Access to Knowledge in South Africa Part of the Access to Knowledge Research Series Edited by Andrew Rens & Rebecca Kahn Published by The Intellectual Property Law Research Unit, University of Cape Town, in collaboration with the Information Society Project at Yale Law School This work is licensed under the Creative Commons Attribution-Share Alike 2.5 South Africa Licence. To view a copy of this licence, visit http://creativecommons.org/licenses/by-sa/2.5/za/ or send a letter to Creative Commons, 171 Second Street Suite 300, San Francisco, CA 94105, USA. You must attribute this work by including the title, editors, relevant authors, publishing institutions and the following URLs on every copy and remix: http://isp.law.yale.edu & http://www.aliquidnovi.org Table of Contents Access to Knowledge in South Africa 1 Table of Contents 2 Introduction 3 Andrew Rens Part 1- Outlining the Problems 10 CHAPTER 1 – A2K in South Africa and Copyright Regulation 10 Tobias Schonwetter, Caroline Ncube, Pria Chetty CHAPTER 2 – A2K in South Africa and the Copyright Context 53 Tobias Schonwetter, Caroline Ncube, Pria Chetty CHAPTER 3 – Access to Learning Materials 113 Julian Jonker CHAPTER 4 - Two Different Visions of the Knowledge Society: Access to Research 147 Eve Gray & Rebecca Kahn PART 2 – Case Studies: Imagining the Solution 169 Case Study 1: A Civil Society Response – CommonsSense Project 170 Kerryn McKay Case Study 2: An Activist Response – Freedom to Innovate South Africa 175 Bob Jolliffe Case Study 3: An International Response – OOXML vs ODF 179 Andrew Rens & Rebecca Kahn Case Study 4: A Legal Response – Intervention in the merger of Pearson & Harcourt 187 Rebecca Kahn, Maarten Van Hooven, Diane Terblanche Case Study 5: A University's Response: OER at UWC 196 Philipp Schmidt Case Study 6: An OER Response: The Free High School Science Text Project 203 Cynthia Jimes, Lisa Petrides, Thad Nodine Sources 212 Contributor Biographies 213 2 Introduction Access to Knowledge in South Africa by Andrew Rens “The Doors of Learning and Culture Shall be Opened! ...All the cultural treasures of mankind shall be open to all, by free exchange of books, ideas and contact with other lands”. The Freedom Charter.1 Access to knowledge (A2K) is a self-identifying movement, encompassing a host of initiatives which share the broad goal of lobbying against legal and policy developments which potentially inhibit the growth of knowledge and equitable access to knowledge resources. A2K arose in the the aftermath of the Agreement on TRIPS (Trade Related Aspects of Intellectual Property) concluded as part of the Global Agreement on Trade and Tariffs (GATT), which led to the rise of the World Trade Organisation (WTO). In South Africa there have been a wide variety of A2K initiatives, emerging not only as a result of these developments, but as will become apparent from deep roots in South Africa's past as well as developments which parallel the effect of international “Intellectual Property” post-TRIPS, ranging from multinational corporate patenting practises to the structuring of knowledge production in university research. This introduction considers very briefly the precursors to the contemporary access to knowledge movement in South African history, the emergence of the access to medicines campaign, and then discusses the chapters and case studies In the study. This study is in two parts, the first part surveys the conditions of access to knowledge and examines two problems, access to learning materials and how policy structures 1 The Freedom Charter was adopted by the Congress of the People convened at Kliptown on 25-6 June 1956. The Freedom Charter served as a rallying point for the struggle for a united, non racial and democratic South Africa, see further 'The Doors of Learning shall be open to all', Andrew Rens iCommons Annual 2007, http://www.icommons.org/Annual07. 3 the production of knowledge in South African universities so that the disparities of the past are perpetuated. The second part examines responses to problems of access to knowledge In South Africa the contemporary A2K movement is prefigured in some respects by aspects of the the anti-apartheid struggle. The Freedom Charter sets out learning, and access to books as essential aspects of a democratic society. Education was central to some of the major events of the apartheid era. The apartheid government had developed a system of segregated education, purposefully underdeveloping black schools and preparing black learners for menial labour only.2 From the 1950's learners and parents responded from the 1950s already with school boycotts. The 1976 riots, a turning point for international awareness of the extent of oppression and police brutality within the country, were precipitated by students' rejection of apartheid education laws, specifically that the medium of instruction should be Afrikaans, at that time regarded as the language of the oppressor. With much of the liberation struggle leadership in forced exile during the 1980s, students