The Universiy of Pretoria adopts an open access mandate

The University of Pretoria has become the first university in South Africa to adopt a mandate for open access deposit of publications by all academics. The senate of the University of Pretoria has unanimously approved an open access mandate for the university, which requires all academics to deposit digital copies of their publications in an open access archive. The policy will go into effect immediately and it is likely that UP scholars will see a substantial increase in the citation of their articles as a result. Other South African Universities will need to watch this space.    

The wording of  the policy:

To assist the University of Pretoria in providing open access to scholarly articles resulting from research done at the University, supported by public funding, staff and students are required to:

  •  submit peer-reviewed postprints* + the metadata of their articles to UPSpace, the University’s institutional repository, AND
  • give the University permission to make the content freely available and to take necessary steps to preserve files in perpetuity.

Postprints are to be submitted immediately upon acceptance for publication.

The University of Pretoria requires its researchers to comply with the policies of research funders such as the Wellcome Trust with regard to open access archiving. Postprints of these articles are not excluded from the UP mandate and should first be submitted as described in (1). Information on funders' policies is available at http://www.sherpa.ac.uk/juliet/.

Access to the full text of articles will be subject to publisher permissions. Access will not be provided if permission is in doubt or not available. In such cases, an abstract will be made available for external internet searches to achieve maximum research visibility. Access to the full text will be suppressed for a period if such an embargo is prescribed by the publisher or funder.

The Open Scholarship Office will take responsibility for adhering to archiving policies of publishers and research funders, and managing the system's embargo facility to delay public visibility to meet their requirements.

The University of Pretoria strongly recommends that transfer of copyright be avoided. Researchers are encouraged to negotiate copyright terms with publishers when the publisher does not allow archiving, reuse and sharing. This can be done by adding the official UP author addendum to a publishing contract.

The University of Pretoria encourages its authors to publish their research articles in open access journals that are accredited.

Starting in 2004 with an evaluation of appropriate repository software, and going live in 2006 with UPSpace, UP has established itself as a pioneer and a leader in the development and management of scholarly repositories in South Africa. The university at that time already had a thesis and dissertations repository, UPeTD, started in 2000 and expanded in 2004 with a mandate for the online deposit of theses and dissertations. The decision to expand this intervention to create a repository of research collections followed on the success that UPeTD had in profiling PhD students' research, contributing to their career success and providing expanded readership for UP's research output.

The project was resourced with the creation of a repository management team to oversee the implementation and ongoing management of UPSpace. There are now 7 896 full text items online, profiling the research output and publications of departments and individual academics, who have their own profiles within the repository, which can be linked to their CVs. The online publications can range from public scholarship and media articles to research papers and formal scholarly publications. The latter are collected in a sub-space of the broader collection, called openUP.

The initial reluctance of UP scholars to embrace open access has long been overcome and with Senate's willingness to vote a mandate for deposit, it is clear that there is now top-level support for the initiative. It will be interesting to watch the impact that this has on UP's research profile and scholarly reputation, which is likely to be enhanced by increased access. Research shows that online open access to research publications from developing countries considerably increases impact factors by a considerable margin.  

 Congratulations to UP for a bold initiative that puts in in the front rank among some of the leading universities in the world.

For an account of the setting up of the UP repositories, seeMartie van Deventer and Heila Pienaar, South Arfican Repositories: Brigding the knoweldge divides. Ariadne 55 2008

Genocide by Denial – An open access book from Uganda

I have posted a blog in the PALM Africa blog site on an open access book from Fountain Publishers in Uganda, created as part of the PALM project. The timing of this publishing initiative is telling for us in South Africa, as the book deals with an issue that is directly releant to the Department of Science and Technology's legislation and proposed Regulations aimed at forcing the commericlialisation of research. The impact of profit-driven commercialisation of public health research is an issue that this book takes apart in a searing critique. 

