Apple of their new textbook venture – the topic of the next blog.

2012 certainly looks like a year of radical change in educational publishing

Access to knowledge – the times they are a’changing

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Open access – a view from the South