The first question that arises in relation to this piece of legislation is why it has been drafted – what perceived need does it fill? And why the need to draft so widely – and even inventions that might conceivably become patents some day?

As far as I can establish, there are two separate areas that the government feels needs addressing. One is the perception that the universities are not performing well enough in delivering value for the money that is being invested in public research in the country. The other is that South African knowledge resources and intellectual property – as is common across the developing world – risk being pillaged by patent-seekers from the global North, particularly from the USA. In the later view, unless we protect ourselves with a strong IP regime, we will risk losing the exploitation of our intellectual capital to more powerful
Northern pirates and raiders.

As South Africa’s National Research and Development Strategy (2002) said: ‘These are valid concerns. More South African research needs to be more effectively disseminated and exploited for the national benefit. And the risk of predatory raids by US bounty hunters is real enough – the Rooibos case is the most high-profile recent case in this regard and there are genuine concerns about how best to protect traditional knowledge from appropriation. The problem is in the solution being proposed, which, I would suggest, is in fact contrary to some of the DST’s most enlightened – and most central – policy-making and
might well be the wrong cure for the disease.

I was concerned to see in an ITWeb article that Matlu Mabokano, manager of hydrogen and energy at the Department of Science and Technology (DST), is quoted as saying that the Bill is heading for Parliament this week even as comment is being sought. He is quoted as being dismissive of the fact that there have not been many comments submitted yet, accusing South Africans of being chronic last-minuter responders. This seems an opinion based on a blithe assumption that the issues in the Bill are not problematic and are simple and straightforward to respond to. This is not the case -the issues at stake are very complex and it has taken the Australian government, for example 800 pages to summarise the outcome of its consultation on the same issues in the Productivity Commission Report published two months ago. Moreover, as the DST itself wrote in the National Strategy for Science and Technology: ‘International thinking on legislation is as fluid and fast-moving as the new technologies themselves’. Yet Mabokano’s apparent assumption of simplicity and obviousness is not an uncommon view among those who propound proprietary models of IP protection. The Copy/South Dossier, which reviews the global IP regime from the perspective of developing countries, argues that the ‘dominant discourse around intellectual property – whether legal or sociological – starts from some largely unexamined assumptions’.

The assumption that a strong IP regime on its own fosters development and economic growth is one that is being increasingly challenged worldwide. Policy-making needs to be forward-thinking. As NEPAD argues in its discussion document on science and technology indicators, policy-makers need to be able ‘to discern, based on their expert knowledge, the future trajectories of the subject and the interventions which might improve its development’. The future does not look as if it will be one of proprietary IP systems only.

The DST’s policy on Science and Technology puts the role of technology and the changes being wrought by ICT at the heart of its proposals for development. As the White Paper on Science and Technology says:

The world is in the throes of a revolution that will change forever the way we live, work, play, organise our societies and ultimately define ourselves … The ability to maximise the use of information is now considered to be the single most important factor in defining the competitiveness of countries as well as their ability to empower their citizens through enhanced access to information.

At the very least, a forward-looking Bill would need to address and incorporate the need for non-proprietary methods of production, as this is now mainstream in world thinking and policy-making.

Governments across the world, including the UK, the USA, the EU, and Australia, have convened commissions to discuss and explore this issue. Ironically, South Africa is part of this movement and is a signatory of the OECD Declaration on Access to Research Data from Public Funding , something that would be rendered problematic by this Bill.

Something that the non-proprietary, commons approach is doing in the international arena is re-positioning the developing countries. A symptom is that the Development Agenda being driven by Brazil and Argentina has very recently been accepted on the WIPO Agenda. As Yochai Benkler charted in a complex and tightly-argued paper at the iCommons Summit in Dubrovnik last month, this but one symptom of the fact that we are at one of those turning points where a dominant system – the ‘strong’
IP regime – is being challenged across the globe by a radical re-thinking of how best to achieve the very goals that this Bill
seeks to promote. And, as he argued, this is now a social movement, in the beginning stages, which is moving developing nations from the periphery to the centre of international affairs, a world in which human development and justice are the core drivers, not the specifics of IP law and copyright.

One strong thread in the critiques of the global IP system is that patents in particular are damaging to developing and transitional economies. As Benkler puts it: ‘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.’ And yes, there is value in effective patents and yes, developing countries have managed to patent successfully themselves. And so my argument is not, in addressing this Bill, that it needs to be thrown out in favour of non-proprietary and open methods of dissemination. It is that, in formulating the Bill as widely as they have, the drafters have sidelined a number of important questions that are being debated around the world as we speak. As the Australian government put it in the Productivity Commission Report:

Universities’ core role remains the provision of teaching and the generation of high quality, openly disseminated, basic research. Even where universities undertake research that has practical applications, it is the transfer, diffusion and utilisation of such knowledge and technology that matters in terms of community well-being. Commercialisation is just one way of achieving this. Productivity Commission
2007: xiii – my emphasis)

In other words, there needs to be more flexibility in the provisions of this Bill for the commercialisation of research results and space for non-proprietary collaborative approaches that could advantage the poorest sections of our community at the same time as we grow our competitiveness in global business.