Whistleblowers alert on cloak and dagger IP regulations

IN a series of blog posts emanating from various academic institutions and projects around the country, Medialternatives has been alerted to the draconian IP legislation making its way through South Africa’s legislature. The University of Cape Town’s Eve Gray writes “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.

We take this to mean that she is referring to the American Bayh-Dole Act which appears to be reproducing itself in other countries as well as our own without much consultation. According to Latha Jishnu , the “Bayh-Dole Act (BDA) because it is based on the American law of that name. Introduced in the US in 1980, that bit of legislation gave universities the IPR over results of federally-funded research. Academia was encouraged to commercialise its innovations through licensing, etc. The Economist gushed that it was “possibly the most inspired piece of legislation to be enacted in America over the past half-century,” inspiring several other countries to follow suit. China passed its own BDA towards the end of 2007, while India is among a group of developing countries that is hoping to make such a law the Open Sesame to an explosion of innovation.”

The BDA has subsequently been submitted to South African and Indian 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 (Indian) 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).”

Medialternatives has only become aware of these regulations this week via the Tectonic mailing list and are extremely concerned that not enough consultation has occurred. A variety of South African blogposts bare testimony to the problems surrounding the legislation and the manner in which draconian, foreign IP laws are making their way into our legal system under cloak and dagger and in an atmosphere of suspicion.

According to Gray Legal Brief only posted a brief referring to Andrew Rens of the African Commons Project arguing that the Draft Regulations for the implementation of the IPR Act of 2008 are unconstitutional in mid-April. 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.

We therefore urge all concerned to call for a halt to the legislative process until adequate provision has been made for public participation in the process.

Stop! The Regulations Petition is ready for signing.

You can find it here: http://www.ipetitions.com/petition/StopTheRegs/

It takes less than a minute to sign. Let your voice be heard!

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