Derek Keats. the Deputy Vice-Chancellor of Knowledge management at Wits University has posted a series of blogs in the proposed Regulations for the implementation of the IPR Act. He thinks - and I agree - that they will probably be unworkable and that they will almost certainly act as a hindrance and not a help to research effectiveness in the country.

Some of his comments: 

 Most importantly, innovation thrives in the absence of impediments. Every time a researcher must go to NIPMO for permission, there is another barrier to innovation. More barriers equates to less innovation. This is a sine quo non, and cannot be changed... These regulations will stiffle innovation, not just in software, but in almost every sphere of research endeavour. They are bad for innovation, they are bad for research, they are bad for business, and they are bad for South Africa.

Research innovation is something that is made from a harvest of passion and energy, and the capacity for the unfettered creativity that universities make possible. Anything that reduces that capacity for unfettered creativity, and creates the risk of a passion drought will undermine innovation and lead to less, not more, innovation. This is something that I know with as much certainty as I know I have 10 fingers (currently).

Much as software patents favour existing large companies, and make it difficult for a new company to become large, these regulatins will have a small negative impact on the research superstars, but will make it much more difficult to become a new superstar, and will drive passionate people away from research into other carreers. Academic freedom is important to people, and people do innovation. Trample on it at your peril!

 ......

If you look at the range of work that these regulations cover, which is effectively all knowledge work undertaken with public funds, the range of knowledge needed to make non-spurious decisions is enormous. The level of talent that will be needed for the imlementing body, NIPMO, to work is very high. These are not decisions that can reasonably be expected to be taken by inexperienced people who have just completed a masters degree. They need experienced researchers, with doctorates and many years of research and development experience.

Such people simply do not exist in South Africa. They could be taken out of the Universities, but then that would undermine the innovation process they are supposed to be managing. So where will they come from?

Finally, he makes a set of useful suggestions on how things could and should work: 

• Leave critical decisions close to the site of the action, where people are most familiar with the challenges and opportunities and can act in an agile manner with the minimum of delays;
• Ensure that the services are available to assist with commercialization of research, including legal services, product development assistance, and that these are available with minimum of fuss whether a proprietary or open source business model is followed;
• Ensure that there is a National fund to help startups fight patent challenges from patent trolls and other holders of spurious patents, especially large multinational corporations with large patent portfolios which may contain numerous dubious patents;
• Recognize that the vast majority of researchers are not doing research that will lead to commercial products, and do not bring the whole innovation regime in South Africa under these regulations, where social and cultural innovation will be stiffled; rather provide means to assist and inform such researchers to find commercially or socially beneficial uses for their research when they tell you they would like your help;
• Where software and documentation in various forms are concerned, accept the National Policy on Free and Open Source as also being an important guide for action among responsible, knowledgeable researchers.

I hope Wits University's reposnse to the Regulations will incorporate all o of this.

 

 

Today Legal Brief has posted a brief referring to Andrew Rens's blogpost arguing that the Draft Regulations for the implementation of the IPR Act of 2008 are unconstitutional. Legal Brief quotes a telling passage from Andrew's post:

Andrew Rens, Intellectual Property Fellow at the Shuttleworth Foundation in Cape Town, says in a blog on the Creative Commons blog site that the regulations 'are simply unworkable, intending to funnel the entire research output of SA through a convoluted series of bureaucratic filters'. Rens points out that almost all advanced scientific research in SA takes place through multinational consortia. These consortia enable scientists to share data and to contribute their skills to complex research. 'Taking part in international consortia is a minimum necessity for SA scientists,' he says. However, the regulations 'represent an attempt to squash multinational, multi-institutional research consortia into the form of agreements between a corporation and a research institution'. Rens says this is, in effect, a ban on participation in multinational research consortia, 'since research consortia have their own rules on how research may be used'. Says Rens: 'In other words, researchers may not choose to join the only, or best research consortium in the world, but must instead cede their academic freedom to bureaucrats, and not only to bureaucrats but bureaucrats impelled by the single objective of patenting whatever they can.' He says for this reason, the regulations are unconstitutional.

