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The statutory privatisation of publicly funded knowledge through the Intellectual Property Rights from Publicly Financed Research Act


Innovating around the Intelllectual Property from Publicly Financed Research Act

Thursday, October 11th, 2012

In 2009 before the Intellectual Property from Publicly Financed Research Act became law I warned about the consequences for entrepreneurs.

Two recent reports in the press show how universities are having to innovate around the provisions of the Act in order to work with the private sector.  According the Financial Mail “it is also scaring off private investors from commercialising discoveries”.

Business Day reports that Aart Boessenkool, director of the Office of Commercialisation and Technology Transfer at the University of Johannesburg, describing the gap between university research and a commercial prototype”the valley of death”. According to Boessenkool “To take an invention through the valley of death takes a lot of money”. South African universities don’t have that kind of money. As Anita Nel, CEO of Stellenbosch University’s InnovUS points out the Act requires universities to “commercialise” all intellectual property generated by the university or face having it taken away by a government office.  But most university research doesn’t give the kind of payback that makes spending a lot of money to cross the valley of death worth it. According to Nel ‘About 95% of our income is derived from less than 5% of the technologies on our books.”

It is appropriate that not all university research can be turned into commercial products. Universities don’t exist to compete with the private sector but instead to advance and disseminated knowledge. That is why we public funding. Universities do what is called basic research really well. Basic research doesn’t mean that it is easy but that it is fundamental, aimed to understanding general principles. The role of the private sector is to turn that basic research into products that someone wants to buy. The problem is that universities are now required by the Act to control what the private sector does with its research and the private sector is complaining that the result of the act are too much accuracy.

The articles report that InnovUS has created a new programme called Instant Access  in which gives companies full commercial use for three years without charge. Only if a company makes money from a product is it required to pay any amount to InnovUS. This is an ingenious solution to one of the problems created by the Act. But it shouldn’t be necessary because I and a number of others warned about these problems in 2009 but the drafters of the Act persisted without heeding us.

Advocating Openness

Wednesday, December 9th, 2009

In a few months I’ll be completing a three year fellowship at the Shuttleworth Foundation. What has it all been about?

Some three years ago pioneers of social innovation in South Africa, excited about access to knowledge, openness and the knowledge commons were struggling with the default setting of closed in policies, laws and minds. People seeking to radically change education, scholarly communication, innovation, publishing and standards in South Africa encountered Intellectual Property law as an obstruction. Intellectual Property law is complex, technical and in many cases unclear. Laws are blunt instruments, Intellectual Property laws are among the bluntest, but the effects on positive social change are often diffuse.  Terms like “Intellectual Property” and “Access to Knowledge” can seem abstract. But the issue is simple, often brutally simple. How do we get books in the hands of kids so that they can learn, data to scientists so that they can cure diseases, and knowledge to entrepreneurs so that they can create new products? How can engineers, teachers, techies and social entrepreneurs navigate around the obstruction?

Presciently Helen Turvey hired me not only to help open projects as they grappled with intellectual property issues but also to identify the major systematic challenges to open presented by intellectual property law and opportunities to change it. I became, in the words of my good friend Philipp Schmidt “chief counsel for the open movement in South Africa”.

The team at the Shuttleworth Foundation reckon that good change happens faster if we can first change default settings of closed to open. Often the default is set by to closed by intellectual property; law but also by intellectual property policy and practises.

During the first two years we learned that if we were familiar with the shape of problems, and the solutions which had been tried that we were prepared, so that when conditions changed and presented an opportunity we could act quickly. We learned to take advantage of existing processes for policy advocacy, as well as devising longer processes for systemic change. We acted as a resource to others so that they could move faster and challenge the barriers in their own spheres.

After nearly three years the social innovation space in South Africa is moving towards openness. Although I haven’t achieved all that I’d liked to in the time, thanks to the support of colleagues, the Shuttleworth Foundation, and our partners we’ve given shape to desirable reforms, mapped major obstacles, neutralised some dangers and helped a lot of projects. There are now many more people working in this space who know how to navigate around the hazards of Intellectual Property.

Sharing ideas and experiences was always central to my work but during 2009 I concentrated on turning our previous efforts, and learnings into resources that others can use in the future. This has resulted in two initiatives: Copyright for Educators, and an analysis of access to knowledge efforts in South Africa.

Copyright for Educators is an open, scenario based, course which incorporates many of the lessons we’ve learned from grappling with copyright issues in learning environments. Copyright for Educators was one of the anchor course of the Peer to Peer University pilot. One of the participants was able to get credit for the course as independent study in his Instructional Technology PhD. His assessment of the first iteration of the course was: “for a first pass, I felt the organization of the Copyright for Educators course was very good. The content was interesting and to the point.”

The most challenging issue which the course deals with is the inclusion of copyright works used under exceptions, like fair use, in materials that are under open licences. For example someone might use a photograph under an educational exception in an instruction module that is under a Creative Commons licence. I first raised this issue in a Shuttleworth Foundation issue paper, which subsequently became a chapter in a book: Implementing the World Intellectual Property Agenda (available for free download). The issue has been taken up by ccLearn, the people at Creative Commons focused on open education, who’ve developed a report “Otherwise Open” and recommendations for educators.

There have been a wide range of approaches to increasing access to knowledge in South Africa, but no single record of the different approaches. During 2009 I was able to organise many of the activists, scholars and entrepreneurs to contribute to research on the different approaches and projects, and to have it published as part of the Yale Access to Knowledge Research Series. It examines the battle for open standards, the Foundation’s intervention into the Pearson publishing mergers, the Free High School Science Texts project, and the work of partner projects such the African Copyright and Access to Knowledge project, and the Opening Scholarship project at the University of Cape Town.

I had the opportunity to contribute a great deal to the Foundation’s Open Resources policy. The policy and the thinking behind it were featured as cutting edge in a report by the Berkman Center for Internet and Society; An Evaluation of Private Foundation Copyright Licensing, Policies, Practices and Opportunities.

South Africa still has a long way to go towards an open knowledge society, the kind of society in which networks of links, code and content are open at every level. But there is now movement towards open as a default setting. There is growing agreement that access to knowledge is a basic issue, important to everyone.