Warning: "continue" targeting switch is equivalent to "break". Did you mean to use "continue 2"? in /usr/www/users/askjubyccb/wp-content/plugins/essential-grid/includes/item-skin.class.php on line 1321 Warning: Cannot modify header information - headers already sent by (output started at /usr/www/users/askjubyccb/wp-content/plugins/essential-grid/includes/item-skin.class.php:1321) in /usr/www/users/askjubyccb/wp-includes/feed-rss2.php on line 8 ASK Justice https://askjustice.org African Scholars for Knowledge Justice Thu, 14 Jan 2021 08:03:23 +0000 en-GB hourly 1 https://wordpress.org/?v=5.6.4 https://askjustice.org/wp-content/uploads/2016/04/ASK-Favicon.png ASK Justice https://askjustice.org 32 32 Report of the United Nations High-Level Panel on Access to Medicines https://askjustice.org/2016/09/21/report-of-the-united-nations-high-level-panel-on-access-to-medicines/ https://askjustice.org/2016/09/21/report-of-the-united-nations-high-level-panel-on-access-to-medicines/#respond Wed, 21 Sep 2016 08:56:26 +0000 https://askjustice.org/?p=408 by Bram van Wiele

On 14 September the United Nations (UN) released the long-awaited report by the UN High Level Panel on Access to Medicines. The panel, comprised of eminent and respected individuals from diverse stakeholder groups, was constituted in November 2015 with the mandate “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies”. A key issue raised in the report is that the prices of drugs need to be de-linked from the cost of research and development (R&D).

The report addresses four major areas: Health Technology Innovation and Access, Intellectual Property Laws and Access to Health Technologies, New Incentives for Research and Development of Health Technologies, and Governance, Accountability and Transparency. The report provides 30 recommendations—mainly for governments and private actors involved in R&D of health technologies.

In the field of intellectual property, the report calls on WTO members “to commit to the letter and spirit of the WTO Doha Declaration on TRIPS [The Agreement on Trade Related Aspects of Intellectual Property Rights] and Public Health, and refrain from any action that will limit their implementation and use in order to promote access to health technologies.” It calls on countries to make full use of the public health-related TRIPS flexibilities by, among other things, adopting and applying “rigorous definitions of invention and patentability that curtail the evergreening to ensure that patents are only awarded when genuine innovation has occurred” and “legislation that facilitates the issuance of compulsory licenses”. Moreover, the panel recommends that several UN agencies and other relevant bodies collaborate with each other to support governments in applying public health-sensitive patentability criteria.

The report also engages extensively with free trade agreements, which often contain far-reaching patent and data protection clauses on health technologies that nullify the flexibilities that were envisaged in TRIPS and the Doha Declaration, hereby blocking access to such technologies.

Regarding publicly funded research, the panel provides several recommendations for making such research more widely available, and calls for universities and research institutions that receive public funding to prioritise public health objectives over financial returns in their patenting and licensing practices. This, of course, is particularly interesting against the backdrop of South Africa’s legislative mandate to commercialise the output of publicly financed research and development activities, as stipulated in the country’s Intellectual Property from Publicly Financed Research and Development Act (2008).

The panel urges governments to increase their current levels of investment in health technology, strengthen national level policy and institutional coherence between trade and IP, the right to health and public health objectives. Broadly, it requests from governments to enter into negotiations concerning a binding R&D Convention that de-links drug prices from R&D costs.

“You cannot rely upon high drug prices to finance R&D without harming patients and creating unequal access. Policy coherence means making innovation and access happen at the same time. Delinkage is key to policy coherence”, says James Love, Director of Knowledge Ecology International.

Stakeholders, on the other hand, are urged to test and implement new and additional models for financing and rewarding public health (R&D).

The panel also calls for greater transparency in drug pricing, i.e., the costs of developing the drugs as well as marketing, distribution and advertising.

To take the recommendations forward, the panel called on the UN Secretary-General to establish an inter-agency task force on health technology innovation and access, which would “work toward increasing coherence among United Nations entities and relevant multilateral organizations like the WTO”. They also called for the creation of an independent review body, which would monitor, among other things, the progress made in implementing the recommendations of the panel.

While the majority of civil society responded positively, the report received much criticism from the industry. Moreover, the United States says it is “deeply disappointed by the Report of the United Nations Secretary-General’s High-Level Panel on Access to Medicines, which detracts from, rather than advances, those critical objectives.”

The full report is available here. Interesting background documents are available here.

Bram van Wiele is a graduate student at the Commercial Law Department and a research assistant at the IP Unit of the University of Cape Town

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ASK Justice mid-project workshop https://askjustice.org/2016/09/20/ask-justice-mid-project-workshop/ https://askjustice.org/2016/09/20/ask-justice-mid-project-workshop/#respond Tue, 20 Sep 2016 12:35:23 +0000 https://askjustice.org/?p=416 by Thapelo Segodi

Discussions were lively at the five-day ASK Justice mid-project workshop held in Durban, South Africa, from 17 to 21 July 2016, as scholars of intellectual property and human rights from Botswana, Kenya, South Africa and Uganda debated the interface between human rights laws and intellectual property laws. Talks revolved around the draft case studies from the four study countries, as well as the planning and synchronisation of the project’s research activities with its teaching and outreach, or public voice, components. The meeting coincided with the 21st International AIDS 2016 Conference, in which network members actively participated.

The central research question is, “to what extent and in what ways have human rights influenced intellectual property policy processes in the countries involved in the project, with a particular focus to A2K (access to knowledge) and A2M (access to medicine)?”

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Front Row: Gabi de Luca (OSF), Rose Nakayi, Naomi Njuguna, Caroline Ncube, Mbulelo Ncolosi, Zahara Nampewo, Phyllis Webb. Back Row: Lillian Makanga, Andrew Rens, Ronald Kakungulu-Mayambala, Tobias Schönwetter, Thapelo Segodi, Nan Warner

Dr Tobias Schönwetter, Director of the Intellectual Property Unit at the University of Cape Town and one of the two principal investigators, highlighted the project’s importance, pointing out that many AIDS activists these days consider academic research findings when strategising. He said it was important to take the project to completion to inform activists’ future strategies.