What Andrew's comments highlight is that the Act and the Regulations designed to enforce them- and 'force' is an appropriate word here - are some 30 years out of date and completely out of tune with the way research is being conducted in the world's leading universities in the 21st century, with high levels of collaboration. What is worse, they are out of line with the realities of how research can best contribute to the national good, through flexible strategies, effective and open dissemination and vehicles that are aligned with the needs of the poorest in our society, something that patents don't always do well. I cannot help recalling Yochai Benkler's striking indictment of the patent system, in his seminal book, The Wealth of Networks : 'The above-marginal-cost prices paid in .... poorer countries [as a result of patents] are purely regressive redistribution. The morality of this redistribution from the world's poor to the world's rich has never been confronted or defended in the European or American public spheres. It simply goes unnoticed.'

It is certainly unnoticed in these Draft Regulations, which seem intent on forcing the maximum commericialisation of South African research, at whatever cost.

The Deprtment of Science and Technology has published the Regulations for the implementation of the IPR Act of 2008. These have serious implications for researchers and the universities and research institutions they work in and even more dire implications for open access and open innovation in South Africa.

I set out below my preliminary reading of what these Regulations might mean. However, they are not very well drafted and contain some confusions, so it would be good to share reactions from researchers on how they see this affecting their research practices. The time for responding is short - we have until 8 May.

How this relates to what is happening in the rest of the world will follow in subsequent blogs, as will feedback as UCT and other institutions grapple with what this means for how research will be carried out in South Africa.

A brief recap for those who are not familiar with the Act.

The full name of the Act is The Intellectual Property Rights from Publicly Funded Research and Development Act, 2008. (I blogged the Draft Bill last year here and here and here and here and here) In 2009, one would expect a piece of legislation dealing with publicly funded research to be dealing with access to research, but that could not be further from the case of this legislation. To put it briefly, this is designed to ensure that all publicly funded research gets intellectual property protection for the purposes of commercialisation. This seems to be the only way that this legislation can conceive of public benefit from research. Open innovation, open science, open access and open source have to get special permission from the bureaucrats before they will be allowed.

The provisions of the Act

Before looking at the Regulations, researchers need to grapple with the basic definitions and provisions in the Act:   

1. The central provision of the Act is that universities carrying out research from public funds have to assess and report on all research carried out in the university that might have the potential for IPR protection and commercialisation. (Which being translated means they are patentable – but beware; it means more than that, as set out below.)
2. If the university/researcher does not want to lock down the IP in the research, then this decision has to be made according to the guidelines provided by the national IP Management Office (NIPMO) and it has to be notified of this decision. NIPMO then reviews this decision and can, if it disagrees with the university, acquire ownership of and obtain statutory protection for the IP in this research. In other words, the university and its researchers no longer have the right to make their own decisions on how best to ensure the impact of their research.
3. Research funded by private organisations only counts as not being publicly funded if the full cost of the research is covered, including all direct and indirect costs (15b). Does this mean that if you are running a research programme with donor funding, but UCT supports your office and computer infrastructure, your research is subject to this Act?

How is intellectual property defined in the Act?

In other words, what does this really mean for researchers and who would be affected by it? The primary focus of this legislation is clearly patents, but those researchers who think that their work has nothing to do with patents in South African law need to think again.

The definition of IP in the Act excludes copyrights in published works, and includes ‘creations of the mind’ that are capable of being protected under South African and foreign IP law. That means that software and business processes, patentable in the US but not in SA, have to be considered in terms of this Act. Databases, which are protected under the EU database provisions, would also fall under this legislation. Trademarks, artistic works and designs would presumably have to be considered, too.

It is clear therefore that researchers in humanities, social sciences, business school, and architecture cannot sit back on the assumption that these provisions would not apply to them because what they do is not normally patentable. Nor can any unit working with open source software development. The scale of what this might mean for the university IP office and for individual researchers is daunting; even more so the volume of forms to be filled in. But most of all, it is the loss of freedom for researchers and the university to make their own decisions on how to manage the dissemination of their work and how to ensure its impact that is most threatening.

What do the Regulations say?

When a decision is made on whether or not a piece of research requires protection, the only basis on which the researcher or the university can make this decision on their own is that it is not patentable (2 (2)). In any other case, a form has to be filled in and the decision referred to NIMPO. The criteria that NIMPO will apply include the sector, potential contribution of the research, commercial and social potential and the ability for this work to be protected under any law anywhere in the world.

Provisions are then made for what happens if the State takes over the IP rights (2(8)) and what happens if permission is given for them to be waived (in which case they have to be offered to the funders of the research or, where there is no private funding, to the researcher concerned) (2 (9,10,11)).

Researchers will need to think about how this sits with the funders of research that they carry out.

