Dear Sirs

We write to you on an issue of great importance to the future of South Africa, although research policy and administration is not often in the spotlight it has import ramifications for education, development and the economy.

We respond to the draft regulations published by the Department of Science and Technology, on 9 April 2009, intended to be made by the Minister of Science and Technology in terms of the Intellectual Property Rights from Publicly Financed Research and Development Act 2008.

Before we can comment on the specifics of the proposed draft it is critical to emphasise that the time given for comment on the draft is too short. In the time period between the publication date 9 April 2009 and the deadline for response by 8 May, a time period in which many universities have mid term breaks, there are two long weekends, four public holidays and only fourteen full working days to understand the regulations and formulate response.

The time period has been much too short, and therefore the responses to the proposed regulations set out in this letter point to only some of the issues raised by the regulations, and the potential unfortunate consequences of the regulations. In order for research communities to understand and respond appropriately to the regulations it is necessary that a time period of four months is given for comment on regulations.

Due to the shortness of time for response the comments on the regulations set out have not been detailed at length.

1.

The regulations as they stand do not exhibit sufficient understanding of the way in which scientific research is currently undertaken. It is essential that those who in fact conduct research should be given an opportunity to inform the creation of workable regulations.

2.

Regulation 12 is unconstitutional.

Regulation 12 is unconstitutional because is it effectively prevents South African researchers and research institutions from participating in multinational research consortia.

Almost all advanced scientific research in South Africa takes place through multinational consortia. Taking part in international consortia is a minimum necessity for South African scientists. 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 contributing institutions benefits from its 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, and permit commercialisation of research by participating institutions but differ in detail from the Act. The freedom to participation in research consortia is therefore a necessary part of academic freedom and freedom of scientific research, 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.

Regulation 12 (3) deals with intellectual property emanating from multinational collaborative agreements in which recipients participate.

Reg 12 (3) (c) requires recipients of public research funding to commercialise the intellectual property from collaborative agreements in accordance with the processes set out in the Act, and not in terms of the multinational agreements. As a consequence research institutions will not be able to enter into these agreements in good faith since they will not be able to commercialise in terms of the agreements but only in terms of the legislation.

Regulation 12 (3) (d) requires recipients entering into multinational research consortia to apply for permission. That seems not to be the effect of the sub-regulation but is certainly its effect. The sub-regulation states that when intellectual property emanating from collaborative research is to be placed in the public domain, subject to an open licence or a royalty free licence granted to another party for commercialisation then the agreement must be referred to NIPMO for approval. In other words researchers and research institutions must surrender their right to academic freedom to NIPMO.

In practise this will apply to all multinational research consortia, since research consortia usually permit commercialisation by participants which requires royalty free cross licensing of intellectual property by participants to permit each other to commercialise their own contributions. Those multinational consortia which don't permit commercialisation require that knowledge is shared using open licence. In both of these cases, royalty free cross licensing, and open licences the participating South African research institution continues to hold the rights to its own intellectual property as required by the Act. It is only the case where the consortium requires that research results must be placed in the public domain that the Act requires notification to NIPMO. It is not necessary even in those cases that NIPMO should have to give permission for each specific agreement, since the regulations should specify a class of agreements in which the release of the research results into the public domain is acceptable and may be deemed to comply with the Act.

An effective prohibition on entering into multinational research consortium agreements is unconstitutional, because it violates the right of academic freedom and the purpose can be achieved without violating the right.

3.

Efficiently determination of referral ito section 4(2)

The regulations do not promote efficiency since they lack a set of categories of research which research institutions need not refer to NIPMO in terms of Section 4 (2) of the Act. Regulation 2 does deal with the choice in respect of intellectual property, and sets out in sub-regulations 1-3 read together that in certain cases a research institution need not make a referral to NIPMO. This sets out a general rule, however what is required for the sake of efficiency is that in addition to the general rule that there should be a set of categories of research results which do not require referral. In addition to these categories there will be cases which must be decided by the general rule, however for the sake of efficiency it is necessary that clear cases should be set out.

3.

Confusion between the public domain and open source

Sub-regulation 2 (13) and (14) conflates the public domain and open source. For example sub-regulation 2 (13) (a) it is in the public interest that the intellectual property is in the public domain;

Sub regulation 13 (c) ...to be placed in the public domain through open-sources systems;

Sub regulation 14 (c) ...by placing the intellectual property in the public domain through open source systems or protection through established means.

However making research results open is not the same as placing them in the public domain. When a creative work enters the public domain it is no longer possible for any person to exercise any intellectual property rights to it. By contrast open source work remains in subject to intellectual property rights and is available only in terms of the open licence used to make it 'open source.'

The reference to open sources is therefore confusing and unnecessary. Research results may be placed in the public domain through a variety of mechanisms. Therefore the words 'through open-source systems' and 'through established means' should be deleted from the sub-sections specified.

