The Draft National IP Policy undermines FOSS

The Department for Trade and Industry recently published its latest Draft National Intellectual Property Policy, which is currently in the final stages of being adopted as a formal document. When it was produced, it caused quite a stir in virtually every industry affected by intellectual property. To generalise, health activists welcomed it as a way to reduce the costs of patented medicines, while businesses and software developers raised eyebrows around its apparent weakening of global copyright agreements.

In particular, Chapter 6, which deals with “Copyright, Software and Internet”, is not very substantial. It seems to argue that intellectual property protection is harmful in developing countries and the implication is that these protections should be relaxed in South Africa:

It is submitted that an inevitable impact of stronger protection and enforcement in terms of the TRIPS Agreement leads to reducing access to knowledge-related products in developing countries, thus poor people are exposed to damaging consequences.

The Policy references the government’s Free and Open Source Policy which places emphasis on government’s use of FOSS unless this software is “significantly” inferior to proprietary options. The Policy suggests its authors are not entirely familiar with what FOSS is and this is apparent in statements such as this one:

Government departments are encouraged to procure computers (IT) that are compatible with FOSS. In this regard, there seems to be slow progress.

The Policy then goes on to somehow link FOSS principles’ adherence with the “use, production and dissemination of open and access to material such as textbooks” and proposes that this be some sort of incentive. This effort to present FOSS and relaxed intellectual property protections as a solution for access to textbooks is not only conceptually flawed, it is overly simplistic.


It is possible that the Policy’s authors simply failed to express a larger plan to promote FOSS in government as the beginning of a process of creating and disseminating open educational materials to South Africa’s citizens but there is little evidence of such progressive (albeit encouraging) thinking in this chapter. Instead the implicit argument for reduced intellectual property protections ignores how it would likely reinforce the lack of meaningful access to digital knowledge and much needed software resources to those who need it most.

What the Policy’s authors seem to forget is that FOSS is not incompatible with copyright protections. FOSS is a product of copyright protections and a copyright owner’s ability to release software under an open license framework. A software developer should be entitled to make her software available on her preferred terms. That means she should be entitled to released closed source versions or release her software under an open source license. Copyright protection is intended to protect that choice and to promote continued innovation with the assurance that your intellectual property will be reasonably protected. Weakening intellectual property protections under the misguided notion that stronger protections deny access by developing countries will only exacerbate the harm.

Certainly the Copyright Act desperately needs to be reformed and updated. It’s references to “computer programs” are too limited; its provisions catering for reverse engineering software don’t meaningfully permit it at all and the Act should incorporate exceptions to copyright infringement which allow users to backup their software and develop greater cross-platform interoperability, for example.

What the government should be doing is creating a smarter intellectual property framework, not seeking to weaken it to the point where “intellectual property protection” becomes a contradiction in terms. Instead, the government should actively foster high quality FOSS programs and intelligently and appropriately implement FOSS solutions across the board and, in doing so, actively encourage innovation and improved access to knowledge by the people who need it most.

(Image credit: Ben Tubby, Wikicommons)

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