An article by Latha Jishnu in the Business Standard in India in mid 2008 provides a succinct account of the secretive progress of a piece of Bayh-Dole legislation in India. It sounds rather similar to our experience in South Africa. The Indian Act has subsequently been submitted to Parliament. The Bill was apparently being passed around the various ministries without much transparency when the text of the Bill was published on SpicyIP, an Oxford-based blog. Similar secrecy seems to have been reflected in the South African, process. Although the original draft of the SA Bill was published for comment and the universities' criticisms of what many considered an unworkable system were noted, it was very difficult to lay hands on subsequent drafts. People I know trying to track the final draft only saw it after the Act was passed, although it appears from personal accounts that industry players were probably consulted in a workshop (in India there appears to have been a workshop for the chambers of commerce and industry).

Jishnu's article concludes:

Technology transfers can and do happen through many channels, and the diverse methods now in use would be restricted by the new law, says Abrol. Nistads is one of the one of the 38 institutes grouped under the Council of Scientific and Industrial Research (CSIR) whose chief, Samir Brahmachari, has been advocating the open source system (reported several times in this column) of collaborative, incentive-based research.

What we need is some informed debate on what is India's best interest at this particular stage instead of going for a wholesale import of an American system that could prove ineffectual. Otherwise, we could be headed for a nuclear deal in our science establishment — corrosive, divisive and ultimately ineffective.

The Indian bill, much like its US equivalent is premised on the assumption that intellectual property rights are the best way to drive innovation. The more IP, the better for innovation. There is plenty of literature that casts strong doubt on this lopsided view.

Additionally, we’re seeing some great alternatives to the IP model emerging. Indeed, even as we speak, international scholars and activists are debating the merits of incentivising innovation through a variety of alternative means including “prizes”, “advance purchase contracts” etc. Closer home, Dr Samir K Brahmachari, Director General of CSIR, India’s premier R&D body, has been advocating an open source model in drug discovery. This is not to suggest that intellectual property rights (IPR’s) are bad in any way, but only to caution that IPR’s are but one way of incentivising innovation. Given that we are dealing with innovation and creativity, we must be open to trying out some of these alternatives i.e. we need to innovate within our innovation regimes!

Particular stress is placed on the damaging effect that this legislation could have on access to medicines in India, given the above.

Like our South African legislation, the draft Indian Bill also takes away the discretion of researchers and universities to make their own decisions on how best to make their research work for the public good. Both the decision to patent or a decision to use open approaches are subject to decision by a government office.

The Indian Acr aims to generate revenue through its provisions; however, SpicyIP argues, 'In fact, the cost of operating a technology transfer office (TTO) often exceeds the money made from technology licensing. CSIR bears out this point well. While it generated approximately US$1 million in licensing revenues in 2004–2005, it spent more than twice that amount on filing patents.'

What is different in India is that there has been a strong activist movement, with a number of individuals and organisations tracking the progress of the Bill, unearthing copies of successive drafts, providing links to commentaries and analysis on Bayh-Dole in other countries  and generating debate. Useful for those who want to explore this issue in more depth.

But this particular budding conspiracy theorist, down on the southern tip of Africa, is asking why the secretive processes in both countries? And why does this legislation seem unstoppable? Is this a big-industry driven initiative and if, so given Obama's view on scientific research development in last week's speech, is this Reagon-style legislation what the US still wants?(1) And what of our new pro-poor government? What will our new Cabinet make of what they have been landed with?  Watch this space!

(1) It is to be noted that Professor Arti Rai, one of the authors of a very good article critical of  Bayh Dole's relevance to developing countries is one of Obama's IP advisors.