“Now, more than ever before, it is important to integrate IP dimensions into human rights teaching (and vice versa), and use our public voice theme to disseminate information about the project and its findings,” he said.

Andrew Rens, Senior Lecturer at Duke University and the research theme leader outlined the project background in detail, touching on issues such as the choice of the case study methodology and anticipated research outcomes. He stressed the notion that A2K and A2M go hand in hand, pointing out that one needs access to academic journals to conduct research to develop appropriate medicines.

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Hard at work: Tobias Schönwetter explains the importance of viewing IP matters through a human rights lens

Many of the experts reported challenges such as restricted access to information from government departments or officials when researching their case studies. Prof Caroline Ncube, Head of the Commercial Law department at the University of Cape Town and team leader of the ASK Justice Botswana case study, highlighted that in Botswana, for instance, government permission is needed before government officials can be interviewed. Applying and waiting for such permissions can be a long time coming.

This said, Rens reminded participants that Botswana is often considered an AIDS success story. A UNAIDS report claims that Botswana provides coverage to 93 percent of those in need of ARV treatment across the country. Talking about how South Africa measures up, he added that the country’s legal frameworks already provided great human rights language, but that government has struggled to create policies in line with them.

Dr Ronald Kakungulu Mayambala, Lecturer at Makerere University and ASK Justice research leader in Uganda, shared best practices from his research activities and said no major obstacles existed in obtaining government information in that country. To a certain extent, intellectual property law and policy in Uganda already consider human rights as well as legal flexibilities to improve access. However, challenges exist in implementing laws, and this renders them futile.

Workshop participants agreed that most countries appeared to have some awareness of the link between IP and human rights. What was missing, however, was the political will to conform intellectual property law to human rights imperatives. Moreover, some participants suggested that the case studies should dig deeper and take into account the pressure developed countries—through foreign trade agreements—exert on developing countries not to adopt a pro-public policy perspective on intellectual property matters.

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Caroline Ncube shows off the new ASK Justice banner

Dr Rose Nakayi, Lecturer in the Faculty of Law at Makerere University and ASK Justice’s public voice theme leader, reminded participants that, while it was important to disseminate information to create general awareness about human rights, intellectual property and the link between these, any efforts in this direction relied heavily on the project’s research findings. “We can only share our findings once they have been developed,” she said. Participants decided that the finalised research findings, once available, should be disseminated through various mediums, including but not limited to academic journals, conferences, social media, and mainstream media such radio and television.

Naomi Nyawira Njuguna, Lecturer in the School of Law at the University of Nairobi and lead for the ASK Justice teaching theme, discussed plans and strategies such as developing a model curriculum, along with by a curriculum review toolkit, two primers to integrate human rights elements into existing IP courses (and vice versa), and drafting an academic publication.

Several delegates also attended a panel discussion on the UN High Level Panel Report on Access to Medicines, co-hosted by the Treatment Action Campaign (TAC), Stop AIDS, and the Open Society Foundations, and hosted by Oxfam.

During the ASK Justice Steering Committee meeting, Lloyd Lotz from the University of Zululand presented a poster entitled, “Changing the intellectual property narrative: Patients before patents”, co-authored with Prof Yousuf Vawda of the University of Kwa-Zulu Natal. Throughout the conference and various meetings, ASK Justice representatives networked, disseminating information about the project and meeting with civil society groups to discuss ways of integrating project activities carried with work done by organisations such as MSF and TAC. Schönwetter and Vawda also participated in a strategy session with civil society groups on a response to the SA Department of Trade and Industry’s IP Consultative Framework, which had been released for comment a few days earlier.

Rens and Schönwetter both thanked the Open Society Foundations (OSF) for their ongoing support.

Thapelo Segodi is a Student Research Assistant in the Intellectual Property Unit at the University of Cape Town

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Experiences of a student at mid-project workshop https://askjustice.org/2016/09/12/mid-project-workshop-turns-up-fresh-ideas/ https://askjustice.org/2016/09/12/mid-project-workshop-turns-up-fresh-ideas/#respond Mon, 12 Sep 2016 07:49:04 +0000 https://askjustice.org/?p=400 by Mbulelo Ncolosi

Besides being a great getaway and refuge from Cape Town’s harsh winter, the ASK Justice mid-project workshop in Durban presented an exciting opportunity for scholars from Southern and East Africa to come together. Held at the Hotel 64 on Gordon from Sunday, 17 July, to Thursday, 21 July, the workshop focused on the ways in which the network could contribute to the improvement of access to medicines, access to knowledge and access to educational materials.

The workshop coincided with the 21st International AIDS Conference (AIDS2016), which helped feed into and enrich the discussion about the extent to which policymakers consider human rights when crafting IP policy. A common theme that emerged was the right to life, emergency medical treatment and access to healthcare, in relation to the rights conferred by and protected under the current legislative scheme in the four case study countries—South Africa, Botswana, Kenya and Uganda.

Scholars shared experiences of the challenges they faced when trying to study the policies of their countries. Scholars from Botswana, for instance, spoke of how difficult it was to access information held by the state and to interview public officials. In Uganda, on the other hand, scholars had no problem accessing the policy, but found that it was poorly, if rarely, executed. These differences in experience brought to light an interesting and unexpected aspect of the research, and serve as a warning for policymakers—to be careful of crafting perfect policies and neglecting their execution.

The workshop also gave the team an opportunity to strategise and think of interesting ways to reach new audiences through our public voice or outreach activities. Avenues such as Facebook and radio interviews were explored as a means of ensuring that the results of the network’s efforts reach the widest possible audience. New ways of teaching were explored, with MOOCs suggested as the most promising way to enhance learning.

At the week’s close, members of the network had the opportunity to spend time in the Human Rights Networking Zone (HRNZ) and interact with activist and stakeholders from partner organisations like Treatment Action Campaign (TAC) and others. The HRNZ was open to the public and presented yet another avenue to publicise the network’s activities.

ASK Justice’s case study reports will be available on our website in the not-too-distant future.

