Posted on October 26, 2009 · Posted in SF Fellow

I believe that sustainable solutions to the challenges facing South Africa, HIV/AIDS, unemployment, rampant violent crime, corruption and the like, cannot be found without ensuring that all South Africans have access to a proper education. Imagine poorly educated policemen trying to solve crimes, insufficient or poorly trained doctors dealing with TB outbreaks, young entrepreneurs who can’t do basic numeracy trying to start new businesses, etc. What am I on about you might ask? Well, I see helping education as the key to a peaceful and happy future in South Africa for myself, my family and other South Africans; our collective future depends on it. I think that organisations or individuals who conduct themselves in an underhanded way to take advantage of the education system are reprehensible. They are jeopardising our future!

Often, when presenting Siyavula or FHSST, I am asked about the “poor publishers”. Please don’t mistake that for sarcasm, people literally use the phrase “poor publishers”. People are concerned that free, open, volunteer content projects are somehow going to destroy big business. For the record, we’d love to see the publishers participating in the Open Educational Resources (OER) arena and there are a number of ways this can happen. This post isn’t about OER business models for publishers though, its about whether the “poor” part is justified.

Publishers and Market Forces

The rise of OERs, and platforms to support them, are market forces in the world of publishing. Many other markets have had to respond to changing cultures and technology. The large international publishers have no excuse for not being aware of what is happening around open content. The publicity around Wikipedia alone should have made them all sit up and take notice. Businesses that don’t respond to changing markets allow themselves to become irrelevant. The publishers have had more than enough time, and they have more than sufficient monetary reserves to have done research aplenty into the technology, licences and developments taking place. If they haven’t, then, quite frankly, they deserve to feel a little market pressure.

I was pointed to a great article a while back on the future of scientific publishing written by Michael Nielsen, which expands on some of the reasons that publishers are feeling a bit of pressure at the moment. Many of the ideas mentioned, relating to why large businesses struggle to adapt, are applicable to all areas of publishing and I strongly recommend giving it a read. Nielsen points out that the very traditional structures that have led to the publishers’ success are now holding them back. They do need to adapt to survive and some of them won’t make it.

Publishers and Underhanded Tactics

Publishers feel the need to strengthen the messaging around their copyright in school textbooks.

Here is a scanned page from a South African school textbook published by  a well known publisher. I have tried to obscure everything except the message of interest and am looking forward to an angry letter from a publisher, which I’ll be sure to share.


It is important to note that this message is in addition to the standard copyright notice. This message can only have been added through a series of deliberate actions by the publisher. It certainly didn’t get there by accident. Someone with sufficient authority within the publishing house made this decision and, one can only assume, they consulted their lawyers regarding the language. It would be ludicrous to make statements about the law without checking.

Given the language of the message, it can only have been added for one purpose and that is to stop some set of people photocopying pages out of this book. I guess that the publisher became aware of some people photocopying this book or other titles in their catalogue and felt that such a message would stop them. It could have been anybody, but let us be realistic, this is a grade-specific school textbook. There are two groups of people who will ever look at this book: teachers and learners. This means that it must have been one of these groups that had been photocopying pages.

If you visit the website for the Publishers’ Association of South Africa you will find this text:

Am I allowed to photocopy part of a book for my own personal and private use?
Copyright is not infringed by any fair dealing with a literary work for the purposes of the personal or private use of the work by the person making the copy. What is ‘fair’ in any given situation will always depend on the circumstances of that situation.

Is it correct that as long as I photocopy 10% or less of a published work, this is permitted?
No, it’s not correct. The Copyright Act says nothing about any percentage. 10% may be ‘fair’ but then again, it may not, since the test for fair dealing is qualitative as well as quantitative.

But surely I am allowed to make more than one copy if there is no commercial gain involved?
The regulations to the Act offer certain concessions for educational institutions and for non-profit libraries. These include a defined number of multiple copies strictly for classroom use or discussion, but exclude compilations.

I want my each of students to copy for themselves an article from a journal. Can I put a photocopy of the article on the reserve shelf in my educational institution’s library for each student to copy under ‘fair dealing’?

No. The copy on the reserve shelf is an infringing copy because it is not made for the private use or study of the person making it.

How about if I put the journal itself (not a photocopy) on the reserve shelf and tell my students to copy it for themselves?
Although each student may make a ‘fair dealing’ copy, 100 students each making a copy results in 100 copies, whereas fair dealing is intended to apply in the case of the single copy made by the person using the work.

