Submission on the Draft Intellectual Property Rights from Publically Financed Research Bill

In our submission to the Department of Science and Technology (DST) on the draft Intellectual Property Rights from Publicly Financed Research Framework, we noted that “[w]hile we continue to advocate for the development of an intellectual property framework in South Africa that generally facilitates access to essential products, our primary concern is that the legislation and regulations . . . that will result from this process make particular provision for ensuring access to the products of research that were developed using public resources.” We explained further:

Not only is this desirable from a developmental perspective, but in our view is also required by the Constitution, as read in the light of Article 15 of the International Covenant on Economic, Social and Cultural Rights, which guarantees everyone “the right to enjoy the benefits of scientific progress and its applications”. In respect of research conducted – either in part or in whole – using public resources, the obligation on the state to ensure that the benefits aregenerally accessible is further strengthened.

In general, the draft Intellectual Property Rights from Publicly Financed Research Bill(“the draft Bill”) goes a significant way towards ensuring access to the benefits of publicly funded research. In our view, however, there are three specific areas of the draft Bill that require some attention and fine-tuning if access is indeed to be ensured. These are:

  • Licence conditions (section 12);
  • Government walk-in rights (sections 18 – 20); and
  • Private funding (section 21).

This submission therefore addresses and makes specific recommendations in respect of each of these three areas. But before doing so, it addresses the issue of benefit sharing and incentives relating to commercially viable research. While the AIDS Law Project (ALP) – in principle – supports the concept of benefit sharing, it does not believe that the manner in which benefit sharing is addressed in the draft Bill is indeed in the public interest.

Draft IPRs from Publicly Financed Research Bill – 2007