The Act is complex, the proposed regulations are complex, and the ways in which cutting edge research are conducted are exceptionally complex, it is therefore not surprising if the interaction of the Act, proposed regulations and research is complex, and cannot be properly examined in the exceptionally short time given for comment. It is imperative that the time period for comment on the regulations be extended for at least four months.

Sincerely

Dear Sirs

We write to you on an issue of great importance to the future of South Africa. Research policy and administration is not often in the spotlight but it has import ramifications for education, development and the economy.

We respond to the draft regulations published by the Department of Science and Technology, on 9 April 2009, intended to be made by the Minister of Science and Technology in terms of section 17 of the Intellectual Property Rights from Publicly Financed Research and Development Act 2008.

Before we can comment on the specifics of the proposed draft it is critical to emphasise that the time given for comment on the draft is too short. Although the time period has been extended beyond the original submission date of 8 May 2009, the revised date of 29 May still does not give adequate time to understand the regulations and formulate a response. The Act is complex, the proposed regulations are complex, and the ways in which cutting edge research are conducted are exceptionally complex, it is therefore not surprising if the interaction of the Act, proposed regulations and research is complex, and cannot be properly examined in the exceptionally short time given for comment. It is imperative that the time period for comment on the regulations be extended for at least six months.

Therefore the responses to the proposed regulations set out in this letter point to only some of the issues raised by the regulations, and the potential unfortunate consequences of the regulations. In order for research communities to understand and respond appropriately to the regulations it is necessary that a time period of four months is given for comment on regulations.

Due to the shortness of time for response the comments on the regulations set out have not been detailed at length.

We begin with general comments about the regulations

1. A number of problems with the Act were raised during the Parliamentary process.These have not been resolved in the draft regulations, quite the contrary. The process of examining the implications of the draft regulations have made it aparent that the Act itself precludes resolution of these issues in any regulations and the Act therefore requires ammendment.

2. The regulation of research concerns researchers, and not only university administrations and technology transfer offices. Unfortunately only the latter have been engaged in the drafting process.

Consultation must be much wider, and therefore the period for consultation must be much longer

3. Drafting must be based on understanding of actuall research processes.The regulations as they stand do not exhibit sufficient understanding of the way in which scientific research is currently undertaken. It is essential that those who in fact conduct research should be given an opportunity to inform the creation of workable regulations.

4. The approach of the regulations to prohibit broadly and then permit certain activities only as possible exceptions requiring bureaucratic assent rather than streamlining research processes to identify only those research outputs which would actually repay the expenditure of public funds on the lengthy and expensive processes of obtaining patent registration, while permitting the numerous other research activities to continue without delay.

5. Regulation 12 is unconstitutional.

Regulation 12 is unconstitutional because is it effectively prevents South African researchers and research institutions from participating in multinational research consortia.

Almost all advanced scientific research in South Africa takes place through multinational consortia. Taking part in international consortia is a minimum necessity for South African scientists. 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 contributing institution benefits from its 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, and permit commercialisation of research by participating institutions but differ in detail from the Act. The freedom to participation in research consortia is therefore a necessary part of academic freedom and freedom of scientific research, 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.

Regulation 12 (3) deals with intellectual property emanating from multinational collaborative agreements in which recipients participate.

Reg 12 (3) (c) requires recipients of public research funding to commercialise the intellectual property from collaborative agreements in accordance with the processes set out in the Act, and not in terms of the multinational agreements. As a consequence research institutions will not be able to enter into these agreements in good faith since they will not be able to commercialise in terms of the agreements but only in terms of the legislation.

Regulation 12 (3) (d) requires recipients entering into multinational research consortia to apply for permission. That seems not to be the effect of the sub-regulation but is certainly its effect. The sub-regulation states that when intellectual property emanating from collaborative research is to be placed in the public domain, subject to an open licence or a royalty free licence granted to another party for commercialisation then the agreement must be referred to NIPMO for approval. In other words researchers and research institutions must surrender their right to academic freedom to NIPMO.

In practise this will apply to all multinational research consortia, since research consortia usually permit commercialisation by participants which requires royalty free cross licensing of intellectual property by participants to permit each other to commercialise their own contributions. Those multinational consortia which don't permit commercialisation require that knowledge is shared using open licence. In both of these cases, royalty free cross licensing, and open licences the participating South African research institution continues to hold the rights to its own intellectual property as required by the Act. It is only the case where the consortium requires that research results must be placed in the public domain that the Act requires notification to NIPMO. It is not necessary even in those cases that NIPMO should have to give permission for each specific agreement, since the regulations should specify a class of agreements in which the release of the research results into the public domain is acceptable and may be deemed to comply with the Act.

An effective prohibition on entering into multinational research consortium agreements is unconstitutional, because it violates the right of academic freedom and the purpose can be achieved without violating the right.

3.

