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 meaning of ‘impact’: prestige or relevance for developing world research?

EveGray(by Eve Gray, originally published on the Open Access in the Developing World blog)

The impact factor under fire

The release of the 2014 Impact Factor Report was being awaited, as usual, with some anticipation by journal publishers and researchers to see who is in and who is out in this particular club this year. Yet this comes at a time when there is an ever-rising tide of contestation about its value as an analytic tool for research effectiveness in a radically changing research environment, and especially in the developing world. Among many others, Stephen Curry went viral in 2012 with his stinging dismissal of the IF as ‘statistically illiterate’.

The Impact Factor and the developing world

There is an interesting circularity about the impact story in the developing world. With the expansion of the number of developing country journals in the index, the inclusion of the Latin American open access journal platform, SciELO in the Wed of Science (the Thomson Reuters citation indexes), it would seem that there is a courtship going on in which the developing world is being drawn into the journal impact tables. Continue reading

WTO Public Forum 2014: Formal IP System Does Not Fit Africa, LDCs Need Technological Capacity, Speakers Say

(by Catherine Saez, first published in IP Watch (Geneva))

TobiasWTOOn the last day of the World Trade Organization Public Forum, a panel discussed the relationship between intellectual property and innovation in Africa, in particular in the informal sector. The formal IP system does not seems to fit, and least-developed countries need a sound technological base to be able to use the IP system. Separately, a European Patent Office study shows that Africa has a vast yet untapped potential in renewable energy. The annual WTO Public Forum took place from 1-3 October with the theme “Why trade matters to everyone.” The panel was organised by the African Innovation Research and Training project (Open AIR), the International Centre for Trade and Sustainable Development (ICTSD), and the European Patent Office (EPO).

‘We Just Create Differently’

According to Tobias Schönwetter, director of the Intellectual Property Unit, Faculty of Law at University of Cape Town (South Africa), and co-principal investigator at Open AIR project, more and more people realise that IP rights by definition are monopolies, and inherently anti-competitive. There is increasing scepticism to the “one size-fits-all approach,” which was promoted by IP regimes, and through international treaties, he said. It is important to take into account the differences of the African context as compared to other regions, he said. In particular, he said the Open Air project took into account the extreme diversity of the African continent. Africa has unique innovation and entrepreneurial dynamics. “We just create differently, we just innovate differently,” he said, and that might not be well covered by the current IP instruments. The project, which covered 19 case studies, created a wide network of IP innovation and entrepreneurial specialists in Africa, he said. A further foresight scenario exercise was undertaken, taking the results of the research and translating that into what it means for Africa in the next 30 years, to be presented to policymakers, he explained. The overarching conclusions of the project, he said, is that the African context seems to be predisposed to innovation of necessity or accidental innovation, not so much focused on frontier or high technology innovation. Orthodox categories of IP often remain ill-equipped to deal with innovation originating from Africa. “They just don’t fit,” he said, and the infrastructure for research and IP management is often poor. A recommendation to policymakers would be to “avoid policy mistakes” and consider that while there is really no IP policy in Africa yet, although it is starting, sometimes no IP policy is better than having the wrong IP policy to foster innovation, he said. Another recommendation would be that sui generis forms of IP protection, such as trade secrets may be better suited for facilitating innovation in Africa than other forms of intellectual property such as patents or copyright, he concluded. Dick Kawooya, Uganda team member and principal investigator for the Open AIR project, concurred to say that western IP tools were for the most part irrelevant for innovation in the African context.Three scenarios came out of the foresight exercise, he said, one of which focused on the informal sector and for which a broader concept of knowledge governance was used, including IP tools, but going beyond those. Based on the case studies, he said, improvisation is very important for the informal sector, he said. “Someone operating in the informal sector has to constantly innovate,” he said. Improvisation is very important to the informal sector, so is apprenticeship. A lot of what happens in the informal sector is open, he said “so what puts you on the edge … is really producing more complex products or processes.” These knowledge appropriation mechanisms are important in Africa, he said.  Continue reading

On the importance of open funding models

by Kelsey Wiens

The benefits of open licenses are clear and substantial. By reducing the burdens and removing the risks associated with ordinary copyright, we make it easier for others to use, share, and build on materials. This week US-based international funder, the Hewlett Foundation, announced that it now requires that grantees license the final materials created with those grants (reports, videos, white papers) under the most recent Creative Commons Attribution license (currently CC-BY 4.0). With over $8 billion in its endowment, the foundation’s policy stance has monumental consequences. It also begs the question:

Why don’t all funders do the same? 

The copyright of the outputs of a project either sits with the foundation or the grantee and once the work is completed is most often buried in a press release or a research paper; filed in a boxed marked “Good Job”. The foundation or grantee must henceforth give permission for others to copy, distribute, remix or reuse the works. It’s guarded, often it’s difficult to find and even more difficult to locate the owner and negotiate and secure permissions. Continue reading

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.


Panellists

• 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: http://dx.doi.org/10.5539/jpl.v7n3p100

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 paula.allen@uct.ac.za
Andrea Blaauw +27 (0)21 650 5413
Irena Wasserfall +27 (0)21 650 5513

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