INTELLECTUAL PROPERTY CO-OWNERSHIP AND COMMERCIALIZATION IN PUBLIC-PRIVATE PARTNERSHIPS IN SOUTH AFRICA

摘要

Prior to the promulgation of the Intellectual Property Rights from Publicly-Financed Research and Development Act (IPR Act) in August 2010, the publicly-funded research and development (R&D) organizations such as universities and science councils in South Africa dealt with issues of intellectual property ownership (IP) in whatever manner they deemed fit, as they had unfettered discretion to negotiate and/or agree on any terms of IP ownership with third parties such as private companies. The IPR Act has however brought about a new dispensation underpinned by specific provisions which dictate circumstances that must prevail for IP to be owned by the publicly-funded R&D organization, co-owned by the publicly-funded R&D organization and a private company, and where ownership of IP may be negotiable between the publicly-financed R&D organization and a private organisation. Several scholars and legal practitioners have criticized the legal effect of the IPR Act alleging that it might stifle innovation and make the R&D focused public-private partnerships unworkable, as it meant that ownership of IP generated from publicly-funded R&D can no longer arbitrarily vest in third parties as it was previously possible before the IPR Act became law. While it might appear premature to confirm or deny this allegation given that the IPR Act has been effective for only a period of four years and a few months, this paper discusses a practical case study of a public-private partnership involving a publicly-funded science council and a private company as a way of demonstrating that mutually-beneficial public-private partnerships are possible even under the IPR Act.