THE 2 IPs: Internet Protocol and Intellectual Property –

Lets talk Mobile , Internet and Connected Devices as we explore borderless chats. And yes: Who owns your chats and who gets regulated? And: Advertisers – are we thinking of them in the regulatory landscape.

No more pigeons as carriers, but mobile messaging apps like Facebook’s and their instant messaging services and others like Whats App, WeChat, Snapchat, Viber, Line, Kakao Talk and Tencent are on the radar. They have fast outpaced mobile carriers SMS.

As we chat, we connect and we buy…. that is what advertisers want. More so, it is what companies want – both virtual and real time companies. Entrepreneurial fervour is driving more and more advancement and technology is aiding this spiral. Technology is also changing innovation in itself. Technology is allowing more and more communication and interactivity and inventions on scales small and large. Technology combined with creativity is driving innovation as business and the operations of the world are being digitised.

Mobile messaging carriers pay hefty licence fees but internet messaging applications are largely unregulated – Is this the new war – who pays and who is regulated? But should that be the war – is the question rather: with connectivity , access and communication are enhanced and the issue is one for greater connectivity and Internet access. The internet is a powerful force – an as the UN Broadband Commission spotlight: The Internet is Evolving from Connected Things to Connected Everything.

It is access and connectivity that need to be on the radar not asymmetric regulation, as mobile makes money and dual regulation discussions aid not abet minimal mobile fee discussions.

Mobile and Internet based messenger apps those that access mobile with internet and those that do not – are a reality in as much as Facebook’s is offering an alternative attempt to equalise digital access. So, Internet Protocol – IP networks are now connecting billions of physical devices, while this accelerating volume of data is driven by four major trends:

IP is fast becoming the common

language for most data

communication, especially

proprietary industrial networks.

Billions more people, things,

places, processes and devices

will come online over the next five


Existing physically stored

information is being digitized

in order to record and share

previously analogue material. For

example, the digital share of the

world’s stored information has

increased from 25% to over 98%

over the last decade38.

The introduction of Internet

Protocol version 6 (IPv6) now

removes the technical limit on the

number of devices connected to

the Internet, allowing for trillions of

trillions (i.e. 1038) of devices. – UN BROADBAND COMMISSION 2014

Mobile Internet commerce has got advertisers in a digital frenzy vying for virtual mobile users as much as getting them to part with their monies. According the recent UN Broadband Commission Report 2014 Report , the ITU predicts that the number of networked devices could reach 25 billion by 2020.

Now that is a lot of networked devices. Much more than simply mobile connectivity and IP ( Internet Protocol) trillion connectivity has the potential to transform to trillions in capital and ROI as connectivity of everything. That is the digital enabler.

The debate is on: Mobile operators are regulated. Internet service based messaging whether on mobile or otherwise are not. That is the digital revolution making inroads into what was traditionally mobile revenue. Internet service based messaging has revolutionised affordable communications. Competition is good So, lets leave this unregulated. It is a communications enabler especially in countries where mobile and telephony communications are expensive and digital access uneven. Mobile needs to up its game on affordable communications. More instant messaging applications offer a sales incentive for smart mobile purchases.

Advertisers in terms of specific communications regulatory fees are not regulated. They use infrastructure bandwidth and vicariously user’s data bandwidth . Yes they pay – but to whom and that is what should be borne in mind. Should they be? They negotiate commercial agreements and ad funded revenue model to maximise their revenue. So, why not regulate them. Yes, we have regulations and in country standards. That is not the point, the global advertisers leverage revenue as much the chats are borderless. So, lets bring them in the financial regulatory model too.

Virtual mobile messaging systems in the digital world are on the path to changing intellectual property rules. But what are the new rules in play? Are we asking the right question and to whom?

So, who owns your chats? You do, its your IP – Intellectual Property ( product of the intellect – your words, your phrases, your rhymes) but always check the Terms of Service and Privacy Policy including for escape clauses. Be mindful of jurisdiction clauses as litigation in a foreign country is expensive and sever location founds jurisdiction.

And IP – Internet Protocol and its processing power is enabling those chats to be as connected as they are borderless.

Happy chatting.

Ayesha Dawood

Published in Business Day Business Law and Tax Review February 2016

Inequality of digital access must be overcome

DIGITAL AFRICA : A networked and democratic Africa is about Digitising countries

Mobility and Interactivity are becoming entrenched throughout the African continent


The migration to digital devices brings about fundamental changes in communication, connecting people to each other and to sources of information in a manner that deeply affects society. We connect and interact instantly through short messages and we hold video conferences with people around the world without any participant leaving her home/office. Text books in classrooms are being discarded as children clamber into the online world which opens the doors to education, gaming, video-on-demand, streaming, shopping and banking, telemedicine – and a dark underworld of child abuse.


