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

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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

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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.

World university rankings – UCT web presence

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UCT, as a good research university, likes to compete in world rankings, endorsing its  high international profile. Well, we have creamed another competition, in relative terms, but In ever the less have some unsolicited advice on how we can improve our ranking even further to power our way into the ‘PremierLeague‘ top 200 of this particular competition.

We are talking about the Webometrics world ranking of university websites, which has just released its2008 rankings (thanks to PeterSuber’s Open Access News for bringing this to my attention). UCT comes in at number 385 out of over 14,000 universities. Not bad at all – it puts us at the topof Africa and gets us in ahead of all but two Latin American universities and all Indian universities (where Bangalore comes in at 605). Not unexpectedly, the top 8 African universities are from South Africa, with Stellenbosch second at 654 and Rhodes third at 722. UNISA, surprisingly comes in quite low – 8th, at 1,499. DUT is the lowest rated South African university at 8,735.

So, congratulations to UCT and its web developers. But can I begrudging and suggest that we should do better? We need to get into the world top 200 – the Premier League, among the big Asian, US and European players (and yes, that is the order). After all, UCT prides itself on its far-sightedness in ICT development and has created the Centre for Educational Technology for the development of ICT use for teaching and learning – something that turned out in a recent online discussion forum in the eMerge2008 online conference to be the envy of many of our colleagues in other universities.

To get a hint on how to do better, one needs to look at the criteria for evaluation. This is what the Webometrics site says about its criteria:

The original aim of the Ranking was to promote Web publication, not to rank institutions. Supporting Open Access initiatives, electronic access to scientific publications and to other academic material are our primary targets. However web indicators are very useful for ranking purposes too as they are not based on number of visits or page design but global performance and visibility of the universities.

As other rankings focused only on a few relevant aspects, specially research results, web indicators based ranking reflects better the whole picture, as many other activities of professors and researchers are showed by their web presence.

The Web covers not only  formal (e-journals, repositories) but also informal scholarly communication. Web publication is cheaper, maintaining the high standards of quality of peer review processes. It could also reach much larger potential audiences, offering access to scientific knowledge to researchers and institutions located in developing countries and also to third parties (economic, industrial, politicalor cultural stakeholders) in their own community.

The Webometrics ranking has a larger coverage than other similar rankings. The ranking is notonly focused on research results but also in other indicators which may reflect better the global quality of the scholar and research institutions worldwide.

The site includes a very useful ten-pointlist of good web practice for university sites. But it is clear what UCT needs to do to improve its rankings, and that is to put its scholars’ research output online, to make it accessible and searchable and increase the ‘global performance and visibility of its research’. Note that the ranking includes not only formal journals and repositories, but also ‘informal scholarly communication’. The Social Responsiveness programme in the UCT Planning Office is demonstrating that we produce a lot of that, too, although we do notr ecord it properly. Putting the not inconsiderable output of UCT’s student and staff community programmes would serve a dual purpose of increasing the reach and impact of these vital resource sand increasing the university’s research profile.

So how about a drive to put UCT’s considerable research output online(including its very substantial contribution to community development) and see if we can shine even better in another international ranking? And yes, this does apply also to all those S&T departments North of Jammie steps.

UCT signs the Cape Town Declaration

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Our final area of growing partnership is knowledge sharing. Of course, everything we have discussed with university leaders this week involves the exchange of ideas and concepts. This specific initiative combines the dissemination of knowledge with the immediacy and accessibility of global communication.  Medical education and research is so critical in today’s world, and we want to collaborate with South African institutions to develop and provide open Internet access to educational materials in medicine, public health and the health sciences.The soul of scholarship is research. From the current to the ancient,universities must make all information accessible to faculty,students, and the public.

A point of pride for us is the creation of Sakai, the first global consortium of higher education institutions using the concepts and technologies of Open Educational Resources. Open Educational Resources encompass arange of information – such as textbooks, course materials,software and more – that can be accessed and re-used at no charge,and already, more than 150 universities around the world draw upon Sakai’s resources.

We want to create the same level of exchange between the University of Michigan’s health sciences schools – medicine, nursing, public health and dentistry – and medical students and faculty throughout Africa, so they can access materials to supplement their medical educations.

Speaking at the signing of the Declaration, Martin Hall said that the freedoms of the internet must be protected, or else knowledge will become a heavily-priced commodity. ‘Universities are not Mickey Mouse’, he said, expanding on the role of big corporates in the extension of copyright protection.’The commercialisation of intellectual property presents difficult challenges for a university’, he argued. ‘Universities thrive on making knowledge freely available and the Cape Town Open Education Declaration establishes important principles for ensuring that this happens.’