From the PALM blog:

Fountain Publishers
in Uganda has launched as its first open access book a powerful and
moving indictment of the price in human lives that the global
innovation system has extracted in sub-saharan Africa, written by the
internationally respected AIDS specialist, Peter Mugyenyi. The book is Genocide by Denial: How profiteering from HIV/AIDS killed millions. This is the first demonstration project in the PALM Africa initiative and the response to the open acess book as well as its impact will be tracked and researched by the PALM team…

The timing is impeccable, as
the release of the open access version of the book coincides exactly
with a breakthrough at the World Health Organisation, which has finally
reached agreement on a global strategy and plan of action on public health,
innovation and intellectual property. The WHO initiative, after long
negotiations driven by developing countries, aims to address exactly
the problem that Mugyenyi addresses – the excessively and unaffordably
high prices of the drugs needed to treat neglected diseases in
developing countries, driven by the global patenting system. In
addition, it addresses the lack of adequate research on neglected
diseases, also spawned by the profit-driven Intellectual propoerty
regime supported by the developed world.  

 Among the
recommendations in the WHO  plan of action is government intervention
to ensure voluntary sharing or research, open access publication
repositories and open databases and compound libraries of medical
research results. Thus Fountain's engagement with open access
publishing on a public health topic is right in line with – and ahead
of – developing global policy.

Mugyenyi's book needs to be
read by the South African bureaucrats who are trying to enforce
widespread and rigid commercialization of public research. Mugyeni's
conclusion to his book puts the issues succinctly:

Laws
that deny or delay access to life-saving and emergency drugs should be
urgently addressed on the humanitarian principle of lives above
profits, but without hurting the businesses. Innovation in the crucial
area of human survival should not be entirely dependent on money-making
and big business, but should primarily aim at the alleviation of all
human suffering and saving lives as a basic minimum.

This
does not contradict fair trade. Business success and humanism are not
incompatible It is just a big lie to suggest that humanity is too dim
to find ways of rewarding innovation and discovery other than by
holding the very weakest of our society at ransom. It is also untrue
that the only way businesses can thrive is by cutthroat pursuit of
profits under powerful and insensitive protective laws, irrespective of
the misery caused and the trail of blood in their wake. Lessons learns
from the AIDS disaster should help the world find a way of
incorporating justice and human rights in business. It is glaringly
clear that the ills of the present system need to be fixed.

He appears to be vindicated by the fact that the WHO is now aligning itself with this approach.

more from thePALM blog, with further details of the book and its contents…

The book is a powerful indictment of a failed system, written with passion and clarity. 

 

India’s Bayh-Dole legislation – a conspiracy theory?

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.

A series of SpicyIP blogs goes into the Indian legislation in some detail. It sounds much like what we are facing:

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.

Innovation policy ? how the Australians are thinking about it

The Australian federal government has just completed a review of its National Innovation system. Australian research and innovation policy-making tends to be broadly consultative, wide-ranging  and forward-looking, so I was interested to compare this with what the South African government is doing. Our IPR Act of 2008 is Bayh-Dole on steroids, insisting on commercialisation and patenting wherever possible, and apparently treating open innovation as the exception, not the rule. And speaking of rules, the Regulations impose layers of bureaucratic filters between the researcher and the innovation outcome.

I am still working through the Australian document to absorb its detail but it has some valuable insights and the overall thrust is clear: there needs to be a balanced system, in which commercialisation is but one strand of the innovation role that universities can play. Far from taking Bayh-Dole as gospel, there is a critical evaluation of such strategies and a re-evaluation of  what innovation policy should look like in the 21st century.

Moreover, the Australian government and the participants in the policy process are aware of the pitfalls in excessive patenting. They review the past record, warn against the damage that can be done by patent law that is not rigourous enough and advise against policies that could create patent thickets. Most interesting, there is a strong argument for this arena to be opened up, so that the participants in the innovation system have a strong say, rather than this being the exclusive domain of lawyers. This is a lesson that I think South African universities might need to learn – it appears that our academics are not engaging with the South African legislation, thinking that this is the domain of professionals.  

