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.

New study on the meaning of the “public domain” in the context of TK

chidiLater this month, we will be welcoming Professor Chidi Oguamanam at the IP Unit for a research visit. Professor Oguamanam recently published a fascinating study ,entitled, “Wandering footloose: Traditional knowledge and the ‘Public Domain’ revisited,” in which he addresses the meaning of “public domain” in the context of traditional knowledge (TK). The study was picked up in a recent Intellectual Property Watch article by Damillola Adepeju and summarised as follows: The study highlights that it provides a non-Eurocentric conception of “public domain” in order to recognise the customary laws and practices of indigenous and local communities (ILCs). The idea of a public domain in intellectual property rights is that of limited term rights where such rights are seen as a trade-off as part of a social contract. “The state incentivises those who have made useful innovations or other creative works by way of a state sanctioned monopoly,” the paper states. “At the end of the monopoly, they are required to hands-off or take off tolls on the innovation so that it would be flushed into the sinkhole of the public domain for members of the public to freely access for various ends, including the creation of more useful innovation(s).” Regarding this public domain, the study highlights that the United States and its allies have been putting pressure on traditional knowledge stakeholders concerning the protection of traditional knowledge. These countries are of the view that effective protection of traditional knowledge will “undermine” the public domain, the study explains. This pressure, the study points out, is ironic considering that these countries, led by the United States, have “worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain.” These are the same countries that “have now reconstituted themselves into its later day champions when it comes to TK,” the study states. “United States insists that the primacy for the protection of TK lies with the recognition of ‘the value of a vibrant public domain, the body of knowledge that is available for all to use and which is essential for creativity and innovation,’” it says. But the study shows that indigenous and local communities have not disregarded the public domain. However, their worldviews differ as “[t]here is little or no emphasis on the appropriation narrative or appropriation imperative in the mould of Western social contract philosophy.”

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Protecting and Promoting Indigenous Peoples Rights in Academic Research Processes: A Guide for Communities in South Africa

Nama_Khuboes-DamienSchumann-RTNCby Cath Traynor
(this article was first published by Natural Justice)

Research involving communities and their knowledge can result in unintended negative impacts: A new guide – co-published by Natural Justice, the IP Unit and Indiana University-Bloomington’s Department of Gender Studies – supports communities to understand the law, harness their rights and negotiate more socially just research processes. The guide discusses indigenous rights in the context of academic research practices, including free, prior and informed consent (FPIC) and intellectual property rights. Adhering to the principles of FPIC, communities should be in a position to make an informed decision on the potential risks and benefits of proposed research, and the guide highlights some key areas.

During a collaborative research project of the Open and Collaborative Science in Development Network (OCSDNet) that investigated climate change and the role of indigenous knowledge in assisting communities to adapt, members of Indigenous Nama and Griqua communities in South Africa raised concerns about research processes in general. As expert knowers in how research and knowledge has historically been produced involving indigenous peoples, they articulated inherent conflicts that arise when participating in research that is primarily designed and led by those outside of their communities. Conversations revealed that although their communities have a culture of sharing, they were hesitant to share their knowledge with researchers because of the risks involved, and that in the past their contributions had been left unacknowledged and they had received little or no benefit from participation. The guide was created in response to these concerns.

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Data, Databases and Copyright Protection in South Africa, Part I

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by Dr. Tobias Schönwetter and Desmond Oriakhogba

Generally, open data initiatives are important means of promoting the constitutionally guaranteed fundamental rights of access to information, freedom to receive information, and right to education (ss32, 16(1)(b) and 29 Constitution of the Republic of South Africa). Such initiatives are also important in ensuring informed planning and policy making by government and citizen participation in governance, among others. A 2013 article in the Daily Maverick by Adi Eyal and a recent blog post by the IP Unit’s Eve Gray on climate data and the water crisis in Cape Town confirm that claims to copyright protection of data and databases containing publicly relevant data is a challenge to making such data open.  This raises questions as to the extent to which data and databases are indeed protected under the South African Copyright Act. This article is the first part in a series of blog posts with the main objective of examining the extent of copyright protection of data in South Africa. By way of providing background to the second part, it first discusses the broad issue of copyright protection in databases in South Africa. The second part will then address the important issue of whether and in which circumstances data enjoys copyright protection in South Africa.

