By Rebecca Khan · 5 Jun 2009
The Department of Science and Technology has, in the last month, proposed legislation for the regulation of intellectual property from publicly funded research that, should it be written into law, will set South Africa at odds with the rest of the word, and have long-reaching, and detrimental effects on research and innovation in South Africa, as well as possible implications for the future of academic freedom in this country, a freedom which is protected in the Constitution.
The Intellectual property Rights from Publicly Funded Research Act and the Draft Regulations that go along with it, have been written by the Department of Science and Technology in an attempt to encourage the transfer of knowledge and technology from researchers to the rest of the nation as quickly and effectively as possible. This kind of development is essential in South Africa, and government’s desire to encourage innovation is commendable. However, the draft legislation seeks to do this through the use of patents and Intellectual Property, a route that has proved to be less than successful overseas, and is seen, generally as having a stifling, rather than an encouraging effect on research and innovation.
If written into law, the legislation provides for the creation of an entity known as NIPMO (National Intellectual Property Management Office), which will have a branch at every university in the country. This is the body to which all researchers will have to submit their results. NIPMO will then make a decision on whether or not the results of the research are protectable under Intellectual Property or patent laws, and whether or not it has value for the socio-economic development of South Africa. If the researchers decide not to claim this IP or choose not to patent the work, NIPMO can claim ownership, particularly when it is of the opinion that the IP is not being effectively commercialised. The draft legislation also gives NIPMO the right to retroactively claim IP on work done in the past.
NIPMO itself will, according to the draft legislation, be made up of experts in patent law, intellectual property management, commercialisation, technology transfer and business skills.
While the above is a broad review of the draft legislation, it is enough to show that, should this legislation be passed, it will create a very worrying precedent for future research, development and innovation in South Africa, not to mention our academic freedom. However, it also has very serious ramifications for down-stream benefits of research, like the development of affordable medicines.
See, research isn't something that happens in isolation. In fact, most research happens in a relatively collaborative way – scientists and researchers from various countries and fields often share results and work together to create new products. Many researchers are also part of global research consortiums, in which researchers in developed and developing countries are able to share knowledge and results, eliminating the cost-barriers for developing nations who cannot afford equipment, and allowing developed nations access to wider research communities. The consortia often require that results be shared, and an open system, (similar to those used by open source software developers) is used to ensure that all work can easily be shared between international partners.
However, the proposed regulations state that South African research institutions involved in multinational research consortia must: "ensure commercialisation of the intellectual property from the collaborative agreement in the Republic accordance with the Act." This effectively bans South African researchers from participating in these consortia, which means essential research cannot be carried out.
A specific area in which these proposed regulations will have a dramatic, and worrying effect is in medical research. According to Universities Allied for Essential Medicine, a coalition of researchers and students at over 40 of the top research institutions in the world, the draft regulations don’t go far enough to measure success outside of the patent or copyright framework. "Journal publications, collaboration with other researchers and donations of intellectual property are all important measures of success in product development partnerships," explains Ethan Guillen, the Executive Director of UAEM. “If these measures aren’t considered in the legislation, it means that partnerships to research neglected diseases, which cannot be undertaken by single universities or institutes, may not happen.”
Co-funded research, in which money is given by government and business may not happen either, as a result of the proposed legislation, which requires compulsory patenting of almost all research regardless of commercial potential. The impact this may have on the medicines research industry is potentially huge, and may ultimately result in less research being conducted into life-saving medicines and their generic versions.
The World Health Organisation in its Global Strategy on Public Health, Innovation and Intellectual Property has called on member nations to use open source methods where feasible and appropriate and recommends open access to research on public health. The draft legislation is in direct contradiction with these recommendations, and could end up leaving South Africa out in the cold when it comes to essential research on serious public health issues.
At a more philosophical level, it is also possible that these regulations may, in fact, be unconstitutional. The Constitution of the Republic guarantees, in Section 16(1) that "Everyone has the right to freedom of expression, which includes - (d) academic freedom and freedom of scientific research."
If South African researchers are unable to participate in research through multinational consortia, as a result of these regulations, then South African scientists simply will not be able to carry out any research in a large number of fields. Which means their freedom will be compromised.
While the draft legislation is far from heartening, the response from civil society and academia has been vigorous and vocal. Leading academics, librarians, researchers, NGOs and even software companies, like Sun Microsystems have submitted comments to the Ministry of Science and Technology, in favour of less restrictive regulations, that are more in line with global trends towards an opening up of the access to knowledge and knowledge transfer. And while this legislation is still under review, it's a set of voices that government will hopefully take note of.