Friday, 26 June 2009

Darren Olivier

The IPR Act attracting more comment

Natacha Rey, final year LLM (intellectual property) student at the University of Cape Town has kindly forwarded Afro Leo this insightful response to the article “Licensing technological developments funded by public money” published by Roux de Villiers, of Werksmans incorporating Jan S. de Villiers on 24 June 2009.

"The author must be commended on his novel idea of avoiding the restrictions in the Intellectual Property Rights From Publically Financed Research and Development Act ("the IPR Act"). As the Act is in force, it must be complied with. However, Roux’s suggestion of licensing IP created under the IPR Act could prove to be the first effective solution; as opposed to sceptics who simply voice their objections but proffer no practical answers. Licensing partners (preference of which should be given to local organisations) would have to agree to non-exclusivity. Roux's suggestion is that, to ensure that maximum commercialisation takes place, the licensing partner pay an upfront fee so that there is opportunity cost and risk involved. Furthermore, the licensing should be given some say as to how the IP is brought to market. In this way interest is maintained and the IP is treated accordingly.

While this is a good suggestion, it is not without its own set of problems. Could a licence really be formulated in such a way that both public and private interests benefit? With local organisations being the focus; what is the position of/benefits for an international investor? Will a licence be an effective means of achieving the set out objectives in the IPR Act? How easy would it be to control and enforce the licence agreement?"

The IPR Act is under the microscope in South Africa (see for instance Andrew Rens' blog posts here challenging the Act as eg unconstitutional ). This blogger is due to advise a client next week on how best to make use of the Act and finds these comments extremely valuable. Afro Leo's comments to follow then...

Darren Olivier

Darren Olivier

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1 July 2009 at 13:04 delete

More comments on the Act by Matthew Herder
and Cynthia M. Ho from
Loyola University of Chicago School of Law available here