IPR Act Regulations – IP under uncertainly in South Africa

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.