Towards a data transfer agreement for the South African research community: The empowerment approach

Abstract

The idea of a data transfer agreement (DTA) template for the South African (SA) research community is receiving increasing attention. Whiledeveloping such a DTA template is certainly a worthwhile project, questions regarding the project’s practical execution should be addressed,including how to best operationalise the envisioned DTA template, and the content of the envisioned DTA template. It is proposed that anempowerment approach be followed in operationalising the envisioned DTA template, which is contrasted with the regulatory approachfollowed with the material transfer agreement that the Minister of Health promulgated in 2018. While the regulatory approach would entailgovernment making the use of the envisioned DTA template compulsory regardless of the quality of such a template, the empowermentapproach, by contrast, entails a focus on developing a high-quality, professionally drafted DTA template for the SA research community andmaking the use thereof a matter of own choice. Regarding the content of the envisioned DTA template, four hot-button content provisionsare analysed, and it is argued that SA research institutions and researchers should be empowered to: (i) have clarity and legal certaintyregarding their ownership of data, where relevant; (ii) be able to commercialise their research findings without unnecessary contractualconstraints; (iii) avoid falling into the trap of unlawful benefit sharing with research participants; and (iv) be aware that their legal role asresponsible parties, where relevant, cannot be contracted out via a DTA.

Cross-border data sharing through the lens of research ethics committee members in sub-Saharan Africa

“…This stance coincides with the views of Swales et al . who propose the idea of non-exclusive and accredited DTA templates [ 61 ].…”

A pathway to strengthening open science: comments on the draft South African Ethics in Health Research Guidelines

“…While ownership of data is governed by property law—as found in South Africa’s common law—copyright in a dataset is governed by intellectual property law—specifically the Copyright Act 98 of 1978, 1978 . Although these areas of law overlap, copyright in a dataset provides a layer of legal protection separate from ownership ( Thaldar, 2024 forthcoming; Thaldar, et al, 2022 ; Swales, et al, 2023 ). In South Africa, the right of first use—or the exclusive right of use—features in copyright law.…”

Forcing a square into a circle: why South Africa’s draft revised material transfer agreement is not fit for purpose

“…The only saving grace was that the SA MTA described itself as a “framework,” hence leaving latitude for parties that are legally forced to use it to amend the substantive provisions—and hopefully in the process resolve the problematic aspects ( Thaldar et al, 2020 ; Steytler and Thaldar, 2021 ; Thaldar and Shozi, 2021 ; Swales et al, 2023a ). Using this latitude, a group of South African law academics developed a revised version of the SA MTA in an attempt to rectify the most serious issues while remaining within the bounds of the framework of the original version of the SA MTA ( Pope, 2020 ).…”

“…Next, in 2022, a research group at the University of KwaZulu-Natal in South Africa started with the development of a data transfer agreement (DTA) template for the South African research community. The rationale was that data sharing between researchers requires an expertly drafted agreement that is aligned with South African law—in particular the Protection of Personal Information Act 4 of 2013 (POPIA) that was brought into full operation on 1 July 2021; however, many—if not most—research organisations in South Africa do not have the inhouse legal expertise to have such an agreement drafted ( Swales et al, 2023a ). Accordingly, the aim was to develop a comprehensive, professionally drafted DTA template and to make it freely available for anyone to use ( Swales et al, 2023a ).…”

“…The rationale was that data sharing between researchers requires an expertly drafted agreement that is aligned with South African law—in particular the Protection of Personal Information Act 4 of 2013 (POPIA) that was brought into full operation on 1 July 2021; however, many—if not most—research organisations in South Africa do not have the inhouse legal expertise to have such an agreement drafted ( Swales et al, 2023a ). Accordingly, the aim was to develop a comprehensive, professionally drafted DTA template and to make it freely available for anyone to use ( Swales et al, 2023a ). The DTA template was also complemented with an explanatory memorandum to guide users on how to use and amend the template for their own circumstances ( Swales et al, 2023b ).…”