The function was a useful moment to step back and take stockof how far open approaches are taking hold at UCT. A gratifying number of senior academics and administrators expressed support;attendance from the academic staff included a number of new faces,rather than only the usual suspects; and most gratifying, there was enthusiastic support from the students. SHAWCO,the long-established student-run NGO, that offers health,educational  and welfare services, signed as an organisation and SHAWCO leaders want to engage further with the potential offered by the Declaration.

Given this impetus, it will be interesting to see where open education will beat UCT in another year’s time.

The state of the nation 2008 – belatedly

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Looking back, I see that the last time I posted a blog was in November 2007. It is now April 2008. This should not be read as a sign that things here have ground to a halt. On the contrary, a hectic round of overwork has overtaken our lives, a treadmill of projects, meetings, workshops, and conferences. I hope that this means that South Africa is moving forward in opening scholarly communications. However, South Africa is never straightforward, so in reviewing what has been happening while I have had my head down all these months, I do not expect to report unremitting sunshine – there have been some showers, although overall the signs are good.

This overview of the projects that are in progress right now is the first instalment of a review of the way the year is looking – with quite a few items that I will need to pick up in more detail in upcoming blogs.

Collaborative Projects

In November 2006, in Bangalore, some of us – funders and consultants – got together to propose some collaboration in trying to map across one another to create greater coherence achieving our mutual goals of more open and effective research communications in Africa. This was discussed again in a meeting at iCommons in Dubrovnik in June 2006 and we are now beginning to see the results. One major benefit that has emerged is that the projects that are now being implemented, because they are built on open access principles, can share each others’ research findings and resources, reducing duplication and increasing impact. The projects also recognise that achieving policy change is a multi-pronged process, working at all levels of the university system, from individual lecturers (often young and lively innovators at the junior end of the hierarchy) to senior administrators and government policy-makers. Leveraging the impact of several projects to achieve this makes a lot of sense.

The projects I am now involved in, that are part of this collaboration, include:

  • Opening Scholarship, a UCT-based project, funded by the Shuttleworth Foundation, is using a case study approach to explore the potential of ICT use and social networking to transform scholarly communication between scholars, lecturers and students, and the university and the community.
  • PALM Africa (Publishing and Alternative Licensing in Africa), funded by the IDRC, is exploring what the the application of flexible licensing regimes – including the newly-introduced CC+ and ACAP – can do to facilitate increased access to
    knowledge in South Africa and Uganda through the use of new business models combining open access and sustainable commercial models.
  • A2K Southern Africa, another IDRC project, is investigating research publication and open access in universities in the Southern African Regional Universities Association.
  • The Shuttleworth Foundation and the OSI are supporting the Publishing Matrix project which is using an innovative, wiki-based approach to map the South African publishing industry along the whole value chain in such a way as to identify where open access publishing models could have most impact.

Some interesting results are already emerging. The sharing of resources is speeding up the process of getting projects off the ground. Researchers are given instant access to background reports, bibliographies and readings and can review each others’ tagged readings in del-icio-us. The advantages become obvious as I head off this evening for a planning workshop for the researchers carrying out the A2KSA investigations with a range of briefing materials and readings instantly to hand.

Even more interestingly, having Frances Pinter of the PALM project explain to South African publishers and NGOs that flexible licensing models had the potential to defuse the stand-off between open access advocates and commercial publishers, and members of the Opening Scholarship team at the same meeting explaining how the use of new learning environments was changing the way teaching and learning was happening, led to some unexpected enthusiasm for the potential of new business models. Then Juta, the largest of the South African academic textbook publishers, asked for a day-long workshop at UCT with the Opening Scholarship and PALM teams to study these issues. I have little doubt that listening to some of the innovative approaches that are being taken by young lecturers at UCT opened the publishers’ minds to the need to push further their forward thinking about the ways in which their businesses might change in the near future. A similar discussion is to be held with OUP South Africa in the next week.

Open Source and Open Access connect

We have found useful spaces in Vula – the UCT version of the Sakai learning management environment – to maintain project
communications and track progress in our projects, using its social networking tools (something we perhaps learned from students who identified this potential for student societies).  Funders and guests from other projects can eavesdrop, creating greater coherence within and across project teams and giving donors a real sense of participation in the projects

they are funding. Vula, by the way has been hugely successful at UCT and there has been a steady and very substantial growth in the number of courses online – reaching over 800 already this year (from under 200 in 2006) – and enthusiastic endorsement by students of the usefulness of the learning environment. I have little doubt that the flexibility of an open source system leads in turn to the potential for more openness in the use of teaching materials – but more of that in a separate blog.

Open Education celebration

Right now, to celebrate UCT’s commitment to Open Education, we are heading down the hill to the Senate Room, where there is to be an official signing of the Cape Town Open Education Declaration, making UCT, I think, one of the first major universities to sign as an institution. Deputy Vice-Chancellor Martin Hall will sign for the university and around 50 guests, from senior academics and administrators to students will, we hope, sign individually, before raising a glass of good South African wine to the potential for opening the gates of learning.