Open Access News

Eve Gray, Intellectual Property in Publicly Funded Research - what the Bill says, Gray Area, July 12, 2007.  Excerpt:

The Department of Science and Technology has, as I noted in my last blog, published a Draft Bill on IP in Publicly Funded Research for comment - and comments have to be submitted by 18 July which is next Wednesday....

Briefly, the Draft Bill requires all publicly funded institutions (which includes all universities) to have an IP Management Office and provides for the creation of a National IP Management Office....

The Bill provides for the IP in all patentable inventions to reside in the university. If the university does not want to patent a particular invention, then the right passes to the National IP Office. Only if the national office does not want to patent an invention do the rights pass back to the researcher concerned. The Bill also provides for the sharing of rewards in the patented invention.

In other words, it appears to be modelled on the Bayh-Dole Act in the US. But there are also important differences....[T]he Bill extends beyond the protection of patents to 'copyrights in any work related to patentable inventions' which also become the IP of the university. This seems to me, as a publisher, to be very wide, as it looks as if the university would have IP and would therefore control for publication purposes a very large number of potential publications. Would a researcher be able to publish, without university permission, a conference paper or journal article on her research even after the patent is registered? ...

The universities and their employees (and students) seem to be obliged to exploit commercially any research that is capable of commercialisation. If they do not, they can be subject to disciplinary action....

Then - and this startles me as a publisher - the university IP office has to screen 'all publications from the institution for potential IP that through publication might lose protection in terms of the Patent Act.' All publications? I ask. That would mean journal articles, conference papers, chapters in books, research reports, etc, before they are published. Because a 'publication' is not defined, it probably means blogs, website, online discussion forums as well. In other words, researchers are constrained from communication until their work has been vetted by the IP office to ensure that they are not revealing something about a potential patent. I cannot imagine this being carried out unless the university hires teams of specialist people to scan all publications at pre-publication stage. This would surely have a seriously chilling effect on publication....

It also looks as if, given the copyright provisions in this Bill, that stipulations and mandates from funders for Open Access dissemination would be seriously constrained....

Also see Eve's follow-up post, IP in Publicly Funded Research Bill - does the cure match the disease? July 13, 2007.

The first question that arises in relation to this piece of legislation is why it has been drafted - what perceived need does it fill? ...

As far as I can establish, there are two separate areas that the government feels needs addressing. One is the perception that the universities are not performing well enough in delivering value for the money that is being invested in public research in the country. The other is that South African knowledge resources and intellectual property - as is common across the developing world - risk being pillaged by patent-seekers from the global North, particularly from the USA. In the later view, unless we protect ourselves with a strong IP regime, we will risk losing the exploitation of our intellectual capital to more powerful Northern pirates and raiders.

As South Africa's National Research and Development Strategy (2002) said: 'These are valid concerns. More South African research needs to be more effectively disseminated and exploited for the national benefit. And the risk of predatory raids by US bounty hunters is real enough....The problem is in the solution being proposed, which, I would suggest, is in fact contrary to some of the DST's most enlightened - and most central - policy-making....'

The assumption that a strong IP regime on its own fosters development and economic growth is one that is being increasingly challenged worldwide....

The DST's policy on Science and Technology puts the role of technology and the changes being wrought by ICT at the heart of its proposals for development. As the White Paper on Science and Technology says:

The world is in the throes of a revolution that will change forever the way we live, work, play, organise our societies and ultimately define ourselves ... The ability to maximise the use of information is now considered to be the single most important factor in defining the competitiveness of countries as well as their ability to empower their citizens through enhanced access to information.

This perspective seems to be missing from the Draft Bill....

Governments across the world, including the UK, the USA, the EU, and Australia, have convened commissions to discuss and explore this issue. Ironically, South Africa is part of this movement and is a signatory of the OECD Declaration on Access to Research Data from Public Funding, something that would be rendered problematic by this Bill....

Also see this interpretation by Andrew Rens:

As the Bill is currently worded it will likely delay all scholarly publications even longer than they are currently delayed, as researcher lose control of their work to not one but two bureaucratic offices, one in the university (or national research council) and yet another central one.

Researchers, and this includes students, will not be legally entitled to submit their work to Open Access journals or archives until they’ve been screened by those two offices, and not at all where their work is found to be related to a patent.