This Australian policy document reminds me of a recommendation from Arie Rip at an  early stage of the South African higher education policy process (2000):

The common mimetic route is to define the nature of capacity-building in terms of what is now seen as important. This may well be a recipe to become obsolete before one’s time … [T]he world (of science and more generally) may well evolve in such a way that present-day exemplars will be left behind. So developing countries should set their sights on what is important in 2010, rather than what appears to be important now – however difficult this will be politically. 1

The IPR Act of 2008 is unfortunately trapped in the 'mimetic route' that Rip warns about here. But what about Australian thinking in 2009? Here are some extracts that give some insight into the thinking that will inform policy review down south:

On the commercialisation of research:

Research commercialisation is not a core role for universities. Nevertheless, universities can play a vital role in the commercial process. In cases where the benefits of research are best achieved through commercial engagement, universities should, where possible, attempt to partner with appropriate stakeholders to achieve these goals. Such instances are in the minority and universities more commonly play a role of commercial significance through provision of vital research advancement, workforce training and substantial international links.

On the protection of intellectual property rights:

[T]here is a caveat which is increasingly important: The development of intellectual property is cumulative. In the words of Sir Isaac Newton, we stand on the shoulders of giants. Because new knowledge always builds on old knowledge, the property rights we have erected to encourage innovation can actually obstruct it.

On the need to open up the question of patenting and IP beyond the legal profession and the IP industries:

Nevertheless the consideration of policy … is dominated by IP practitioners and by the beneficiaries of the IP system. We need the expertise of lawyers in this as in many other areas of policy but it is imperative that IP policy make the transition that competition policy made over a decade ago now, from a specialist policy area dominated by lawyers, to an important front of micro-economic reform.

On access and dissemination for social and economic benefit

Along with the rise in support for access to information has come a growing recognition of the need for users to be able to search and interact with data and content. Legal frameworks must also be developed to facilitate access and reuse. This points to the need for an Australian National Information Policy (or Strategy) that optimizes the generation and flow of ideas and information in the Australian economy. As the National Competition Policy (NCP) involved systematically scanning Australian institutions to optimize the operation of competition to enhance outcomes so National Information Policy would scan Australian institutions to optimize the generation and dissemination of information for social and economic benefit.

Thus for instance, unless it seriously undermines its commercial objectives of sale of product, the ABC should err on the side of making its content available over theinternet unless this has large opportunity costs. The presumption against free availability might be overcome where it would involve the foregoing of substantial commercial revenue from the sale of the content or there are large costs of hosting the necessary internet bandwidth (although in this latter case, peer to peer means of distribution should also be explored as should the diversion of funding from other activities and/or additional funding).

The advantages of  open science

To drive cumulative knowledge creation researchers and others must have access to high quality data and information on developments not just in their field but beyond. For instance, Jeff Furman and Scott Stern have calculated that Biological Resource Centres that are repositories of biological materials (including cell lines, microorganisms and DNA material) have boosted cumulative scientific knowledge by three times more than alternative institutional structures 2.Australian physicist Michael Nielsen has stressed the importance of unlocking scientific information in scientific journals to make it more easily discoverable, searchable and useable to enable the cross-disciplinary search for knowledge:

We should aim to create an open scientific culture where as much information as possible is moved out of people’s heads and labs, onto the network, and into tools which can help us structure and filter the information. This means everything – data, scientific opinions, questions, ideas, folk knowledge, workflows, and everything else – the works. Information not on the network can’t do any good.3

There is a lot more in this report – I recommend that South African researchers read it as they engage with our legislative process with an eye to preserving their expertise and independence in the process of ensuring that their research has maximum national impact.

1. Rip, A. (2000) Fashions, Lock-ins and the Heterogeneity of Knowledge Production. In Kraak, A. (ed.) Changing Modes: New knowledge production and its implications for Higher Education in South Africa. Pretoria: Human Sciences Research Council.

 2. Furman, J. and Stern, S., Standing Atop the Shoulders of Giants: The Impact of Institutions on Cumulative Research, National Bureau Economic Research Working Paper. 2004. 