 

Open science, open access and open source

There is confusion in the Regulations between public domain, open source and open access (see Andrew Rens's blog on this question), but Section 2 (12) appears to be trying to say that where a the university wants to make research open access or develop open source software, it has to fill in a form and apply to NIMPO. If the need to make the research open comes from the requirements of cooperative research agreements or funder requirements, then this has to have prior approval from NIMPO. According to the Regulations, NIMPO then decides whether this agreement is in the best interests of the country or not (2 (14)).

 

It looks as though the university and its research departments will not be able to join collaborative research ventures or accept funding from donors who require open dissemination without government permission.

Andrew Rens thinks this might be unconsitutional - see his Aliquid Nova blog.

Given the requirements of some of UCT’s largest research funders, this is somewhat startling. This would also be threatening to a department like the Centre for Educational Technology, which has contracts with an international consortium, Sakai,  that requires assurance that all software developed has no IP restrictions and is open source.

How is this going to affect UCT’s research collaborations and research funding agreements?

 

The NIPMO Structures 

What skills will the NIMPO Advisory Board, which will oversee all this, bring to bear? It will consist of people chosen for their ‘knowledge and experience in intellectual property management, commercialisation, technology transfer, and business skills’ (4 (6)). In other words, people without special research knowledge or familiarity with disciplinary fields will be making decisions about how research could best impact on the country.

 

Revenue sharing

Researchers do get the right to revenue earned from the commercialisation of their research (7(1). However, the deductions that can be made before this happens sound somewhat threatening, as they include expenses for ‘filing, prosecution and maintenance of statutory protection; bank fees and other charges for collecting revenues due; defence, validation and enforcement of IP rights; legal advice; market research, marketing and sales, travel costs and admin expenses, up to R1 million (7 (2)). In truth, there is not much likely to be left after all this. If I were a researcher in this position, I would not be holding my breath. Perhaps, like the music recording industry, the creator will land up owing more than is earned.

 

Licences

There are detailed provisions for how NIPMO will intervene in the granting of exclusive licences, offshore deals, assignment of rights. In the case of exclusive licences granted, NIPMO can walk in and reverse these licences if they think that commercialisation is not adequate.

 

Auditing and retrospective licensing

Then there is a retrospective clause that says NIMPO can audit a university’s disclosure of IP. The university is required to fill in forms twice a year detailing the IP governed by the Act and how it has been commercialised. Then NIMPO can audit annually. If it finds that any IP has not been declared, then it can retroactively enforce assignment of the rights (11 (2)). 

 Does this mean that the university’s ability to contract with donors who require assurances of open IP management will be compromised? How could the university offer such assurances if they can be reversed by NIMPO at a later date?

This will surely mean that super-caution will be exercised by submitting everything for approval before research contracts begin. And what effect would that have on research effectiveness?

 

Research collaboration

When it comes to dealing with private organisations and institutions, the university could licence a share of the IP to a co-owner. If the university enters into a collaborative research agreement, it must retain ownership of any pre-existing IP and commercialise this in line with the Act; retain IP rights in what it produces, or jointly own IP. It must ensure the commercialisation in SA of this collaborative research. 

If the partners in the collaboration require open licences, then NIPMO has to approve before the university can enter such an agreement. NIPMO will publish guidelines on how universities have to manage such collaborations (12 (3)). 

How will universities manage their research collaborations with this level of interference? And what effect will this have on research output and its social and economic impact?

A new blog - OER@UCT – is charting the process of setting up an OER repository at UCT:

In the next few months we will be documenting our progress as we attempt to build a repository of UCT open resources.  We are trying to encourage faculty and students to contribute to our repository buy adopting Creative Commons licences which enables content to be easily shared.

The first blog (posted on 1 April, but no April Fool's joke) has a nice quote about the impact of open resources:

"Open resources are the path to humility. They are an invitation to experimentation and collaboration. The more open the resource, the less one is committed to a single pedagogical path or theory, and the more one can profit from the insights of strangers, or collaborate with people one has never met."  (Bissell, Doyle)

The OER@UCT blog has now posted an account of Hussein Suleman's Teaching with Technology seminar last week at which he spoke on Open Access in a Closed Institution – Hussein's view of UCT;s progress, or lack thereof, in creating an institutional research repository. From the OER@UCT blog:

Hussein spoke very briefly about the OA movement and some of the rather interesting developments in this area.  Large institutions around the world are pushing for open access and taking measures to ensure that their own research outputs are made available.  MIT (always a leader) has created a repository using the opensource dSpace software platform.  This also includes over 20,000 thesis going back as far as the 1800's!!!
It makes good academic sense to do this.  For lecturers it creates an opportunity to collaborate and share research.  For students it provides access to high quality research and makes it easy for the growing "just google it" generation to do what they do best.

