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.
In October 2016, the ASK Justice project kicked off its inaugural Fellowship Program aimed at training the next generation of intellectual property (IP) scholars in Africa and sensitising them on the interlinkages between IP law and policy making and human rights issues. Three project Fellows -Ronald Kamya Nsobya, Victor B. Nzomo and Catherine Waithira Karanja – residing in three out of the four study countries (Kenya, Uganda and South Africa) were selected to work closely with network members at the Intellectual Property (IP) Unit within the Law Faculty’s Department of Commercial Law at the University of Cape Town (UCT), South Africa for one month. The Fellows’ biographies are summarised at the end of this article. The Fellows received a warm welcome from the ASK Justice Project team at the UCT IP Unit, including Dr. Tobias Schonwetter, IP Unit Director and Co-Principal Investigator for ASK Justice and Nan Warner, the ASK Justice Project Manager. According to Dr. Schonwetter, the Fellowship Program takes place at a crucial phase of the project where members are finalising their draft research findings on their country case studies concerning the extent to which human rights are considered in IP law and policy making processes in Botswana, Kenya, South Africa and Uganda. Theses research results are key for the project’s other main activities, namely the development of teaching resources and the project’s various outreach activities (“Public Voice”). While all Fellows are encouraged to work in areas of the project that they are most passionate about, the IP Unit will put emphasis on skilling up the Fellow’s social media skills in the upcoming weeks. For this reason, the IP Unit has already organised an in-depth training session on internet and social media to take place during the course of the Fellowship. The use of the Internet and social media is an integral part of the “Public Voice” component of the Project which aims to empower members of the ASK justice network to become advocates for positive policy change that improves access to knowledge and medicines on the continent. All ASK Justice Fellows have expressed their deep gratitude for the opportunity to interact with leading researchers and scholars with vast experience on issues of intellectual property and human rights on the African continent. According to one fellow: “The Fellowship Program also provides us an opportunity for training and mentorship, which will no doubt have an enormous impact on our future careers”.
Together with a group of local and international IP scholars, experts and pro-access advocates, members of the IP Unit have created and submitted detailed section-by-section comments concerning the dti’s Intellectual Property Consultative Framework, 2016. The submission was signed by dozens of international subject-matter specialist. Among other things, the submission links the dti’s policy effort to the recently released Report of the UN Secretary-General’s High Level Panel on Access to Medicines and emphasises the under-explored tension between overzealous IP protection and human rights. Crucially, the authors of the submission urge the dti in light of the critical public health and public interest issues at stake to move with utmost urgency to finalise an IP policy for South Africa. The submission contains the following overarching recommendations: Continue reading
On 30 September 2016 – 3 months after it gained the necessary 20 ratifications or accessions by WIPO member states – the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, entered into force. The “books for the blind” treaty was adopted on 27 June 2013 at a diplomatic conference organised by WIPO in Marrakesh, Morocco. It aims at tackling the book famine through making books and other published materials accessible to visually impaired persons by requiring contracting parties to adopt copyright limitations and exceptions that allow for the reproduction, distribution and cross-border exchange of works in accessible formats, such as Braille. According to an estimation of the World Health Organization in 2013, the world counts approximately 285 million visually impaired persons of which 90% live in low-income countries. For South Africa, during Census 2011, it was estimated that approximately 880 000 persons have no sight ability or have a lot of difficulty in doing so. The following 20 countries are now contracting parties to the treaty: Argentina, Australia, Brazil, Canada, Chile, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, India, Israel, Mali, Mexico, Mongolia, Paraguay, Peru, Republic of Korea, Singpore, United Arab Emirates and Uruguay. South Africa has neither signed nor ratified the Treaty; however, the recent draft Copyright Amendment Bill shows the legislator’s intent to soon implement the Treaty. The IP Unit’s Implementation Guide for South Africa can be found here.
On 14 September the United Nations (UN) released the long-awaited report by the UN High Level Panel on Access to Medicines. The panel, comprised of eminent and respected individuals from diverse stakeholder groups, was constituted in November 2015 with the mandate “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies.” A key issue raised in the report is that the prices of drugs need to be de-linked from the cost of research and development (R&D).
The report addresses four major areas: Health Technology Innovation and Access, Intellectual Property Laws and Access to Health Technologies, New Incentives for Research and Development of Health Technologies, and Governance, Accountability and Transparency. The report provides 30 recommendations – mainly for governments and private actors involved in R&D of health technologies.
