Abstract:
South Africa’s Intellectual Property Rights from Publicly Financed Research and
Development Act, Act No 51 of 2008 (the IPR Act) was passed on 22 December 2008. The Act’s
main object is to ‘make provision that intellectual property emanating from publicly financed
research and development is identified, protected, utilised and commercialised for the benefit
of the people of the Republic’ (IPR Act, 2008: s. 2(1)). The Minister of Science and Technology
published corresponding draft regulations (the IPR Regulations) for comment on 9 April 2009
(DST, 2009b).1 To date, the legislation and its attendant draft regulations have been dogged by
criticism from lawyers, academics and commentators, who have, inter alia, labelled the IPR Act
‘unconstitutional’ and ‘unworkable’ (Rens, 2009) and queried whether the IPR Regulations are
a ‘death knell for open science in South Africa’ (Gray, 2009).
This review explores critical issues that recipients of public finance for research and
development, including academics, researchers and universities, are confronted with, arising
from the IPR Act. The issue is raised regarding the compatibility of the IPR Act and draft
regulations with South Africa’s position as a developing country. The review argues that, while
the Act has many flaws and may require review, there is an opportunity for the regulations to
address some of the identified weaknesses.
