Open Access News

News from the open access movement

Thursday, January 15, 2009

South Africa's new tech-transfer law and its effects on OA

Audra Mahlong and Siyabonga Africa, IP Bill locks down innovation, IT Web, January 15, 2009.  Excerpt:

President Kgalema Motlanthe has signed the Intellectual Property Rights (IPR) from Publicly Funded Research and Development Bill into action.

The legislation forms part of science and technology minister Mosibudi Mangena's initiatives to increase innovation in the public sphere. The minister hopes to do this by ensuring publicly-funded researchers get a return on their research through marketable patents and collectable royalties....

The Council for Scientific and Industrial Research (CSIR) says it supports the objectives of the IPR Act and, at the same time, it points out the complexities of promoting effective technology transfer....

“The impact of this law is that there is now a barrier to innovations which will save lives,” says Andrew Rens, intellectual property fellow at the Shuttleworth Foundation. He notes that by moving away from the open sharing of inventions and information, more people stand to lose out than gain from the system.

Rens notes the Bill works on false premise that patenting leads to profit, and cases in other countries working on a similar system of IP rights have shown this. “SA also has no patent examination system where previous patents are checked against each other. There is no assessment which is done to see whether the idea has any merit or not,” explains Rens.

The Bill will have wide-ranging consequences for the South African research community, he notes, saying the country could see a decline in research co-operation from international consortia with universities, a decline in philanthropic funding and a move away from open access.

“This is not a solution. Do we want to see research which benefits the ordinary South African, or do we want to contribute to jobless growth? The solutions are in open access and increased access to venture capital funding for companies,” states Rens.

Comment.  Tech transfer laws like this one do allow the patenting of otherwise patentable discoveries made by publicly-funded research, and to that extent they enclose more of the commons.  We can debate their wisdom.  But even if they expand enclosure and create a corrupting influence on universities, it's not clear that they impede OA to research itself.  The Bayh-Dole Act in the US did not, for example, block the NIH policy, even though the law was 24 years old and well-entrenched by the time the NIH policy was first proposed.  Looking at the other end of the stick, however, OA can advance the goals of tech transfer by making it easier for businesses to monitor new discoveries that might be ripe for investment and commercialization.  That's why the European Commission tech-transfer report of April 2008 recommended OA for publicly-funded research.