by guest contributor Bonginkosi Shozi, PhD Fellow, African Health Research Flagship, School of Law, University of KwaZulu-Natal

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy

Preface by Adjunct Professor Wend Wendland

The COVID-19 pandemic has exposed the eggshell fragility of global human health, safety and well-being.

The pandemic is causing severe disruption to societies, economies, supply chains, trade and travel, erasing development gains and devastating the livelihoods of people, especially the poor and most vulnerable.

As a fine dust of anxiety settles over everything we do, never before has the global race for a vaccine, treatment and cure been as urgent.

Once health products of assured quality and safety are developed, global cooperation will be needed to ensure that they will be accessible and affordable to all at the same time.

Availability, accessibility and affordability of health products (such as medicines, vaccines, diagnostic and testing kits, medical devices and protective devices) depend on several factors, such as a country’s manufacturing capacity, the height of trade barriers, the strength of its competition (anti-trust) regulations, the efficiency of procurement procedures, the effectiveness of transportation and delivery mechanisms, and the adequacy of health systems and infrastructure. The pharmaceutical and medical R&D, innovation, production and supply ecosystem is complex.

Intellectual property (IP) rules are relevant too. IP protections may secure the investments needed to produce life-saving innovations, just as they may also hinder competition and constitute a barrier to collaborative innovation and impede access to those innovations. Governments the world over grapple with designing IP systems that incentivize innovation while safeguarding public health.

IP rights are not absolute. They are subject to exceptions and limitations and countries can take advantage of these provisions (also called “flexibilities”) in international instruments to address public health objectives. Further, IP rights don’t apply in all countries:  for example, patents apply only in the countries in which they have been applied for and granted. And, under the World Trade Organisation’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), least-developed countries need not protect pharmaceuticals until 2033.

More broadly, this extraordinary global threat underscores the critical importance of international solidarity and effective multilateralism. This “Multilateral Matters” blog series shines a beam on the need for and relevance of multilateralism in the IP arena.

For all these reasons I decided that the next “Multilateral Matters” blog post should address the IP/health question, which, with great pleasure, I invited Bonginkosi Shozi, PhD Fellow, African Health Research Flagship, School of Law, University of KwaZulu-Natal, to write under his own responsibility as a guest contributor to “Multilateral Matters”.

While acknowledging the relevance of copyright to access to health-related data and knowledge contained in scientific and medical journals and other literary works, his post specifically addresses the freighted and fraught relationship between patents and health.

This post is also timed to acknowledge “The International Day of Multilateralism and Diplomacy for Peace”, which is celebrated in April each year.[1]

Additional readings will as usual be posted on the Multilateral Matters website.

With my thanks to Bonginkosi, over to him.

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By Clarence Lakpini – first published by The IPKat under Creative Commons Attribution Non-Commercial License.

Last month, the South African Research Chair in Intellectual Property, Innovation and Development (the IP Chair) hosted the official book launch for Dr Chijioke Okorie’s new book, Multi-sided Music Platforms and the Law, at UCT’s Faculty of Law. The event consisted of a “fireside chat” between Dr. Okorie and Adam Haupt, a professor of Film and Media Studies at UCT. Clarence Lakpini, a PhD Candidate under the IP Chair and a Research Assistant at the IP Unit was in attendance. Below, he reports on what happened that day:

“Phenomenal.” The word that jumped out to the audience when Professor Caroline Ncube, the holder of the South African Research Chair in IP, Innovation and Development, after her characteristically warm welcome to all the attendees, commenced her description of Dr Chijioke Ifeoma Okorie. It was clear to see that this was not just a word thrown out for the sake of it, but a heartfelt endorsement of a person the distinguished Professor considers a protégée. Having supervised Chijioke’s doctoral thesis, she is in a better position than most to give a candid opinion on the author. After all, Chijioke commenced her PhD studies, with her in 2015 and in her words, “finished in record time…”

The event, which was scheduled to mark the launch of Chijioke’s book, was held on the 12th of February 2020 and well attended from within and without the University of Cape Town’s Faculty of Law. Taking a conversational tone, the central event was the discourse between the author and Professor Haupt of the Centre of Film and Media Studies at the University of Cape Town, who steered a riveting and engaging conversation with his typically well thought-out questions. The conversation lasted for approximately 30 minutes, and was followed by a short Q&A session between Chijioke and the audience. It will be impracticable to turn this post into a transcript of everything that was said. However, some key points which were highlighted therein will be summarized in subsequent paragraphs.