Borders are falling as e-commerce writes new rules, and hacking and security are multi-million dollar enterprises in the developed and developing world. Mobility and interactivity of communications devices are moulding new lifestyles and businesses.


Within this context, the continued protection of free speech and privacy in the online world appear to co-exist precariously as governments look to blocking content distribution and communications networks. Both free speech and privacy are essential rights in democracies, more so among the developing and under-developed nations.


In Africa, the digitization of communications and the migration to mobile devices assist communities especially rural communities and who would otherwise be isolated. Mobility and interactivity are becoming entrenched throughout the continent. The question is: at what cost?


The model throughout most of Africa is for governments to license spectrum to mobile operators whose objective is to make profit. As they roll out their networks and as device manufacturers bring new products to market, the question is whether the fundamental structural inequities are in any way altered for the benefit of the majority of economically disadvantaged people.


Apart from the ability to communicate and access small amounts of information through mobile devices, affordability determines the level of access to the mobile network.


A related issue is whether a model licensing may be structured so that economically disadvantaged people may benefit.


In television the migration from analogue to digital broadcasting makes the point forcefully. Within digitization in television, much spectrum is freed up and a dual national benefit takes effect.


  1. The first advantage of the freeing up of spectrum is that new mobile operators may be licensed. Of importance, is the licensing model that will serve to entrench a diversity of operators who must meet roll out and other socially useful obligations if they are to keep their licences.
  2. The second advantage is that with digitisation many more television owners may be licensed. Licensing of a diversity of owners with obligations to keep open the airwaves for a diversity of voices and different communities have implications for free speech.


Providing access to communications networks and investments in the roll out-out of these networks into under-developed areas as well as models of spectrum licensing have the potential to fundamentally alter the nature of society.


The November ITU 2014, Measuring the Information Society Report spotlights the concept of ICT as a development enabler in correctly stating that  “the recognition that ICTs can be a development enabler, if applied and used appropriately, is critical to countries that are moving towards information or knowledge-based societies, and is central to the ICT  Developemement Index’s conceptual framework.


Getting digitized is a democratic enabler. That is a corollary to development enablement. How this may be possible through digitisation is what Africa and other least connected countries and regions should be focusing on.


Digital business models make business sense and market opportunities for licences, infrastructure, content and access enables democracy and development as well as access to capital markets and trade. Transformative business models are a significant part of the digital revolution.


So, lets move Africa, Latin America and parts of Asia Pacific out of the inequality conundrum by shining the spotlight on digital networks and inviting competition on more operators, broadcast and internet networks. In the process lets aim for universalising broadband,making it affordable and connecting homes and people online. Digitisation may just be the regenerative tool.


Published in Business Day,  Business Law and Tax Review, March 2015.

Mobile broadband is waiting for the release of digital dividend

Mobile broadband is the wave of the future. In Africa the lack of cable infrastructure continues to inhibit connectivity, often affecting development. But the mobile smartphone is changing the way people are communicating and solving the problem of rolling out cable networks into the rural and remote areas.

According to the 2014 International Telecommunications Union Broadband Commission report ­­­­­­­­­­­­­“there will be 630 million mobile subscriptions in Africa by the end of 2014, 27% of which will be broadband”.

The report goes further and states that “Africa is an archetypal example where next-generation broadband and cloud-based ICT services have been gaining momentum steadily. All these digital innovations are empowered by Intellectual Property, which plays a central role in the development of broadband infrastructures”.

Through mobile phones the gap between the connected and the unconnected is being bridged every day. The possibility of broadband access to the majority grows stronger each year. Following the rest of the world, mobility in Africa is the principal means of communication. However, unlike the rest of the world, Africa, and South Africa in particular, face enormous challenges in rolling out mobile broadband.

In South Africa the continuing and abysmal broadband policy misadventure hamstrings connectivity and broadband opportunities. One of the key components of a broadband policy must include the framework for the management of the release of the digital dividend which will create a whole new world of broadband communication possibilities.

The digital dividend is the spectrum that will become available after the migration of broadcast signals from analogue to digital television. From about 2005, South Africans have been promised a new and better television signal. The tired excuses for the failure of digital television migration is not only frustrating but also delays the roll-out of true mobile broadband which can only happen when the spectrum formerly used by TV is made available for mobile communication.

