It is important to highlight that the existence of research, knowledge and scientific results does not automatically guarantee effective technology transfer.
On March 28 of this year, the President of the Republic made a Draft Law on Technology and Knowledge Transfer available to the Chamber of Deputies.
The initiative aims to foster an environment conducive to the transfer of technology and knowledge through interaction and joint work between universities, government entities and companies, establishing a mechanism that also promotes the growth of the country.
The project seeks to enhance the research function within the institutions, as well as establish a public repository of scientific-technological knowledge and information. The idea of making technology transfer mechanisms more flexible is also proposed, which would facilitate the emergence and progress of companies, while preserving their independence and capacity for self-management.
In this sense, it is crucial to have a legal framework that facilitates the development and transfer of technology and knowledge, especially promoting the interaction between Higher Education Institutions (HEIs) and the productive sector, since the latter has the financial resources and commercial services necessary to carry out these activities.
In summary, it seeks to create a legal framework that facilitates collaboration between different actors to promote sustainable development of the country, promoting research, the dissemination of knowledge and the strengthening of the academic and business sector based on science and technology.
The project consists of fourteen permanent articles and two transitory articles, structured around the following pillars:
I) Higher Education Institutions (HEI) will have research as an essential function
The project seeks for the HEIs to promote the relationships between university research, the needs of society and its connection with the productive system, where special emphasis is placed on the challenges that society would be going through. Therefore, these institutions must promote research and transfer of technology and knowledge.
The project also seeks to establish a National Repository of Scientific and Technological Knowledge and Information, managed by the National Research and Development Agency. This repository will be responsible for collecting, organizing, promoting and disseminating national scientific and technological knowledge, guaranteeing its conservation and public access. Researchers who receive public funding for their studies will be required to share a final version of their results in this repository, which not only protects intellectual property rights, but also promotes continued advancement and equitable access to knowledge for the benefit of society. society.
II) Duty to promote open science in HEIs within the framework of their sphere of autonomy
The purpose of this project is also to encourage the active participation of the State and educational institutions in the promotion of open science. This involves guaranteeing free and open access to scientific publications and data, as well as promoting information resources accessible to all. The idea is to democratize scientific knowledge and facilitate its dissemination, which benefits both the academic community and the general public.
The responsibility of guaranteeing that scientific knowledge is openly accessible in our country falls on the Open Access Policy to Scientific Information and Research Data. It is for this reason that the project seeks to ensure that it is in charge of managing the aforementioned repository.
III) Duty to promote the State of research projects, creation and transfer and exchange of technology and knowledge
The State, through the Ministries of Science, Technology, Knowledge and Innovation and Education, will promote research, creation, transfer and exchange of knowledge in higher education institutions regulated by law.
IV) Creation of companies with a scientific-technological base and regime of intervention rights for projects financed with public funds
It seeks to establish the State’s duty to promote research, creation and technological and knowledge transfer projects, giving special emphasis to HEIs and their researchers being able to create or participate in EBCT (Scientific-Technological Based Enterprise), developed from of research results, where they must establish the percentage of industrial, intellectual property rights or commercial secrets, whose ownership corresponds to the higher education institutions, as well as the distribution among the partners of the royalties obtained.
The proposal seeks to ensure that project researchers can play a significant role in Knowledge and Technology-Based Enterprises (EBCT). However, current legal regulations restrict the participation of researchers from state and private institutions in these companies. State institutions are limited by provisions of Law No. 18,575 while private institutions face restrictions of Law No. 21,091. The goal is to overcome these limitations and enable widespread participation of researchers in EBCTs.
Therefore, it is proposed that these limitations will not be applicable to academic or professional officials of state higher education institutions, unless they participate within scientific-technological based companies in those cases in which state HEIs have total or partial participation in the EBCT or when the EBCT in which the official wishes to participate uses intellectual or industrial property rights transferred from a state HEI.
On the other hand, the need to make a significant modification to the second paragraph of article 5 of Law No. 20,285 on access to public information is highlighted. This law establishes as a general rule that all information prepared with public funds and any other information held by government agencies is public. This means that any scientific research financed with public funds is considered public information, which raises problems regarding the protection of intellectual and industrial property rights that are present in the research carried out.
In this same sense, the bill establishes that if a scientific or technological development project financed in whole or in part with public funds results in technological innovation, products, procedures, works, or any other type susceptible to protection by Law of Intellectual or Industrial Property, their protection must be requested from the competent institutions, since otherwise, they would become part of the public domain.
V) Modifications to other regulations and to the Law on Intellectual Property
Finally, one of the major modifications corresponds to article eight of Law No. 17,336 on Intellectual Property, where the project seeks to establish a legal regime of authorship in relation to works carried out on behalf of a third party, thus modifying the second and third paragraphs of the Article 8 where the concept of “computer programs” is expanded to “works created as a consequence of an employment relationship.”
At this point it is important to stop and analyze that this modification seeks to expand the concept of authorship of works in our regulation, taking as a reference the common law copyright system in the United States. In this system, it is established that any work or creation carried out by a worker during the exercise of his or her duties automatically belongs to the employer. This provision contrasts with the copyright legislation in force in Chile, where the rights must be transferred by the author to the employer.
Until now, the only exception to this rule in our country applies to computer programs, since when they are created by the worker under an employment contract or provision of services, the ownership of the work falls to the person who commissioned the creation. of the program, applying an exceptional regime for attributing ownership of economic rights.
The bill seeks to eliminate this exception, which until now was limited exclusively to computer programs, and expand it to include any type of work. In other words, it seeks to equate the treatment of intellectual property of computer programs with that of other works, such as texts, music or images, when carried out in the context of an employment or contractual relationship.
Finally, the project seeks to make the statute of disposition of the author’s economic rights or related rights more flexible, eliminating from article 73 the requirement that the transfer of copyright must be noted within the period of 60 days counted from the date of celebration of the act. or contract. In this sense, it is established that the transfer must be registered in the registry so that it can be enforced against third parties, eliminating the 60-day period that we have always known.
Es importante resaltar que la existencia de investigación, conocimiento y resultados científicos no garantiza automáticamente una transferencia tecnológica efectiva.
In order to achieve this process successfully, it is necessary to implement improvements in the system that facilitate the transfer of technology, and above all, encourage greater participation of the various institutions that promote and support this process, that is, there is hard work of collaboration between academic institutions. as well as in the business sector, such as providing resources and technical assistance to promote innovation.
For more information on these topics, please contact our IP, Tech and Data team:
Eugenio Gormáz | Partner | egormaz@az.cl
Antonia Nudman | Senior Associate | anudman@az.cl
Carlos Lazcano | Senior Associate | clazcano@az.cl
Fernanda Rodríguez | Associate | frodriguez@az.cl
Esteban Orhanovic | Associate | eorhanovic@az.cl
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