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.
by Charlene Musiza
On 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.
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
By Douglas Gichuki
Inherent 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.
by Charlene Musiza and Desmond Oriakhogba
It 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
by Ruth Knoblich and Dr. Tobias Schonwetter
Academia 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.
By Desmond Oriakhogba
A major recurring issue during the public consultations on South Africa’s Copyright Amendment Bill – in which the UCT IP Unit actively participated – centered around how best to balance copyright to safeguard the public interest when promoting creativity, while affording adequate reward and incentives for creators. As expected, the option was between, on the one hand, adjusting and expanding the current set of specific copyright exceptions and limitations and, on the other, transforming the current fair dealing exception into an open and flexible fair use exception, modelled on similar provisions in countries like the United States, Korea, Israel and Singapore. These two options form part of copyright’s internal mechanisms for adequately balancing the competing interests of the stakeholders involved. This article aims to draw attention, however, to external mechanisms afforded by competition law that may, in addition, be deployed towards a balanced copyright regime in South Africa.
On 28 March 2018, Professor Caroline Ncube delivered her inaugural lecture at the University of Cape Town (UCT), with the topic: “The public interest in intellectual property law: African solutions to global challenges”
During her exciting lecture, Prof. Ncube relied on her extensive research to argue, among other things, that in order to create fair intellectual property systems, intellectual property rights must consider public interest concerns that are informed by societal values, and protect human rights. According to Professor Ncube:
“Using the public interest context would allow South Africa, or any other country, to custom make a suitable intellectual property system.”
Throughout her lecture, she raised pertinent questions and shared her thoughts on some of the most topical intellectual property issues from an African perspective. For example, she addressed the question of how accessibility to works produced at publicly funded research institutions can be increased for the public good, and how works created by indigenous communities can be protect adequately. And repeatedly, Professor Ncube referred to her research work carried out projects such as Open AIR and ASK Justice.
One thinks of Coleridge’s Ancient Mariner: “Water, water everywhere, nor any drop to drink.” Cape Town is a city surrounded by water: a peninsula at the southernmost tip of Africa, all around are vast expanses of clear blue and turquoise sea – scenically one of the most beautiful cities in the world. Its most striking physical feature is an imposing mountain range rising in the centre of the city, with numerous mountain streams running down it, to eventually drain into the sea. It is associated with water – that is why the Khoisan, the first people of this lovely peninsula called it //Hui !Gaeb,”, the place where clouds gather. Another phrase associated with the early city is its Khoisan description as the ‘place of sweet waters’, hence its choice as a watering place for ships sailing from the East to Europe, the premise for the first colonial settlements.
It is therefore startling to find the city now in a position in which it is threatened with becoming the first major city in the world to completely run out of water. Using disaster rhetoric, the city council has coined the phrase ‘Day Zero’ for the day on which the piped water supply to the city will be turned off, as the catchment areas run out of water, and citizens will be obliged to queue for water at water dispensing sites, each dealing with tens of thousands of people per day, to claim their limit of 25 litres per person per day. Continue reading
You are cordially invited to the second Vice-Chancellor’s Inaugural Lecture of the year, which is scheduled to be presented by IP Unit’s member Professor Caroline Ncube. The lecture is titled “The public interest in intellectual property law: African solutions to global challenges”.
Professor Ncube has served as deputy dean of postgraduate studies and head of the Department of Commercial Law at the University of Cape Town’s Faculty of Law. She is a fellow of the Cambridge Commonwealth Society and a Shell Centenary Scholarship Fund scholar. She is an associate member of the Centre for Law, Technology and Society at the University of Ottawa and a co-leader of the Open African Innovation Research Partnership.
by Tanveer Jeewa
Intellectual property law and human rights law are two legal fields which hardly intersected before the 90s. This might come as a surprise since the joining of the two has been intensely debated in this century. Yet, looking at the history of their meeting, one may easily understand why a human rights approach was not a priority for intellectual property experts and vice versa. In the post-world war II era, human rights experts were more focused with establishing international norms preventing gross human rights abuses, while intellectual property rights proponents were primarily focused on broadening the scope of IP protection with a view of rewarding and incentivizing innovative activity. Put differently, these were two rather diverging topics which did not allow for the two fields to merge easily.
Not surprisingly, human rights advocates were the first to take notice of intellectual property rights, due to two significant observations:
- The neglect of the rights of indigenous people, and
- The linking of intellectual property and trade through the TRIPS agreement in the mid 1990.
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