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.

Publishing and perishing in Africa

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I was given pause for thought last week when, in a University of Cape Town Centre for Higher Education Development seminar on research ethics, Kevin Williams, of the Higher and Adult Education and Development Unit (HEASDU) mentioned that some of his respondents to an investigation of the ethics involved in higher education practitioner research had expressed doubts about the real intentions of researchers interviewing them. Were these researchers really interested in the importance of the research they were conducting, or was their main concern to get material that could be worked into journal articles and chapters in books, for promotion purposes? This might have been something of an aside in Kevin’s talk, but it struck a chord and made me think that there might indeed be an ethical dimension in our obsession with journal article counts and accredited publications.

I have had the question in mind as I have scanned a number of recent publications on the renewal of higher education in Africa and have noted with concern the persistence of the use of counts of journal articles published in ISI journals as the standard and sometimes the only measure for the status of African research in the world. In other words, in a continent in which the goal of public investment in research is explicitly to contribute to national growth and development, the measure of success all too often applied is the production of a lot of journal articles in foreign publications targeted at other scholars in the field. This is hardly a metric that is going to tell us anything about what our scholars are really contributing to the resolution of the considerable problems that challenge the continent.

The surge of  interest in African higher education is in good part owing to the publication by the Southern African Regional Universities Association (SARUA) of a series of reports on the state of higher education in the SADC region, summarised in Towards a Common Future: Higher Education in the SADC Region. Drawing in part from this, Sci-Dev.net has published a series of articles on developments in African higher education. And the World Bank, backtracking from its damaging dismissal of higher education as a funding priority in the 1980s, in 2008 published Accelerating Catch-up: Tertiary Education for Growth in Sub-Saharan Africa1.

The message in all of these reports has a not very equal measure of good and bad news. The good news is that there is a concerted effort to turn around the deficits in African higher education, damaged by 20 years of funding neglect, on top of a poor colonial inheritance.

The bad news is that African higher education remains in poor shape, in need of radical infusions of funding and visionary planning. It is all too easy to forget that when the wave of independence rolled across Africa from the 1960s, there were very few universities outside of South Africa, and as  universities were rapidly developed in newly independent countries, these were based on the colonial model, designed to produce a governing and professional elite and to reinforce what were accepted as ‘international’ values.

This is only one of the reasons why I am concerned with the insistence on ISI journal article counts as the measure of research excellence. This is par excellence a colonial measure, designed to value research according to how it conforms to criteria set by a commercial conglomerate in the metropolis/the USA to define what is ‘mainstream’.  Africa, on the other hand, is about as far off in the periphery as one can get and, not unpredictably, does not score well in this index. What is often ignored that is that the value system that underpins this particular measure is competitiveness of universities and individual scholars  in the the not very level playing field of the global knowledge economy, where commercial enterprise and copyrights and patents are seen as the ways to make a difference.

There is no doubt that as long as this remains an accepted standard of excellence by the most powerful players in the global scholarly community, African scholars will have to go on playing this game. And this is an ethical issue. As Obama calls for shared values and the power of ideals over cynicism, power politics and greed, perhaps the way in which Africa can say ‘Yes we can!’ is in learning to value the knowledge it produces by its own standards. In those SADC countries in which 89% of scholars responded that their research interests coincided with national development targets, how can we develop measures for ‘Africa’s share of world science’ that measure this rather than participation in someone else’s science endeavours?

How can we re-cast the idea of what is ‘international’ – as Paul Zeleza has said, how do we learn to globalise our research and localise US research? Most importantly, how do we revalue the hierachies of ‘applied’ and ‘basic’ research to develop ways of valuing what we in Africa are really good at: high level and high quality research that responds to and learns from society? How do we get support for the more effective and more extensive production of research outputs that  this kind of research is already producing and that demonstrate genuine contributions to national and regional development?

What is certain is that if African universities were to provide open access for the considerable volume of publications already posted online by development research units and ensure that these are easliy accessible, this in itself could boost the contribution of African universities to development goals.

1. I am not including the url to the World Bank publication, by the way, because of its confused approach to its intellectual property rights management. I would have thought that the World Bank would want its African readership, in particular, to read this publication. But, although it exists as an e-book, that version is ‘available to subscribers only’. Otherwise you can buy it in print. Does the World Bank really want to make money from African countries by selling its publications, or restrict access to a text that is readily available in PDF format and costs nothing to distribute? The e-book is copyrighted with an ‘all rights reserved’ licence, that nevertheless states that ‘[t]he International Bank for Reconstruction and Development / The World Bank encourages dissemination of its work and will normally grant permission to reproduce portions of the work promptly.’  Which being translated means that you need to apply  to the US Copyright Clearance Centre for permission to photocopy or reprint ‘any part of this work’.  You have to either write a letter or telephone – no email address available. Could someone please send an ambassador to the World Bank publisher to explain how Creative Commons licences work?

