IPR Research Regulations are unconstitutional

Written by Andrew Rens on April 20th, 2009

Draft Regulations intended to be approved by the Minister of Science and Technology have been published for comment. The proposed regulations are available at Parliamentary Monitoring Group site.
(PMG does a great job of making important government documents available to the public via the Internet).

The draft regulations are simply unworkable, intending to funnel the entire research output of South Africa through a convoluted series of bureaucratic filters. However I am not going to detail the dysfunctions in this post. The regulations will have to be re-written, because they are unconstitutional.

Almost all advanced scientific research in South Africa takes place through multinational consortia. These consortia enable scientists to share data, for scientists from South Africa to have data analysed using very expensive equipment located in developed countries, and to contribute their skills to immensely complex research. Taking part in international consortia is a minimum necessity for South African scientists. Without the ability to join consortia South African scientists simply can’t carry out any research in a large number of fields.

Because research consortia involve the pooling of contributions from many different countries they have rules about how the results of the research are shared. The rules operate to ensure that each contributor benefits from his or her contribution, while at the same time ensuring that results are available for continuing research. These rules are generally equitable, reflecting the values of self governing scientific communities.

The freedom to participation in research consortia is therefore a necessary part of academic freedom and freedom of scientific research.
In South Africa we are fortunate that these freedoms are not simply something which academics claim but foundational to our society. Academic freedom is protected by the Bill of Rights, which is the supreme law of South Africa, part of the Constitution.

Section 16(1) provides:
“Everyone has the right to freedom of expression, which includes-
(d) academic freedom and freedom of scientific research.”

Draft Regulation 12 deals with co-operation between private entities or organisations and institutions, and represents an attempt to squash multinational, multi-institutional research consortia into the form of agreements between a corporation and a research institution. The rules for such agreements are set out in section 15 of the Act, and envisage situations utterly unlike participation in multinational research consortia with other research institutions around the world.

Regulation 12 (1) (c) states 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”

In effect this is a ban on participation in multinational research consortia since research consortia have their own rules on how research may be used. These rules often permit commercialisation but of necessity the timing, manner and control of that commercialisation is very different to that required by the Act, which requires compulsory patenting of almost all research regardless of commercial potential.

Regulation 12 (3) (d) is also unconstitutional, it states
“where the collaborative agreement requires that intellectual property emanating from the collaborative research and development be placed in the public domain or subject to an ipne licence or should not be commercialised or a royalty free licence be granted to any other party for commercialisation purposes the recipient will be required to refer such agreement to NIPMO for approval, prior to commencement of such an agreement.”

In other words, researchers may not choose to join the only, or best research consortium in the world, but must instead cede their academic freedom to bureaucrats, and not only to bureaucrats but bureaucrats impelled by the single objective of patenting whatever they can.

Proposed regulation 12 is unconstitutional.

It is also completely unecesary since there are a wide variety of ways in which South Africa benefits from participation in research consortia not least of which is opportunities for young South African researchers to learn from colleagues in other countries. The crisis South Africa faces is not a lack of work for patent attorneys, the crisis is an ageing research community. Isolating young researchers from their colleagues around the world isn’t going to help.

Pretending that multi-national research consortia are the same as corporate contracting out of research is ineffecient at best. Corporate/university agreements involve two or at most three parties, they are of limited duration, and specify research objectives, private corporations enter into them in order to obtain some commercial advantage, almost always co-ownership of intellectual property.

On the other hand participation in multinational research consortia involves participation in a community, not a private contract. The rules of the community cannot be amended for the misguided and dated Reaganomics of the IPR from Publicly Financed Research Act.

Its important to reflect a moment on the value of that Constitution. The Constitution is constitutive in that it is the foundation for the body politic, and of democracy. Its become popular to portray the Constitution as somehow in conflict with the ‘will of the majority’. Any claim that the will of a majority is superior to the Constitution is entirely mistaken, since its the Constituion which guarantees the basic conditions, such as freedom of expression under which any democratic accounting for majority will must take place.

 

4 Comments so far ↓

  1. Pranesh Prakash says:

    @Andrew:
    I’m not too sure I understand your argument.
    1) Given the existence of the private research sector, doesn’t the researcher have the opportunity to reject government funding and exercise her right to speech?
    2) The regulation is what in U.S. law would be termed “content-neutral”. Even if that categorization of restriction of speech isn’t used in S.A., wouldn’t that fact distinguish this case from something like the government making stringent demands while funding art?

    - Pranesh

  2. Andrew Rens says:

    Pranesh thanks for your comments, they help to illustrate the difference between a transformative constitution which South Africa enjoys and the US constitution.

    Its not sufficient for the South African executive to refrain from banning all academic freedom, its constitutionally obliged to positively promote that freedom:
    Section 7 of the SA Bill of Rights provides; (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

    Thus the Department and Minsiter of Science and Technology is obliged to promote academic freedom, which this subordinate regulation does not do.
    In addition there is almost no private research sector in South Africa so most South African scientists have no choice.
    In addition it must be noted that very attraction of being a scientist is often so solve issues of critical importance for one’s fellow human beings, especially the most marginalised.
    Therefore a public spirited researcher, and there are many in South Africa, in other words the type of researcher for whom academic freedom exists, cannot be said to exercise freedom if she must choose between the state preventing her from joining research consortia if she works on issue relevant to the vast majority of South Africans, and having to work to issues of interest only to commercial players, if such exist in South Africa in that researcher’s speciality.

    I don’t agree that the regulation is content neutral at all. It is not a time, manner, place restriction, rather the question of whether to pursue knowledge which is immediately commercially useful or knowledge which is not is an inherently political question.
    Whether genetic material can be owned or not is an ideological indeed an ethical issue, similarly the decision to make results open for others through open licences is a deeply ethical issue.

    The kinds of scientific problems which are engaged by multi-national research consortia, such as diseases associated with poverty, HIV, malaria etc are not the same kinds of issues which private corporations adress, hence the signal failure to produce drugs for these diseases by big pharma.
    They are also not ‘content neutral’ in terms of South Africa; if the poor suffer disproportionately then there is an equality issue.
    The irony is that the new Minister of Science and Technology (to be appointed after the election on Wednesday 22 April) will find that she cannot set research priorities because that power has been given to the National Intellectual Property Office, which is legally obliged to patent everything which it can.

  3. David Horwitz says:

    @andrew,

    Thanks for the heads up. Is there a definition of what “publuicly funded research” is? I have heard differing interpretations of what might be covered. For instance research funded by a public funding agency (e.g. NRF) – presumably is. However what about other activities (consciously avoiding research here!) that are funded by public universities money.

  4. Andrew Rens says:

    David, research is not defined but the Act does define “publicly financed research and development”
    as
    “research and development undertaken using any funds allocated by a funding agency but excludes funds allocated for scholarships and bursaries;”

    Does that include the ‘development’ of open education platforms? Who knows? Certainly the interpretation of the Act apparent from the draft regulations suggests that its intending to be as all encompassing as possible.