And when will the digital dividend happen? It’s anyone’s guess. Even government has no clue about how to deal with policy relating to the digital dividend. As a matter of fact, the Department of Communications is still grappling with understanding the meaning of policy. The “SA: Policy Connect” – the country’s feeble attempt to posit a national broadband policy – is nothing short of disastrous: the absence of broadband policy from the policy document borders on administrative negligence.

Any policy about broadband mobile connectivity must include policy about the use and allocation of the digital dividend. A fundamental consideration is whether, when the policy is finally spelt out, ordinary South Africans will benefit by low-cost communications services or whether corporates will succeed in lobbying government to create high-profit business opportunities for themselves through the use of the publically-owned frequencies.

The freeing up of more spectrum will boost broadband mobile communications, as it is doing in countries where digital television migration has already occurred.

But South Africa should take heed of the warning in the 2014 Broadband Report which says:

“Asymmetric regulation has resulted in an uneven competitive landscape for services. Governments and policy-makers need to review and update their regulatory frameworks to take into account evolving models of regulation. It is vital that every country prioritises broadband policy to shape its future social and economic development and prosperity, emphasising both the supply and demand sides of the market.”

Since 2012 the ITU has annually published broadband reports that reflect what is happening around the world. The lessons from other countries and the general advice in these reports go a long way to assist in the formulation of broadband policy. No country needs to re-invent every aspect of broadband policy. Of course, domestic circumstances and the needs and aspirations of countries differ. That is inevitable. By the same token, no country needs to re-invent a fundamentally and radically novel policy. Mobile broadband roll-out is neither an engineering challenge, nor a complex policy dilemma.

It should also not be industry-led. Industry-led solutions are never in the public interest. The Department of Communications must guard against appointing so-called “policy-experts” who do business or have interests in the communications industry. Their involvement will necessarily impact negatively on the roll-out of mobile broadband connectivity at a time when communications is the epitome of a new world culture.

The turn to digital communications has brought benefits of low cost and widespread connectivity to many countries. Why should we in SA not also enjoy the benefits of low-cost mobile broadband connectivity? To get South Africa truly connected and into the modern world of communication, the freeing up of spectrum through the digital dividend is absolutely necessary. In the meantime, while the Department of Communciations dithers, the country is continuing to anguish over services that have become commonplace in many other countries.



Published in Business Day live 14 November 2014.



What is happening to broadband roll-out for all in South Africa? When will we get it? Where is the timeline? Will it be affordable for all? Will it be a high-speed network that spreads the benefits of access at low cost to the majority of the population? Where’s the real plan, Mr Minister?

We have a 61-page “policy” documented in the Government Gazette. All words and no milestones in Appendix 3 which simply sets out bland indications of what is to be done. Here we have a blatant admission that nothing real has been done on policy formulation. The work, objectives and milestones are still to be formulated. Now, surely this cannot be the country’s broadband policy. It is policy about policy.

According to South Africa Connect, which is the country’s national broadband policy, we have to wait until 2030. By this date “a widespread communication system that will be universally accessible across the country at a cost and quality that meets the communication of citizens” will be in place.

This is cold comfort for millions of people who are unconnected and the millions who are connected but cannot afford the high cost of the services offered by the operators. Many millions of school children will continue to be deprived of the most basic service that can assist them. For a child who starts school in 2015, by the time she leaves school a national affordable broadband network will still not be in place.

The policy correctly identifies the lack of always-available, high-speed and high quality bandwidth required by business, public institutions and citizens has impacted negatively on the country’s development and global competitiveness. You have only to look at the latest September 2014  report of the Broadband Commission of the International telecommunications Union and the UNESCO to see how badly SA fares among in the world of broadband.

The report, released in September 2014, makes wide-ranging recommendations to countries which are targeting broadband access for citizens. The report covers education, gender equality, infrastructure and sustainable development, among others. In reviewing developments around the world – in the developing and developed countries – the report distils the lessons for successful broadband development.

South Africa is a member of the ITU and has access to all its documents and the experiences of broadband development around the world yet its policy does nothing for the development of broadband. Its self-criticisms are devastatingly accurate and the Department of Communications is to be complemented for its honesty. Here is one of many examples found in the SA Connect policy document:

“Significant growth in the ICT sector over the last decade has not been accompanied by the realisation of the primary policy objective of affordable access for all to the full range of communications services that characterises modern economies.”