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South Africa’s IP Consultative Framework released for comment https://askjustice.org/2016/09/02/south-africas-intellectual-property-consultative-framework-released-for-comment/ https://askjustice.org/2016/09/02/south-africas-intellectual-property-consultative-framework-released-for-comment/#respond Fri, 02 Sep 2016 09:03:38 +0000 https://askjustice.org/?p=391 Cabinet approved the Intellectual Property (IP) Consultative Framework at the beginning of July 2016. This followed  the publication of South Africa’s Draft National Policy on Intellectual Property in 2013. See the UCT IP Unit’s 2013 comments here. The DTI has said, “The IP Consultative Framework aims to facilitate what will be continuous engagement with governmental partners and society at large towards the formulation of South Africa’s IP policy.”

Comments should be sent to ipframework@thedti.gov.za by no later than 30 September 2016. ASK Justice, along with the IP Unit and a team of global experts, intend to submit their comments before the deadline.

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Economic, social and cultural rights: The limitless textbook https://askjustice.org/2016/07/11/economic-social-and-cultural-rights-the-limitless-textbook/ https://askjustice.org/2016/07/11/economic-social-and-cultural-rights-the-limitless-textbook/#respond Mon, 11 Jul 2016 13:06:47 +0000 https://askjustice.org/?p=378 by Andrew Rens

When we talk about economic, social and cultural rights we have to deal with the hard fact that realising them takes money. It costs money to build and staff hospitals that make the right to health a reality. It costs money to build and staff schools that make the right to education a reality.

Not only does it cost money, but governments have to make choices. Economic, social and cultural rights are meant to guide those choices. A government should rather build schools than buy submarines, should give college bursaries rather than buy jets for government officials. But because money is limited, even a government that prefers schools to submarines has to make choices. Sometimes those choices are between different rights, between schools and hospitals. More often those choices are about who benefits from the schools and hospitals that are built. There is a limit to the number of people that can be treated in a hospital ward, and a limit to the number of people who can be in a classroom. Because of the scarcity of resources, goods have to be rationed.

This kind of scarcity means that whoever is making decisions about the provision of something must engage in trade-offs. A government has a limited budget. Courts, tribunals and human rights bodies understand that rationing the resources needed to realise rights is the reality for developing countries. Governments have space to make decisions about how scarce resources are used. But the way the scarce resources are used to realise rights mustn’t be discriminatory or unreasonable.

Scarcity seems natural to us; water, food, land, these are all scarce in our world. So when something is not scarce we sometimes struggle to understand it. It is easy to assume that providing something to one person always uses up resources so that they cannot be used to provide something to someone else. But not every resource needed to realise economic, social and cultural rights is like that. Two students cannot use the same paper textbook at the same time (or at least not use it the way that best enables them to learn). But what if there were a textbook which once it was created could be used by an unlimited number of people? What if it could be immediately available for every student who ever needed it? A textbook available online is almost like that limitless textbook. It can be copied at almost zero cost by anyone, anywhere in the world with an internet connection.

And that changes the choices that governments must make. When governments already pay for a resource, as most governments around the world already pay for school textbooks, then the money spent on the textbook can supply it to most people if the textbook is available on the internet for free. The resource required for the right still requires money for its initial creation, but once created it’s available for any number of people. Rationing the resource is no longer necessary.

Many of the resources required to realise economic, social and cultural rights are like digital textbooks; once created they can then be available to anyone who needs or wants them via the internet. For these resources the decisions that government make must change. Should government pay for the resources to be created in the first place? If yes, then what could possibly justify limiting use of the resource after it is created? There are many limitations. Governments allow copyright and technical restrictions on tax-payer funded textbooks. State-funded museums hoard their artworks instead of putting up digitised images for all to use. Universities hoard tax-payer funded knowledge instead of making it freely available. For all of these resources the internet changes everything. When an economic, social or cultural right can be realised or partially realised through provision of resources through the internet then what can justify a refusal?

Of course not everyone in the world has an internet connection. But that is not an argument against making textbooks limitless. It’s an argument for providing internet access to everyone as fast as possible so they can use limitless textbooks.

Read the full paper.

Andrew Rens is a senior lecturer at Duke University and the Research Theme leader for ASKJustice.

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The role of narrative change in influencing policy https://askjustice.org/2016/06/04/the-role-of-narrative-change-in-influencing-policy/ Sat, 04 Jun 2016 11:55:15 +0000 https://askjustice.org/?p=98 The role of narrative change in influencing policy

Adapted from a paper by Brett Davidson

‘Narrative change’ seems to be a catch-phrase at present. A number of foundations—including the Open Society Foundations—have engaged in narrative change work and a number of donors have funded narrative change projects. Hardly a conversation or meeting happens without the term ‘narrative change’ being used. However, when a term becomes a trend, there is the danger that it starts to become shorthand for thinking—a term without precision—where everybody thinks they know what it means, but nobody really does for sure. Therefore, we need to be able to define the concept of ‘narrative change’ more precisely, to understand what it is and what it is not, why it is important, and how we go about it.

Firstly, what do we mean when we talk about narrative? A narrative consists of a collection or body of stories of characters, joined in some common problem as fixers (heroes), causes (villains) or the harmed (victims) in a temporal trajectory (plot) leading towards resolution within a particular setting or context (Jones & McBeth 2010; Frank 2010). These stories together or collectively convey a common worldview or meaning—an interpretation of the world and how it works (Frank 2010; Fisher 1984). This worldview embeds within it particular power relationships. Narrative change work rests on the premise that reality is socially constructed through narrative, and that in order to bring about change in the world we need to pay attention to the ways in which this takes place. Importantly, the narrative representation of reality cannot be evaluated or challenged empirically, but rather according to whether it is coherent and ‘rings true’ (Bruner 1991 and Fisher 1984).

Narratives play an important role at three levels.

