{"id":259811,"date":"2018-07-04T17:00:45","date_gmt":"2018-07-04T20:00:45","guid":{"rendered":"http:\/\/revistapesquisa.fapesp.br\/?p=259811"},"modified":"2018-07-19T14:57:37","modified_gmt":"2018-07-19T17:57:37","slug":"legal-certainty","status":"publish","type":"post","link":"https:\/\/revistapesquisa.fapesp.br\/en\/legal-certainty\/","title":{"rendered":"Legal certainty"},"content":{"rendered":"

A long effort by the scientific community, industry, and policymakers to lift bureaucratic barriers to research, strengthen links between industry and universities, and promote innovation in business came to a positive conclusion last February 8 with the promulgation of a federal government decree regulating previous legislation on science, technology, and innovation. The extensive new regulations aim to give practical effect to Act 13,243 (January 2016), which introduced changes into a set of legal instruments on innovation (see<\/em> Pesquisa FAPESP,<\/em> issue no. 240<\/em><\/a>). \u201cWhile the Act promulgated in 2016 has just 18 articles, the decree now regulating it has 86, which have been formulated to provide greater clarity and legal certainty to stakeholders,\u201d says Alvaro Prata, secretary for R&D and innovation at the Brazilian Ministry of Science, Technology, Innovation, and Communications (MCTIC). \u201cThe new legal framework is the result of a collective effort.\u201d<\/p>\n

The February 8 decree is a bid to improve on the innovation framework that has been in place in Brazil since the Technological Innovation Act came into effect in 2004. Among other changes, this Act introduced the option for government funding to be invested in companies and for researchers from public institutions to work in the private sector. But while the act promulgated 14 years ago primarily focused on public-private partnerships and in-company innovation, the amended framework is more diversified in scope. Some provisions elaborate further on previously introduced concepts. For example, the framework now allows public institutions to host private companies\u2019 \u201cinnovation-promoting environments,\u201d supporting the development of science parks and accelerators such as those being set up in several cities and institutions in Brazil.<\/p>\n

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Among the newly introduced provisions is a broadened set of grant mechanisms for micro, small, and medium-sized enterprises. \u201cTechnology bonuses,\u201d for example, are a new form of financial aid awarded by public institutions to small business to pay for the use or sharing of research laboratories or specialist research services. \u201cA startup will not have the research capabilities available to a large innovation company or research institution. Technology bonuses are a kind of grant designed to fill this gap and help startups engage in research and development,\u201d says Cristina Assimakopoulos, a lawyer who is leading a working group created by the National Association for Research and Development at Innovative Companies (ANPEI) to discuss the regulatory changes.<\/p>\n

The new legislation also allows companies to use grants both for research funding and for capital expenditure. \u201cPlayers in the innovation ecosystem will have greater legal certainty under a framework establishing essential guidelines for cooperation between scientific institutions and industry,\u201d explains economist Gianna Sagazio, national superintendent and head of innovation at the National Industry Confederation\u2019s (CNI) Euvaldo Lodi Institute (IEL). \u201cThe decree has provided an incentive for cooperation arrangements and is introducing R&D instruments that are widely used in developed countries, such as Public Procurement for Innovation (PPI), now within a clearer framework.\u201d<\/p>\n

The new rules include governance standards for the transfer of technology produced by research institutions, and allow universities and public entities to hold minority stakes in private companies. Newton Frateschi, an executive director at the innovation agency Inova Unicamp, sees a number of benefits in the new legislation. \u201cThe provisions in the decree about the role of Innovation Centers (N\u00facleos de Inova\u00e7\u00e3o Tecnol\u00f3gica, or NITs) within scientific institutions will be important in organizing collaboration arrangements between industry and academia,\u201d he says. \u201cResearchers will often attempt to negotiate research agreements or even licenses directly with a company and only approach the NIT at the end of the process, without realizing that there are mechanisms in place that are needed to protect intellectual property. The involvement of NITs is often seen as a nuisance when, in fact, they are there to facilitate and accelerate these types of arrangements,\u201d he says. \u201cUniversities will need to restructure their NITs to accommodate the new roles created for them by the decree. We know of some centers that are staffed by seconded teams, grant holders, and interns. This makes the structuring and professionalization of these units even more important.\u201d<\/p>\n