and student organisations became the dynamo of continued struggle. At the same time, much government propaganda was disseminated through education, in the form of textbooks which neglected the history of African people or which distorted recent history. In the broader public sphere, strict censorship laws and state ownership of the popular media meant that accurate news and emancipatory political information was difficult or illegal to obtain. Thus, some of the anti-apartheid movements of the 1980s focused on the provision of people's textbooks and the creation of community information centres, an important precedent for the current A2K movement. The value placed by the Freedom Charter's on access to knowledge in free, open and democratic society is echoed in the post apartheid 1996 Constitution3; which contains 2 Based on the Bantu Education Act of 1953. 3 Constitution of the Republic of South Africa 1996 4 rights to free expression4, access to information5, and education6. The right to freedom of expression includes the right not only to impart information but also to receive information. Freedom of expression also explicitly includes academic freedom. The post apartheid era has been marked by efforts realise these and other constitutional rights. The access to medicines movement which emerged in the late 1990s, and which continues today, has also shaped the emergence of the A2K movement not only in South Africa, and around the world. Access to medicines remains the most successful challenge thus far to attempts to enclose knowledge and its benefits. In South Africa, the movement is led by the Treatment Action Campaign (TAC).7 TAC has focused on removing the barriers to access to medicines which result from national health policy and patents on essential medicines. TAC8 was founded on International Human Rights Day, 10 December 1998, by a small group of activists including anti-apartheid activist and National Coalition for Gay and Lesbian Equality-leader Zackie Achmat.9 Achmat had promised the influential anti-apartheid and gay rights activist Simon Nkoli to continue his struggle for fair treatment of gays and lesbians and access to treatment.10 The formation of TAC was catalysed by Nkoli's death due to lack of access to 4 Section 16. Freedom of expression 1) Everyone has the right to freedom of expression, which includes a) freedom of the press and other media; b) freedom to receive or impart information or ideas; c) freedom of artistic creativity; and d) academic freedom and freedom of scientific research. 5 Section 32. Access to information 1) Everyone has the right of access to : a) any information held by the state; and b) any information that is held by another person and that is required for the exercise or protection of any rights. 6 Section 29. Education 1) Everyone has the right : a) to a basic education, including adult basic education; and b) to further education, which the state, through reasonable measures, must make progressively available and accessible. 7 http://www.tac.org.za. 8 http://www.tac.org.za/community/ 9 Achmat was named one of Time magazine's heroes in 2003. It may be argued that Achmat's charismatic leadership has been a large aspect of the image of the TAC in the popular mind. 10 Mbali, Mandisa 'The Treatment Action Campaign and the history of rights-based, patient-driven HIV/AIDS activism in South Africa' UKZN Centre for Civil Society Research Report No. 29, p. 10. 5 antiretroviral treatment (ART). In response, Achmat called upon fellow activists to join a symbolic fast for access to treatment, and this gathering was where the movement was planned.11 TAC went on to undertake several high profile, successful actions in the cause of access to medicines. The broader struggle for access to knowledge is not however over. Many of the contributions consider aspects of the problem of access to learning materials. This is due to a number of factors. Access to learning materials is a central factor in access to knowledge. “There can be little doubt that education is a cornerstone of social and economic development, or that access to learning materials is a crucial factor in the success of any educational system. In a world which values the production and dissemination of information and knowledge, human capital growth is a serious developmental concern. We live, apparently, in a ‘knowledge economy’, and if so, two processes seem worth noting. First, societies of the global south are struggling with everyday challenges of education and literacy, while their institutions and governments perform the inevitable balancing act between scarce resources and vast needs. Second, producers of knowledge goods, heretofore located in the north, are increasingly global in scope; exporting, with their expansion, an intellectual property rights (IPR) regime that poses current and potential deterrents to learning”.12 No society with severe constraints on access to learning materials can be considered to provide access to knowledge in any meaningful way.