Individual decision-making

There is a growing body of research in fields such as psychology, cognitive science, political science and sociology showing that people do not make decisions through a purely rational process, and that emotion and a range of cognitive biases play a hugely important role (See for example Kahneman 2011, Haidt 2012, and Lakoff 2004). This research and its implications are extensively addressed in the 2015 World Development Report, which distils this research into three key insights about human decision-making: that humans think automatically, we think socially, and we think with mental models (common perspectives and mental shortcuts—such as stereotypes—that help us make sense of the world around us). Narratives are central to the mental models and social beliefs and practices that that guide individuals’ decision-making and behavior, and thus narrative is an important tool for bringing about change. Metaphor plays a key role here, as the likes of George Lakoff have pointed out.

The policy process

Because of their central role in individual decision-making, narratives also play an important role in policy processes. There are many well-established theories of policy change that recognize that narrative strategies are important and ever-present aspects of any policy advocacy process (examples are the Advocacy Coalition Framework or the Narrative Policy Framework—see Sabatier et al, 2015). Along with struggles over power, money, law and so forth, there is ongoing struggle over ‘meaning’, or what has been called ‘the politics of signification’ (Benford and Snow 2000). However, this often does not receive as much conscious attention as it should—particularly in the human rights field. An example is the continued use of the human rights frame in an attempt to combat discrimination and violence against LGBTQ people in many countries, even though it is often counter-productive. This contrasts with the successful decision by same sex marriage advocates in the US to abandon rights-based arguments in favour of talking about love: ‘love is love’.

We can see a recognition of this lack of effective engagement with the politics of signification in the fact that the International Human Rights Funders Group devoted an entire day during its New York conference in July 2015, to an examination of how we might ‘detoxify’ the human rights ‘brand’. In the conference materials, meeting organizers noted that, “Human rights advocacy has lagged behind other movements for social change in developing and deploying new communications strategies designed not simply to influence how people think about issues, but critically how they feel about them.”

Thus, in addition to traditional approaches to advancing and supporting human rights such as monitoring, legal empowerment, strategic litigation, grassroots mobilization and elite advocacy, we need to pay much more explicit attention to narrative strategies in the policy sphere.

In addition to being a part of any advocacy process, narrative strategies play a particularly important role with respect to a particular type of policy change, in which there is large-scale change involving a fundamental redefinition or reframing of an issue. This is exemplified in the Punctuated Equilibrium Theory (True, et al 2006) of policy change. The theory is that political processes are usually stable, with incremental change taking place—but occasionally there is large-scale change or upheaval. According to True, et al (2006), for such major change to take place, three conditions must exist:

  • Firstly, an issue must become more salient: It has to rise from existing within a particular sector or sub-system to the very centre of the political agenda (heightened attention by the public, media and political elites, caused by factors such as major changes in public opinion, striking and compelling new information, or major mobilization).
  • Secondly, an issue becomes defined differently: There is significant change in the supporting policy image (understood as a powerful idea or image, involving a mix of empirical information and emotive appeals, which is linked to core values and is the manner in which a policy is characterized or understood by the public).
  • Thirdly, new actors begin to enter the arena: “As the issue is redefined, or as new dimensions of the debate become more salient, new actors feel qualified to exert their authority where previously they stayed away.” (p8) This also leads to further mobilization and increased public attention—and subsequent major policy revision.

Cultural narratives

While we might win occasional policy battles, these wins are constantly under attack and in danger of being reversed. We win some battles, but we are losing the war. One of the reasons for this is that we are often working against powerful narratives that are embedded in the overarching culture. Thus we also need to look beyond the policy sphere, as narratives are embedded in the larger culture and in institutions. They shape the way in which problems and priorities are identified; they limit the types of solutions that are viewed as acceptable and possible, and determine how certain types and of people are categorized and treated.

Culture interacts with policy in complex ways. At times, cultural narratives may change long before policy catches up. An example is same sex marriage in the USA—where policy changes in recent years have recognized and been made possible by a broad cultural shift over the past 30 years. On the other hand, policy changes may be ineffective or precarious unless culture shift also takes place. An example is abortion in the US, where Roe vs Wade shocked conservatives and mobilized them into a long-term battle to systematically undo the Supreme Court’s decision (Baker, 2015).

Narratives embody fundamental assumptions by which we interpret and understand the world. Because they constitute the culture in which we live, we are often unaware of these assumptions and the narratives through which they are conveyed. Therefore, we need to find ways to reveal, challenge and change them.

Reinsborough and Canning (2010) refer to this as action at the ‘point of assumption’ (as opposed to action at other points of intervention such as the ‘point of decision’—such as a legislature—or point of consumption—such as a consumer boycott).

So how do we undertake narrative change? Within the Open Society Public Health Program, we have adopted three types of approach:

Cultural strategies, including creative activism and tapping into popular culture

Creative activism combines the tools and skills of artists and the emotional impact of art, with the tools and skills and effect-driven nature of activism. It makes use of “symbols and signs, images and expressions” to have an impact in today’s “media-saturated, spectacle-savvy world”.

Cultural and artistic activism can play a role in policy change, particularly for grassroots groups interested in influencing policy narratives. It can also play a role in making visible and challenging narratives at the level of culture (and popular culture in particular).

The popular culture sphere includes television, film, social media, comedy and music, among other things. It is a crucial arena for culture-level change, although it can require large budgets. For more details on the use of popular culture for social justice, see the excellent PopJustice series recently released with support from Unbound Philanthropy and The Nathan Cummings Foundation:

Personal narrative: Listening and storytelling

This approach seeks to facilitate storytelling as a way of opening up political space, destabilizing entrenched power relationships, and giving voice to voices that are usually drowned out, suppressed or simply ignored. By letting stories proliferate, we aim to undermine assumptions and preconceptions, and ‘change the narrative’ about stigmatized or marginalized groups.

Personal storytelling of this sort can be very effective in influencing individual change and transforming relationships. Personal stories can also be used to open up the policy space, particularly when positions are polarized.

Metaphor and cognitive linguistics

This approach is influenced largely by the work of George Lakoff and other cognitive scientists who take a similar perspective. Lakoff (2004) is known for his thesis that our socio-political lives are greatly influenced by the metaphors we use to explain complex phenomena, that these metaphors operate at an unconscious level and that unless politicians and activists pay attention to this and are very careful about the metaphors they use, their influence will be very limited.

