Effects of the Intellectual Property (IP) Regime on Generating Value from Publicly Funded Research: An Exploratory Study of Two South

African Universities

Presented by

Dr Caroline B Ncube

University of Cape Town

caroline.ncube@uct.ac.za

@caro_ncube

Research team Caroline B Ncube (UCT), Lucienne Abrahams (Wits) & Titi Akinsanmi (Wits)

Case Study 1. Research questions

2. Methodology

3. Summary of the Act

4. Insights gained : key concerns & experiences to date

5. Open access publishing & socialisation of research

6. Other models of deriving value from publicly funded research (EU, UK)

A positive Agenda1. identify and prioritise forums and opportunities for advocacy

2. identify and prioritise key elements of an interdisciplinary research agenda; and

3. identify opportunities for future work in partnership on these key elements.

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Research Questions

Overarching Open AIR research question

How can existing or potential intellectual property systems be harnessed to appropriately measure and facilitate innovation and creativity for open development in Africa?

South African Case Study Research Question

How does the Intellectual Property Rights from Publicly Financed Research and Development Act of 2008 impact collaborative research, innovation and scholarly publishing in the health and engineering sciences at the University of Cape Town (UCT) and the University of the Witwatersrand (Wits)?

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Sub-questions

(a) Prior to the Act how did UCT and Wits approach the IP protection of their scientific research output?

(b) How does the Act impact commercialisation of innovation in the health and engineering sciences?

(c) To what extent are publicly-funded research results being communicated through copyright and open access to knowledge approaches?

• Key definitions: commercialisation, socialisation, intellectual property

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Methodology

• a doctrinal analysis of the legislation and regulations

• document analysis of annual research reports for 2010 and 2011 published by Wits and UCT

• interviews with researchers, publishing academics and university IP management personnel

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Summary of the Act

Institutional Arrangementso National IP Management Office (NIPMO)

o Office of Technology Transfer (OTT)

Benefit Sharing Arrangementso 20% of initial gross revenues (R1m)

o 30% of nett revenues

Co-financed R&Do Option to exclusive licenceo Joint Ownership possible

Government Rightso Non-exclusive licence for national needs

o Non-commercialisationo Non-disclosure

Local IP Transactionso Licences - no approval requiredo Assignment - NIPMO approval

Off-shore IP Transactionso Exclusive Licences & Assignment require

NIPMO approvalo No capacity in RSA & Benefits to RSA

Disclosure and Ownership of Intellectual Property

Recipient has title to IP if project falls within scope of Act Funder can have title to IP if project is full cost, i.e. falls outside scope of Act Obligation to protect NIPMO may protect in national interest where recipient elects not to

Andrew Bailey, UCT (2010) http://www.rcips.uct.ac.za/ip/pfbill/ 6

Insights Gained

Some key concerns

1. The possibility of a chilling effect on :• scholarly publishing with respect to potentially patentable inventions • beneficial sharing of research findings between researchers at publicly-funded

research (PFR) institutions and other institutions • participation of PFR institutions in international research consortia due to the

restrictions on off-shore IP transactions

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Concerns cont’d

• 2. The possible loss of private funding, including from local SMEs, due to the unaffordability of full cost model or an aversion to the IP protection imperatives of the Act

• 3. Uncertainty about the exercise of state walk-in rights

• 4. Delays and costs created by regulatory processes

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Experiences to date

• This is new terrain and there is limited experience on how to operate optimally under the new regulatory regime

• Certain statutory provisions are unclear

• Careful forward planning may minimise any negative impact scholarly publishing

• Regulatory procedures delay the negotiation, conclusion and implementation of research contracts and may hinder socialisation of research

• There has been a small, but significant, loss of industry contract research

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Open Access Publishing and Socialisation of research

A. Positive external balancing policy levers

• OER Development support initiative by the Academy of Science of

South Africa (ASSAf) and the departments of Science &Technology

and Higher Education & Training • Scielo South Africa• Green Paper for Post-School Education and Training in South Africa (2012)

B. Practices at case study institutions

• Signatory to Berlin Declaration • OA repositories • OER production • Concerted effort to socialise research outputs

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Other models: UK

The government's decision means that by 1 April 2013, all papers from government-funded research must be published in an open access journal; if not, the journal must make the paper open access after 6 months.

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forums and opportunities for advocacy

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an interdisciplinary research agenda?

• Is the Bayh- Dole model appropriate for developing countries?

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opportunities for future collaborative work

ICTSD

Bhaven N. Sampat ‘The Bayh-Dole Model in Developing Countries: Reflections on the Indian Bill on Publicly Funded Intellectual Property’ (2009)

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For further information

Open AIR Project http://.openair.org.za

Case study overview website http://bit.ly/UPY4dz

Case study intro video http://bit.ly/TlxaDj

caroline.ncube@uct.ac.za• @caro_ncube

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