Some critics of the Bill are calling for the Bill to be sent back to Parliament because they don’t agree with it on policy grounds. But that is not how the South African Constitution works, as Achal Prabhala and I explain in Business Day.

The United States Trade Representative has scheduled a review of South Africa’s status under the General System of Preferences. Sean Flynn examines whether sanctioning South Africa for copyright reform violate US obligations to the World Trade Organisation.

“No one entity is in charge of the Internet, yet it works. The functioning of the Internet is maintained by an amalgamation of technological architectures, standards (and standards bodies) and task specific institutions, that are referred to as the Internet governance regime. But this mode of organization faces new challenges. Increasingly everyday objects, from cat feeders to traffic lights, are being fitted with sensors and controls and then connected to the Internet. The resulting Internet of Things is beset with problems of security, safety and privacy which demand public policy solutions. Yet the range of potential solutions is constrained by the global intellectual property regime. Development of technical standards is menaced by patent hold up and royalty stacking. Anti-circumvention laws threaten security research and remediation and prohibit owners and users from fixing their own property. The incompatible paradigms of Internet governance and the global intellectual property regime collide on the policy frontier of the Internet of Things.”

Andrew Rens, Who is in Charge Here? The Internet of Things,Governance, and the Global Intellectual Property Regime, 23 UCLA Journal of Law and Technology (2019)

Go read it. It is a cautionary tale about how computer systems demand defaults, including default geographical locations, how place holders are put into systems without much thought, how others use those defaults as if they not place holders but hold a non-arbitrary relationship reality and how yet others build services on top of them, whose customers believe unshakeably that because its technology it can’t be wrong.

As you read it ask yourself why the South African Police could keep making the same mistake without beginning to question whether there is something amiss in their assumptions about how Internet technology works.

Also ask what this story means for the idea that nation states are the primary way in which our societies are regulated?

It is no secret that the policy is the product of a long, sometimes tumultous process. Publication of a draft policy in 2013 provoked widely divergent reactions. Then in early 2014 a proposal by a Washington DC based lobbying firm to run a publicity campaign against finalisation of the policy. The proposal was addressed to PhRMA and the Innovative Pharmaceutical Association of South Africa (IPASA) which was established in April 2013. Entitled ‘Campaign to Prevent Damage to Innovation from the Proposed Draft National IP Policy in South Africa‘ (insecure connection) stated: “South Africa is ground zeor for the debate on the value of strong IP protection. If the battle is lost here the effects will resonate”. The plan was described by Minister of Health Aaron Motsoaledi as
advocating genocide.

The next document to appear was the Draft Framework for Intellectual Property Policy. That document set out a framework for the government ministries with different interests to settle on an intellectual property policy. Under the framework a phased approach was adopted; Phase 1 of the policy is the first fruit of that approach.

For the policy to become effective changes to the Patent Act, subordinate regulations and administrative practices will have to take place. The process is not over. Civil society organizations have been calling for change for decades. In an interview with Zachie Achmat in December 2017 Achmat dated the need for the changes approved in the policy as arising 25 years before.

It will come as no surprise to readers, except those who just arrived from 1985 by time travel*, that there is a great deal of criticism of contemporary patents systems failing to disclose enough information or the right kind of information. Sometimes this is because the person who gets the patent has never actually made the thing: implemented the invention we would say in patent-talk.

But what if ask the same question not of individual patents but of data that the patent system holds about innovation. That is more or less what Jonathan Berger and I did. We looked at a ten and a half year set of patent data on patents in South Africa. We recently published a report on our research which you should download.

A summary of our findings is available in an article in Business Day.. The Intellectual Property Unit at the University of Cape Town also discusses the research.

I have to admit that I am both surprised and impressed that Business Day published that article because it is rather detailed and dare I say dry in places. It explains that when we looked at the data we found that only about 10% of the patents awarded in South Africa are awarded for South African inventions. The other 90% are given to foreign entities, mostly corporations. If the patent bargain is to give a state back monopoly to an inventor in exchange for an teaching an invention then for 90% of the state back monopolies being handed out either the monopoly granted by South Africa is unnecessary to encourage disclosure because the invention was patented somewhere else first and a patent in another country such as the United States was enough to induce disclosure or the South African monopoly was needed to enable disclosure but the profits made from the South African patent are taken out of South Africa. Since South Africa is a relatively small market it seems more likely that South African patents are superfluous as incentives to innovate.

South Africa grants patents that are based on foreign patents because of a different bargain, The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).**
South Africa does not turn away people who have already patented in other countries because they have already disclosed the invention but instead uses the patent application in that other country to put the applicant in South Africa ahead of anyone else claiming a patent for that invention (in patent talk this is known as ‘establishing priority’). One frequent response to the 90% foreign versus 10% local by pointing out that South Africa could somehow increase the percentage of local inventions.***

Our research concentrated on that 10%, asking what is patented in South Africa and who is patenting it. Read the article or better still the article and the report for the findings. One significant finding is that most high tech research which is also patented in other countries is State funded, carried out at a historically privileged university or a research institute such as the CSIR. Patenting by individuals and even by companies is mainly in low technology areas. South Africa unlike any medium or large economy does not actually examine patents, that is check whether someone has already invented the invention or whether the patent actually teaches anything. After looking at the codes for the patents, reading the titles of the patents and the abstracts where those are available there does not seem to be an emerging technology in which the South African private sector is leading innovation.

