UCT’s Intellectual Property 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, taking into account the needs of society, rights owners and consumers. Our vision is to be a leading voice in realising a continent where there is an open exchange about African ideas, creativity and innovation, in pursuit of sustainable development. We promote research, teaching, and learning in IP through holistic, balanced and open approaches, in order to stimulate innovation that drives development. Our core values are integrity, inclusiveness and relevance. We believe that South Africa has a leadership role in defining IP challenges in emerging and developing countries. We develop our programs through dialogue, research, debate and capacity building.
The IP Unit is pleased to announce a call for applications for a part-time student research assistant position. We are involved in several domestic, regional and international research collaborations, such as Open AIR, and we now seek an LL.B. student to join our team as a research assistant until March 2018.
Student research assistant duties will span the scholarly spectrum and can include: conducting literature reviews; creating surveys and other tools; collecting, managing and analysing data; co-writing peer reviewed articles and briefing papers; contributing to reports and submissions; co-presenting findings; writing blog posts and other media materials; network building through technology and social media; and assist with reporting and monitoring and evaluation duties. The student research assistant will also be encouraged and supported to conduct his/her own original research, under the direction and mentorship of academics based at UCT and/or other participating faculty, and could receive authorial or co-authorial credit. These activities will build academic skills like research methods, theory building, and scholarly publishing. The student research assistant will also have administrative duties in order to help build highly transferable professional skills such as leadership and teamwork, project management, and community engagement.
If you are interested in applying for this opportunity, please provide – via email to IP Unit Project Manager Nan Warner at firstname.lastname@example.org – a curriculum vitae, copies of your qualification certificates and a covering letter outlining your qualifications/experience and how they would support our work. The deadline for applications is 30 October 2017. The full call for applications is available here.
Open AIR invites proposals for short-term research projects that address Open AIR’s research questions on African innovation through the lens of gender equality, empowerment of women and girls, and inclusion of marginalised communities. Researchers will conduct their projects while based at one or more of Open AIR’s institutional hubs in Cape Town, Johannesburg, Nairobi, Cairo, Lagos, Abuja, and Ottawa. Thanks to the generous funding of the Queen Elizabeth II Diamond Jubilee Advanced Scholars Program (QES-AS), Open AIR will be able to grow the network of new and emerging researchers more deeply exploring this important topic. Interested candidates are encouraged to apply immediately. Please download the Call for Applications for detailed instructions how to apply. Applications will be considered starting 30 October 2017 and then on a rolling basis until suitable candidates are identified.
Also, as part of Open AIR’s ongoing research into IP and gender, we have recently produced a new briefing note, “Integrating Gender Perspective into African Innovation Research”. The briefing note addresses the prevalent issue of both overt and latent gender inequality as it relates to STEM, ICT, entrepreneurship, and IP in African countries.
This year’s SA Innovation Summit 2017 took place from 6 to 8 September in Cape Town at the Cape Town Stadium. It brought together academics, funders, founders, industrialists, entrepreneurs, inventors, business people and policy makers. The summit’s theme for 2017 was ‘Innovation Revolution’. It facilitated conversations on a wide range of topics, including BioTech, EduTech, AgriTech, Cities of the Future, Big Data and Artificial Intelligence. The major aim of the summit was the creation of an enabling environment for entrepreneurs, promoting an inclusive and impactful platform that inspires meaningful change. The summit also looked at ways of accelerating innovations from idea to market.
One of the IP Unit’s doctoral students, Aleck Ncube, presented at the summit. The topic of his presentation was ‘Patent Information as a tool for Accelerating Innovation Development, in Developing Countries’. Choosing this topic came from his observation that the application of patent information to accelerate innovation and overall development in developing countries is an angle that needs to be vigorously pursued. In his view, developing countries must be active participants in legal and technical transfer of innovations, including through patent searching to identify technologies of interest, patent owners, and the territorial scope of patent rights. During his presentation at the SA Innovation Summit 2 he argued that access to information is a key driver for innovation and posited that patents are potentially a unique source of information, containing not only legal but also technical, business and potentially policy-related information. He concluded his presentation by stating that patent information, if made available properly, can facilitate the transformation of a resource-based economy to a knowledge-based one.