The alleged policy document claims the priorities of electronic communications will be finally implemented by 2030. Is government seriously asking the country to wait for 2030 for universally accessible broadband at a cost and quality that meets the needs of citizens.

Government says one of the factors that will lay the foundations for South Africa’s future broadband success “policies that constrain the competitiveness of markets and the rolling out of broadband will be removed”. And, what are these constraining policies? The SA Connect policy document is silent.

The DoC says that it will issue a directive to ICASA to expedite the assignment of assignment of broadband spectrum. However, the assignment of broadband spectrum is not the main issue. The issue is to whom will this spectrum be issued? The second problem is: will the beneficiary of the assigned spectrum be in the game for profit or for the public interest.

This is the nub of the matter. While public-partnerships have a role to play in the roll-out of broadband, a profit motive is an effective brake on the roll-out and does not assist in spreading the benefits of broadband. The move to an open access national broadband network is of little benefit if an over-riding public interest element in the roll-out and in access to connectivity are wanting.

The SA Connect policy document is riddled with phrases like “the Minister of Communications will consider…” , “the DoC will prepare a detailed roadmap …”, “consideration will be given …”, “there will be incentives for …” are strong indicators that this is more a document about policy than it is a policy document. The policy document is one which records a broad intention at no particular time and no milestones are identified.   Nowhere does the Minister actually say what he will do in reality.

The DoC says “reviewable targets have been set starting with an average user experience speed of 5 mbps to be reached by 2016 and available to 50% of the population and to 90% by 2020”.

The policy document does not take us into its confidence about how the country will achieve an average user experience of 5 mbps by 2016. Nor does it tell us what the cost of this access will be for the average person. We are given no clues about how the government intends to reach these goals, what the development cost will be and what citizens can expect to pay for access to a high-speed broadband network. We have a surfeit of nice-sounding words and a worrying lack of very important detail.

As an example, Appendix 3 of the policy document is instructive. It identifies targets without a single date, without reference to any timeline and focuses on broad and general principles that, without specificity, have little meaning.

No one would complain if government set modest and achievable targets – in our lifetime – so that we can at least enjoy limited low cost, high-speed access in some areas that gradually spread to the rest of the country. Even that is avoided in SA Connect.

At the beginning of this article several questions were raised. SA Connect national broadband policy takes a view so broad that it can answer any question about broadband in a manner that gives no specific answer. Look again at the SA Connect policy document, in particular at Appendix 3, the National Broadband Network Roadmap.

Here you will find anything but a roadmap. You will see words like “planning input”, “broadband demand model”, “economic models”, “desktop and other activities”, various references to “modelling” “future network architecture” and so on. You will even see the word “timeline” but nowhere will you actually see a timeline. After reading the policy about policy you will experience profound anxiety and an inability to understand whether affordable high-speed broadband is a service that will be available during your lifetime.

The SA Connect policy is an example of a policy reflecting failure and apathy; it reflects how deeply government misunderstands its role in developing broadband. The so-called citizen-centric policy approach, which it posits, is a complete disconnect with the priorities for broadband and its development around the world.

In effect, we have a “no connect” policy and the South African broadband policy is really more about words than action.

1 October 2014, Business Day Live

Ayesha Dawood is an Africa Expert, International Law, Corporate Law and Digital Media lawyer at Ayesha Dawood Attorneys (@ConsultAyesha)  She is also MD of   (Digitalnfo) a not-for-profit site that is designed to contribute to understanding the digital environment and its implications.



Why SA can’t get movies online? SA lacks the will to transform itself into a digital beacon

In many parts of the world the Internet is the primary provider of information, news and entertainment. All the dramas, sitcoms and television series are among the daily offering. Netflix, a popular US-based, content service has millions of subscribers many outside the US. Sadly, Netflix won’t be avaibale in South Africa.

The reason? Access to the Internet is just too expensive and download speeds are far too slow. Therefore, Netflix does not see a viable market in the country. For years the government has been drafting and altering the policy documents on broadband but the price of Internet access continues to remain outside the affordability of most South Africans.

Video streaming is the holy grail of the Internet and for the majority it will probably stay that way.

The International Telecommunications Unions (“ITU”), an agency of the United Nations, continues to provide world leadership not only on technology but, importantly, on “fostering equitable access to the modern technologies that can transform people’s lives and help break the vicious cycle of poverty and isolation”. The ITU says its development goals prioritise equitable access, not just across countries, but within communities, with special focus on gender issues, youth access, the disabled, indigenous communities and very remote populations. There is also a special direct aid programme targeting the 49 UN-designated Least Developed Countries (LDCs).