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Call for Volunteers for Wikimania

Picture1Wikimania, the annual conference celebrating the Wikimedia Foundation’s free knowledge projects – such as Wikipedia – is coming to Cape Town soon and you can be a part of it! This is a great opportunity to participate in a truly global and inspiring event.The theme of Wikimania 2018 is “Bridging knowledge gaps: the Ubuntu way forward”. Join this event for free by volunteering some of your time during the university holiday to help host the first-ever-in-Sub-Saharan-Africa Wikimania conference.

As a volunteer you will enjoy the following benefits:

  • Free access to the conference/two parties
  • Free catering
  • Transportation to and from UCT
  • Great opportunity to meet the people behind Wikipedia, e.g. Jimmy Wales
  • Participation in open technology/open knowledge forums
  • Endorsement as an open knowledge promoter
  • Immersion in the global free knowledge movement

You can find more information and register at: https://wikimania2018.wikimedia.org/wiki/Volunteer

Note: there is a limited number of volunteering places so register as soon as possible! (There will be no commitments or meetings during the exam period.)

South Africa Approves New IP Policy, With Guidance From UN Agencies

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(by Linda Daniels – first published for Intellectual Property Watch under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.)

It took nine years of policy development, two different draft policies and various rounds of public consultation, to finally see Cabinet give the nod to the new Intellectual Property (IP) policy in South Africa.

Cabinet, the highest decision-making body of government made the announcement in a statement released earlier this week. Cabinet’s approval of the policy has set in motion an administrative process which will lead to the publication of the finalized policy in the government gazette. At this stage it is unclear when it will be published.

High-level input went into the IP policy and Cabinet’s approval was applauded by both local and international IP stakeholder communities.

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Workshop on Innovation and Intellectual Property in South Africa

By Charlene Musiza

Image uploaded from iOSOn Tuesday 15 May 2018, the South African Department of Trade and Industry – supported by the IP Unit, the WITS Institute for Social and Economic Research and the Shuttleworth Foundation -organised a workshop to discuss the recent publication ‘Innovation and Intellectual Property in South Africa: The Case for Reform’.The workshop, held at the WITS Institute for Social and Economic Research, had a distinguished panel of intellectual property practitioners and researchers: Dr Tim Burrell, Alison Dyer, Advocate Jonathan Berger and Achal Prabhala. The workshop was moderated by Marumo Nkomo, Director: Legal – International Trade & Investment at the Department of Trade and Industry.

South Africa is currently reforming its intellectual property law and policy landscape and as recently as 23 May 2018 the South African cabinet approved the Intellectual Property (IP) Policy of the Republic of South Africa- Phase 1. Though the policy is yet to be gazetted, it is a welcome development that government has taken a rather bold step towards law reform and policy in this area. The workshop saw a robust discussion that highlighted some of the key issues at stake when it comes to reforming intellectual property laws in South Africa, especially in the context of patents.

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The need to reform SA’s patent system to increase local innovation

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As we await the finalisation of South Africa’s IP Policy Phase I (the 2017 draft is available here), the IP Unit’s latest publication ‘Innovation and Intellectual Property in South Africa: The Case for Reform’ seeks to contribute to the debate about the introduction of a substantive patent examination system in the country by providing some much-needed empirical evidence. To date, a comprehensive analysis of who patents what in SA is simply missing

For their report, the authors Dr. Andrew Rens and Jonathan Berger analysed more than 4,000 patents granted by the dti’s Companies and Intellectual Property Commission to South African individuals and bodies over the period January 2005 to July 2015, about 10% of those granted domestically to South African individuals and bodies. They show that currently, the South African patent landscape is characterised by easy grants of patents of dubious quality and value. According to the authors, their data strongly suggest that the existing deposit system in South Africa stifles rather than stimulates innovation – contrary to the argument of those defending the current system that our soft regulatory touch stimulates innovation and any departure from it would kill innovation. Thus, the introduction of a substantive examination system for patents, as proposed by the dti, is to be welcomed. It is worth noting that numerous countries and regions already have substantive patent examination systems in place, including the U.S., Europe, Brazil, India, China and Kenya. Continue reading

What shall we do with racist, bigoted and offensive speech in new media? Varying approaches to circling squares.

