1. Intellectual Property Alignment of Current Policies Tana Pistorius UNISA Government CIO Summit Towards reducing costs of doing business in government and contributing towards achieving clean audit 1 Date:…28/05/2013……………..

2. Overview: Alignment IP protection of software IPR PFR&D Act DON’T HAVE SHORTAGE OF POLICIES – misalignment between IP law and FOSS policy Proposal for policy alignment – Policy imperatives – Legislative amendments 2

3. Software & IP Protection Patent law – Patentable software : novel, inventive & useful Software excluded from concept of an invention “as such” – may form part of a larger invention Copyright law – Original, material form; used in a computer – Sui generis category – User exception – back-up copy Trade secrets – Confidential; commercial value & useful Know-how; specifications; programming method FOSS securely rooted in copyright law

4. Copyright ownership Exceptions: s 21 – Employer = owner State: s 5 – Work created direction & control = State owner Protects only expression – no monopoly in underlying ideas

6. IPR from PF R&D Act 51 of 2008 Effective 2 August 2010 Identification; protection; utilisation & commercialisation of IP for social, economic benefit Creations of the mind protected by IP laws throughout the world - – expansion of protectable subject-matter; – Included: software patents granted ito EU and US law

7. Duties of Recipients Recipient: – Entities (also institutions) undertake R&D using funding from State (includes partial funding) - Government departments Institutions – Higher education; WRC SABS CSIR NRF Mechanisms ID, protect, manage & commercialise intellectual property Report to NIMPO on IP not protected or commercialized within 30 days

8. Licensing Regulations: recipient must consider: – Socio-economic needs & extent to which IP shall undermine – Whether IP should be placed in the public domain (reg. 2(1)(g) Where IP has commercialisation potential referral to NIPMO before placed in public domain (r 2(4)) Open source is not public domain but licensed NIPMO GUIDELINES Effect of clauses contrary – ENFORCEABILITY OF PROCUREMENT CONTRACTS

9. IP Implications IPR PF R&D Bill – Recipient government department: IP owner Roll-out of solution in all departments Mandate permissive FOSS license – Conditions for IP transactions - mandatory Permission for public domain/open source FOSS Policy – Clarity

10. IP / Procurement Synergy between IPR Act & FOSS/OS Policy Non-exclusive licensing; Optimal benefit to society Limit proprietary rights – non-exclusive etc. Pro-commercialization – return on investment Condition of license to share improvements

11. Taking FOSS beyond PROCUREMENT FOSS deployed as pro-development tool Establish a legislative environment supports FOSS – e.g. Treasury Tax incentives Policy alignment – NATIONAL ICT STRATEGY – COMESA; EAC advocates FOSS part of national ICT Strategy – 2013 ICT Policy Framework Principle 12 open systems facilitates innovations; open rather than proprietary standards 11

12. Conclusion 1 Amendment of Copyright Act – reverse engineering exception – ensure interoperability PFR&D Act / NIPMO Guidelines – clarity software development for government departments; OR exclusion of government departments FOSS addressed in National ICT Policy – Access to ICTs; e-security; Spill over to R&D; Education; 12

13. Conclusion 2 Expand FOSS philosophy in clear language Software procurement alignment – State copyright ownership ito s 5 Copyright Act; – applications of FOSS Policy (e.g. contractual terms); – PFR&D Act & Regulations Recipient obligations 13