In the field of intellectual property, the report calls on WTO members “to commit to the letter and spirit of the WTO Doha Declaration on TRIPS [The Agreement on Trade Related Aspects of Intellectual Property Rights] and Public Health, and refrain from any action that will limit their implementation and use in order to promote access to health technologies.” It calls on countries to make full use of the public health-related TRIPS flexibilities by, among other things, adopting and applying “rigorous definitions of invention and patentability that curtail the evergreening to ensure that patents are only awarded when genuine innovation has occurred” and “legislation that facilitates the issuance of compulsory licenses”. Moreover, the panel recommends that several UN agencies and other relevant bodies collaborate with each other to support governments in applying public-health-sensitive patentability criteria.
The report also engages extensively with free trade agreements, which often contain far-reaching patent and data protection clauses on health technologies that nullify the flexibilities that were envisaged in TRIPS and the Doha Declaration, hereby blocking access to such technologies.
by Eve Gray, first published on http://www.gray-area.co.za/
In 2015, South African universities saw widespread student protests against a neocolonial heritage at universities that stood accused of a lack of post-apartheid transformation in institutional ethos, curriculum, and racial demographics. Operating under a number of hashtags, such as #RhodesMustFall, #DecoloniseTheUniversity and #FeesMustFall, the one issue that no-one seemed to speak about was the influence of the scholarly publishing system, which has a strong influence on faculty reward and promotion systems, entrenching many of the trends that students were protesting against. A series of blogs will explore the political economy of scholarly publishing and the role of Open Access in South Africa at a crucial time in its university history.
Elsevier has recently rattled the rather glum view of the prospects of African journal publishing with what looks like a major intervention – a proposal to explore the potential for the development of an African megajournal. Could this mean that Africa – which until recently has hardly been on the radar of the big international journal publishers – has something to offer to this large and hard-nosed multinational academic journal publisher? Could this venture under the Elsevier banner provide the impact and prestige that the continent’s research has been so sadly lacking? Or could it be simply that it could provide a blank slate for Elsevier, experimenting in the face of market uncertainty? Or, at its crudest, just a neo-colonial land-grab in the face of challenges in the markets that Elsevier dominates?
It is perhaps a sad commentary on perceptions of the African continent that when a big corporation targets Africa as a new market, as Elsevier appears to be doing with this proposal, one of the first questions that can be asked is, ‘Does this mean that Elsevier’s business model is under threat?’ Given that the European Union, for example, is aiming for mandating full Open access to research by 2020 – with no embargoes, and affordably – and given also that governments like the Dutch government have been engaged at national level in hard negotiations with Elsevier to reduce subscription costs at a national level, it is quite possible that the commercial publishers are indeed worrying about the future of their current very high profit business model.
This is not without it ironies, however, as these developments have also come at a time when some major OA advocates are arguing that the current vision of OA is failing, a victim of its own tendency to over-zealousness and and lack of strategy and its capture by multinational journal publishers in the wake of the adoption of ‘gold’ open access journals funded by Article Processing Charges (APCs). The field is thus very uncertain indeed.
From the publishers’ side, it is very telling that Elsevier has recently acquired SSRN, the social sciences open access collaborative platform, after buying Mendeley some years ago. The most probable motivation behind these purchases would seem to be a strategic vision of the power to leverage open data in a networked research environment in which data analysis has become a powerful strategic research tool. Controlling large data sources is likely to become a very powerful base for a commercial company that wants to provide metrics as a core competence, as Elsevier already does through Science Direct.
The main problems for African research publishing up until now have been interconnected: a general lack of interest on the part of African governments in funding or supporting scholarly publishing activities; and exclusion from the mainstream of prestigious international scholarly journal publishing, with African journals and their content being regarded as of ‘local’ interest only, with very few of them qualifying for the citation indexes. So for research institutions to be courted by Elsevier might prove very seductive, offering as it does the potential for the ‘international’ cachet of association with a big name in global scholarly publishing. Continue reading
Linked to the publication of South Africa’s Draft National Policy on Intellectual Property in 2013 [see our comments from 2013 here], Cabinet approved at the beginning of July 2016 the Intellectual Property (IP) Consultative Framework. According to the dti, “[t]he IP Consultative Framework aims to facilitate what will be continuous engagement with governmental partners and society at large towards the formulation of South Africa’s IP policy.” Comments should be sent to firstname.lastname@example.org by no later than 31 August 2016 (subsequently extended to 30 September 2016). The IP Unit, together with a team of global experts, intends to submit its comments before the deadline.
