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26 November 2018
When a student is studying or planning to study at a university in South Africa, it is important that they understand their rights as an IP creator during that time. Many students, especially undergraduates, will argue that they do not participate in research and development in any manner and therefore intellectual property is merely a module for law students. However, all students may be IP creators without being aware of it.
Intellectual property in this instance would be any creation of the mind that is capable of being protected by law, which by definition includes literary works, musical works, artistic works, computer programs, trade secrets, trademarks, designs and patentable inventions. The chances of creating some form of intellectual property at university are considerable and therefore it is important that students know where they stand.
There is legislation governing this intellectual property – the IP Rights from Publicly Financed Research and Development Act 2008. The act is aimed at ensuring that where intellectual property is generated using taxpayer money (the university being funded by taxpayer money to a large extent), this intellectual property is used to the benefit of South Africa.
The act requires all universities to establish and maintain an office of technology transfer. It is important that students identify the location of this office, as it is tasked with ensuring that the act is followed by the university and that it develops the university's policies regarding intellectual property created by its students. The office of technology transfer may be the first port of call for questions on intellectual property.
This leads to the next aspect. The rights in the intellectual property created at university are largely governed by two texts: the first is the IP Rights from Publicly Financed Research and Development Act and the second is the university's IP policy as developed by the office of technology transfer and agreed to by the student upon registration for their course.
As an example of the interplay between these two, the act sets the default position that any intellectual property created by the student using university resources will be owned by the university. In terms of the act, excluded from this definition of intellectual property is academic works such as lecture notes or e-learning materials. Further excluded from this would be intellectual property created by the student not using the university's resources. It is important to note that these exclusions might not be mirrored in the university's IP policy and that in such instances the university could indeed still own the intellectual property created when e-learning materials or lecture notes are drafted.
Further, the act states that the student, as an IP creator, is entitled to a certain minimum benefit sharing in the revenue that accrues to the university as a result of the intellectual property they created. In contract to these minimum requirements, the university's benefit-sharing policy might be more liberal than those prescribed by the act.
The above merely presents two examples in a complex environment and there are a host of other aspects of which to be mindful.
When considering the IP Rights from Publicly Financed Research and Development Act, the university's policies and the student's work, it is important to remember that the university is an institution of research and education and the office of technology transfer is mindful of this. Therefore, most offices of technology transfer have an open-door policy to allow students to find out more about their rights and to ensure that any intellectual property created at university is correctly protected.
For further information on this topic please contact Dawid Prozesky at KISCH IP's Johannesburg office by telephone (+27 11 324 3093) or email (firstname.lastname@example.org). The Kisch IP website can be accessed at www.kisch-ip.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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