In August 2017, the UCT IP Unit and the African Regional Intellectual Property Organization (ARIPO) signed an MOU for 4 years with the aim of establishing a general framework for cooperation to develop IP in Africa and ensure IP policy coherence on the continent. The MOU was signed to facilitate future collaborations between the two entities such as joint research projects and programmes as well as joint awareness raising activities that recognise and build upon the IP Unit’s important role in research and scholarship in IP law and policy in Southern Africa. ARIPO is an intergovernmental organization headquartered in Harare, Zimbabwe, for the cooperation among African states in intellectual property matters. It was established by the Lusaka Agreement in 1976. ARIPO’s objectives as an organisation are listed here. As of August 2017, ARIPO has the following 19 Member States: Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, São Tomé and Príncipe, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
South Africa’s Department of Trade and Industry has released the Draft Intellectual Property Policy of the Republic of South Africa Phase I (2017) (“the Policy”). Once the Policy has been published in the Government Gazette, submissions can be submitted within 60 days from date of publication.
The Policy describes IP as “an important policy instrument in promoting innovation, technology transfer, research and development (R&D), creative expression, consumer protection, industrial development and more broadly, economic growth“, and emphasis the link between IP and some of the key goals contained, for instance, in the country’s National Development Plan as well as the National Industrial Policy Framework as implemented through the Industrial Policy Action Plan. A domestic IP Policy is seen as a core tool to facilitate South Africa’s transition from over-reliance on natural resources towards a knowledge economy, with the aim of promoting “a holistic, balanced and coordinated approach to IP that is mindful of the many obligations mandated under the South African Constitution.”
The overarching goals of the Policy are summarised as follows:
- To consider the development dynamics of South Africa and improve how IP supports small institutions and vulnerable individuals in society, including in the domain of public health
- To nurture and promote a culture of innovation, by enabling creators and inventors to reach their full potential and contribute towards improving the competitiveness of our industries
- To promote South African arts and culture
- To solidify South Africa’s various international obligations, such as the Convention on Biological Diversity (CBD) and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (Nagoya Protocol on ABS), in the service of our genetic resources and traditional knowledge associated with genetic resources
by Eve Gray and Tobias Schonwetter
The Copyright Amendment Bill of 2017 currently undergoing the consultative process in South Africa, proposes overturning the longstanding prohibition against parallel importation provided for in the present South African legislation, an action that could undo more than a century of colonially-based market manipulation. Clause 11 of the 2017 Bill proposes the insertion of the following Section 12B into South Africa’s Copyright Act:
(1) Notwithstanding anything to the contrary in this Act, the Trademark Act, 1993 (Act No. 194 of 1993), and the Counterfeit Goods Act, 1997 (Act No. 37 of 1997), the first sale of or other transfer of ownership of a transferred original or copy of a work in the Republic or outside the Republic, shall exhaust the rights of distribution and importation locally and internationally in respect of such transferred original or copy.’’
This article reviews the proposed elimination of parallel import restrictions (PIRs) in the light of the South African legislature’s revision of copyright law in the draft Copyright Amendment Bill of 2017, currently under discussion with stakeholders. The issues are explored against the background of a colonial history, involving the power politics that still prevail in the former British colonial territories. As a hangover of British imperial politics, most countries in Africa have prohibitions against parallel importation.
The Background – What is Parallel Importation?
For those unfamiliar with the terrain, the question of parallel importation arises at the boundaries of copyright law and commercial practice across international markets. It is a term applied to goods protected by IP rights, including copyrights, and produced with the permission of the rights holder overseas, but then imported into another country without the permission of the rights holder in that country. This article will focus on the parallel importation, or the prohibition thereof, in the context copyright protection. If national copyright legislation contains PIRs — as is the case with most ex-British colonies, including South Africa (see s23(2) of the South African Copyright Act as interpreted by the courts in Frank and Hirsch (Pty) Ltd vs A Roopanand Brothers (Pty) Ltd 199) — this gives copyright holders the right to control importation of their works, enabling rights holders to charge different prices for different countries and to vary the quality of the products in different countries – in other words it provides for price discrimination based on geography. Importantly, PIRs are not required by international copyright instruments such as the Berne Convention and the TRIPS Agreement. This geographical discrimination is underpinned by the idea of ‘territorial rights’; the ability to provide different pricing and sales conditions in different countries. It is PIRs that allow for the enforcement of this price discrimination across different territories.
Together with two institutions in India and Brazil, UCT’s IP Unit has just co-published a paper with the title ‘Innovation, Intellectual Property and Development: A Better Set of Approaches for the 21st Century.’ The paper is authored by Dean Baker, Associate Professor Arjun Jayadev and Nobel Prize winner and former Chief Economist of the World Bank Professor Joseph E. Stiglitz. It is part of a series of arguments from AccessIBSA: Innovation & Access to Medicines in India, Brazil & South Africa, a project supported by the Shuttleworth Foundation.
In the paper’s introduction, the authors state that “[i]f the knowledge economy and the economy of ideas is to be a key part of the global economy and if static societies are to be transformed into ‘learning societies’ that are key for growth and development, there is a desperate need to rethink the current [intellectual property] regime and to allow for a much less restrictive flow of information and knowledge. Moreover, if we are considering questions of ethics, the current regime is deeply regressive and inefficient.”
