The Intellectual Property from Publicly Financed Research Bill was signed into law yesterday.
In an article ITWeb concludes that locking down research is not good for innovation.
I have blogged on this legislation before, in a post on 13 June 2008 I raised a number of concerns about the negative impact that this would have on South African research. All of these issues are unresolved.
They are:
1. The mistaken notion that the best way to get research re-used for the benefit of the economy is to lock it down, and award a monopoly to one person, rather than opening it to everyone.
2. Advanced scientific research takes place through global consortia of universities with double digit memberships of universities from all over the world. In order to function these consortia, not surprisingly require that knowledge be shared. But the Act requires that knowledge may not be disclosed before two layers of bureaucrats, one at university level and another at national level, have decided that it can be. The consortia aren’t going to change their rules for South African universities, so South African universities simply won’t be allowed to participate.
3. Donor organisations want to change the world, not make someone a profit. They also want the research which they fund to have maximum impact, which means that want it shared as widely as possible. However the Act makes no provision for research which is co-funded by donor organisations. The consequence is that research funding from organisations like the Gates Foundation, which often prefer research results to be open, will to to countries other than South Africa.
4. The Act could result in software beign subject to all rights reserved licences, and not released under open sources licences, contrary to government’s open source policy.
5. If something can be the subject to intellectual property protection anywhere in the world then such protection must be obtained. This could be reas as requiring Universities and Research Councils to obtain software patents which are available in a few other jurisdictions, such as Australia, even though South African patent law does not permit software patents, and the former Minister of Public Administration has condemned opportunistic software patents as abusive. In addition given the variety and range of intellectual property schemes over the globe the Bill imposes a legal duty which no-one can comply with, which is to have a comprehensive knowledge of all the intellectual property laws on the planet.
6. The Act makes universities have commercial interests in the granting of patents. This means that universities cannot supply experts who could evaluate research when South Africa moves to an examination system for patents.
I’ll add one:
7. The belief that simply patenting something will result in it a marketable product or a revenue stream is particularly misplaced in South Africa where patents aren’t examined. Even in countries with examination systems its widely known that getting a patent and getting a product to market are completely different things. This isn’t news, in 1979 Peter Drucker pointed out that innovation is not making a new widget (still less discovering something which might lead to the making of a new widgt) but changing people’s behaviour, such as when people discover a need they never had for an affordable, available widget.
