India Bayh-Dole legislation – a conspiracy theory?

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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

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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

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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

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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?

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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.