Open Innovation and Open Education Promote Women in ICTs

There is global recognition that our digital world must address the needs of all people but the digital gender gap remains a fundamental challenge.

To promote women’s equal participation in the creation and use of innovative technologies and digital media, we need to ensure that they have the necessary access, knowledge and support to ensure new technologies serve the needs of both men and women.

There are hundreds of initiatives around the world that promote women’s access to ICTs and that aim to create technologies for women, by women. But what is particularly promising in the field, is the work to integrate innovative policies – specifically in Intellectual Property (IP) law and open innovation – with women’s digital entrepreneurship, as well as open education programs that transform technologies through community-led initiatives.

IP Law and Open Innovation

Creators who invent new technologies require knowledge about IP laws to both protect and enable innovations. While always fully respecting IP rights, open innovation offers opportunities to bridge the global digital divide for women. New trends in open innovation provide a space for women to build their creative capacities as leaders and makers.

My experience seeing Harvard’s Innovation Lab and MIT Media Lab in action and attending its open invite workshops and events provided rich insight drawing focus to the fact that the arts and sciences including technology, engineering and math – STEAM movement – are enabled IP law. As more women move into the foray of technology production, their understanding of IP laws is an especially important component to ensure their innovations are encouraged and protected.

Innovations in Open Education

Few women are involved in designing and building the online applications that have become the new engine driving education, information, science, engineering, art, entertainment and commerce. A few novel ideas developed by young women seek to change that, some based on the principles of open innovation, others inspired by open education:

Rails Girls project is a volunteer-based coding workshop that enables for young women to take part in the digital revolution. Global Chapters, including the first Johannesburg chapter that I helped to organize in 2014, empower young women to become confident about making career choices in the new digital space.

Ruby on Rails introduces young women to creating applications and websites. Though only introductory, the participants enjoy hands-on training under the supervision of local coaches. The success of the programme, now in over 150 countries worldwide, demonstrates young women’s desire to gain ICTs skills and knowledge.

Another example, Chibitronics, co-founded by an MIT Media Lab PHD candidate, makes building circuits and electronics easy through building and creation. This is yet another example of leveraging open learning to encourage innovation.

There is abundant enthusiasm by women and girls to take part in the digital transformation of their societies. We need to inspire them to overcome obstacles and traditional barriers of entry in the digital space so they can strive to make meaningful contributions to the world of tech. We need to ensure that policy frameworks are in place in order to provide an enabling environment for women’s innovations in ICTs.

Note from ITU: The Annual GEM-TECH Awards recognize innovative solutions to bridge the digital gender gap. The GEM-TECH Awards have become a global showcase for policies and projects that promote women in ICT. Nominations are now open until August 15, 2016.

Ayesha Dawood is a South African and Harvard educated digital media and technology lawyer. She has an LL. M. from Harvard Law school and was a recent 2016 Fellow at the Weatherhead Centre for International Affairs, Harvard. She is also is an artist and the author of Little Monks Africa Adventure.

Blog in  ITU Blog



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.

Digital citizenship comes with responsibility – have fun, be creative and be safe


EVERY person who uses the internet is a digital citizen. This status brings onerous responsibilities which we cannot shirk if we are to continue to enjoy the internet. The virtual world, you could say, is now as important as the real one.

But the enormous benefits of digital technology are matched by shadowy criminals who steal, bully and harass using sophisticated programs to conceal their identities. By far the most dangerous acts are directed against children. Sexual predators prey on their innocence, grooming them into traps they should have been warned about.

The latest report by the International Telecommunications Unions and the United Nations Children’s Fund and partners of the Child Online Protection Initiative, is a timely reminder of the inappropriate and dangerous environment that criminals have created within the internet.

This report, released on September 5, 2014, attracted hardly a whiff of media interest in the country. It’s a pity, because the media has done an excellent job in exposing online bullying among children and of disclosing the dangers of sexually deviant criminals monitoring chat rooms.

This is an extensive report that gives practical advice and formulates rules which will invariably contribute to the safety of children online. To suggest that the report is only about children would be incorrect. Adults would do well to read this simple written advice. Many adults would be surprised at the information that could help them and their children. While the report is for children, it remains the obligation of adults, parents and caregivers — all digital citizens — to absorb the contents of the report and to explain the safety rules to their children.