This kind of research is unglamorous, arduous, detailed and sometimes quite boring. The conclusions it yields are often sobering rather than exciting. But every discussion about patent reform must be grounded on the reality of how much innovation is actually taking place in South Africa and how much of a role patents actually play in that innovation.

*Yes, it is entirely probable, indeed likely, that one of the first things that someone who has time traveled from 1985 would do is read this blog.
** For the more pedantic readers, yes there are several treaties involved, why don’t you detail these in the comments.
*** But exactly how to change that percentage turns out to be a non-trivial question.

I was less than happy with the entry on South Africa. However the entry has been revised, and the author of the entry has been in touch with me to discuss how the entry can more accurately reflect the situation that prevails in South Africa.

In the meantime my initial response is below but expect further revisions.

Initial Response
Its exactly the kind of thing you would expect me to blog excitedly about. After all I was a Fellow at the Center for Internet and Society and I have written on the issue of intermediary liability in South Africa.
But the entry on South Africa is dangerously incomplete.

My most recent writing on intermediary liability in South Africa was included in a volume published by the Information Society Project at Yale, the latest addition to the Access to Knowledge research series.
In that piece I point out that the current provisions in the Electronic Communications and Transactions Act, that govern service provider liability are unconstitutional for a number of reasons.The full citation with a link to an open access version is at the end of the post.

The current legislation is unconstitutional. That should interest academics and policymakers around the world. It also has a practical significance for intermediaries. If the provisions which currently offer some intermediaries protection is struck down by a court then intermediaries may be liable for everything that they have done while relying on it. And it is not just my opinion that the legislation is unconstitutional, a previous Minister of Communications (back when there was only one at a time) raised concerns. Unfortunately the proposed fix was also unconstitutional, and the Electronic Communications and Transactions Act continues to languish.

If other entries are similarly incomplete then the World Map On Intermediary Liability may be much less useful than one would initially suppose. At the least there should be warning that entries are likely to be incomplete.

‘South Africa, Censorship on Demand: Failure of Due Process in ISP Liability and TakeDown Procedures’ in Global Censorship and Access to Knowledge, International Case Studies, Nagla Rizk, Carlos Affonso de Souza and Pranesh Parakesh (eds) Information Society Project, Yale Law School (2015)

Many people, some whom  I know and too many whom I don’t who have made remarkable contributions to realising the world described in the Cape Town Declaration. Here is a non-representative sample of accomplishments by people who participated in the “small but lively meeting” that gave rise to the Declaration. Mark Horner built Siyavula which offers OER textbooks (8 South African curriculum aligned STEM books) and a practice service for South African high school students that will be extended to Nigeria this year. Philip Schmidt started P2PU. Cheryl Hodgkinson-Williams built a developing world network Research on Open Educational Resources for Development. Cheryl reflects on her own experience since the Declaration here.David Wiley  launched Lumen Learning which has already save college students in the United States millions of dollars through providing Open Educational Resources for their colleges.

But there is one issue which has seen surprisingly little progress over the last 10 years. For the world described by the Declaration to become a reality for millions of students and teachers all over the world the Declaration points out that it is necessary that “taxpayer-funded educational resources should be open educational resources”. Through the heroic efforts of Cable Green and others there have been important pioneering projects in which there has been public funding for Open Educational Resources. But there is far too little discussion in the OER movement of the idea that taxpayer funded educational resources should be available to taxpayers.

The Declaration sets out three strategies to realise the world it describes. The third strategy reads:

“Third, governments, school boards, colleges and universities should make open education a high priority. Ideally, taxpayer-funded educational resources should be open educational resources. Accreditation and adoption processes should give preference to open educational resources. Educational resource repositories should actively include and highlight open educational resources within their collections.”

At the time the Declaration was drafted I was dubious about prefacing ” taxpayer-funded educational resources should be open educational resources” with “Ideally”. Would those who stand to lose out on profits or power agree in principle but then eviscerate the application by claiming less than ideal circumstances every single time there was a possibility that tax-payers might be able to use the resources which were created with their money? That hasn’t happened yet. In years of research on open educational resources as a public policy I haven’t encountered any actual arguments for why taxpayer funded educational resources should not be open in principle. Nor have I encountered arguments that taxpayer funded resources should be open but not in particular circumstances. Instead of arguments there has been a continuation of the previous system, unexamined, unquestioned.

This will only change when people who agree with the Cape Town Declaration insist that taxpayer-funded educational resources should be open educational resources.

CPT+10   sets out how this can happen.

Stiglitz described the policy as “one of the most advanced proposals I have seen”. How did something as arcane as intellectual property any public attention? You may for course believe that it recieves too little or perhaps too much but it is undeniable to that it receives some. In a fascinating interview Zachie Achmat, a veteran of the anti-apartheid struggle discusses the start a social movement for access to medicines.  That movement brought attention to patents from a wide variety of people who had not being paying attention to patents before. Anyone interested in patents should read the interview.

At one point the interviewer asks why it has taken 25 years of activism to get to the 2017 policy. Achmat responds that civil society is weak. He may well be right but I am not entirely satisfied with that answer. Access to life saving medicines is crucial for a developing country. What parts could other constituencies in South Africa have played differently so that the this eminently solvable problem would already have been solved?  Asking this I don’t intend to simply blame ‘government’ as if that is a single entity with a unified understanding of the world. Instead this is a question for the rest of us too.

I wrote for Business Day about the issues.

tl/dr: