Effects of the Intellectual Property (IP) Regime on Generating Valuefrom Publicly Funded Research: An Exploratory Study of...
Case Study1.   Research questions2.   Methodology3.   Summary of the Act4.   Insights gained : key concerns & experiences ...
Research Questions                                              South African Case Study Research    Overarching Open AIR ...
Sub-questions(a) Prior to the Act how did UCT and Wits approach the IP protection of their scientific research    output?(...
Methodology•   a doctrinal analysis of the legislation and regulations•   document analysis of annual research reports for...
Summary of the Act                         Disclosure and Ownership of Intellectual PropertyRecipient has title to IP if ...
Insights Gained                                  Some key concerns1. The possibility of a chilling effect on :•   scholarl...
Concerns cont’d•   2. The possible loss of private funding, including from local SMEs, due to the    unaffordability of fu...
Experiences to date•   This is new terrain and there is limited experience on how to operate optimally under    the new re...
Open Access Publishing and                             Socialisation of research                       A. Positive externa...
Other models: UKThe governments decisionmeans that by 1 April 2013, allpapers from government-fundedresearch must be publi...
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forums and opportunities     for advocacy                           13
14
15
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an interdisciplinary research agenda?•   Is the Bayh- Dole model appropriate for developing countries?                    ...
opportunities for future collaborative work                                              18
ICTSDBhaven N. Sampat ‘The Bayh-Dole Model in Developing Countries: Reflections on the Indian Bill onPublicly Funded Intel...
20
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For further information             Open AIR Project http://.openair.org.za         Case study overview website http://bit...
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The effects of the IP regime on generating value from publicly funded research : an exploratory study of two two South African universities

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A presentation I gave at the second global congress on IP and the Public interest,Rio de Janeiro, 16 December 2012

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  • commercialisation Section 1 of the Act:the process by which any intellectual property emanating from publicly financed research and development is or may be adapted or used for any purpose that may provide any benefit to society or commercial use on reasonable terms Section 1 of the Regulations - “benefits” are: contribution to the socio-economic needs of the Republic and includes capacity development, technology transfer, job creation, enterprise development, social upliftment and products, or processes or services that embody or use the intellectual propertySocialisation: Not defined in the Act, but included in ‘benefit to society’? non-commercial integration of knowledge into the society, economy and the culture of a people for public benefit and social advancementthe socialisation of knowledge is underpinned by one major imperative – that such knowledge has been, and is being, shared in one form/medium or another. Section 1 defines IP as “any creation of the mind that is capable of being protected by law from use by any other person, whether in terms of South African law or foreign intellectual property law, and includes any rights in such creation, but excludes copyrighted works […]” (emphasis added)
  • The effects of the IP regime on generating value from publicly funded research : an exploratory study of two two South African universities