Digital citizenship is a lively and vibrant concept and we need to know more about it in order to take our place in the digital world. It is part of the safety theme calling for accountability from you, me, children and service providers, including developers. I would also add from caregivers and the government.

We all have an important role to play. We have to inspire, nurture and protect, as well as educate children and young people as they enthusiastically claim their space in the digital online space. Everyone must hold our digital citizenship consciously and carefully.

Digital citizenship is a state of mind to which all internet users must aspire if we are to hold the virtual space for effectively disseminating education, information and entertainment.

Explaining the concept of digital citizens the report says:

“The introduction of new technologies always carries the need to understand how to use it appropriately. We, including children and young people, can demand that the producers and providers build in as many safety features as possible, enabling us to make informed choices on matters, like for instance, revealing private information.”

“However, it is up to children and young people to carry the main responsibility of acting appropriately and respectfully online. Increasingly the term of digital citizenship is being used. Digital citizenship isn’t just about recognising and dealing with online hazards. It’s about building safe spaces and communities, understanding how to manage personal information, and about being internet savvy — using your online presence to grow and shape your world in a safe, creative way and inspiring others to do the same.”

It is about calling for safety features that require affirmative assent from parents before important personal and geolocation information are clicked through. It is about recognising online risks. It is about creating safe spaces as you claim your place in the digital world.

How to use the online social networks respectfully is also important. The mantra should be: Have fun, be creative and be safe!


Published in Business Day Live, 14 September 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,



The illusion of regulation

In South Africa there seems to be an assumption that Pay TV broadcasters can expect to attract huge audiences and make hefty profits. This is, of course, an illusion. But both the Independent Communications Authority of South Africa (ICASA) and the newly-licensed broadcasters have eagerly bought into this illusion.

The question is: Will both reap bitter fruits of their wasted labours? ICASA creates the expectation that all is well in the Pay TV broadcasting sector. The licensing authority does so by inviting applications for Pay TV licences. It is not obliged to invite television broadcasting applications but it does so on the basis that competition best serves viewers and the industry.

More broadcasters create greater programming choice and drives down prices for consumers. Again, this is another illusion. While competition is sometimes an engine for greater choice and lower prices, the entry of more Pay TV broadcasters into a market dominated by the colossal DSTV does little to increase choice or reduce prices.

DSTV’s wide range of thematic channels, its exclusivity agreements with channel owners and its acquisition of programmes over a long period gives it a premier broadcasting status among viewers. Pay TV viewers demand the best and that’s what they can get from DSTV: the best international live sport programmes, the newest movies, digital animation, series, documentary, news channels and reality programmes. And, since the nineties DSTV has built up a formidable audience.

So what can the competition offer? Very little, if anything.

The important question is why ICASA has awarded licences in a sector of the market where the barrier to entry is now so high that the newly-licensed broadcasters are staring at a looming financial disaster even before they go on air.

But these broadcasters are not blameless, simply because they decided to respond to ICASA’s invitation to apply for the licences in a bloody market. Their responses were telling. They made huge efforts in their applications to show how deeply they believed in ICASA’s myth that Pay TV broadcasting is a market that will reward their labours – and hundreds of millions of investment rands.

So far the fall-out in the market had been disastrous. In 2006, ICASA awarded five Pay TV satellite licences. Only DSTV is making profit. Star Sat (formerly Top TV) is limping under a business rescue in the hope that the new Chinese investor will turn their fortunes. OpenView HD has moved into the satellite free-to-air market but is yet unable to match DSTV’s premier offerings. Of Walking on Water TV nothing is known. Sentech runs a small satellite free-to-air service based on a broadcasting licence ostensibly given under the now-repealed Telecommunications Act.

All this should have signalled to ICASA – and to interested investors – that something is not quite right and that perhaps some sort of intervention is necessary to lower the barriers to entry or to re-examine the need for more licences in the Pay TV market. But that is expecting too much from a regulator that appears unconcerned or unaware of its earlier mishap.

In May this year, the regulator licensed another five Pay TV broadcasters. Would ICASA have made a study of the Pay TV broadcasting market before inviting applications for these licences? It would be shameful if it did not. Such study would perhaps have averted further ruin for broadcasters or even caused them to be more realistic in their expectations when making financial decisions. Failure in the Pay TV broadcasting sector will only continue to erode further what’s left of the tattered reputation of the regulator.