Another plenary session that I covered in the iCommons blog at the Dubrovnik iCommons Summit was a session on Global Ecosystems, in which the presentations by Bodo Balacz (Budapest University of Technology and Economics) and Lawrence Liang (Alternative Law Forum, Bangalore) stood out both for their provocative content - the subject was 'piracy' - and for the virtuosity of their arguments.What is particularly challenging in their arguments is the presentation of a world view that is not grounded in the presuppositions that underlie an often aggressive Western view of the rights and wrongs of copyright. This was my reflection on what they said, from an African perspective:

A panel that contains both Bodo Balazs and Lawrence Liang was bound to be lively. They did not disappoint in the closing plenary of the iCommons. Both had a similar message – that the 'pirates' are harbingers of future trends in the face of market inefficiencies and failures. Balazs made a compelling case in a historical survey of repeated resistance to monopolistic tendencies in in the development trajectory of the copyright regime The pattern that appears in his analysis is one of nodes of resistance at stages at which there were fundamental shifts in the economic, social and technological framework of how culture is produced. What emerged strongly from Bodo's history of 'pirate' resistance was the ethical base of these acts of resistance, which explicitly aimed to remedy injustices and imbalances, rather than targeting financial gain.

Read more on the iCommons blog site

Quite a spat has broken out in open Access circles about whether it would be better to take the 'green route' to open access mandating open repositories, or more effective to go for the 'gold route' of developing open access journals. Stevan Harnad was infuriated by Jan Velterop's statement that 'the "cure" of open access publishing is to be preferred to the "palliative" of self-archiving' and has written an angry reponse. I have followed with interest the preceding, more considered, debate in Velterop's blog, The Parachute and Harnad's Open Access Archivangelism, because I am, like Velterop, a publisher by background and appreciate his intelligent ability to balance the need for access and the realities of publishing and because I admire Harnad's intellect and passion for the cause of Open Access.

The debate made me step back and rethink my approach to green and gold (the colours of our national sports teams, by the way) in this major gold-producing country. The 'green' route seems to have become the accepted orthodoxy as was evidenced n the Bangalore workshop late last year, which produced the Bangalore Open Access Policy for Developing Nations. This makes sense, as it is quick and easy way of providing access to scholarship published in international journals that is otherwise often inaccessible in its country of origin. This means a win-win for the universities that push for publication in accredited journals for the sake of personal and institutional prestige. I have noted that there is also a considerable emphasis among the funding agencies on the need for repositories as the first and best way of providing access to developing country research.

However, the debate between Harnad and Velterop has made me think that, when it comes to the very particular case of Africa, should we not make the growth of open access journals our first priority? In a perverse way, Africa's potential to leap the technology divide and adopt more radical transformational of scholarly dissemination could be helped by its very low profile in the existing publishing systems. In a world in which the use of ICTs is drastically altering modes of knowledge dissemination, and in which scholarly publishing looks to be thoroughly shaken up, there is a paradoxical advantage in the marginalisation of African scholarly publishing. This is due to the fact that Africa has a very limited investment in the traditional print-based scholarly publication system and this frees policy-makers to engage with new trends in ways that their more privileged counterparts min the North may be constrained from doing.

At the end of the Workshop on Electronic Publishing and Open Access in Bangalore two weeks ago, it was agreed that what was needed was not just another declaration, but a document that could be used to drive policy implementation in developing countries. The final version has now been released and is revealed as a remarkably clear and pragmatic document, the National Open Access Policy for Developing Countries.

Where this differs from its predecessors is not only in its focus on the developing world, but the fact that it includes a brief but very clear policy undertaking for signature by national governments, accompanied by a statement of the advantages of Open Access publication to governments and to academics as well as practical implementation guidelines for effective and easy deposit of articles. The strategy that underpins its approach is that mandating deposit in institutional repositories of journal articles arising out of publicly funded research and making these available for harvesting provides a quick and affordable way of building a national record of research output.

From the first paragraph, this document reflects something I said in my previous blog - that the mood has changed and that there is now an assertive voice articulating the value of the knowledge that is currently largely marginalised in the global research hierarchy:

The Bangalore workshop was convened to bring together policy makers and research scientists from major developing countries to agree a path forward towards adopting full Open Access to publicly-funded research publications. The importance of access to the world's research information for the development of a strong economy and a vibrant research capability is widely acknowledged, yet financial barriers limit access by developing countries to the research information they need. Equally, the unique research carried out in countries representing 80% of the world's population is largely 'invisible' to international science because of economic or other constraints. The resolution of many of the world's problems, such as emerging infectious diseases, environmental disasters, HIV/AIDS or climate change, cannot be achieved without incorporation of the research from developing countries into the global knowledge pool.