This approach entails steps such as:

  • analysis of existing messaging and language used by the various parties in a particular narrative contest;
  • research into the target audience—to better understand the narratives active in their understanding of the world and of the particular issue at hand;
  • development and testing of new messages through use of focus group discussions and dial testing.

This approach is likely to be most useful at the level of policy contestation.

The long-term nature of the work

This is work that has to be viewed over the long-term. It is aimed at shaping how people think about and understand particular issues or groups of people over time. It is work that takes place in contested terrain. It is work that is new to us and to many operating within the human rights field, and we are learning as we go. We will no doubt face many setbacks and dead ends. But it is work that, if successful, has potentially huge impact in transforming the social and cultural context within which much of our other advocacy work takes place

Read the full paper.

Brett Davidson is director of the Health Media Initiative of the Open Society Public Health Program.

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Landmark copyright decision on fair dealing in SA copyright law https://askjustice.org/2016/05/19/landmark-copyright-decision-on-fair-dealing-and-other-aspects-of-sa-copyright-law/ https://askjustice.org/2016/05/19/landmark-copyright-decision-on-fair-dealing-and-other-aspects-of-sa-copyright-law/#respond Thu, 19 May 2016 13:47:09 +0000 https://askjustice.org/?p=260 On 5 May 2016, the Gauteng High Court delivered the long awaited decision in Moneyweb v Media24. The case’s history is nicely captured here. In a nutshell, the case dealt with, among other things, the alleged copyright infringement of 7 articles published by Fin24, a part of Media24. Moneyweb had argued that through publishing these articles, Media 24 infringed its copyright by unlawfully copying, appropriating and/or plagiarising articles previously published by Moneyweb.

The dispute raised important issues regarding the substance and extent of copyright protection in news articles and the outcome clarified crucial aspects of South African copyright law, including fair dealing and the meaning of originality.

Three issues were at the heart of the decision: (1) whether Moneyweb’s articles were original, (2) whether Moneyweb had reproduced substantial parts of these articles, and (3) whether Media24 was absolved from liability by virtue of copyright exceptions and limitations (ss 12(2)(c)(i) [“fair dealing”] and 12(8)(a)).

The court first examined whether the Moneyweb articles in question were original. There is no definition of “original” in the Copyright Act. Dealing briefly with the “sweat of the brow” requirement for originality under South African copyright law, the court clarified that while “our law still regards the time and effort spent by the author as a material consideration in determining originality … the time and effort spent must involve more than a mechanical, or slavish, copying or existing material. In other words, there must be sufficient application of the author’s mind”. According to this standard, and in light of the lack of evidence provided by Moneyweb to establish originality in some of the articles based on information from press conferences, press releases, conference calls, and interviews, the court found that Moneyweb had only established originality in 3 of its 7 articles in question.

The court then briefly turned to s12(8)(a) and noted that this copyright exception – which exempts “news of the day” from copyright protection – does not apply to all current news, but only “to mere items of press information”. In that way, s12(8) is different to Article 2(8) of the Berne Convention from which it is derived. In determining whether the Moneyweb articles could be regarded as “news of the day that are mere items of press information”, the court ruled that this could only be the case if the work was not original. Hence, the 3 articles for which Moneyweb had established originality were not exempted from copyright protection through s12(8)(a).

The next question was whether Media 24 had reproduced substantial parts of one of these 3 articles. The court, firstly, clarified that in this context it was irrelevant whether the part used by Fin24 had been copied by Moneyweb from another source. However, the court found that, quantitatively and qualitatively, Fin24 had only reproduced a substantial part of one of the Moneyweb articles, namely “Amplats: CEO cites JSE rules”.

Finally, the court examined whether this reproduction was covered by the fair dealing provision of s12(1)(c)(i). According to s12(1)(c)(1)(i), copyright shall not be infringed by any fair dealing with a literary work for the purpose of reporting current events in a newspaper, magazine or similar periodical, provided that the source is mentioned, as well as the name of the author if it appears on the work. The court stated that providing a hyperlink sufficiently complies with the requirement that the source must be mentioned. For the rest, the court noted a lack of South African case law concerning fair dealing and therefore, cautiously, considered English case law, under consideration of the Constitution of South Africa, 1996. On this basis, the court identified a non-exhaustive list of factors relevant to a consideration of “fairness” within the meaning of 12(1)(c)(i): the nature of the medium in which the works have been published; whether the original works has already been published; the time lapse between the publication of the two works; the amount (qualify and quantity) of the work that has been taken; and the extent of acknowledgement given to the original work. The court, however, noted that fairness remains an elastic concept and determining “fair dealing” therefore still involved a value judgment that depends on the particular facts or circumstances at the time of dealing.

Against this backdrop – and with perhaps too cursory an examination of each of the aforementioned fairness factors – the court held that by taking and reproducing the core of Moneyweb’s article “Amplats: CEO cites JSE rules” Fin24 infringed Moneyweb’s copyright and was therefore liable for the damages suffered, the amount of which is still to be determined. However, the court ruled that an interdict was not warranted since the harm is no longer continuing. Since Fin24 has been substantially successful in defending the claims against Moneyweb, Moneyweb was ordered to pay 70% of Fin24’s costs.

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Reflections on SARUA Leadership Dialogue on Open Access https://askjustice.org/2016/05/19/reflections-on-the-sarua-leadership-dialogue-on-open-access-and-african-research-publishing-in-the-21st-century/ https://askjustice.org/2016/05/19/reflections-on-the-sarua-leadership-dialogue-on-open-access-and-african-research-publishing-in-the-21st-century/#respond Thu, 19 May 2016 13:33:38 +0000 https://askjustice.org/?p=256

by Eve Gray

What needs to be done to achieve an enabling policy environment and the necessary technical infrastructure and professional skills in Southern Africa to foster the effective communication and publication of African scholarship? What benefits would accrue from more effective communication of the scholarship in the region? What would the region gain?