Efficiently determination of referral ito section 4(2)

The regulations do not promote efficiency since they lack a set of categories of research which research institutions need not refer to NIPMO in terms of Section 4 (2) of the Act. Regulation 2 does deal with the choice in respect of intellectual property, and sets out in sub-regulations 1-3 read together that in certain cases a research institution need not make a referral to NIPMO. This sets out a general rule, however what is required for the sake of efficiency is that in addition to the general rule that there should be a set of categories of research results which do not require referral. In addition to these categories there will be cases which must be decided by the general rule, however for the sake of efficiency it is necessary that clear cases should be set out.

3.

Confusion between the public domain and open source

Sub-regulation 2 (13) and (14) conflates the public domain and open source. For example sub-regulation 2 (13) (a) it is in the public interest that the intellectual property is in the public domain;

Sub regulation 13 (c) ...to be placed in the public domain through open-sources systems;

Sub regulation 14 (c) ...by placing the intellectual property in the public domain through open source systems or protection through established means.

However making research results open is not the same as placing them in the public domain. When a creative work enters the public domain it is no longer possible for any person to exercise any intellectual property rights to it. By contrast open source work remains in subject to intellectual property rights and is available only in terms of the open licence used to make it 'open source.'

The reference to open sources is therefore confusing and unnecessary. Research results may be placed in the public domain through a variety of mechanisms. Therefore the words 'through open-source systems' and 'through established means' should be deleted from the sub-sections specified.

Sincerely

Dear Sirs

We write to you on an issue of great importance to the future of South Africa, although research policy and administration is not often in the spotlight it has import ramifications for education, development and the economy.

We respond to the draft regulations published by the Department of Science and Technology, on 9 April 2009, intended to be made by the Minister of Science and Technology in terms of the Intellectual Property Rights from Publicly Financed Research and Development Act 2008. we welcome the opportunity to comment on these draft regualtions, and hope that a constructive and fruitful discussion can arise out of the concerns we have presented.

The African Commons Project appreciates the need to stimulate and encourage innovation in research in South Africa; however, we believe very strongly that over-regulation and patent incentives are, in fact, counter-productive measures that will result in a stifling and chilling effect in the areas in which they were intended to stimulate.

We are concerned by what we perceive as an overall lack of clarity in the Regulations, which in itself is problematic. To be precise:

* There is confusion over the definitions of Open Source, Public Domain and Open Access. Section 12 of the Regulations seems, however, to state that, should a researcher want to publish their work in the Public Domain (through what the regulations call open-source systems), they have to ask permission of NIPMO to do so. Section 13 then states that they would have to demonstrate that it would be in the best interests of innovation in South Africa to use the Public Domain.

* The make-up of NIPMO is unclear, but the legislation states that it is to be made up of members appointed on the grounds of their knowledge of IP management, commercialisation, technology transfer and business skills.

* Section 7 of the Regulations do allow for revenue-sharing options for researchers on the commercialisation of their research, but on closer reading, this becomes less and less attractive. The Regulations allow for deductions to be made for: filing, prosecution, development and maintenance of any statutory protection for IPauditing, recovery or collection of gross revenues including bank fees, charges and other expensesdefence, validation and enforcement of IP rights in any IP office, court or tribunalmarket research, business development, advertising, promotion, travel, subsistence and administrative services up to a cumulative amount of R 1 million.

* The legislation makes detailed provision for how NIPMO may intervene in the granting of exclusive licences, offshore deals and the assignment of rights. If any exclusive rights are granted, NIPMO has the power to reverse licences if they feel the commercialisation has not been adequate.

* There is also a clause that allows for retrospective audits of a Universitys disclosure of IP. The University is required to fill in forms every 6 months detailing IP governed by the Act and how it has been commercialised. NIPMO is entitled to retroactively enforce assignment of the rights if it finds that IP has not been declared.

* The Regulations do allow for a University to share IP with a co-owner (like a private institution or organisation). In this case, the University must retain ownership of any pre-existing IP and commercialise this in terms of the Act; retain IP in the joint production or jointly own the IP. It is also obliged to ensure the commercialisation of collaborative research in South Africa. If the research partners require open licenses, then NIPMO has to approve this before the agreement is entered into.

Implications of the Draft Regulations:

The African Commons Project has several concerns that relate to the possible implications of the Draft Regulations for the development of innovative research and academic freedom in South Africa:

* Unless the definitions of Open Source, Public Domain and Open Access are cleared up, and the actual procedures revised, South African researchers may not be able to participate in projects with research consortium which requite all materials produced to be licensed openly, and disseminated through open channels, without getting government permission first.

* The proposed make-up of NIPMO means that people who have little or no specialist knowledge of disciplinary fields will be deciding how research in these fields may best impact on the country.

* The Regulations that cover revenue-sharing leave very little money left for researchers at the end of the day. In fact, they may well leave researchers owing more than they have, much like traditional recording deals in the music industry.

* The clauses related to licences may mean that a Universitys ability to enter into research agreements with donors who require assurances of Open standards is compromised, because of the risk of interference by NIPMO and government, either during the process or in the future.