UN Secretary-General Ban Ki-Moon says on the ITU site:Through e-learning, e-health, e-government, climate monitoring and more, today’s and tomorrow’s technologies will help bring the Millennium Development Goals (“MDGS”) within reach. The power of fixed and mobile broadband will further improve our ability to extend basic services to communities – even those in the remotest places – in ways that where inconceivable when the MDGs were first articulated more than a decade ago.”
According to the ITU the number of mobile cellular subscriptions worldwide is now well over five billion and more than two billion people world-wide have access to the Internet. In terms of ICT access it’s been a miraculous new millennium for most of the world’s poorest nations, and especially for the LDCs, with the total number of mobile cellular subscriptions in the LDCs as a whole rising more than 150-fold since the year 2000 – from under 2 million to 280 million by the end of 2010.

But the ITU is concerned about the many problems that still remain. The buoyant regional growth averages hide wide disparities, it says, and while some LDCs are booming – at end 2010, Gambia and Mauritania, for example, boasted mobile penetrations of 80% or over, far higher than the European average of 50% in the year 2000 – Eritrea still has an effective teledensity of less than 4%. In the Pacific, Samoa has a mobile penetration of 91%; Kiribati, its near neighbour, has 10%. And Myanmar, in contrast to many markets in Asia, has just 12 mobile subscriptions per 1,000 people.

This is in stark contrast with the industrialized world where Europe now has many more mobile subscriptions than inhabitants, and where, globally, 100 countries now boast mobile cellular penetration of over 100%. But phone service is just one part of the puzzle in a globalized economy that increasingly relies on online information exchange. At the turn of the millennium, the 49 LDCs shared just 178,000 Internet subscribers. While that number is rising, penetration remains low, at just 4.6% in 2010.

Turning to broadband, the ITU says, penetration in parts of the developing world remains largely confined to foreign-owned businesses and the tourism sector. In 32 of the world’s developing nations, the cost of a monthly broadband subscription is over 50% of per capita monthly gross national income – compared with under 5% of per capita GNI in the top 46 countries in the ITU’s ICT Price Basket.

According to the estimates (and there are several) the rate of Internet penetration in South Africa stands at about 48.90. Now look at South Korea: more than 90% of the people are connected to a low-cost high speed network.

South Africa is a wealthy country, although plagued by a legacy of structural economic problems. Its infrastruture, in broadcasting and telecommunications, is outstanding. In broadcasting more than 90% of the population have access to terrestrial television.


Unlike broadcasting the broadband infrastructure is expensive and its benefits are therefore limited, making the online video market unsustainable. As government commitment to an affordable broadband network does not appear to be a matter of priority, the country’s full participation in the digital world remains elusive. In South Korea, for example, progressive digital strategies as well as an incredible determination to roll out an affordable broadband network has made the country one of the world’s leaders in digital innovation and development.

South Africa ranks at least 5th in Africa and 92nd worldwide for individual Internet usage, according to a 2013 State of Broadband Report released by the UN Broadband Commission. There is no further information to date to indicate that South Africa has moved up a rank. In terms of Internet speed, South Africa ranks 6th amongst Africa’s Top Ten countries, with Ghana taking the lead followed by Zimbabwe, Kenya, Libya, Madagascar, South Africa, Morocco, Nigeria, Rwanda and then Mozambique. (IT News Africa, 2012.) By 2012 estimates – Zimbabwe was ahead of South Africa and that should worry us.

South Africa seems to lack that will to transform itself into a continental digital beacon. This is not a hard problem to solve. It needs a will and commitment to building an infrastructure, although some of the infrastructure is in place.

The first problem is access to the Internet in the cities and in the rural areas. The second problem is the cost of the access to high speed connectivity.

Government is expecting to pay billions of rands for set top boxes that will give South Africans access to the new digital television signals which we hope to get next year. Yet, the government does nothing to contribute to low-cost, high-speed access to the Internet.

The Department of Communications says that a telecoms policy review is underway and a White paper is expected some time in October this year. This White Paper is probably a good idea if only to add focus to the country’s embarrassing under-achievements in comparision with the smaller economies in Africa.

As the current broadband policy has achieved nothing of value for millions of people, we are left with the privately-owned operators whose only aim is to profit from Internet access and usage.

In the interim, Netflix is not ours to access, and may not be in the near future. Now that is a pity, as well as bad business metrics for the economy.


For abbreviated online version see 19 September 2014, Business Day Live,