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The IP Unit is pleased to again present a CopyrightX affiliated course in 2020. CopyrightX:UCT will be administered by UCT Law@Work: Professional Development Project of the Faculty of Law, UCT.

CopyrightX:UCT is a member of the growing CopyrightX Community, a network of affiliated courses offered by several universities and other institutions between January and April of each year. Participants in these courses examine and assess the ways in which law seeks to stimulate and regulate creative expression. CopyrightX was developed by Professor William Fisher at Harvard Law School; it is hosted and supported by the HarvardX distance-learning initiative and the Berkman Klein Center for Internet and Society. A list of the other participating organisations and additional information concerning this educational initiative is available at http://copyx.org

CopyrightX:UCT consists of the Harvard pre-recorded lectures, accompanied by reading materials relating to U.S. and South African copyright law. Eight contact sessions will take place on Wednesdays between 19 February 2020 and 6 May 2020. The classroom seminars will discuss the pre-recorded lectures and will more closely analyse South African Copyright law and the issues faced. The seminars will be taught by Dr. Tobias Schonwetter.

The course is free of charge. Applicants must provide a motivation of approximately 400 words stating why they want to participate in CopyrightX:UCT, and how they plan on utilising their knowledge afterwards. Furthermore, applicants must make a commitment to actively participate in the course and attend the weekly seminars at the University of Cape Town.

Applications are open between now and 26 January 2020.  Successful applicants will be notified by 3 February 2020.

For more info and to apply click here.

By Dr. Desmond Oriakhogba

On 25 to 27 September 2019, the Law and Development Research Network (LDRN) held its 4th annual conference at the Humboldt University, Berlin, Germany. The conference attracted over 220 scholars, both established and emerging, from the Global South, including Africa. With generous funding from the LDRN and UCT’s IP-Unit, I had the opportunity to participate in the conference and speak about my ongoing research being conducted under the Open African Innovation Research (Open AIR) network.

According to the host of the conference, Prof Philipp Dann,  the LDRN aims ‘to pool […] knowledge to understand better the role that law plays in creating [and] combatting inequality, environmental degradation and social injustice, particularly in the Global South [and] through the entanglements between the South and North’. To this end, the conference, which devolved into 55 panels running through eight tracks, sought to highlight the plurality and diversity of the ‘voices and stories that mark’ the field of law and development. In this connection, discussions in the panels addressed diverse and cross-cutting issues relating to socio-economic development; human rights; international and regional trade; technological changes in law and development; legal pluralism and non-state law; intellectual property (IP); gender identities, empowerment and development; among others.

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By Lenon Rwizi

In celebration of Heritage Day, the UCT IP Unit hosted a lunch hour seminar on 25 September. The seminar was put together by the Unit’s student research assistants who also acted as the resource persons (Clarence Lakpini, Bontle Monnya, Tanya Magaisa and Lenon Rwizi). The seminar ran under the theme: What is the status of Traditional Knowledge on the continent and in South Africa? Who are the winners and losers? A case study on the Hoodia Gordonii. The event was well attended by students, academics, faculty and staff.

Clarence Lakpini started his presentation by defining and exposing the various forms of intellectual property (IP). He took strides to use visual images of food products, décor, clothing and traditional pharmaceutical products that classify as traditional knowledge (TK) in order to give the audience an appreciation of the subject of the day. Clarence explored the related international, regional and local legal instruments regulating TK. In this connection, he placed particular emphasis on the efforts that have been invested at the World Intellectual Property Organization (WIPO) and other international fora to reach consensus on an international normative framework for TK. For instance, he pointed out the efforts of the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore, which made significant strides in developing concepts and draft international instruments (as proposals) for TK protection. Highlighting the Convention on Biological Diversity (CBD) of 1992 and the Nagoya Protocol, he further demonstrated various efforts that have been invested to harmonize international TK. Continue reading →