Have you ever been searching for an older news clipping, found it on the newspapers website, and then been asked to pay for the article?  I have found this incredibly irritating.  Why should I have to pay for old news?  This is an random rant - but the discussion really led me to think about it. ...

Here at UCT the idea of an open access repository for research has been under discussion for some time.  Certainly our research output is scattered throughout the internet and in journals around the world, but can we account for it and provide details about it?  Can we tell how many times those articles have been cited, or read?  An open access digital archive could answer some of these questions. 

Hussein says he had developed the UCT CS Research Document Archive for the Department of Computer Science here at UCT simply because he could not wait any longer for a university wide initiative to happen.  They now archive their publications and are able to provide details of how and when articles were accessed. The Law Faculty has also felt the need for a digital archive for their own research and have launched UCT Lawspace which also powers dSpace.  So it is clear that a unified system would be of great benefit if not only for these two faculties...

When I think of OER resources in the context of UCT I think of research output almost immediately.  Research papers, handbooks, conference papers, and articles will make a tremendous addition to our project.  Having them searchable and accessible will be of tremendous benefit in terms of reputation. 

As Hussein reported in his talk, UCT is moving now to create an institutional repository, with funding from Carnegie. The question he raised was, Why has it taken so long?  and 'Why does a university as prominent as UCT not invest in the creation of its own  repository rather than waiting for Carnegie to offer funding. It was clear from the information that Hussein provided that UCT has fallen badly behind other South African universities in adopting more open approaches to its research dissemination, with the University of Kwa-Zulu Natal the only other major South African university without an institutional repository.
One of my reflections on what Hussein was saying took was that there is a good deal of wastage in a university like UCT which produces very high quality research right along the spectrum of basic and applied research, but tends to favour the former in its research publication policy. The push at UCT is to get academics to publish as much as possible in  'internationally accredited' publications. This is a dual push – to enhance the research prestige of the university through increased citation impact and to earn the very generous subsidies paid by the Department of Education for such publication. While there is a list of South African accredited journals, the statistics show that UCT – probably the country's and the continent's leading research university – tends to publish journal articles rather than books and to publish these articles predominantly in ISI listed journals. In UCT's publication list submitted to the Department in 2005-6, only 78 out of 622 journal articles listed were in locally accredited journals. (There were 23 South African journals in the international indexes at that stage, so there would have been some overlap between local and international publication, but not much.)  In other words, to put it bluntly, given the profile of the journal industry that UCT favours, it exports most of its formal scholarly publication to commercial journals published by multinational conglomerates in the USA and Europe.
In the mean time, back home, our ever-inconsistent government, which pressurises South African universities to publish in this way in the name of global competitiveness, also berates those same universities for not doing enough to resolve our very pressing development issues, particularly unemployment and skills shortages. If one delves into the UCT record, it is clear that formidable levels of skill and intellect are being devoted to just such tasks. There are a large number of research units and collaborative research ventures devoted to interfacing high level basic research with community needs. These research units often publish a range of online policy papers, research reports,  discussion documents and data sets. Other units produce training materials and community handbooks. It is clear that the university has made a formidable contribution to policy development in health, poverty reduction, industrial and skills development, to name but a few.
Trying to find this rich record of research publication is, however, a mission. The publications are there, but buried in departmental websites that are in turn buried inside the university website. As good as this website is, this is just too many clicks away from discovery. The question I has to the senior administration was 'UCT is a major player in the development of an AIDS vaccine in South Africa. Why, if you google AIDS vaccine South Africa, does UCT's name not come up?'
Clearly, UCT could do a lot more using open access publishing, a strong repository system and some marketing of its wider range of publications, to demonstrate the contribution that is makes in return for taxpayer contributions.

I was given pause for thought last week when, in a University of Cape Town  Centre for Higher Education Development seminar on research ethics, Kevin Williams, of the Higher and Adult Education and Development Unit (HEASDU) mentioned that some of his respondents to an investigation of the ethics involved in higher education practitioner research had expressed doubts about the real intentions of researchers interviewing them. Were these researchers really interested in the importance of the research they were conducting, or was their main concern to get material that could be worked into journal articles and chapters in books, for promotion purposes? This might have been something of an aside in Kevin's talk, but it struck a chord and made me think that there might indeed be an ethical dimension in our obsession with journal article counts and accredited publications.

