The Intellectual Property Rights from Publicly Financed Research and Development Act 2008 Discount paxil, has caused some confusion amongst educators. Some people have suggested that this Act applies to all intellectual property which could be regarded as publicly financed. Some go even further and claim that any creation by someone employed at a government supported school or university is covered by the Act.
These claims are wrong.
To explain why I start with a brief plain language description of what the Act does and does not cover, followed by a longer legal analysis.
What the Act covers:
> the Act applies only to research and development, and so not teaching;
> the Act applies only to research and development funded by a government agency that funds research and development such as the National Research Fund;
> the Act specifically does not apply to the research supported by government scholarships or bursaries even if it is from a funding agency which don't get other government funding;
> the Act specifically does not apply to conventional academic copyright works such as handbooks;
> the Act applies to institutions which are defined as Higher Education institutions and government funded research councils listed in the Act;
> the Minister of Science and Technology must follow a specific procedure to extend the Act to other institutions, the Minster hasn't extended the Act to any other institutions.
There is no basis in the Act for the claim that the Act covers educational activities or has anything to do with schools.
What does the Act say:
The Intellectual Property Rights from Publicly Financed Research and Development Act 2008 applies to only to publicly financed research:
"Application of Act
3, Discount paxil. (1) This Act applies to intellectual property emanating from publicly financed research and development:"
The Act defines publicly financed research and development:
"publicly financed research and development" means research and development undertaken using any funds allocated by a funding agency but excludes funds allocated for scholarships and bursaries"
The Act defines also defines funding agency
'"funding agency" means the State or an organ of state or a state agency that funds research and development'
Research is not further defined and must therefore bear its ordinary dictionary definition which does not include education.
Thus far the only state agencies which finance research and development are under the control of the Minister of Science and Technology. Section 3 also regulates the application of the Act to institutions:
Institutions are defined in the Act as follows:
'"institution" means
a) any higher education institution contemplated in the definition of "higher education institution" contained in section I of the Higher Education Act, Buy risperdal C.O.D, 1997;
(b) any statutory institution listed in Schedule 1; and
(e) any institution identified as such by the Minister under section 3(2);'
Schedule 1 refers to CSIR, Mintek and other statutory research councils.
Section 3 (2) requires that in order for the Act to be extended to an institution that affirmative steps are required from the Minister
of Science and Technology:
'3(2) (a) Subject to paragraph (b), the Minister may, in addition to the institutions to which this Act applies, by notice in the Gazettf', identify any other institution to which this Act applies if he or she is satisl1ed that the institution may develop intellectual property from publicly financed research and development.
(b) Any identification contemplated in paragraph (a) must be done with the concurrence of the Minister responsible for the institution concerned'
Therefore according to the rules of statutory interpretation; expresio unius exclusio alterius Discount paxil, because there is a specific procedure to extend the operation of the Act to institutions it cannot be extended automatically. Extension can take place only according to the specified procedure.
Therefore there is no basis in the Intellectual Property Rights from Publicly Financed Research and Development Act 2008 for a reading that the Act applies to schools, Discount aldactone, or indeed to the teaching efforts of universities, or any other government created content,
much of which is automatically in the public domain by virtue of section 12 (8) of the Copyright Act 1978.
Its important to note that the Act does not apply to copyright in the most common outputs of research, specifically scholarly writing such as theses in universities, although it could be read as prohibiting disclosure of such research output while a determination is made whether the research could be patented. This is apparent from the definition of intellectual property in the Act:
'"intellectual property" means any creation of the mind that is capable of being protected by law from use by any other person, whether in terms of South African law or foreign intellectual property law, and includes any rights in such creation, but excludes copyrighted works such as a thesis, dissertation, Buy cipro Online, article, handbook or any other publication which, in the ordinary course of business, is associated with conventional academic work;'
According to the canons of statutory interpretation this explicit exclusion precludes a strained reading of the definition of intellectual property being extended to copyright works used for teaching in universities even if that strained reading were to be adopted in the face of the plain meaning of research. An alternative construction of the definition of intellectual property is that it excludes all purely copyright works, refered to as "coprighted (sic) works" in the definition. The point of the such provision would be to offer a rationale for the exclusion, and possibly to qualify that where other rights, such as design or patent apply to the same material, Buy actos Online, that those are not excluded from the operation of the Act, but instead constitute an activity different to the usual course of academic business. In other words this construction would require that it is not necessary for a thesis with diagrams which are simply descriptive to register those diagrams as designs unless those designs constituted the designs for a new device proposed by the researcher, and thus represent something outside the ordinary course of scholarly activity.
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