Gray Area

Draft Bill for IPR in Publicly Funded Research (still open for comment) - a publishing perspective


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Those academics and researchers who have been away on vacation might not know that a Draft Bill on IPR in Publicly Funded Research was released for comment a few weeks ago. The deadline for comment was very short - some ten days in the middle of the holidays. The contents of the Bill are dire - I have not spoken to anyone who is happy with what it says. For those newly returned to the treadmill, I posted blogs on the Bill on the 5th, th and 13th of July. The blog of 12 July describes some of the provisions of the Bill. Basically, it sets up a system in which any research that has patent potential must be submitted to the university IPR Office and all intellectual property rights (including all copyrights connected with the invention) are ceded to the university. If the university does not want to take a patent on the research, then the rights go to the government. Worse, the Bill requires any research that might conceivably at some stage, be patentable, to be treated the same way. More, it requires all publications (which, the lawyers tell me, could include blogs and websites as well as formal publications) to be screened by the university IPR office before they can be published, just i case they might reveal something patentable. And then, if an employee of the university fails to report a piece of research that is patentable, she is subject to disciplinary procedures (and employees include students) But there is even more than this – go and read it.

At the very last moment, on the closing day for comment on this Bill, the deadline for comment was extended until 20 August. Not much consolation for colleagues who has worked through the night and lost two weekends working on replies, but a good thing nevertheless. The Bill has very serious implications for any South African researchers so, now that the university term has started, I hope that a greater number of you will become aware of it and let your universities - and the DST - know how this might affect your research.

As a publisher, I am concerned that this Bill, if enacted, could impact very negatively on scholarly publication. I find it hard to imagine how any university could cope with screening every publication before it can be submitted to a publisher or conference organiser. And, knowing how we all work to tight deadlines, I think that the need to write in several weeks of extra time before being able to submit any journal or conference paper could be a nightmare. Then, if the lawyers are right and the definition of 'publication' includes blogs and discussion forums, then even informal research communications would have to be screened. The potential costs are substantial – every publication would have to be read by an expert who would be able to discern if there is a potential patent hidden in the publication concerned. And screening would include not only the publications that are ultimately accepted, but also the very large number that are rejected. The university would have to become, at great expense, a very Big Brother, and all spontaneity in communication between researchers would be stifled. In a world in which collaborative research has become a necessity, this would be a serious backward drag on the very publication output that we are trying to expand.

Here is a comment from Dr Alma Swan, of Key Perspectives, a highly regarded consultancy in scholarly communications with a long list of very prominent clients, from the UK government and the European Union to the Public Library of Science and the Nature Publishing Group. She holds posts at Warwick Business School, and in the School of Electronics & Computer Science and the School of Management at the University of Southampton. Her comments are acerbic - she says that she was having an irritable day, but I think she was entitled to this, given the content of this Bill:

Far from helping SA science and technology this Bill has the potential to slow it to walking pace while every article is checked for patent potential. How truly bizarre. Still, good news for South Africa's competitors.

If I were an (international) funder I would steer clear of funding any SA research under this set of conditions. It will be a slowdown for OA, though presumably just a slowdown: it will hold up deposit and publication while each article is cleared. .The primary losers will be SA's scientists, whose work gets held up when it is ready for publication - could mean the difference between being the first to publish on something or losing the race to someone else. At the very least, delaying publication means delayed impact, which is important to individuals (perhaps seeking jobs, tenure, etc) and certainly for the country. It seems a very odd development.

Given Alma's status in the international world of scholarly communication, I would take this comment seriously.