The paper aims to provide an intellectual basis to think about the relationship between development, intellectual property and innovation; where we currently are and what alternatives are available. The authors outline the basic logic for the implementation of intellectual property rights and detail alternatives to providing private monopolies to promote innovation. The paper then turn to the question of intellectual property rights and the process of development. The authors argue that both theory and the preponderance of historical evidence suggest that development, at least in its initial stages, is best promoted by a weaker intellectual property regime than reflected in TRIPS, or at the minimum a markedly different regime. The paper shows that the current global regime of intellectual property rights is inadequate in serving the purpose of economic development and welfare. This claim is supported by an extensive set of case studies in the areas of food security, education and climate change. Finally, the paper provides a simple laundry list of ways in which better laws could facilitate development and prevent the worst excesses of the global IP regime.
The paper is available in English and Portuguese under a Creative Commons licence, and in the next few weeks we will publish a series of short summaries of different parts of the paper on this website.
by Desmond Oriakhogba
A five-years courtroom tussle concerning the rights of access to knowledge for the advancement of education in India was brought to an end in May 2017 by the Indian Supreme Court (ISC). Interestingly, the struggle ended in favour of the right of access to knowledge. A petition for leave to appeal lodged by the Indian Reprographic Rights Organisation (IRRO) against the decision of the appellate division of the Indian High Court (IHC – which upheld the right of access to knowledge) was summarily dismissed by the ISC.
It all began in 2012 when three publishers (Oxford University Press, Cambridge University Press and Taylor & Francis) filed a suit before the High Court in New Delhi (trial court – the trial court was constituted by a single judge of the IHC.) against the University of Delhi and a photocopying services provider. The publishers sought a permanent injunction restraining the defendants from infringing the copyright in their publications. The publishers also applied for interim injunction pending the trial for the main suit.
The uncontested facts of the case are that the University of Delhi identified course materials based on its syllabi. The course materials included extracts from textbooks published by the publishers. The extracts where photocopied and bound in four course packs by the photocopying services provider and sold to students and faculty of the University of Delhi at a fee of 40 paise (~ZAR 0.08 at today’s conversion rate) per page. The photocopying services provider operated from the premises, and on the authorisation, of the University of Delhi. On the average, the extracts constituted 8.8% of the textbooks each of which cost 2,500 Indian Rupees (~ZAR 510).
by Bram van Wiele
3D printing technology holds great promise for social entrepreneurs to develop and produce affordable and locally needed products. But the cost of 3D printers remains a key challenge. One Open African Innovation Research (Open AIR) case study executed by members of the IP Unit — “3D Printing: Enabler of Social Entrepreneurship in Africa?” — examines the role of two types of initiatives in facilitating affordable access to 3D printing technology: so-called ‘Fab Labs’, which provide public access to a wide range of tools and machinery, including 3D printers, and the local production of low-cost 3D printers. In early July, Dr. Tobias Schonwetter and Bram van Wiele went to Nairobi, Kenya, to interview individuals involved in African Born 3D Printing (AB3D), the Happy Feet project, Fab Lab Nairobi and Artisan Hive.
Only a few days after convening a 2 day general copyright workshop at parliament for members of the portfolio committee Trade and Industry, the IP Unit submitted, based on an in-depth analysis carried out by domestic and international copyright experts, its comments regarding South Africa’s 2017 Copyright Amendment Bill. Our submission aims to speaks to most of the issues introduced by the Bill, and where appropriate suggestions and model language are provided for further improvement. We note that the 2017 Bill is, as far as the drafting is concerned — and subject to a number of specific comments contained in our document — a marked improvement to the 2015 Copyright Amendment Bill. Some technical drafting errors do, however, remain. In particular, in many sections of the Bill, the word “author” is used, sometimes with a list of others, instead of the term “rights owner” being used. In our comments concerning the 2015 Bill, we expressly welcomed the proposed introduction of a more flexible and open fair use provision. We therefore note with concern that the lawmaker has since decided to significantly reduce the provision’s utility by limiting its applicability to a closed list of permitted purposes, and we strongly urge the lawmaker to reconsider this decision and amend s12 of the 2017 Bill by opening it up again in line with the suggestions in our submission. (One key reason for adopting an open fair use right, i.e., to authorise so-called non-expressive uses of works, is further explored in this Intellectual Property Watch op-ed by professors Flynn (Washington) and Sag (Chicago).) A partial collection of other comments submitted to the South African Parliament’s Portfolio Committee on Trade and Industry regarding the Copyright Amendment Bill can be found here.
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