The University of Cape Town’s Intellectual Property (IP) Unit strives to add an African voice to the global debate on IP-related issues. Our focus is on examining the link between IP, innovation, development and public policy. We aim at creating a leading IP programme in Africa that translates cutting edge research into excellent teaching and increases the number of highly-skilled African IP experts. Important issues range from the way in which we access and share knowledge to strategies how to commercialise inventions and avoid misappropriation. IP is a key determinant of human development, economic growth and competitiveness; and IP rules impact on various public policy areas including health, research and development, bio-diversity, clean technologies, food security, and education.

The power of DRM – the power to make you less money

drmby Kelsey Wiens (originally published on her personal blog. All content CC-BY unless otherwise noted).

Digital Rights Management, or DRM, is a digital encryption lock that is applied to film, music, video game, and books. The challenge with DRM is that it makes it difficult to share or move books between devices and traps consumers into one device.

The Big 5 Publishers (Hachette Book Group, HarperCollins, Macmillan Publishers, Penguin Random House and Simon and Schuster) all automatically apply DRM to all ebooks on Amazon but if you are a independent publisher or author you can choose to apply DRM or not. Once this choice is applied you cannot change it in either direction.

Author Earning recently studied 120,000 of Amazon’s top selling ebooks to see how often DRM was applied and if DRM had any effect on sales.

Not surprisingly the Big 5 evokes DRM almost 100% of the time. By contrast, independent publishers have about 50% of the titles with DRM.  And the 50% of non-DRM ebooks account for 64% of total unit sales. Continue reading

2014 WTO Public Forum: Innovation, IP and the role of informal sectors in Africa’s development

wtopublicDuring the upcoming 2014 WTO Public Forum in Geneva, Switzerland, Open AIRWTIUNCTADIDEAS Centre and ICTSD will jointly organise a panel discussion. The session will look at the role of innovation and IP in Africa’s development process as well as how partners can contribute with improved technology transfer and better targeted technical assistance. Specific reference will be made to innovation in the informal economies and their contribution to Africa’s share in international trade. In the majority of African countries, the informal economy remains predominant. Most African countries are LDCs, exempted from most TRIPS obligations until 2021. Yet a number of African countries seek to use IP to generate greater value added for their agricultural products (such as coffee), traditional knowledge and genetic resources through, for example, the use of trademarks and geographical indications. Africa’s informal sectors are particularly adept at appropriating knowledge to facilitate rapid and locally relevant innovation.


• Taffere Tesfachew, UNCTAD

• Pedro Roffe, ICTSD

• Dick Kawooya, Open AIR, University of South Carolina,

• Tobias Schonwetter, Open AIR; IP Unit, UCT

South Africa’s draft IP policy: a new article

by Prof Jeremy Phillips (reposted from Afro-IP CC-BY)

The draft national Intellectual Property Policy proposals for improving South Africa’s patent registration system: a review”, by fellow Afro-IP blogger Caroline Ncube (Associate Professor, University of Cape Town), has just been published online in the Journal of Intellectual Property Law & Practice (JIPLP). The print version will be available soon. According to the abstract:

This article discusses South Africa’s draft Intellectual Property Policy proposed reforms. It considers how these may be practically implemented. In particular, it focuses on the phased sector specific introduction of substantive patent examination, possible co-operation with other national or regional patent offices to enhance examination capacity, the retention of non-examination for utility or second-tier patents and the involvement of third parties in the examination process. It also considers the re-introduction of opposition proceedings to further strengthen the patent system.

The article points to other jurisdictions that have implemented some of these options such as Australia’s utility patent system, the successful implementation of the peer-to-patent project in countries such as the United States (USA) and the United Kingdom (UK) and opposition proceedings in Europe, the UK and Australia. It concludes that these are plausible and viable options that should be further explored for adaptation to the South African context.