3. http://michaelnielsen.org/blog/?p=448 

Obama promises to ‘restore science to its rightful place’

President Obama has made the headlines with his speech to the National Academy of Sciences. First of all, he is apparently unusual among Presidents for attending the NAS annual meeting, but he also made a powerful speech promising to put science and research at the heart of the recovery of the US, with substantial increases in investment.The full text of his speech can be found on the New York Times Dot Earth blog which will be running a commentary space on the speech.

It is instructive to compare Obama's proposals with the policy developments we are facing in South Africa. The IPR Act of 2008 is based in the USA Bayh-Dole Act  of 1980. Not to labour the point too crudely, that is 29 years ago. We are forgetting the fundamental injunction that policy formulation needs to look forward, not backwards if it really to advance the country. The philosophy behind Bayh-Dole was informed by a Reagon-style economic vision that imploded in 2008 and one that the Obama adminstration is aiming at undoing. That outdated view says that the economy is all and that if universities act like businesses and commercialise their research, using patenting and revenue-seeking, then this will bring benefit to the country through economic growth and trickle-down. In my next few blogs I will be exploring the debate on how this has really worked (or rather, not worked) and what alternatives are now being proposed in other countries for effective innovation.

But for now, let us celebrate Obama's speech and see what vision it embodies, rather than the dysfunctional 'managemented' view we currently live with. He talks of the crisis: 'a medical system that holds the promise of unlocking new cures and
treatments — attached to a health care system that holds the potential
for bankruptcy to families and businesses; a system of energy that
powers our economy, but simultaneously endangers our planet; threats to
our security that seek to exploit the very interconnectedness and
openness so essential to our prosperity; and challenges in a global
marketplace which links the derivative trader on Wall Street.

The main focus is on medicine and energy for a sustainable environment, both with a strong human perspective.

Obama's vision is of an interdisciplinary, international, collaborative and open scientific system. For a start, the policy system is being opened up: 

As part of this effort, we’ve already launched a web site that allows
individuals to not only make recommendations to achieve this goal, but
to collaborate on those recommendations. It’s a small step, but one
that’s creating a more transparent, participatory and democratic
government.

Then science itself is perceived as a collaborative open system: 

 In biomedicine… we
can harness the historic convergence between life sciences and physical
sciences that’s underway today; undertaking public projects — in the
spirit of the Human Genome Project — to create data and capabilities
that fuel discoveries in tens of thousands of laboratories; and
identifying and overcoming scientific and bureaucratic barriers to
rapidly translating scientific breakthroughs into diagnostics and
therapeutics that serve patients.

And of course, with someone like Harold Varmus leading his scientific team, one hopes that open access will be on the agenda of a new scientific system.

Science is seen as not only the ivory tower (although basic science is given a strong emphasis) but scientists are preceived as potential activists. Applied research is valued and Obama places a strong emphasis on the potential role of the young and of the role that scientists can play in taking their knowledge into the schools and the community to help enthuse and inspire a new generation. 

Ultimately, in typical Obama vein, it is a moral vision that drives this iniitiave, although substantial funding is going to drive it: 

Science can’t answer every question, and indeed, it seems at times the
more we plumb the mysteries of the physical world, the more humble we
must be. Science cannot supplant our ethics or our values, our
principles or our faith. But science can inform those things and help
put those values — these moral sentiments, that faith — can put those
things to work — to feed a child, or to heal the sick, to be good
stewards of this Earth.

We need to ask whether our policies are in line with this renewed vision from the country that drives sceintific research in the world and if we are ready to collaborate with Obama's USA. 

 

 

IPR Act Regulations – IP under uncertainly in South Africa

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.

 

 

Those IPR Act Regulations – are they unconstitional?

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.

IPR Bill Regulations promulgated – the death knell for open science in South Africa?

The Department 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 (NIMPO) and it has to be notified of this decision. NIMPO 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 NIMPO 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 NIMPO will intervene in the granting of exclusive licences, offshore deals, assignment of rights. In the case of exclusive licences granted, NIMPO 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 NIMPO has to approve before the university can enter such an agreement. NIMPO 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?

IPR Act Regulations promulgated – the death knell for open science in South Africa?

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?

Repositories at UCT

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.