The Draft IP From Publicly Funded Research Regulations – A human-readable version

The current concern that organisations like The African Commons Project have with this draft legislation come from serious flaws in the original documents. Thus, we feel it is essential to have a version of both the Act and the Draft Regulations.

What the Act Means
Very simply put, the Intellectual Property Rights from Publicly Financed Research And Development Act, 2008 made the following basic definitions and provisions when it was first promulgated in 2008:

  • All universities have to assess and report on all research that might have the potential for commercialisation.
  • If the University, departments, or researchers, decide not to lock down their research with IP, the NIPMO (the National IP Management Office; a proposed entity that will have an office in all universities and be staffed by experts in IP, commercialisation and patents but not subject specialists) will have the right to reassess the decision and if it disagrees with the university, it may acquire ownership of the research and obtain IP.
  • In order to be considered privately funded (and therefore not subject to these regulations) all direct and indirect costs of the research has to be funded by the private entity.

Implications of the Act
This legislation had several implications, and many of the bloggers and writers listed in the resource section below have written extensively on what these implications might be. From the perspective of The African Commons Project and it’s partners, the following three issues are the areas of most concern:

  • Universities and researchers no longer have the right to decide on how to ensure the best impact of their research. This is a very serious issue, particular in light of the provisions made for academic freedom in the South African Constitution.
  • At a time when most of the world is looking to free up research, using the principles of Open Science, Open Innovation and Open Access, the South African Government seems to be focusing it’s effort on ensuring that all publicly funded research in South Africa gets Intellectual Property protection so that it may be commercialised.
  • As much research in South Africa is done through consortia, and with partial funding from various entities, the provision that defines “public” and “private” research is problematic. It may well have a chilling effect on innovation in South Africa as big funders choose not to fund research because of the restrictive IP regulations.

What the Draft Regulations Mean
There is an overall lack of clarity in the Regulations, which in itself is problematic.

  • There is confusion over the definitions of Open Source, Public Domain and Open Access. Section 12 of the Regulations seems, however, to state that, should a researcher want to publish their work in the Public Domain (through what the regulations call “open-source systems”), they have to ask permission of NIPMO to do so. Section 13 then states that they would have to demonstrate that it would be in the best interests of innovation in South Africa to use the Public Domain.
  • The make-up of NIPMO is unclear, but the legislation states that it is to be made up of members appointed on the grounds of their knowledge of IP management,commercialisation, technology transfer and business skills.
  • Section 7 of the Regulations do allow for revenue-sharing options for researchers on the commercialisation of their research, but on closer reading, this becomes less and less attractive. The Regulations allow for deductions to be made for: “filing, prosecution, development and maintenance of any statutory protection for IP…auditing, recovery or collection of gross revenues including bank fees, charges and other expenses…defence, validation and enforcement of IP rights in any IP office, court or tribunal…market research, business development, advertising, promotion, travel, subsistence and administrative services up to a cumulative amount of R 1 million.”
  • The legislation makes detailed provision for how NIPMO may intervene in the granting of exclusive licenses, offshore deals and the assignment of rights. If any exclusive rights are granted, NIPMO has the power to reverse licenses if they feel the commercialisation has not been adequate.
  • There is also a clause that allows for retrospective audits of a University’s disclosure of IP. The University is required to fill in forms every 6 months detailing IP governed by the Act and how it has been commercialised. NIPMO is entitled to retroactively enforce assignment of the rights if it finds that IP has not been declared.
  • The Regulations do allow for a University to share IP with a co-owner (like a private institution or organisation). In this case, the University must retain ownership of anypre-existing IP and commercialise this in terms of the Act; retain IP in the joint production or jointly own the IP. It is also obliged to ensure the commercialisation of collaborative research in South Africa. If the research partners require open licenses, then NIPMO has to approve this before the agreement is entered into.

Implications of the Regulations

Where to begin? These Regulations are flawed and worrisome on so many levels. However, the main concerns are the following:

  • Unless the definitions of Open Source, Public Domain and Open Access are cleared up, and the actual procedures revised, South African researchers may not be able to participate in projects with research consortium which requite all materials produced to be licensed openly, and disseminated through open channels, without getting government permission first.
  • The proposed make-up of NIPMO means that people who have little or no specialist knowledge of disciplinary fields will be deciding how research in these fields may best impact on the country.
  • The Regulations that cover revenue-sharing leave very little money left for researchers at the end of the day. In fact, they may well leave researchers owing more than they have, much like traditional recording deals in the music industry.
  • The clauses related to licenses may mean that a University’s ability to enter into research agreements with donors who require assurances of Open standards is compromised, because of the risk of interference by NIPMO and government, either during the process or in the future.

What can YOU do?

JOIN the TRIBE of like-minded people and organisations who actively oppose the regulations by:

  • SPREADING THE WORD so that citizens know how our rights (and that of our scientists) are being curtailed
  • Collaboratively DRAFTING a submission letter of protest to the Department of Science and Technology
  • Putting your SIGNATURE to the letter to show your solidarity and support against these regulations.

By spreading the word to your network of colleagues you can bring awareness of what these regulations can do to the bigger picture of empowerment, access to knowledge and innovation. Join the Stop! the Regulations Facebook group and invite your friends. We’ll keep you updated at this space.

By collaboratively drafting a submission letter you will be adding your one voice to many, enabling a powerful statement to be made. Because we believe in collaboration, openness and sharing, it seems fitting that we should collaboratively draft the letter to the DST. Mixedink is the ideal spot to draft this letter: it is a free CC-licensed platform that allows for collaboration, editing, note-making and even voting for the top submission. Our final letter will be licensed under a Creative Commons Attribution license. Join us now to start commenting, putting forward ideas and critiquing the Mixedink letter entitled, “Comment on draft IP Rights from Publicly Financed R&D Regulations”.

  • NB NB NB: The document will be open for collaboration from now until 15 May 09 to EDIT, and 16 May 09 to RATE. Following this the final version will be put onto an online petition website for signature.

By putting your signature to the letter you are making a statement against this Act and its Regulations that do not take cognisance of the freedoms embedded in our constitution. Once we have a final drafted letter on the African Commons Project Mixedink space, this will be put into a free online petition to which individuals and organisations can add their signatures.

  • NB NB NB: The final document will be put into Free Petition Online from 22 May 09 until 28 May 09 when it will then be sent to the Department of Science and Technology. Check back here for links to the url.

Proposed process at Department of Science and Technology regarding submissions

All the submissions will be considered in developing the regulations towards a final version and there may be Public hearings on the regulations where individuals and organisations will be welcome to make inputs in person.

The effect that submissions would have on the regulations will be judged according to any positive aspect that a particular submission would have on the regulations. Any submission that will improve the regulations for better will be taken into account.

The making of regulations is the prerogative of the Minister, and thus the final version will be as determined by the Minister, but definitely the comments made by the Public are taken into consideration.