A putative bill which creates a system require patenting of tax payer funded research will be published today.
The bill is titled the Intellectual Property Rights from Publicly Financed Research Bill. It will shortly be presented to the Portfolio Committee for Science and technology.
The Bill is an improvement on the first draft circulated for comment during 2007. However even a cursory reading reveals a number of serious problems with the Bill.
The Bill is based on a flawed premise; that the fundamental purpose of university research is to generate revenue through licence fees. As a result its procedure is flawed, since it creates a structure which will tend to prevent sharing of knowledge, regardless of whether there is any probability that the research will result in a commercial product. Instead of creating structures to identify research likely to yield successful commercial products and obtaining registered rights for that specific research the Bill creates a structure which regards a decision not to obtain registered rights as the exception rather than the rule.
Despite representation the Bill still fails to make any provision for membership by research institutions in international research consortia. The requirement that research results must be subject to attempts to commercially exploit it in the manner required by the Bill is directly contrary to the conditions of participating in international research consortia. The consequence will be that South African research institutions will no longer be able to engage in multi-country research.
The Bill also fails to make any provision for research for which funds are received from philanthropic donors who make funding available on condition that research will be freely available. For example the Gate Foundation, the wealthiest foundation in the world, which is focused on addressing diseases which affect the developing world requires that research which if funded by the Foundation should be published on open access terms, as a result of the Bill no South African university will be able to agree to those terms, and therefore cannot be a site for funding on research into HIV/AIDS and Malaria
The Bill requires that software be commercially exploited, by means of proprietary licences. This is directly contrary to the governments open source policy
If something can be the subject to intellectual property protection anywhere in the world then such protection must be obtained. This requires Universities and Research Councils to obtain software patents which are available in a few other jurisdictions, such as Australia, however South African patent law does not permit software patents, and the 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.
The Bill forecloses on the policy options available for the Department of Trade and Industry in reforming the patent system. For example universities could provide expertise for patent examination to supplement the capacity of the Patent Office, however universities which must patent all their research will have conflict of interests which prevent them from providing expert copyright review.
I intend to elaborate on these issues on this blog over the next few weeks.