These were the core questions explored by a variety of speakers at a Leadership Dialogue attended by southern African Vice-Chancellors and organised by the Southern African Regional Universities Association (SARUA), the UCT IP unit, UNESCO and Magna Charta Observatory. This workshop, a prelude to the Going Global 2016 conference being held at the Cape Town international Convention Centre, focused on Open Access and African Research Publication in the 21st Century. The choice of this focus on Open Access was triggered by an announcement that Elsevier was sponsoring the development of an open access African megajournal, in collaboration with the African Academy of Sciences, the African Centre for Technology Studies, the South African Medical Research Council and IBM Research Africa.

This initiative, under the auspices of the Elsevier Foundation, an independent charity founded by the company, appears to be doing a lot of the things that African governments ought to be, but are in general not doing. Elsevier has sponsored open access workshops with AAS, offers training in writing and publishing skills, and sponsors the use of technological platforms for open access dissemination. ‘We believe that there could be a much greater return on investment over the next ten years if African institutions, access programs and publishers could address awareness, usage and research capacity in a collaborative and integrated manner’ the Foundation states.

The question that arises from this is a crucial one. If, as African governments tend to approach research publication, the general trend continues to be a free rider syndrome in which everyone steps back and says ‘Publishers can do this well, so we do not have to’, what are the potential gains and losses? The gains may be highly professional journals – this time with African content, unlike the historical content profile of commercial journals. However, an ostensibly public benefit initiative such as this, which focuses on the core business out of which Elsevier makes its very substantial profits, is unlikely to stay completely free of charge for very long. Once it begins to be monetized, will African scholars, universities and governments be able to afford to publish in it? (They will be able to read it, but payment levels for publishing an article are likely to be so high that only well-endowed authors from overseas universities will be able to afford it. In other words, will it become another neo-colonial enterprise?

The outcome would in these circumstances be that African-based scholars would have access to the journal – the ability to read the articles – but are unlikely to be able to participate in the production of the knowledge in the journal and could lose African control over the publication of a lot of African research.

I will return to a more detailed discussion of the perspectives provided by the different speakers in subsequent blogs, but here are some key points offered on how policy change could be best achieved and what the policy environment could look like.

Government support for regional OA – the Latin American model

The key policy pressure point if Africa is to achieve effective dissemination of its research production is the need for more active government involvement in providing financial support for the communication and publication of scholarship. This could be support for the development of publishing efforts, for journals, books and development-focused research outputs, something that is certainly needed. This is an environment, in which most local journals struggle on, on the back of voluntary labour and inadequate technical infrastructure. Scholarly books can only be produced in low volumes and have to be targeted at a general readership to survive at all. And the large volume of research that is produced by the scholars who aim to address African needs and counter African problems is largely lost – never published, or is published by individual research units, to reach limited audiences.

There could also be government support for the use of digital platforms and repositories to ensure the publication of what is produced – the ‘green route’ of the open access movement. The strongest models offered by the speakers at the conference were supported by national and regional governments, through federated repository systems hosting journal articles, theses and dissertations, and other outputs. In South Africa the Academy of Science of South Africa is following this route in alliance with the Brazilian SCIELO initiative, offering government support to journal publishers in getting exposure for their journals.

This draws on the fact that the prime example of the collaborative approach to the dissemination of scholarship in the developing world is in Latin and South America, where research and its dissemination is mainly government funded and built on regional co-operation. There are 3,500 journals on regional platforms, 76% of them OA with no article processing charges. La Referencia provides confederated repositories in 8 countries giving wide regional reach to scholarly publication. There is open access legislation providing OA mandates for the publication of government funded research in Peru, Argentina and Mexico. The benefits of this system are higher visibility and access and increased citations for an entire region. It has also made Brazil the second biggest publisher of open access journals in the world.

Brokering policy change – the European Universities Association

The other regional level initiative discussed was from the European Union’s Horizon 2020. This is built upon the need to acknowledge the new ways, in a digital world, in which research is conducted, assessed and used by other researchers and society. It aims to develop new and alternative ways for researchers to conduct, publish, and disseminate research in a digital world. The overall initiative is supported at top level in the European Commission, with Director level EC executives responsible for implementing the programme. In other words, the European Commission sees research and the communication of research as a key strategic focus that will help growth and improve lives in the region.

On the ground, the policy being implemented through the European Universities Association is in the first instance underpinned by the development of a number of documents to support HEIs in making the decision to implement OA. An Expert Group on Open Access has been set up.

The main actions include:

  • Information gathering and sharing, mapping the EU OA landscape and establishing a platform for dialogue and the sharing of good practices.
  • Dialogue and mobilization of researchers, using workshops and other fora, engaging them in the development of new academic recognition systems.
  • Engaging with publishers to discuss economically realistic and viable conceptions of the OA future.
  • Mobilising politicians for a fair and balanced and innovative publishing system, using position papers and seminars at national level.
  • Encouraging researchers to deposit their papers in institutional repositories (this works better than mandates in the EU environment).

In other words, the recipe in this context is concerted action in the academic community, with a lot of time taken in mapping implementation needs, reaching consensus and setting up activities.

West Africa: Codesria’s African vision for African Research Dissemination

At a conference held in Dakar in early April, the declaration that emerged from an extended discussion of research publication in Africa stressed the need for consensus building on OA, on collaboration across the region through the creation of dialogues, the creation of infrastructure, including a regional confederated OA platform, and educational programmes building capacity in publication, technology management and use, and in academic writing.

The importance of government support for open scholarly communication, through financial and logistical contributions, was stressed as a necessary contribution to a successful higher education system that could contribute to national and regional priorities.

Delegates agreed that the reward system, currently dominated by the Impact Factor and the push for international ranking, needed to be replaced by a broader-based and locally relevant recognition system. This, in fact was seen as one of the major hindrances to the delivery of an effective, locally and internationally relevant research system.

A working group would need to be created among African research institutions to drive change in the region, working with local champions to broker change from the bottom up and developing the arguments to persuade governments to provide more support for universities and the dissemination of the research being funded by governments and donors.