    1. 1. Effects of the Intellectual Property (IP) Regime on Generating Valuefrom Publicly Funded Research: An Exploratory Study of Two South African Universities Presented by Dr Caroline B Ncube University of Cape Town caroline.ncube@uct.ac.za @caro_ncube Research team Caroline B Ncube (UCT), Lucienne Abrahams (Wits) & Titi Akinsanmi (Wits)
    2. 2. Case Study1. Research questions2. Methodology3. Summary of the Act4. Insights gained : key concerns & experiences to date5. Open access publishing & socialisation of research6. Other models of deriving value from publicly funded research (EU, UK) A positive Agenda1. identify and prioritise forums and opportunities for advocacy2. identify and prioritise key elements of an interdisciplinary research agenda; and3. identify opportunities for future work in partnership on these key elements. 2
    3. 3. Research Questions South African Case Study Research Overarching Open AIR research Question questionHow can existing or potential intellectual How does the Intellectual Property Rightsproperty systems be harnessed to from Publicly Financed Research andappropriately measure and facilitate Development Act of 2008 impactinnovation and creativity for open collaborative research, innovation anddevelopment in Africa? scholarly publishing in the health and engineering sciences at the University of Cape Town (UCT) and the University of the Witwatersrand (Wits)? 3
    4. 4. Sub-questions(a) Prior to the Act how did UCT and Wits approach the IP protection of their scientific research output?(b) How does the Act impact commercialisation of innovation in the health and engineeringsciences?(c) To what extent are publicly-funded research results being communicated through copyright andopen access to knowledge approaches?• Key definitions: commercialisation, socialisation, intellectual property 4
    5. 5. Methodology• a doctrinal analysis of the legislation and regulations• document analysis of annual research reports for 2010 and 2011 published by Wits and UCT• interviews with researchers, publishing academics and university IP management personnel 5
    6. 6. Summary of the Act Disclosure and Ownership of Intellectual PropertyRecipient has title to IP if project falls within scope of ActFunder can have title to IP if project is full cost, i.e. falls outside scope of ActObligation to protectNIPMO may protect in national interest where recipient elects not to Institutional Arrangements Benefit Sharing Arrangements o National IP Management Office (NIPMO) o 20% of initial gross revenues (R1m) o Office of Technology Transfer (OTT) o 30% of nett revenues Co-financed R&D Government Rights o Option to exclusive licence o Non-exclusive licence for national needs o Joint Ownership possible o Non-commercialisation o Non-disclosure Off-shore IP Transactions Local IP Transactions o Exclusive Licences & Assignment require o Licences - no approval required NIPMO approval o Assignment - NIPMO approval o No capacity in RSA & Benefits to RSA 6 Andrew Bailey, UCT (2010) http://www.rcips.uct.ac.za/ip/pfbill/
    7. 7. Insights Gained Some key concerns1. The possibility of a chilling effect on :• scholarly publishing with respect to potentially patentable inventions• beneficial sharing of research findings between researchers at publicly-funded research (PFR) institutions and other institutions• participation of PFR institutions in international research consortia due to the restrictions on off-shore IP transactions 7
    8. 8. Concerns cont’d• 2. The possible loss of private funding, including from local SMEs, due to the unaffordability of full cost model or an aversion to the IP protection imperatives of the Act• 3. Uncertainty about the exercise of state walk-in rights• 4. Delays and costs created by regulatory processes 8
    9. 9. Experiences to date• This is new terrain and there is limited experience on how to operate optimally under the new regulatory regime• Certain statutory provisions are unclear• Careful forward planning may minimise any negative impact scholarly publishing• Regulatory procedures delay the negotiation, conclusion and implementation of research contracts and may hinder socialisation of research• There has been a small, but significant, loss of industry contract research 9
    10. 10. Open Access Publishing and Socialisation of research A. Positive external balancing policy levers• OER Development support initiative by the Academy of Science of South Africa (ASSAf) and the departments of Science &Technology and Higher Education & Training• Scielo South Africa• Green Paper for Post-School Education and Training in South Africa (2012) B. Practices at case study institutions• Signatory to Berlin Declaration• OA repositories• OER production• Concerted effort to socialise research outputs 10
    11. 11. Other models: UKThe governments decisionmeans that by 1 April 2013, allpapers from government-fundedresearch must be published in anopen access journal; if not, thejournal must make the paperopen access after 6 months. 11
    12. 12. 12
    13. 13. forums and opportunities for advocacy 13
    14. 14. 14
    15. 15. 15
    16. 16. 16
    17. 17. an interdisciplinary research agenda?• Is the Bayh- Dole model appropriate for developing countries? 17
    18. 18. opportunities for future collaborative work 18
    19. 19. ICTSDBhaven N. Sampat ‘The Bayh-Dole Model in Developing Countries: Reflections on the Indian Bill onPublicly Funded Intellectual Property’ (2009) 19
    20. 20. 20
    21. 21. 21
    22. 22. For further information Open AIR Project http://.openair.org.za Case study overview website http://bit.ly/UPY4dz Case study intro video http://bit.ly/TlxaDj caroline.ncube@uct.ac.za• @caro_ncube 22

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