I have had the question in mind as I have scanned a number of recent publications on the renewal of higher education in Africa and have noted with concern the persistence of the use of counts of journal articles published in ISI journals as the standard and sometimes the only measure for the status of African research in the world. In other words, in a continent in which the goal of public investment in research is explicitly to contribute to national growth and development, the measure of success all too often applied is the production of a lot of journal articles in foreign publications targeted at other scholars in the field. This is hardly a metric that is going to tell us anything about what our scholars are really contributing to the resolution of the considerable problems that challenge the continent.

The surge of  interest in African higher education is good part owing to the publication by the Southern African Regional Universities Association (SARUA) of a series of reports on the state of higher education in the SADC region, summarised in Towards a Common Future: Higher Education in the SADC Region. Drawing in part from this, Sci-Dev.net has published a series of articles on developments in African higher education. And the World Bank, backtracking from its damaging dismissal of higher education as a funding priority in the 1980s, in 2008 published Accelerating Catch-up: Tertiary Education for Growth in Sub-Saharan Africa1.

The message in all of these reports has a not very equal measure of good and bad news. The good news is that there is a concerted effort to turn around the deficits in African higher education, damaged by 20 years of funding neglect, on top of a poor colonial inheritance.

The bad news is that African higher education remains in poor shape, in need of radical infusions of funding and visionary planning. It is all too easy to forget that when the wave of independence rolled across Africa from the 1960s, there were very few universities outside of South Africa, and as  universities were rapidly developed in newly independent countries, these were based on the colonial model, designed to produce a governing and professional elite and to reinforce what were accepted as 'international' values.

This is only one of the reasons why I am concerned with the insistence on ISI journal article counts as the measure of research excellence. This is par excellence a colonial measure, designed to value research according to how it conforms to criteria set by a commercial conglomerate in the metropolis/the USA to define what is 'mainstream'.  Africa, on the other hand, is about as far off in the periphery as one can get and, not unpredictably, does not score well in this index. What is often ignored that is that the value system that underpins this particular measure is competitiveness of universities and individual scholars  in the the not very level playing field of the global knowledge economy, where commercial enterprise and copyrights and patents are seen as the ways to make a difference.

There is no doubt that as long as this remains an accepted standard of excellence by the most powerful players in the global scholarly community, African scholars will have to go on playing this game. And this is an ethical issue. As Obama calls for shared values and the power of ideals over cynicism, power politics and greed, perhaps the way in which Africa can say 'Yes we can!' is in learning to value the knowledge it produces by its own standards. In those SADC countries in which 89% of scholars responded that their research interests coincided with national development targets, how can we develop measures for 'Africa's share of world science' that measure this rather than participation in someone else's science endeavours?

How can we re-cast the idea of what is 'international' – as Paul Zeleza has said, how do we learn to globalise our research and localise US research? Most importantly, how do we revalue the hierachies of 'applied' and 'basic' research to develop ways of valuing what we in Africa are really good at: high level and high quality research that responds to and learns from society? How do we get support for the more effective and more extensive production of research outputs that  this kind of research is already producing and that demonstrate genuine contributions to national and regional development?

What is certain is that if African universities were to provide open access for the considerable volume of publications already posted online by development research units and ensure that these are easliy accessible, this in itself could boost the contribution of African universities to development goals. 

1. I am not including the url to the World Bank publication, by the way, because of its confused approach to its intellectual property rights management. I would have thought that the World Bank would want its African readership, in particular, to read this publication. But, although it exists as an e-book, that version is 'available to subscribers only'. Otherwise you can buy it in print. Does the World Bank really want to make money from African countries by selling its publications, or restrict access to a text that is readily available in PDF format and costs nothing to distribute? The e-book is copyrighted with an 'all rights reserved' licence, that nevertheless states that '[t]he International Bank for Reconstruction and Development / The World Bank encourages dissemination of its work and will normally grant permission to reproduce portions of the work promptly.'  Which being translated means that you need to apply  to the US Copyright Clearance Centre for permission to photocopy or reprint 'any part of this work'.  You have to either write a letter or telephone – no email address available. Could someone please send an ambassador to the World Bank publisher to explain how Creative Commons licences work?