The article will be of interest to those following policy and legislative developments in the developing world and particularly Sub-Saharan Africa, where change often begins in South Africa then extends throughout the region as neighbouring states follow South Africa’s lead.

citation: Caroline B. Ncube (2014) ‘The draft national Intellectual Property Policy proposals for improving South Africa’s patent registration system: a review’ Journal of Intellectual Property Law & Practice first published online September 12, 2014 Available at doi:10.1093/jiplp/jpu158

New Article on Plant Variety Protection in Sub-Saharan Africa

farmworkersSub-Saharan African countries are currently establishing or updating their Plant Variety Protection regimes through the regional organisations of which they are part. These initiatives are largely modelled on the 1991 Convention of the International Union for the Protection of New Varieties of Plants (UPOV). The 1991 UPOV Convention is claimed to attract more investment in plant breeding, allowing farmers to access a wider range of improved varieties which contributes both to economic development and food security. At the same time, however, these processes have been heavily criticised by civil society organisations for being out of step with Sub-Saharan African agricultural realities, undermining smallholder farmers agricultural practices, farmers’ rights and, ultimately, threatening food security. new article by Dr. Bram de Jonge discusses three of the main concerns of the civil society organisations in tandem with examples of alternative provisions from PVP systems from around the world. While the article shows that the civil society concerns are not likely to be acted upon, the article aims to answer the pressing question whether the proposed legal regimes will indeed hamper traditional farming practices in developing countries. As it is argued that this question needs to be answered in the affirmative, the article finally explores some legal avenues through which Sub-Saharan countries could establish a legal regime that protects the interests of breeders, in line with the highest international standards, while at the same time protecting and preserving the needs of those who make up the single largest group of farmers in the region – the smallholder farmers. 

B. De Jonge (2014). Plant Variety Protection in Sub-Saharan Africa: Balancing Commercial and Smallholder Farmers’ Interests. Journal of Politics and Law 7(3). pp. 100-111. Available at:

Moneyweb vs. Fin24 – copyright infringement litigation

by A/Prof Caroline Ncube (the is a shortened version of a blog post published on Afro-IP)

Moneyweb is suing Fin24 for copyright infringement arising out of Fin24′s (re-)publication of eight articles which had been initially published by Moneyweb (see a Mail and Guardian report here). Moneyweb has created a dedicated website (here) where it has posted all of the pleadings filed to date and media articles. This will be a very interesting case to follow, as it is the first time a South African court has had an opportunity to consider whether news aggregation constitutes copyright infringement. Anton Harber succinctly captured what’s at stake, when he blogged: ”This is a battle of our media giants, as Moneyweb is owned by Caxton and Fin24 by Nasper’s Media24. The elephants are fighting and the ants are watching, as always, nervously.” (Read his full post here).

Copyright User Rights and South African Filmmaking Briefing

bpfuOn 18 August 2014, the South African Screen Federation (SASFED), the Documentary Filmmakers’ Association (DFA), UCT’s IP Unit, and American University’s Program on Information Justice and Intellectual Property (PIJIP) held a public briefing in Johannesburg on the implications of an international research project on “Copyright Users’ Rights and the Clearance Culture in South African Filmmaking.” The briefing was organised in the context of the South African government’s announced intention to amend the Copyright Act, and discussed filmmakers’ potential interests in protecting, clarifying and expanding “user rights” in the law that permit creators and others to use copyright-protected content in subsequent work of authorship. South African and international copyright experts, local filmmakers and government officials attended, including Peter Jaszi, Professor of Law, American Washington College of Law, Sean Flynn, Associate Director, Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law, Dr. Tobias Schonwetter, the IP Unit’s Director and Regional Coordinator of Creative Commons Africa, and Andrew Rens, Senior Research Associate at the IP Unit. Professors Jaszi and Flynn were instrumental in developing the hugely successful U.S. version of Best Practices in Fair Use document that makes clear what documentary filmmakers currently regard as reasonable application of the copyright Fair Use doctrine. Participants of the meeting agreed that a plan should be developed to create a similar document for South Africa.

Intellectual Property Law Short Course, 16 – 18 July 2014

Screen Shot 2014-05-30 at 14.13.22 PMInnovation is the primary driver for accelerated growth in any economy and most significantly in South Africa. Since 2012 Government’s focus is on the knowledge economy and by establishing the incentive for advancement in technology, art, culture, manufacturing and science, intellectual property (IP) remains central to our country’s sustained development. A sound understanding of IP law is imperative to succeed in any competitive environment and increasingly relevant to non-legal practitioners.

This certificate short course, jointly presented by the IP Unit and the Anton Mostert Chair of Intellectual Property Law (University of Stellenbosch), will offer a theoretical and practice-driven introduction to the law of patents, trademarks, copyright and designs. It aims to equip attendees with the skills required to manage their IP as well as demystify IP law. The course is aimed at everyone with an interest in IP regardless of prior knowledge in this varied field of law. The course is particularly relevant to those in business development, marketing, advertising, journalism, Government, science, engineering, commerce, performing arts, IT and paralegal services. This year’s course will be presented at the Wallenberg Conference Centre at the Stellenbosch Institute for Advanced Studies (STIAS) on the historic Mostertsdrift estate in the heart of Stellenbosch. More information about the course is available here.