By Douglas Gichuki

WhatsApp Image 2018-05-03 at 15.51.12Inherent tensions define the varying approaches between the regulation of speech on new media platforms and protections for freedom of speech as a fundamental right. These tensions are increasingly magnified as a transnational internet comes up both against hard regulatory norms based on the Westphalian sovereignty and cultural norms emanating from both radical left and right viewpoints. This piece forms part of the IP Unit’s core research at the intersection of innovation and regulation.

Canadian Professor Jordan B Peterson is currently the internet’s most famous clinical psychologist. His YouTube lecture series account has over 100 million hits, while his recently published book, 12 Rules for Life: An Antidote to Chaos, is a runaway bestseller on Amazon in the UK, US, Canada, Australia, Germany and France.  In an opinion piece carried by the New York Times and titled “The Jordan Peterson Moment”, David Brooks describes him as possibly being “the most influential public intellectual in the Western world right now.”  His ascendancy to cyberspace stardom however started to accelerate in late 2016 due to his refusal to accept “mandated speech”- Peterson’s view- of Bill C-16, an Act aimed at amending the Canadian Human Rights Act and the Criminal Code by adding gender expression and gender identity as protected grounds to the Canadian Human Rights Act, and also to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing.

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Emphasising the IP Gender Gap

by Charlene Musiza and Desmond Oriakhogba

charleneItIMG_20160503_134857-1-1-1 is no news that 26 April every year is established as World intellectual property (IP) day. According to the global IP law and policy making body – the World Intellectual Property Organization (WIPO), the day is set aside to celebrate and learn how IP rights (including copyright, patents, industrial design and trademarks) contribute to creativity and innovation.

Perhaps, what is news, and a cheering one at that, is that this year’s World IP day, according to WIPO, will be celebrating the ‘brilliance, ingenuity, curiosity and courage of the women who are driving change in our world and shaping our common future’. In this regard, the day will afford the global IP community an opportunity to “highlight how the IP system can support innovative and creative women (and indeed everyone) in their quest to bring their amazing ideas to market” and “reflect on ways to ensure that increasing numbers of women and girls across the globe engage in innovation and creativity, and why this is so important”. This is cheering for several reasons. Continue reading

Rising Middle-IP Powers dissolving the North/South polarisation in the international IP system

by Ruth Knoblich and Dr. Tobias Schonwetter

Screen Shot 2018-04-09 at 11.02.01Screen Shot 2017-05-03 at 01.48.01 AMAcademia and the public have long been focusing on the North/South power asymmetries in the international IP regime. Two decades after the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) came into effect at the beginning of 1995, it is now becoming obvious, however, that rising economies such as Brazil, India, China and South Africa emerge as a cross-cutting group of players that may help, going forward, to dissolve the North/South polarisation in the international IP order. Firstly, these countries make full use of the existing international IP system: They design their national IP law in compliance with the TRIPS minimum standards for protection, while counterbalancing these standards by strategically utilising (and testing the boundaries of) the TRIPS flexibilities available to them. Secondly, emerging economies have also begun to successfully influence the international system of IP law and policy-making itself to better reflect their interests and needs.

The rise of these ‘middle-IP powers‘ is a major opportunity for developing and enhancing the international IP system. Those countries can help recalibrate the balance between IP rights and their access-oriented limitations, or, put differently, between the private and the public interest. Furthermore, they contribute innovation types and protection contexts that are very different to those underpinning the existing international IP system, but shared by the majority of countries in the global South. Rising middle-IP powers can thus function as creators of a future international IP system that strongly re-emphasises the preservation of a global public commons and social development in line with the global Sustainable Development Goals (SDGs), and supports more individualised development patterns and innovation strategies by embracing a broader range of knowledge forms and flexible instruments for their protection.

This article is the first in a series on rising middle-IP powers, particularly focusing on South Africa as a BRICS member country and a political and economic heavy weight on the African continent. It sheds light on the interests and mechanisms in protecting IP, mirrors current debates on IP reform, and traces the growing influence of these new actors in the realm of international IP law and policy making. The series directly links to the UCT IP Unit’s work on the creation of more balanced IP frameworks in Africa and beyond, sharing the conviction that rising middle-IP powers such as South Africa have a key role when it comes to defining and addressing IP challenges for development.

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