The working year is just waking up in summer South Africa and I am to moderate the opening session on the topic of ‘A national perspective on A2K in South Africa’ at the Yale A2K Global Academy. This takes place at the UCT Graduate School of Business on 18 and 19 January and the session that I am moderating needs me to step back and and try to get a perspective on what this national perspective actually looks like.
When it comes to government policy and legislation, the trouble is that South Africa, as usual, does not present a coherent or unified picture, but rather embodies a number of contradictions. Perhaps I could borrow a wonderfully vivid description of the situation in the Caribbean in an Intellectual Property Watch article by Abiole Inniss on Fair Usage in the Caribbean, something that could well apply to South Africa:
A panoramic view of the IP situation in the Caribbean would present to the observer a carnival of Olympic size replete with politicians, diplomats, rights advocates, consumer groups, law enforcement, and impotent jurists, all gyrating discordantly to the WIPO band while Caribbean citizens look on, or are pulled or shoved in.
2010 has been dominated, from my perspective, by a negative force, the pending implementation, during 2011, of the IPR Act for Publicly Funded Research of 2008. While I would argue that the default position these days on publicly funded research is that it should, as far as possible, be publicly and freely available, this piece of legislation, a kind of Bayh-Dole Act on steroids, appears to regard the default as IP protection, with commercialisation through patenting as the most desired outcome. This legislation and its implementing Regulations do appear to recognise the need for research contributions that lead to social and non-commercial development. However, the default position of the implementation clauses in the Regulations is that permission has to be obtained from a national agency before any research that is capable of commercialisation and patenting can adopt open innovation or open source approaches.
The legislation places limitations on the disclosure of any research that might ultimately be patentable or capable of being commercialised, requires the application not only of South African law but of any regime anywhere in the world, meaning that potentially introduces the implementation of IP acts that are out of line with South African law. Software patenting could be one of these and open source is, I believe, seriously compromised by this legislation in spite of national policy for open source in government departments. It also places serious restrictions on the approval of international contracts for collaborative research. For these reasons I fear that the unintended consequences of this legislation, which is driven by a well-meaning desire to achieve public benefit from research investment, is in fact going to impose an enormous and expensive bureaucratic burden on the research system, inhibit scholarly publication as a result of the non-disclosure requirements, discourage collaborative research and inhibit foreign and donor investment in South African research.
What this legislation is doing, in short, is providing a 20th century knowledge economy solution where a 21st century recognition of the nature of research in a networked world would come to very different conclusions and provide a more comprehensive and complex set of solutions to South Africa’s problems. Very similar legislation has been introduced in India and is being debated by the Indian parliament, which is taking a more critical approach than its South African counterparts did. I believe that similar legislation has been introduced in other countries as well and I do wonder what the driving force is behind this cloning of legislation in developing countries.
However, South Africa is fortunately very good at paradox – perhaps even oxymoron. I was asked in the last few weeks to advise for an international project on the legislative and policy environment for Open Access in South Africa and came to the surprised conclusion that we are probably ahead of the game in terms of legislation and policy for open access at government level. Here are some of the reasons why.
The Department of Science and Technology (DST) – the very same department that is introducing the IPR Act – supports a strategic initiative managed through the Academy of Science of South Africa, implementing ASSAf’s recommendations from its Report on a Strategic Approach to Research Publishing in South Africa. This programme, which is receiving financial support from the DST, aims to upgrade South African scholarly journals using an open access model. Local journals are being progressively reviewed by teams of academics for inclusion on the SciELO South Africa platform. If they are accepted for inclusion on this platform, the journal gets government subsidy for publication and ASSAf provides support to the uploading, tagging and maintenance of the journal on the platform. There are currently 14 titles listed, with varying numbers of back issues uploaded. This number is scheduled to grow steadily, as the review panels work their way through journals in the different disciplines.
The fact that these journals are hosted on the Latin American regional platform is an added bonus, as this adds to the potential for South-South collaboration and the possibility this initiative becoming SCiELO Africa.
The DST is also supportive of the provision of public access to publicly funded data and the creation of national data repositories, taking steps to create a national research cyberinfrastructure with data curation as a core component of this effort. The Minister opened the 22nd Codata international conference which was held in Stellenbosch in 2010 and a number of South African national initiatives were on the programme.
2011 should see the implementation of another piece of government/ASSAf policy development, in this case for the publication of scholarly books. The Department of Higher Education and Training has approved and mandated the implementation of ASSAf’s Scholarly Book Study recommendations for the recognition of South African scholars’ work published in books and book chapters and for support for scholarly book publication. A key recommendation, which is now targeted for consultation and implementation is for ‘an organised and sustainable national book publishing support system’ that could free scholarly publishing from the current supposition that this is a function that should ‘break even’ or recover its own costs. The report recommends the exploration of the potential of a regional consortium infrastructure which could include platforms for marketing and distribution and for open access publication. A key recommendation is the maximisation of open access in order to widen access and encourage usage and citation. “Pay-for-print’ and ‘see for free’ is perceived as the inevitable future of scholarly publishing, something that is not incompatible with commercial publishing operations.
At government level, 2010 saw the start of a concerted effort to review South Africa’s Copyright Act and to engage with the question of the protection of traditional knowledge (TK), including the drafting of legislation for a national database of traditional knowledge. 2011 is likely to bring activity in these two areas of IP legislation. Exceptions and limitations are likely to constitute a key debate in copyright legislation, while TK poses thorny issues relating to the threat of biopiracy on the one hand, and on the other debates around the appropriateness of IP in this context and the difficulty of determining who the rights holders are in traditional communities.
2011 will almost certainly inflict on South Africa yet again the Chinese curse – ‘May we live in interesting times!’