By Charlene Musiza

The Development Agenda (DA) is a pro-development reform of the international intellectual property (IP) system. It was initiated by a joint proposal by Argentina and Brazil at the 15th Extraordinary session of the World Intellectual Property Organisation (WIPO) General Assembly in 2004. The proposal, which called for a development dimension to IP, led to a negotiation process that spanned three years, from 2005 to 2007. The process included submission of over a hundred proposals, and deliberations in the Inter-sessional Intergovernmental Meeting, and the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA). Different stakeholders, including government, academia, industry and civil society, participated in the negotiations, and in October 2007 the DA was finally adopted. Broadly speaking, the DA brings reform in two aspects: recalibrating the IP system to bring a balance; and reforming WIPO and making development central in its activities. Continue reading →

by Wend Wendland, Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town, wend.wendland@uct.ac.za , @WendWendland

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy

Key points

It’s under national laws that intellectual property (IP) rights are defined, held, exercised and enforced.

International IP instruments mainly provide for, among other things, the protection of foreign subject matter: for instance and put simply, if country A and country B are parties to the same international IP instrument, this means that IP subject matter from country A that is protected in country A under that country’s national IP laws can also be protected in country B under country B’s IP laws, and vice versa.

International IP instruments are usually developed “bottom up”, which is to say that they build upon and harmonize those existing national regimes that are regarded as successful and representative of widespread practice.

At least when they are first adopted, international IP instruments are often not too detailed and prescriptive, leaving policy space for national implementation.

The negotiations so far in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the WIPO IGC), are more “top down” than “bottom up”, at least on traditional knowledge (TK) and traditional cultural expressions (TCEs). This is because national regimes are relatively recent and few in number, and experiences with them so far are inconclusive.

The “top down” nature of the IGC may be one of the reasons that its progress has been slow so far.

While this would be contrary to the way in which most international IP instruments have been developed in the past, perhaps the unique policy, legal and operational challenges associated with TK and TCEs protection requires a dual and coordinated approach that is both “top down” and “bottom up”.

In some respects, the IGC’s draft instruments on TK and TCEs are detailed and prescriptive, not leaving much leeway for national implementation. This may also partially explain the IGC’s slow progress.

However, while leaving policy space for national implementation may be desirable, an international legal instrument should establish standards which mandate effective and consequential protection at the national level. In the absence, so far, of many exemplary national regimes to draw from, this may be the very guidance that national policy-makers seek.

Introduction

Multilateral negotiations are often aimed at the reaching of an agreement on the contents of an international legal instrument.

International legal instruments can take several forms: they may, for instance, be binding or non-binding. An instrument can, however, never be binding as such, it can only become binding on those countries that either accede to or ratify it.

Non-binding instruments include guidelines, recommendations, protocols, model provisions, declarations and the like. Some of the best known international legal instruments are, in fact, non-binding, such as the Universal Declaration of Human Rights, the United Nations Guiding Principles on Business and Human Rights and the United Nations Declaration on the Rights of Indigenous Peoples. In the IP area, member countries of the World Intellectual Property Organization (WIPO) have adopted several joint recommendations related to trademarks¹ and standards, in the form of recommendations, on industrial property information and documentation.²

As these and many other examples show, even non-binding instruments can exert considerable influence.

The purpose of this blog post is to offer some reflections on the respective roles of and interaction between national and international legal instruments in the IP field.

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By Dr. Desmond Oriakhogba

Phase 2 negotiations towards the objectives of the AfCFTA, which will include Intellectual property (IP) rights, will afford “an opportunity for Africa to craft a new path for knowledge governance” and “redefine the agenda for negotiation of IP issues” in future trade agreements. However, as African countries go into the negotiations, it is important for them to first clarify their respective “fundamental priorities for IP” and development (Ncube, et al). To do so, African countries will require a well-articulated IP policy based on their individual national development objectives. Such policy should articulate goals and strategies that will enable them to harness the gains of IP and innovation for their respective development in the fast-growing, technology-driven, global economy.

In an article for AfronomicsLAW, UCT’s IP-Units Dr Desmond Oriakhogba briefly highlights some key policy and legal steps South Africa has adopted to take advantage of the gains of IP and innovation for its national development. the article also draws lessons from South Africa’s experience that IP negotiations in the AfCFTA can benefit from.