Inaguration day

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On Obama’s inauguration day, I thought I was going to be in the wrong place.

I was banking on seeing the speech live. But instead I was at a celebration for  a very good policy research organisation – one of the many in South Africa that take it for granted that what research is about is making a difference and that their research publications should be made available free online for everybody. It is one of those very South African research organisations that have became a source of high quality research interventions to inform development in a democratic South Africa.

The occasion was the launch as  an Institute  of  PLAAS – the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape.  The acronym is wonderful – for non-South Africans, you need to know that ‘plaas’ is ‘farm’ in Afrikaans and that is the language of the rural workers in the Western Cape who are a primary focus of  PLAAS’s research. The venue was the pool terrace of a hotel near the sea, at a spot where Robben Island is just a short way across the bay, a reminder perhaps of the Mandela inheritance that Obama might draw on.

I arrived at the venue with the Inauguration very much in mind, thinking through how things might change for us with a new US President. Obama’s is a very different face in the now gloriously inappositely-named White House, with special meaning for Africa. In the background, the sound effect is the thundering crunch of falling masonry as the mad world of global business falls apart. From the southern tip of Africa, the question is not only how Obama will do as President, particularly in relation to Africa, but also whether the economic crash is going to be hard enough to give him space to help usher in a different and less exploitative world order.

In his interview at Google, while still a candidate, Obama had given us a glimpse of  his vision for a more open way of government, a world in which access to knowledge and information is a guarantee of democratic participation and good governance. ‘If you give people good information,’ he said, ‘they will make good decisions’. Giving good information and making it accessible to the people who need it is what  PLAAS and other research groupings like it do pretty well.

In my naïve way, I believe that this kind of research is in truth the globally competitive cutting edge strength of the South African research endeavour, rather than the journal indexes, journal article counts and the tallying up of citation counts that is used as the metric for valuing South African research. The engaged research carried out by organisations like PLAAS features the combination of high quality and cutting edge basic research with real engagement with the community. As Subbiah Arunachalam would say, scholarly communications need to flow from scholar to scholar, from scholar to farmer, from farmer to farmer and from farmer to scholar. That is one of the things that makes for really good research.

But organisations like PLAAS do face problems in our current research policy environment. This   emerged in the speech of Ben Cousins, the Director of PLAAS He said two things that struck me particularly on US inauguration night. One was that, although the Institute publishes a high volume of quality research in print and on its website and makes sure that this reaches government policy-makers and other stakeholders, PLAAS’s researchers are under relentless pressure from the university to publish more and more journal articles in ‘accredited’ (i.e. indexed) journals in order to attract government publication subsidies. Policy research papers and research reports on development-focused research don’t count.

The other piece of information Ben gave us was that the government appears to have taken a strangely wrong-headed direction – as he sees it – in its land rights reform policy and is planning  an empowerment programme that aims to create black empowerment through the sponsoring of large-scale corporate farmers who could operate in a globally competitive market.

In both of these cases, the values at play are those of  the world that seems to be failing, of the large corporations, with profits and competitiveness as the driving forces. That is all too clear in the land rights reform proposals. However, not all academics recognise that it is this very same global business world that owns and directs the hallowed traditions of journal publication and citation counts that dominate how scholarship is disseminated and how it is valued in South Africa.  After all,  the journals that are most highly rated tend to be those in the hands of large commercial publishers. And the way these are indexed – and hence valued – is in the hands of a single US conglomerate. Thomson Reuters owns the ISI journal indexing system that is treated with such reverence in South African academe and it is Thomson Reuters and no-one else that decides who wins and who loses in this particular game, which journals make the cut and which don’t.

What is happening in South African research therefore is that the commercially-driven values of global competitivenesss in exactly the world order that Obama is challenging dominate the academic reward system, marginalising the value-driven research that aims to make a difference, contributing to  national development in precisely the way government says it wants its research investment to deliver.

It turned out that there was a television screen in the venue, so it was with the supporters of PLAAS that I listened to the inauguration speech. There was less of relevance than in his interview at Google, where he talked of the need to provide open access to all aspects of policy making, making medical policy through a consultative process, but ‘not letting the pharmaceutical companies buy the table’ and expressing the perspective he has as the grandson of a woman living without running water or electricity in rural Kenya. But in the inaugural speech, he did talk of the restoration of ‘those values upon which our success depends, honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism — these things are old.’ These things are also the values of research centres like PLAAS and not of the global journal publishing system that has grown up in the last 60 years, giving us s remarkably inequitable knowledge regime, where far too much of the really important research that we do is consigned to the margins.

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.