To those of us unfamiliar with the arcane world of regulation (and of ICASA) the grant of the new licences is somewhat astonishing, and mostly confusing. Now flushed with the success of their applications the new licensees, beckoned by the myth of profit, are preparing to go live. New licensees have been granted to Close TV, Kagiso TV, Mindset Media Enterprises, Mobile TV and Siyaya TV.

They all say they’ve found gaps in the market and they’ve used the gaps in the market to build their plans for profit. Some say that they are bringing programmes from the East. They say that they will bring channels the competitor does not have. But what they do not know is whether viewers, wary of the failures in the market, will respond to their marketing.

A level of expected churn is the first problem. Expecting viewers to switch to your offering depends on many factors including price, the number of channel offerings and the quality of the programmes.

The second problem is whether there are sufficient numbers of terrestrial free-to-air viewers who can afford the new service. Most of the country’s TV households are still tied to terrestrial free-to-air broadcasting served by SABC’s three channels and These viewers either cannot afford Pay TV or they do enjoy the programming fare on these services. The simple proofs are the high audience ratings of these channels and the airtime demand from advertisers.’s success is an example of how a broadcaster broke the three-channel SABC monopoly over audiences and advertisers. successfully competes with SABC channels which demonstrates that this market is open to several new players.

It is in the terrestrial free-to-air market that ICASA should license new players, not in the Pay TV market. South African viewers should expect quality programmes in the terrestrial free-to-air market which should sustain a diversity of new voices. The licensing of the terrestrial publically-owned airwaves to private interests should not be used to entrench incumbents at the expense of diluting a wider and more varied media expression.

Since 1998 is the only new voice that has been added to the terrestrial free-to-air market which is greatly in need of new voices and new owners. Rather than licensing more services in the market which services the majority of the country’s viewers, ICASA spends its resources to give the illusion of greater choice and diversity in a market that services the rich.

So, ICASA makes merry by garnishing a market that adds nothing to the experience of the majority of the country’s viewers. It is ICASA’s illusion of regulation, a cheap trick, that disappoints broadcasters, and particularly the under-serviced majority of viewers. It may be that ICASA is ignoring its statutory remit to regulate in the public interest.

ICASA’s first round of Pay TV licensing failed miserably. So why does ICASA think that the second round of Pay TV licensing will succeed?


Abbreviated version published 22 August 2014, Business Day Live,




Fun of selfies take on a different hue when commercial rules apply

Treat others as you would your selfie

So- Called “selfies” are all the rage and are trending across the globe- and the high and mighty are not immune: witness the famed selfie featuring Danish Prime Minister Helle-Thorning Schmidt, UK Prime Minister David Cameron and US President Barack Obama at Nelson Mandela’s memorial service last December.

“Selfie” was named the word of the year 2013 and is now a word in the Oxford Dictionary. It is all part of the digital revolution, unless you are in the EU, that is, and the European Court of Justice’s “right to be forgotten” applies. EU citizens can request Google to delete a link associated with them. For most of the rest of us, the digital trail is our digital reality.

We should all pause as we look at the intellectual property implications of commercial exploitation and non-consensual use including public/celebrity and political figure endorsements.

The issues that demand attention – and are a potential minefield – relate to publicity rights, commercial endorsements and issues of ownership. In as much as selfies now trend on social media, the use of selfies on social media to transmit images and messages even of yourself, or which exploit public figures, is cause for legal concern.

The most famous case of a presidential embargo on selfies is not a surprising one: Samsung retweeted the selfie taken by US Boston Red Sox baseball world series champion David Oritz of himself and President Obama at an event at the White House. To all intents and purposes it was a happy and consenting US president who smiled into the camera when Oritz leaned toward him with his mobile phone in his outstretched arm. It was a joyous photograph and Oritz tweeted the photograph scripting: “ What an honour! Thanks for the #selfie, @BarackObama ”. Had that been all there was to it the tweet and photograph would have not attracted the ensuing backlash and legal, commercial and policy attention.

It just so happened that Orizt played the wrong ball at this moment and the US President and his staff were unaware that the phone had been provided to Oritz by Samsung as a promotional marketing endorsement campaign. Samsung retweeted the image with the Samsung trademark. This caused furore as US presidential policy which is akin to South Africa is that the President’s name and image cannot and was not to be used for commercial purposes.

