(Feb. 13, 2009) It was reported on January 19, 2009, that a bill seeking to ensure effective use of intellectual property resulting from publicly financed research, the Intellectual Property Rights from Publicly Financed Research (IPR) Act, was signed into law. (Robert Lee, IP Rights Bill Signed into Law in South Africa, TAX-NEWS.COM, Jan. 19, 2009, available at http://www.lowtax.net/asp/story/storysa.asp?storyname=34617.)
The objective of this Act is to “identify, protect, utilize and commercialize” intellectual property resulting from publicly funded research, for the benefit of the South African public. (Intellectual Property Rights from Publicly Finance Research and Development Act No. 51 of 2008, 522:31745 GOVERNMENT GAZETTE 1-20 (Dec.22, 2008), South African Department of Science and Technology website, available at http://www.dst.gov.za/publications-policies/legislation/IPR%20Act%20of%202008.
pdf (official source).) Among other things, the Act seeks to ensure that a recipient of public finance “identify commercialization opportunities for intellectual property emanating from publicly financed research and development, [so] that human ingenuity and creativity are acknowledged and rewarded.” (Id.) The IPR Act also has the goal of making sure the public in general and small businesses and broad-based black economic empowerment entities are afforded “preferential access to opportunities arising from the production of knowledge from publicly financed research and development and the attendant intellectual property.” (IPR Act, supra.) The broad-based black empowerment entities are those that strive to empower disadvantaged segments of society through “diverse but integrated socio-economic strategies.” (See §1, Broad-Based Black Economic Empowerment Act No. 53 of 2003, 463: 25899 GOVERNMENT GAZETTE (Jan. 9, 2004), available at http://www.info.gov.za/gazette/acts/2003/a53-03.pdf.) To promote its objectives, the Act established the National Intellectual Property Management Office (NIPMO) and the Intellectual Property Fund and directs higher education institutions and specific research institutions to establish technology transfer offices.
The Act allows a recipient of public financing for research to maintain ownership of intellectual property. Only if the recipient does not wish to retain ownership or obtain legal protection for the property may NIPMO interfere to obtain ownership or secure legal protection. The Act also grants intellectual property creators at an institution and their heirs specific rights to a portion of revenues generated by the institution from their intellectual property. (IPR Act, supra.)