Recognition and reward systems

The workshop’s focus on the values inherent in the research enterprise highlighted the impact of market-driven approaches to research delivery and the distorting effect that this could have on developing country universities and their research. The negative impact of market driven approaches on research priorities and on reward systems has to be assessed and care taken to align the core identity and mission to society of African universities, argued Sijbolt Noorda, of the Magna Charta Observatory, one of the sponsors of the Leadership Dialogue.

Brokering change – an African perspective

The message that emerged overall was clear: there needs to be a change initiative driven by champions and experts drawn from the research community, focused on actively brokering policy change, producing policy briefs drawing on strategic approached to change management. This needs to be fostered through the creation of communities of practice, drawn from universities and research councils, using social media, policy-focused advocacy, workshops and seminars targeting key policy-makers. This enterprise will need to draw on the African-focused research that has already been carried out, largely donor funded.

Some practices seen as self-evident in the US and Europe, for example, like setting up an institutional repository run by the library and supported by the university’s ICT division, have proved highly problematic in poorly resourced universities, in regions where training in digital librarianship is patchy and ICT infrastructure is under-resourced. As publishing consultant Garry Rosenberg pointed out, the domination of the large commercial journal publishers is built on their ownership of symbolic academic capital, driving reward systems, something that repositories cannot deliver to developing country researchers and their universities.

It is important that the models conceptualized be appropriate to the African context and not blindly drawn from models prevalent in the global North. The practice of charging Article Processing Charges for open access journals paid by the author, for example, is proving problematic even in rich countries and is highly exclusionary in countries where there are not the resources to support researchers to pay APC charges.

Sustainability will be a core issue. African universities are under-funded and academic staff tend to be overworked and burdened with heavy teaching loads. A major threat to sustainability in these circumstances resides in the addiction to the prestige of international journals, a hugely expensive system that drains the resources of universities. In addition, it is inimical to the publication of research that is of critical importance in Africa but does not have impact in the United States. The recent Ebola epidemic is a powerful example of the negative effects of such a system. Weaning the academic community from the promotion systems that tie universities into this publication system have to be part of the advocacy and policy change programme.

Lastly, any policy change intervention will have to address the need to draw on the full range of research outputs that are produced in African research institutes in particular. Usually categorized somewhat dismissively as ‘grey literature’ these less formal publications, often of high quality, address the variety of audiences that need access to research findings, in agriculture, public health, ecology, and educational development, to name but a few.

The different levels of publication, the different audiences that need to be addressed, and the resources needed in different contexts will all have to be identified.

Working with government

Finally, any policy change initiative will need to identify, build relationships with and collaborate with informed and sympathetic players within government departments and parastatals. These champions will be needed to expand the constituency within government circles and help identify networks that policy brokers could tap into.

In order to achieve this in a chronically underfunded and under-resourced system – a persistent hangover from World Bank and IMF policy implementation in the last decades of the 20th century – is going to be a considerable task. What is going to be needed is focused and policy-driven information on the benefits of effective communication of the research that is carried out, not only for publication in prestige journals and university rankings, but especially in research areas that address the major imperatives in the region. The question is how effective research communication can help build countries.

The wild card – piracy

Globally, piracy may well play its role in changing the system as the SciHub site set up in Kazakhstan, with its huge library of journal articles is already suggesting. Used for millions of downloads, most of them, ironically, from the well-resourced countries with the highest level of access to commercial journals, this may well prove to be the Napster of the scholarly publishing world

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Free e-book on the strategic use of new media for public good https://askjustice.org/2016/04/01/free-e-book-on-the-strategic-use-of-new-media-for-public-good/ https://askjustice.org/2016/04/01/free-e-book-on-the-strategic-use-of-new-media-for-public-good/#respond Fri, 01 Apr 2016 14:23:46 +0000 https://askjustice.org/?p=121

Sawtna has announced the publication of its Guidebook for the Strategic Use of New Media for Peaceful Social Change, authored by Dalia Haj-Omar. This is a practical guide promoting the strategic use of social media and other information and communication technologies (ICTs) for advocacy and peaceful change in Sudan and beyond. It targets the Sudanese civil society in its most diverse sense, including journalists, pro-democracy activists, youth movement members and humanitarian workers, as well as individual citizens desiring to increase their participation in public affairs.

The guidebook draws from the experiences of social movements and civil society in Sudan, as well as Egypt, Iran and Kenya; in addition to civil society in other countries that used ICTs innovatively in digitally advocating for peaceful social change. The guide is a stimulating combination of case studies, interviews, analysis and infographics to help readers sharpen their digital communications and design better online campaigns; as well as be aware of global digital security challenges.

The guide is divided into five chapters covering blogging, Twitter, crisis mapping, crowdfunding and digital security. Highlights include an interview with the Sudanese online cartoonist Khalid Albaih, a case study on the digital campaign for the release of the Nuba Mountains activist Jamila Khamis, and a conversation with Amir Ahmad Nasr, one of Sudan’s first bloggers and the author of the book My Isl@m. Additionally, there are interviews with international civil society practitioners, including experts on crisis mapping and digital security. On the organizational side, the guide emphasizes the process and steps needed to launch social media advocacy campaigns, as well as crowdfunding campaigns.

The Guidebook is available in English and Arabic and can be downloaded fully or as separate PDF chapters below this announcement. Hard copies are available upon request with priority going to the Sudanese civil society.

This article was first published on the Sawtna website. Go to  Sawtna to download the PDFs.

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Open access policy on the cards for Zimbabwe https://askjustice.org/2016/04/01/open-access-policy-on-the-cards-for-zimbabwe/ https://askjustice.org/2016/04/01/open-access-policy-on-the-cards-for-zimbabwe/#respond Fri, 01 Apr 2016 14:02:41 +0000 https://askjustice.org/?p=113 by

Zimbabwe has kicked off a new project to support adoption of research data management and sharing services among government, universities and research institutions as part of its plans to pave the way for a nationwide open access mandate. Meanwhile, similar efforts are sweeping across Africa.

The project, started in November, is funded by Electronic Information for Libraries (EIFL), which works with libraries worldwide to enable access to digital information for people in developing and transition countries. The group has provided US$5,234 for the two-month Zimbabwe initiative which would stretch to five months including preparatory work.