What this is telling you is that there are fair dealing and educational exceptions to the rule stated categorically in the message publishers have chosen to add. Furthermore, those exceptions apply specifically in the contexts of the only reasonable audiences for the textbook. Despite the fact that these exceptions exist, and the publishers are well aware of them, they have chosen not to mention them in any way. As far as I am concerned, the message publishers have added is incorrect in the majority of circumstances that it is trying to influence.

Now, do teachers and learners know about these exceptions? Learners probably don’t, I certainly didn’t when I was at school, and teachers might. If teachers do, then adding this message is redundant because teachers know that it has all sorts of caveats attached and wouldn’t change their activities. But the message was added and so I can only assume that the majority of teachers don’t know about the exceptions and (publishers clearly hope) will be influenced by the message. This message would only have been added deliberately as a means to try to change their behaviour.

Remember, this book is only useful in an educational context to learners and teachers and so the educational exceptions will apply very often, allowing photocopying of this book.

Quick summary:

  • a deliberate message in addition to the copyright notice has been added
  • it targets teachers and learners
  • who have legal exceptions to the message
  • adding the message only makes sense if they don’t know about the exceptions

So I’m left to conclude that the publisher has added a message to intimidate teachers and learners, playing on their ignorance, knowing full well that exceptions, that teachers and learners could benefit from, do exist!

I see this message as a very aggressive defensive-response to activities taking place. Activities that may well be legal and that are taking place because we have an education system that is under-resourced and under pressure. This is not a positive response designed to help anyone, not even the publisher.

Rich Publishers

I get irritated when people only complain about problems and never suggest solutions. Is there a possible positive response under these circumstances? I think so. In fact, I think that it could be so positive that it would help the publisher gain market share and real favour as well as help education.

My imaginary publishing company would have had this message (with a lawyer to check the language first of course):

You may only photocopy pages from this textbook if you are invoking fair dealing or educational exceptions to our copyright terms. If you find yourself in a position where you need to make photocopies for educational purposes, please let us know. This information will help us to identify where books are needed, which books are being used, and whether or not our distribution is working effectively.

Why do I think that mine is better (it is too long!)? Mine has benefits for everyone because it promotes better information flow making those doing the copying allies of the publishers rather than their enemies. Here are some of the benefits that occurred to me off the top of my head:

  • Publishers’ benefits:
    • identify areas where there is a lack of textbooks for future market expansion (where are books needed?)
    • identify which books are really popular (which books are being copied?)
    • identify if distribution channels are working properly (should they already have our books?)
    • identify if only selected sections of books are being copied to identify which book sections are hitting the mark (which pieces of our books are popular?)
  • Teachers’ and learners’ benefits:
    • better equipped to access resources to improve education
    • broader access to educational resources without fear of legal repercussions
    • better awareness of their rights
    • feedback channel to publishers which will help improve content in the long run

Rather than clamping down, big publishers could in fact gain more market presence by opening up a little bit and using this information to improve their products and services. Further, this may ultimately lead to an increase in total market size as the educated population grows.

Back to my original topic: “poor publishers”? Quite frankly, my sympathy goes to the learners who have to share one book between four and cannot do their homework properly, while publishing house executives sit in plush offices dreaming up misleading copyright messages to intimidate teachers and learners.

About the Author

Mark Horner is the CEO of Siyavula Education, a social enterprise working in the school sector in South Africa. While working as the Shuttleworth Foundation Fellow for Open and Collaborative Resources, Mark was able to transform the Free High School Science Texts (FHSST) project, which he co-founded, into Siyavula Education. In this process, openly-licensed, collaboratively authored textbooks have been printed and distributed nationally in South Africa. Working at the intersection of community, openness and technology; Mark intends to leverage this success to make Siyavula an innovative, technology provider in education that works effectively as part of the education community to ensure better learning opportunities for all. A recent notable event being the delivery of Siyavula's textbooks over Mxit, the most popular mobile chat solution in South Africa. Mark has a PhD in physics from the University of Cape Town and conducted his research at Lawrence Berkeley National Laboratory in California on the results from the STAR experiment at Brookhaven National Laboratory in New York. His work is carried out in the belief that the liberation of information and support of education in South Africa will lead to a peaceful and prosperous future for all South Africans.