Abstract:
During the last two decades, there have been a number of policy and legislative changes in respect of South Africa’s intellectual property (IP) and the national system of innovation (NSI). In 2012, a Ministerial Review of the Science, Technology and Innovation (STI) landscape in South Africa made recommendations to improve the STI landscape and effectively the national system of innovation. The study provides a critical review of drafts of the national IP policy published in 2013 as well as the IP Framework released in 2016 for public comment. The review of the IP and the NSI are within the context of the National Development Plan (NDP), which outlines South Africa’s desired developmental goals. South Africa is part of the BRICS group of countries (Brazil, Russia, India, China and South Africa). The South African economy is characterised by a desire to move away from being dependent on resources and commodities, to becoming a more knowledge based and innovation driven economy. It is hoped that such a move would assist the country to address some of the social and economic development challenges facing South Africa, as captured in the NDP. South Africa has a functioning IP system, but its relationship with South Africa’s development trajectory is not established. More particularly, the extent to which the IP system relates to the innovation system and how these two systems must be aligned to enable South Africa to transition successfully from a country based on the production of primary resources and associated commodity-based industries to a viable knowledge-based economy is unclear. The Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organisation (WTO) provides that IP must contribute to innovation and to transfer of technology and knowledge in a manner that is conducive to social and economic welfare. Certain provisions set out the foundations of intellectual property systems within the context of each member state. This study has thus explored the complex, complementary and sometimes contested relationships between IP and innovation, with particular emphasis on the potential of an intellectual property system to stimulate innovation and foster social and economic development. The study has also analysed the interconnectivity of IP and innovation with other WTO legal instruments, taking into account South Africa’s positioning within the globalised economy and in particular the BRICS group of countries. The research involved a critical review of South Africa’s IP and innovation policies, as well as relevant legislation, instruments, infrastructure, IP and innovation landscape, and relationship with international WTO legal instruments, in addition to its performance, given the developmental priorities and the globalised economy. The research documents patenting trends by South Africans using European Patent Office (EPO), Patent Cooperation Treaty (PCT), United States Patents and Trademarks Office (USPTO) databases over the period 1996-2015. A comparative analysis of patenting trends amongst BRICS group of countries has also been documented. The study also documents new findings, observations and insights regarding South Africa’s IP and innovation systems. Some of these, particularly in relation to higher education and research institutions, are directly attributable to the Intellectual Property Rights from Publicly Financed Research and Development Act. More particularly, the public institutions are becoming relevant players in the NSI and are responsible for growth of certain technology clusters, in particular, biotechnology. At the same time, the study makes findings of a decline of private sector participation in patenting as well as R&D investment over the 20-year period. Recommendations are included regarding specific interventions to ensure coherence between the IP and innovation systems. Such coherence and alignment should strengthen the systems’ ability to stimulate innovation and foster inclusive development and competitiveness, which are relevant for addressing South Africa’s socio-economic development priorities.