To register for the course complete the registration form or contact:
Paula Allen +27 (0)21 650 5558
Andrea Blaauw +27 (0)21 650 5413
Irena Wasserfall +27 (0)21 650 5513

Fast-tracking OER policy and practice in South Africa – UNISA on the move

oer_logo_EN_1(by Eve Gray) The question of open access to research, teaching and learning resources in South Africa has for a long time been a somewhat paradoxical space in national and institutional policy. There has appeared to be sympathy for open access and OERs, and some government support evidenced, for example, in the Academy of Science’s partnership with SciELO for the creation of a national platform for OA journals, SciELO South Africa. At an institutional level, the number of OA institutional repositories has been growing, the University of Stellenbosch has added the creation of a lively and ambitious open journal publishing programme, and the country’s leading research university, the University of Cape Town in its Open Content Directory now takes a wide-ranging approach to the research and teaching and learning resources it hosts. What there has not been up until now is a coherent national policy framework with in-principle support for open content produced through public funds.

Continue reading

Creative Commons South Africa and Code4SA announce the Open Data Now UnConference

Screen Shot 2014-05-20 at 14.24.15 PMAs a response to the restrictive policies of the Apartheid government, the right to access to information was enshrined in the South African Bill of Rights. The Promotion of Access to Information Act of 2000 outlines the process through which citizens can request information held by public and private bodies. While important, the act is challenging and often creates an adversarial relationship between requestor and requestee. The Open Data movement, worldwide, and in South Africa seeks to change the relationship between government and society with regards to data.

Interested stakeholders, together with a select group of thought leaders and innovators, are invited by Code for South Africa, and Creative Commons South Africa to the first South African Open Data Unconference on 30 June and 1 July in Cape Town. Representatives from government, civil society, academia, funding organisations, the media, and the private sector will collaboratively set an agenda for action. Goals for the UnConference include:

  • Identify a set of prioritised and shared results that can be achieved together over the next 2 years
  • Map out the current contributions and innovations that organisations are making in this area, to identify potential ways to scale these up and coordinate efforts
  • Engage other organisations and individuals who share a common interest in working together to plan, codevelop, resource and implement the environment required for open data in South Africa
  • Explore how the partnership initiative can become an envoy for the larger community of policymakers; practitioners; civil society; media; academia; funders and information hackers who love to liberate data for good causes
  • Establish a representative Open Data reference group that will take custodianship of this initiative

Creative Commons South Africa is based at the IP Unit. Please register for the event at

Our views regarding the “Four Corners” piracy case sentence

the_pirate_bay_logoVery recently, the Bellville Specialised Commercial Crimes Court sentenced a man to a three-year suspended sentence and fined him R3,000 or a six-month suspended sentence for posting a copy of a local movie, Four Corners, on Pirate Bay.

A/Prof. Caroline Ncube eloquently discusses the case on Afro-IP, and Dr. Tobias Schonwetter, the IP Unit’s director, summarises his thoughts in the following CC-licensed article by Adam Oxford in

“Today’s ruling that the first person to be convicted of online copyright infringement in South Africa must serve a three year jail sentence, fully suspended for five years, has been slammed as “draconian” by a leading academic in the field of intellectual property.

The court passed judgement on a man from the Cape Flats earlier today, who pleaded guilty to uploading a torrent link to The Pirate Bay and a digital file containing South African gangster movie Four Corners. The offender said that he was relieved with the verdict as it meant he could walk free from the court.

Dr Tobias Schonwetter, director of the Intellectual Property Unit at the University of Cape Town, says that he is “surprised by the harshness” of the sentence.

“On the face of it, the sentence of three years imprisonment fully suspended appears draconically harsh,” Schonwetter says, “And reminds me of the heavy punishments in other countries that have been widely criticised for not tackling the underlying reasons for online piracy; and for not achieving the objective of reducing piracy either. However, Mr Norton may actually prefer this sentence to being fined thousands of Rands.”

Schonwetter says that the final judgement may show a lack of understanding of the current entertainment market. Continue reading

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