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L\u00e9o Ramos Chaves<\/span><\/a> A test laboratory at Tr\u00f3pico in Campinas: the private sector wants previously vetoed provisions, such as those related to research grants, to be reinstatedL\u00e9o Ramos Chaves<\/span><\/p><\/div>\n

Frateschi sees with interest the opportunity for universities to hold stakes in companies. \u201cUniversities can derive new revenue streams from equity interests in companies created in incubators or technology parks. Over 500 companies have been born out of R&D produced at UNICAMP, and today collectively gross some R$3 billion. Imagine if the university had a stake in just a handful of them.\u201d Frateschi also welcomes the opportunity given for researchers at federal institutions to take a period of leave to pursue entrepreneurial interests: \u201cMany professors will now feel safe to take leave to start a business.\u201d<\/p>\n

The legislation passed in 2016 addressed a number of demands from the scientific community. \u201cIdeas about ways to lift bureaucratic barriers to research first began to be discussed and developed in 2008, and have since incorporated inputs from industry, state research funding agencies, and state departments for science and technology, among other stakeholders,\u201d says physicist Ildeu de Castro Moreira, president of the Brazilian Society for the Advancement of Science (SBPC). The 1993 law on competitive procurement has also been amended. The decree has a section on procedures for seeking exemption from competitive bidding requirements for engineering works and services classified as products of research and development. It also provides flexibility for research funding to be repurposed, addressing a long-standing demand from the scientific community. \u201cFollowing initial planning for a project, subsequent developments will often reveal the need to purchase equipment or retain additional services. The decree takes this uncertainty into account. Researchers can apply to have their research funding repurposed without their project accounts being rejected by auditors,\u201d says Maria Zaira Turchi, president of the National Council of State Research Funding Agencies (CONFAP).<\/p>\n

Flexibility<\/strong>
\nThe new regulations specify that tax exemption on imported machinery and inputs for research activities extends to all accredited science, technology, and innovation organizations, and that lower tax rates are also available to companies purchasing imported goods. While celebrating the flexibility and increased transparency the new framework has brought into relations between universities and industry, the ANPEI believes it is too early to declare mission accomplished. According to Cristina Assimakopoulos, the real-world implications of each aspect of the decree will first need to be assessed, and discussions with stakeholders will need to be had to ensure that the changes take practical effect. \u201cEach science and technology institution now needs to determine the ways in which it will apply the new rules. We have to ensure the framework is interpreted and implemented consistently. The challenge is now one of awareness and dialog,\u201d says Assimakopoulos, who works for Brazilian miner Vale\u2019s Technology and Innovation Department. \u201cThe risk is that conflicting opinions on the new legislation could emerge and undermine the legal certainty that the decree seeks to provide.\u201d<\/p>\n

The decree promotes R&D models that are widely used in developed countries, says Gianna Sagazio of CNI<\/p><\/blockquote>\n

ANPEI also believes the framework needs to be further developed. \u201cSome of the provisions that were vetoed in the act passed in 2016 were of special interest to innovative companies and need to be restored,\u201d says Assimakopoulos, referring, for example, to the provisions on private research grants, which were removed under the final wording of the act.<\/p>\n

Although filled with good intentions, some of the regulatory changes have sparked controversy. Chief among these was Constitutional Amendment No. 85, passed in 2015, which gave to the federal legislature jurisdiction to enact general rules governing the National Science, Technology, and Innovation System, with state and municipal legislatures having powers to legislate only on specific matters. \u201cThe intent behind the amendment was probably to ensure that robust legislation is in place in states which are unlikely to enact legislation of their own,\u201d explains Fernando Menezes, a professor at the School of Law at the University of S\u00e3o Paulo (USP) and administrative director at FAPESP. \u201cBut this amendment is potentially a source of conflict as it allows the Federal Government, in establishing general rules on R&D, to encroach upon the devolved jurisdiction of states.\u201d<\/p>\n

State legislation enacted in S\u00e3o Paulo in 2008 contained a number of provisions that have now been incorporated into federal law, such as state ownership of equity in innovation companies and the allowance made for researchers from public institutions to work in industry. Fernando Menezes was part of a working group that for six months provided inputs into the development of a regulatory decree signed by governor Geraldo Alckmin in September 2017, which sought to harmonize state and federal rules governing research institutions operating in the state.<\/p>\n

