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Govt regulations threaten innovation, free software, say opponents

By   |  April 29, 2009

A growing number of South African academics, activists and bloggers are calling on the country’s department of science and technology to review draft intellectual property regulations governing public research, saying that the regulations as they stand are a significant threat to future innovation in the country. The regulations, ironically from the department which has long championed free software, would also make it impossible to produce free software as part of any research projects, say opponents of the changes.

The regulations, proposed by the minister of science and technology for inclusion in the Publicly Financed Research and Development Act, section 17, “will result in dire consequences for the research sector in South Africa in particular and all South Africans in general, by stifling local innovation and access to knowledge,” says the African Commons project.

One of the primary concerns with the regulations is the importance given to commercialisation of public research. The regulations would make it necessary for researchers and organisations to “assess and report on all research that might have the potential for commercialisation”. More worryingly, if universities and researchers decide not to lock down their research with intellectual property restrictions the proposed National IP Management Office (NIPMO) “will have the right to reassess the decision and if it disagrees with the university, it may acquire ownership of the research and obtain IP”. NIPMO will be staffed by IP, commercialistion and patent experts but not subject specialists. The result is that universities and researchers will lose control over how best their work can be used.

Well-known free and open source advocate and deputy vice-chancellor of knowledge management at Wits University Derek Keats says that the regulations will both stifle innovation as well restrict the ability of researchers to develop free software as part of their work.

In one post Keats writes that “… 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 … 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.”

In another post writes that “as far as software is concerned, under these regulations, no FOSS could be produced in South Africa as part of a research project. FOSS is fundamentally a community process. You contribute to the community, and you draw from it from the first line of code written. The intellectual outputs happen THROUGH the process, not AFTER the process. Yet these regulations assume that the work happens in secret, much like how secret software is developed, and only then is made known.”

Keats and the African Commons project are not alone in their concerns over the IP regulations. Eve Gray, honorary research associate in the Centre for Educational Technology at the University of Cape Town writes on her blog that “the Regulations (that are) designed to enforce – 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.”

Similarly, Andrew Rens, legal lead of Creative Commons, South Africa and Fellow at the Shuttleworth Foundation, says that the regulations are “unworkable” and “unconstitutional”.

The African Commons project says that IP regulations misinterpret the objectives of public research by elevating commercialisation the primary driver of the research:

The Regulations show a concerning misunderstanding of the objectives of publicly funded research by placing commercialisation as a primary driver of research.

The Regulations will restrict researchers’ freedom of expression and association by deeming it necessary for researchers to apply for permission to enter into partnership agreements with international research associations and consortia. The Act’s commercial regulatory requirements could also be in contradiction to that of international research associations or consortia, thus making it impossible to enter into such relationships.

The Regulations incorrectly define what the public domain is and how it should be interpreted.

In basic terms, the Regulations are unconstitutional, going against the freedoms that are explicitly stated in our South African constitution.

The Regulations incorrectly define what the public domain is and how it should be interpreted.

In basic terms, the Regulations are unconstitutional, going against the freedoms that are explicitly stated in our South African constitution.

Getting involved
African Commons has an easy to read explanation of the regulations on its website as well as suggestions of how to get involved in the process around the regulations. There is also a Facebook group for opponents of the regulations.

Image: iStockPhoto


3 Responses to “Govt regulations threaten innovation, free software, say opponents”

  1. Jaco
    April 30th, 2009 @ 4:25 am

    We’ve been dealing with something similar (IP gone COMPLETELY bonkers) here in NZ, under the guise of the proposed “section 92a” “3-strikes” law.
    Something similar is being attempted, with serious dirty tricks involved, in the EU (thanks to France) & the UK.

    People want none of it, but big-media & big-business seem adamant to force these toxic IP laws through, come what may.

    We’ve been able to get a stay of execution, while stake-holders exercise a bit of common-sense & work out something more reasonable, thanks to community-driven efforts, like that of the CFF (link provided)

    Social media played a bit part in driving this effort & getting people from all walks of life involved. Services like FaceBook, Twitter, bloggers & variouscommunity publications.

    Even made international headlines…

  2. Dwayne Bailey
    April 30th, 2009 @ 7:57 am

    In reading this I’ve wondered what has motivated this action by DST. Could it be that traditionally Universities have used government funding plus donor funding to create commercial products with no benefit to the nation or poorly executed by the university. I.e. massive innovation that makes a foreign country wealthy and the Uni gets no bucks, but the work is built on government funded research.

    Or could it be that Universities lock all IP but don’t exploit it resulting in zero return for the country. The classic case of a non-decision about commercialisation, lock it up and if anyone else wants to exploit it we’ll make money, otherwise we’ll do nothing.

    If we could actually understand what those cases are worth and maybe some real examples that spurred DST to this legislation it would be helpful.

    Certainly in the area of language we have almost all researchers producing outputs that fall into the second class. The outputs are locked down, mostly out of fear that someone will exploit their research, resulting in no further innovations. Ironically in this legislation it might actually be clearer what someone could do with the data, but it certainly would not benefit FOSS since the commercialisation aspect would require some licensing and fees. So we’d go to clearer but worse.

  3. David Robert Lewis
    May 9th, 2009 @ 12:54 am

    Surely a case of government not getting “open-source science”? This is a move in the wrong direction. We should be opening up research and creating a common and shared knowledge community. Instead, we are putting up barriers and obstacles. Imagine what mathematics is going to be like if mathematicians are prevented from utilising certiain “proprietory algorithmns”? Imagine a world in which science is impossible because commercial value of discoveries far outweigh the academic goals. A world in which research and study is impossible because of non-disclosure agreements and patent applications? We need to fight the capitalists and petty bureacrats on behalf of the people. All South Africans should benefit, and the way forward is not via patent law, but via better licensing and an intellectual framework that puts intellectual discovery at the heart of the endeavour. Whenever I hear the word enterprise I want to cringe.

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