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Intellectual Property Alignment of Current Policies Tana Pistorius

UNISA

Government CIO SummitTowards reducing costs of doing business in

government and contributing towards achieving clean audit

Date:…28/05/2013……………..

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Overview: Alignment

• IP protection of software• IPR PFR&D Act• DON’T HAVE SHORTAGE OF POLICIES –

misalignment between IP law and FOSS policy• Proposal for policy alignment

– Policy imperatives– Legislative amendments

Software & IP Protection

• Patent law– Patentable software : novel, inventive & useful

• Software excluded from concept of an invention “as such” – may form part of a larger invention

• Copyright law– Original, material form; used in a computer –

• Sui generis category

– User exception – back-up copy

• Trade secrets– Confidential; commercial value & useful

• Know-how; specifications; programming method

• FOSS securely rooted in copyright law

Copyright ownership• Exceptions: s 21

– Employer = owner

• State: s 5– Work created direction & control = State owner

• Protects only expression – no monopoly in underlying ideas

IPR from PF R&D Act 51 of 2008

• Effective 2 August 2010• Identification; protection; utilisation &

commercialisation of IP for social, economic benefit• Creations of the mind protected by IP laws

throughout the world -– expansion of protectable subject-matter;– Included: software patents granted ito EU and US law

Duties of Recipients• Recipient:

– Entities (also institutions) undertake R&D using funding from State (includes partial funding) - Government departments

• Institutions– Higher education; WRC SABS CSIR NRF

• Mechanisms ID, protect, manage & commercialise intellectual property

• Report to NIMPO on IP not protected or commercialized within 30 days

Licensing

• Regulations: recipient must consider:– Socio-economic needs & extent to which IP shall undermine– Whether IP should be placed in the public domain (reg. 2(1)(g)

• Where IP has commercialisation potential referral to NIPMO before placed in public domain (r 2(4))

• Open source is not public domain but licensed• NIPMO GUIDELINES • Effect of clauses contrary

– ENFORCEABILITY OF PROCUREMENT CONTRACTS

IP Implications

• IPR PF R&D Bill– Recipient government department: IP owner

• Roll-out of solution in all departments• Mandate permissive FOSS license

– Conditions for IP transactions - mandatory • Permission for public domain/open source

• FOSS Policy– Clarity

IP / Procurement

• Synergy between IPR Act & FOSS/OS Policy• Non-exclusive licensing; • Optimal benefit to society• Limit proprietary rights – non-exclusive etc.• Pro-commercialization – return on investment• Condition of license to share improvements

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Taking FOSS beyond PROCUREMENT

• FOSS deployed as pro-development tool• Establish a legislative environment supports

FOSS – e.g. Treasury Tax incentives• Policy alignment – NATIONAL ICT STRATEGY

– COMESA; EAC advocates FOSS part of national ICT Strategy

– 2013 ICT Policy Framework Principle 12• open systems facilitates innovations; open rather than

proprietary standards

Conclusion 1• Amendment of Copyright Act – reverse

engineering exception – ensure interoperability • PFR&D Act / NIPMO Guidelines – clarity

software development for government departments; OR exclusion of government departments

• FOSS addressed in National ICT Policy– Access to ICTs; e-security; Spill over to R&D;

Education;

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Conclusion 2

• Expand FOSS philosophy in clear language• Software procurement alignment

– State copyright ownership ito s 5 Copyright Act;– applications of FOSS Policy (e.g. contractual

terms); – PFR&D Act & Regulations

• Recipient obligations