From a legal perspective, in terms of US law, there was a smiling and consensual US president who is alleged to have said to Oritz as he leaned forward to take the selfie “ Oh, he wants to take a selfie “. In addition as both personalities are public figures it is unlikely that the US President has an action for breach of publicity rights. That is not the problem. The problem was the use of the photograph with the Samsung name, trademark and mobile. It is here that the company violated the presidential “no commercial use” rule as well as the US president’s rights of publicity.

Was this ambush marketing, commercial endorsement exploitation or lack of maturity on the part of the company?  All these factors need to be considered – but the fact is that it was a transgression as the image was retweeted and used inappropriately.

The purpose for which the image or likeness of a person is used is always important as are the circumstances with-in which use is made of the image.

The principle is quite simply that no one may use an image or likeness of another person without consent, for gain. While there is no innovation regarding selfies it is a timely reminder that in the internet and multi- media platform age where abuse are defamation are all too easy, people should be cautious.

Selfies are on the path to changing intellectual property rules in the digital world.


14 July 2014 Business Day, Business Law and Tax Review

Digital Rights Treaty

Why World Governments, Business and Citizens need a New Optional Protocol for Digital Rights

Adapting to the demands of the Digital World

The digitisation of technology is fast becoming the basis that underpins digital rights, digital privacy, digital communications and their intersection with law, social media, broadband and broadcast platforms. This has implications for business, government, education, health, transport, aviation, science, customs and trade, finance, infrastructure, development and philanthropy. Technology allows for the mapping of hitherto unknown territories as well as sustained forays into outer-space. The world as we know it has changed. The opening up of what used to be ‘deep space’ necessitates a strong digital computational framework.

In light of technology’s pervasive outreach and its pioneering role in invention and development which has both utilitarian and social implications, international law must be amended to align with these new realities. Ideally, this would be embodied in an Optional Protocol to both the United Nations International Covenant on Civil and Political Rights (ICCPR) and the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), which are international treaties that UN member states accede to. By April 2014, the ICCPR and ICESCR had been acceded to or ratified by 168 and 162 countries respectively. Additional protocols to these covenants may have not been acceded to by all member states, as optional protocols are distinct documents requiring separate ratification.

For instance, one existing optional protocol to the ICCPR authorises the UN’s Human Rights Committee to consider “communications” from those claiming to be victims of state abuses, while another calls for the abolishment of the death penalty, but not all states have ratified these optional protocols.

The need for an international framework for enhancing technological rights has spurred the call for a Digital Rights Treaty as an appropriate way forward. An optional protocol would advance technology and infrastructure, while protecting digital privacy and the plethora of intersectional activities listed above. The protocol would also incorporate technological infrastructure for enhancing political, economic and social rights, thus aligning with the UN Charter, which seeks “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” art. 1(3)

But what about digital rights per se – is this a separate right or should digital rights be interpreted as a universal right available to all mankind? In addition, is the right to Internet a human right? These are some of the issues that the drafting team will have to engage with as it pitches digital rights onto the world stage.

What can an Optional Protocol achieve?

Since an optional protocol is a distinct document requiring member country ratification, it will engender visibility on the global stage and propel discussions on the need for technology itself, as well as for the governance of technology within the arenas of political, economic and social rights. This is likely to impel governments to consider up-scaling existing technologies as well as establishing infrastructure where none or little currently exists. Further, a protocol will catalyse deeper discussion of digital privacy, government and civil accountability, and the governance of digital privacy. Digital corporate governance and the use of technology for development and to digitise continents and countries, will also feature. A Digital Rights Optional Protocol is potentially a very powerful transformative tool.

Propelling this conversation onto the world stage is more likely to prompt leaders to ask the right questions in today’s warp-speed changing world and may induce them to consider a new optional protocol or even amendments to the existing covenants. This would accelerate a progressive shift to digital rights and governance and towards digital socio-economic development via Information and Communication Technology (ICT).

Digital rights are not a distant future ideal but a reality in our fast-paced and increasingly technological world. The time for a digital treaty is now. It affects all our rights, personal, creative, legal, corporate, governmental and juristic.

Our reality has changed.   Let us move with it.

See Abbrevaited version published : 9 June 2014, Business Law and Tax Review Business Day, South Africa