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that the Act and the Regulations designed to enforce them- and ‘force’ is an appropriate word here – are some 30 years out of date and completely out of tune with the way research is being conducted in the world’s leading universities in the 21st century, with high levels of collaboration.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.