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Public domain image<\/span><\/a> A Science Park in S\u00e3o Jos\u00e9 dos Campos: the new framework supports the creation of hosted \u201cinnovation-promoting environments\u201dPublic domain image<\/span><\/p><\/div>\n

Risk<\/strong>
\nBiochemist Helena Nader, a researcher at the Federal University of S\u00e3o Paulo (UNIFESP) who headed the SBPC between 2011 and 2017, and was actively involved in the talks on the new federal legislation, says the process led to a new understanding of R&D activity. \u201cA centerpiece of the new legislation is its recognition that research differs from other activities. It involves risk, and therefore the products of R&D deserve special treatment,\u201d she says. According to Nader, the unique nature of R&D activities is taken into account in Constitutional Amendment no. 85 and embodied in the act of 2016 and the decree promulgated in February. This new understanding, according to Francilene Garcia\u2014president of the National Council of State Secretaries for Science, Technology, and Innovation (CONSECTI) and executive secretary for science and technology of the State of Para\u00edba\u2014is essential for R&D to thrive. \u201cExperiments with live organisms to develop vaccines, for example, should not be subject to the same rules applying to commodities imports,\u201d she says.<\/p>\n

Another criticism concerns the length of the regulations: the S\u00e3o Paulo decree has 68 articles and the Federal decree 86. \u201cThey could and ought to have been more concise, but have been written to a great level of detail so no room is left for doubt as to what is permitted to government officials. This is important at a time when state oversight bodies, such as audit courts and public prosecutors, are tightening their scrutiny of government officials\u2014and for good reason,\u201d Fernando Menezes explains. He notes, however, that this can often have unintended effects. \u201cThe lengthier the provisions, the greater the risk that conflicting interpretations or doubts could arise about their meaning.\u201d<\/p>\n

Detailed regulations are not a guarantee that policymakers\u2019 original intent will materialize. \u201cIt will take time to assimilate it all,\u201d says Alvaro Prata of MCTIC, who is coordinating a range of initiatives to support implementation of the new legislation. Implementation guides are being developed for each of the segments involved. Legal advisory departments at the MCTIC and the Ministry of Industry, Foreign Trade, and Services are developing a policy document to equip public prosecutors to \u201cenforce the decree to its fullest extent.\u201d A guide is also being developed for industry by the CNI, the Business Initiative for Innovation (MEI) and ANPEI. \u201cCompanies need to understand all the implications of the decree,\u201d says Prata.<\/p>\n

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APTA<\/span><\/a> The S\u00e3o Paulo Office for Agriculture\u2019s Animal Nutrition Laboratory: shared use of research infrastructure is promoted under the new frameworkAPTA<\/span><\/p><\/div>\n

Carlos Am\u00e9rico Pacheco, CEO of FAPESP\u2019s Executive Board, says the legal framework creates possibilities that need to be put into practice and promoted by innovation agencies. \u201cOver time we will have the opportunity to experiment with these new solutions and test them for effectiveness. And we need to bear in mind that this is a work in progress, which from time to time has to be revisited. What\u2019s important is that we continue to move forward,\u201d he says. He notes that the institutional environment is central to any innovation system. \u201cThis is clearly seen in the US innovation model, in the way it supports collaboration and the commercialization of research outcomes, and in the fact that its top universities and research institutions are all private, not-for-profit organizations. French innovation law is another example. These frameworks have provided a source of inspiration for institutional innovation all over the world.\u201d As an executive secretary between 1999 and 2002 at the then Ministry of Science and Technology, Pacheco recalls that in 2001 the National Conference on ST&I held the first discussions on the institutional environment which provided inputs into the formulation of the Innovation Act of 2004. \u201cWe have now taken a step further in modernizing our innovation system.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"A new decree outlines measures to lift bureaucratic barriers and boost innovation in companies and universities","protected":false},"author":153,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[166],"tags":[390],"coauthors":[469,98],"class_list":["post-259811","post","type-post","status-publish","format-standard","hentry","category-policies-st-en","tag-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/posts\/259811","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/users\/153"}],"replies":[{"embeddable":true,"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/comments?post=259811"}],"version-history":[{"count":0,"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/posts\/259811\/revisions"}],"wp:attachment":[{"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/media?parent=259811"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/categories?post=259811"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/tags?post=259811"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/revistapesquisa.fapesp.br\/en\/wp-json\/wp\/v2\/coauthors?post=259811"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}