The project, named “Advocacy for national open access mandate and management of open research data in Zimbabwe,” will involve the Zimbabwe University Libraries Consortium (ZULC), a grouping of 18 universities.

Iryna Kuchma, EIFL open access programme manager, said an audit of open access (OA) activities conducted by ZULC among its members revealed that a majority of them already have OA institutional repositories in place and have been working on their OA policies.

“Elsewhere, in government ministries and departments and in private sector organisations, there is very little appreciation or understanding of OA as a viable model of scholarly communication,” Kuchma told Intellectual Property Watch.

Outside ZULC membership, the Research Council of Zimbabwe also has a national open access repository.

The Bindura University of Science Education, Lupane State University, Midlands State University and Zimbabwe Ezekiel Guti University are the only ones with open access policies in a country with 15 universities.

Kuchma said ZULC decided to build capacity for scale-up of OA initiatives in all public and private sectors in Zimbabwe, and to enable ZULC to create a roadmap for development of a national OA mandate for the country.

Open access allows institutions, research funders, or research grant recipients to make their published, peer-reviewed journal articles and conference papers available freely through self-archiving peer-reviewed drafts in a freely accessible institutional repository or by publishing them in an open-access journal.

Towards National Open Access

A workshop on open data held on 30 November in Zimbabwe’s second city of Bulawayo trained ZULC members with the knowledge and skills to manage generation, processing and dissemination of research data effectively.

The workshop included officials from the Zimbabwe Ministry of Higher and Tertiary Education, Science and Technology Development, vice chancellors, librarians, academic staff and researchers.

Jasper Maenzanise, head of ZULC, said the roadmap for a national mandate on open access involves the parent ministry of higher education and technology.

“We are currently putting together a concept paper for approval by the ministry as agreed at the workshop held in Bulawayo,” he said.

“As part of this roadmap, the workshop participants resolved to submit the concept paper and a draft of the OA support statement for approval,” Maenzanise told Intellectual Property Watch.

He said at that point they could not give many details about the programme before this approval is granted.

The EIFL partnership with Zimbabwe goes back to 1 November 2005, when the first open access institutional repository was launched through EIFL’s support at the University of Zimbabwe (UZ).

The UZ library has since taken a lead in embracing OA issues and also in making research outputs available through OA. The university community has fully embraced the OA concept through advocacy.

According to Kuchma, sustained support from EIFL from 2011 to 2015 saw capacity building for the adoption and implementation of OA policies and repositories in Zimbabwe growing.

She said it was a period in which most of the universities and research institutions in Zimbabwe embraced OA initiatives and created OA institutional repositories, but not formally implemented OA policies.

The formation of ZULC enabled the initiative to start discussions at the national level about OA policies meeting key stakeholders at universities, the ministry of higher and tertiary education, and at research organizations.

The Research Council of Zimbabwe went on to partner with universities to establish a national repository as a starting point for OA dissemination.

OA Advocacy and Policy across Africa

Lack of knowledge about existing African scholarly production often leads to underestimation of the amount of research activity on the continent.

Kuchma said the Zimbabwe open access project was one of many in Africa that EIFL supported in 2015 to try and bring visibility of available research.

The Botswana Library Consortium, which advocates for open access in Botswana, targeted research managers and administrators in academic and research institutes.

This raised the profile of local research through a series of workshops in a project started in July this year. The project worked to strengthen OA repositories such as the University of Botswana Research, Innovation and Scholarship Archive (UBRISA) which currently includes 1,072 records.

Repositories under development at Botswana College of Agriculture, Botho University, the Department of Agricultural Research, and Botswana College of Distance and Open Learning were assisted.

Elsewhere, the Council for Scientific and Industrial Research (CSIR) in Ghana was helped to develop an OA policy to be adopted before the end of the year.

During the 10-month initiative, awareness was created and views were solicited from research scientists, policymakers and research managers, and librarians working across all 13 institutes of the CSIR.

In Ethiopia, EIFL launched in April a new eight-month project that support Ethiopian universities in developing open access policies and launching open research data services.

Addis Ababa University (AAU) shared best practices on open access to other institutions in the country.

AAU which implemented the project promoted its publishing platform ‘Ethiopian Journals Online’ (EJOL), with the aim to have more journals joining EJOL this year.

A five-month project entitled, “Developing an open access policy for Malawi,” with the Malawi Library Information Consortium (MALICO), was started in July by EIFL to help remove the challenges that researchers encounter in accessing each other’s work.

Kuchma said the idea was to develop an open access policy for Malawi that will enhance access to research funded by government and donor agencies, and improve dissemination of research results.

She said the project was earmarked to populate an open access Malawi National Digital Repository developed by MALICO and hosted at the Malawi National Library Services.

The Zambia Library Consortium (ZALICO) launched its national open access advocacy project in July, supported by EIFL, and its aims are to transform Zambia’s research landscape.

Six institutions, University of Zambia (UNZA), University of Lusaka, National Institute for Public Administration, Evelyn Hone College of Applied Arts and Commerce, Copperbelt University, and National Science and Technology Council.

The UNZA has since adopted OA for its research repository which currently holds more than 4000 research outputs from the university’s nine faculties and two institutes.

Scholarly Communication in Southern Africa

A study conducted by the University of Cape Town’s Scholarly Communication in Africa Programme (SCAP) in 2014, to help raise the visibility of African scholarship in Southern Africa, identified open access as key enabler to enhance Africa’s research visibility and effectiveness.

The study, ‘Seeking Impact and Visibility, Scholarly Communication in Southern Africa,’ was done at the universities of Botswana, Cape Town, Mauritius and Namibia.

It noted that most of the technologies required for engaging in open access communication were either already available at African institutions, freely available on the internet, or relatively inexpensive to purchase, but were not incorporated into a strategic plan concerning scholarly communication.

“Making all African research outputs clearly profiled, curated and made freely available to the public would give African research a higher likelihood of not only shaping academic discourse because it would be more visible to scholars, but of getting into the hands of government, industry and civil society personnel who can leverage it for development,” the study said.

This article originally appeared on Intellectual Property Watch.

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