Open Access to the world's publicly funded research literature provides equal opportunities for the communication of all research information, eliminating financial barriers. Furthermore, articles made available electronically on an open access basis have been shown to be cited on average 50% more often than non-open access articles from the same journal, thus ensuring the greatest possible benefit both to the authors, to the investment of funding agencies and to scientific progress. The benefits to authors, readers and their organisations is now increasingly recognised worldwide and by November 2006, 761 repositories had already been registered in the Registry of Open Access Repositories, and the Open Archives Initiative's OAIster search engine could search over 9,000,000 records in interoperable Open Access repositories.

The proven advantages of Open Access publishing for developing countries were spelled out in a number of papers at the Bangalore workshop: substantially increased citations leading to higher levels of research impact, the widening of the author base, greater research efficiency through the reduction of duplication and faster dissemination, to name only a few. However, while the SciELO initiative in Latin America demonstrates the considerable benefits of intervention at a national level and of regional collaboration over research publication, systematic policy interventions are still lacking in most developing countries, leading to a fragmentation of efforts that can, in reality, be ill-afforded. The policy undertaking included in the National Open Access Policy will therefore be a boon to those lobbying for national commitments to access to publicly funded research from governments in developing countries. As Subbiah Arunachalam put it in an email late last week, there is now work to be done:

The most important thing now is to get policy makers in India, China and many African countries adopt and implement the OA Policy Statement signed by all the participants of the Bangalore workshop. Your suggestions and help are welcome.

The full text of the National OA Policy for developing Countries can be found at
http://scigate.ncsi.iisc.ernet.in/OAworkshop2006/pdfs/NationalOAPolicyDCs.pdf

We met for our meals on a shaded terrace under palms and spreading tropical trees in the centre of the enormous campus of the Indian Institute of Science in Bangalore and held our discussions in their senate room, distinguished home to many of India's leading scientists. Coming from India, China, Brazil and Africa, the UK and US, we were the guests of the Indian Academy of Science, the IISC and the MS Swaminathan Research Foundation and had met to discuss South-South relationships in the development of Open Access research dissemination.

The workshop was an important further step in a growing movement of South-South alliances. What emerged most strongly at the Africa-centred conference in Leiden a few months ago was the question, 'Whose knowledge, for what purpose for whom?' The issue there was the tendency for development rhetoric to focus on the supply of knowledge to the developing world rather than the production of knowledge in and from the African continent. This time, in India, the assertion of the rights of developing nations went a step further. Right at the beginning of the workshop, in one of the introductory addresses, Prof N Balakrishnan, the Associate Director of the Indian Institute of Science, said, 'What we need to do is change the “developing country” rhetoric to a world perspective.' Put another way – when I emailed Gordon Graham, of the LOGOS journal, one of the wisest people I know from the publishing industry, he wrote back, 'Do tell me more about the workshop. What a combination. India, China, Brazil and Africa constitute about two thirds of humanity.' They are both right – what this workshop reminded us is that we in the developing world are the norm - with all our challenges - not the privileged and powerful who call the shots in scholarly publishing. Alma Swan raised the same issue in another way, echoing something that was said in Leiden: that we have a problem with the common expression of the international/local dichotomy. Why should developing country issues be considered 'local' when these apply to the greater proportion of the global population, while , for example, we bow down to the 'international' status of the comparatively narrowly-focused ISI indexed journals?

Lawrence Liang, of the Alternative Law Forum in Bangalore, gave us the message in another way. In a typically virtuoso and mind-stretching keynote address, in which he charted different meanings of ownership, in different languages and cultures. He invited us to resist a property discourse that conflates property rights with academic rights and turns the collegiality of academe into the hierarchy of property. In that world, he said, those who have most freedom are those who own the most IP. Property in the English sense, he said, the conflation of 'self' and 'own' resting on exclusion, is something not common to other languages. In Indian, apnapen is not a matter of owning, or property , but of closeness. Ownership in this sense has the obligation of care and the opposite of care is brutality, like the 'war' on piracy that is currently being waged – passport control in a borderless world, Liang argued.