[by Charlie Fripp, first published on htxt.africa on 7 July 2016]
After a series of public consultations and written submissions, South Africa’s somewhat controversial Copyright Amendment Bill will be put before parliament this month. The Bill has been both praised and criticised by activists at the Electronic Frontier Foundation, as its effects are potentially far-reaching. Minister Rob Davies in the Department of Trade and Industry made the announcement through a Government Gazette, published on 5th July. “Dr Rob Davies, Minister of Trade and Industry intends introducing the following Bill into Parliament during July 2016,” the Gazette reads, after which it lists the Copyright Amendment Bill and the Performers Protection Bill. The Bill aims to overhaul the copyright law in South Africa, but perhaps the most controversial aspect of it centre around orphan works and the duration of copyright for creators. Under the proposals, copyright on original works can be claimed by a performer or artists for their entire life and, by their estate, for 50 years after their death. Dr. Tobias Schonwetter, Director at UCT’s IP Unit (Faculty of Law) and Regional Coordinator (Africa) for Creative Commons, told htxt.africa that while the summary of the Bill as contained in the notice in the government gazette and the text in the the summary section of the Bill from last year has remained largely unchanged, there is a difference in language. “Two noticeable changes are (1) that the Bill now speaks of the ‘protection of authorship of orphan works by the state’ instead of the protection of ‘ownership’ (the state’s claim of ownership certainly was one of the most criticised elements of the previous Bill), and (2) that references to the protection of performers and producers have disappeared,” said Schonwetter. “These elements have most likely been moved (as they should) into the Performers Protection Bill, which, according to the government gazette, will be introduced into parliament at the same time as the Copyright Amendment Bill,” he said.
On 5 May 2016, the Gauteng High Court delivered the long awaited decision in Moneyweb v Media24. The case’s history is nicely captured here. In a nutshell, the case dealt with, among other things, the alleged copyright infringement of 7 articles published by Fin24, a part of Media24. Moneyweb had argued that through publishing these articles, Media 24 infringed its copyright by unlawfully copying, appropriating and/or plagiarising articles previously published by Moneyweb.
The dispute raised important issues regarding the substance and extent of copyright protection in news articles and the outcome clarified crucial aspects of South African copyright law, including fair dealing and the meaning of originality.
Three issues were at the heart of the decision: (1) whether Moneyweb’s articles were original, (2) whether Moneyweb had reproduced substantial parts of these articles, and (3) whether Media24 was absolved from liability by virtue of copyright exceptions and limitations (ss 12(2)(c)(i) [“fair dealing”] and 12(8)(a)). Continue reading
by Eve Gray
What needs to be done to achieve an enabling policy environment and the necessary technical infrastructure and professional skills in Southern Africa to foster the effective communication and publication of African scholarship? What benefits would accrue from more effective communication of the scholarship in the region? What would the region gain?
These were the core questions explored by a variety of speakers at a Leadership Dialogue attended by southern African Vice-Chancellors and organised by the Southern African Regional Universities Association (SARUA), the UCT IP unit, UNESCO and Magna Charta Observatory. This workshop, a prelude to the Going Global 2016 conference being held at the Cape Town international Convention Centre, focused on Open Access and African Research Publication in the 21st Century. The choice of this focus on Open Access was triggered by an announcement that Elsevier was sponsoring the development of an open access African megajournal, in collaboration with the African Academy of Sciences, the African Centre for Technology Studies, the South African Medical Research Council and IBM Research Africa.
This initiative, under the auspices of the Elsevier Foundation, an independent charity founded by the company, appears to be doing a lot of the things that African governments ought to be, but are in general not doing. Elsevier has sponsored open access workshops with AAS, offers training in writing and publishing skills, and sponsors the use of technological platforms for open access dissemination. ‘We believe that there could be a much greater return on investment over the next ten years if African institutions, access programs and publishers could address awareness, usage and research capacity in a collaborative and integrated manner’ the Foundation states.
The question that arises from this is a crucial one. If, as African governments tend to approach research publication, the general trend continues to be a free rider syndrome in which everyone steps back and says ‘Publishers can do this well, so we do not have to’, what are the potential gains and losses? The gains may be highly professional journals – this time with African content, unlike the historical content profile of commercial journals. However, an ostensibly public benefit initiative such as this, which focuses on the core business out of which Elsevier makes its very substantial profits, is unlikely to stay completely free of charge for very long. Once it begins to be monetized, will African scholars, universities and governments be able to afford to publish in it? (They will be able to read it, but payment levels for publishing an article are likely to be so high that only well-endowed authors from overseas universities will be able to afford it. In other words, will it become another neo-colonial enterprise? Continue reading
The ASK Justice initiative contributes to positive policy change to increase access to medicine (A2M) and access to knowledge (A2K). This is done, primarily, by building a strong network of people at Southern and East African universities who work on human rights and intellectual property. We invite applications for a one-month Fellowship, to be spent at our centre, UCT’ IP Unit, working on the project’s activities. Primary responsibilities will include developing a good understanding of the ASK Justice research and contributing to the work, while helping solidify and grow the ASK Justice network. The deadline for applications is 31st May 2016. More information is available here.
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