On 17 November 2017, the IP Unit submitted to the Department of Trade and Industry (DTI) its full set of comments on the Draft Intellectual Property Policy of the Republic of South Africa, Phase I, 2017. Some of our positive initial comments were reported in the media, e.g., here (Fin24) and here (Daily Maverick). The draft policy document was released in August and key aspects of it were summarised in an earlier post. In short, the draft policy is geared towards (i) advancing a balanced and coordinated approach to IP that regulates intellectual property rights in line with the South African Constitution; (ii) introducing key policy reforms that account for the development dynamics of South Africa; (iii) promoting innovation and a knowledge economy; and (iv) leveraging competitive and comparative advantages to advance the transformation of the South African economy. To this end, the draft policy proposes a number of key reforms, including the introduction of substantive search and examination system for patents; the leveraging of flexibilities contained in the TRIPS Agreement; the protection of “utility models”; and the creation of a system for protection for traditional knowledge which will safeguard misappropriation and exploitation.
In our comments, we commend the DTI’s drafting team on creating a well-considered document. We also express our strong support for the policymaker’s intention to link this policy to broader domestic imperatives and strategies — such as the National Development Plan and its emphasis on embracing the knowledge economy — and welcome that Constitutional and Human Rights dimensions of many of the issues raised in the policy document are considered. We submit that by adopting a balanced, coordinated and development- and public interest-oriented approach the policy maker has created a policy document that is context-specific and which addresses current tensions and inequalities, including those between IP owners on the one hand and users seeking equitable access to IP-protected goods on the other.
By Desmond Oriakhogba (PhD candidate and researcher in the IP Unit)
On 4 October 2017, Nigeria deposited during the 57th meeting of the WIPO general assembly in Geneva four ratification instruments concerning the WIPO Copyright Treaty (WCT) of 1996, the WIPO Performances and Phonograms Treaty (WPPT) of 1996; the WIPO Beijing Treaty on Audiovisual Performances of 2012 (Beijing Treaty); and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled of 2013 (Marrakesh Treaty) with the WIPO. The ratification instruments were signed by the President of The Federal Republic of Nigeria (President Muhammadu Buhari) on 24 August 2017. Consequently, Nigeria has now accepted and undertaken to respect and implement the obligations under these treaties. However, the treaties do not have any force of law within the Nigerian territory unless domesticated (s12 Constitution of the Federal Republic of Nigeria, 1999) either by an enforcement and domestication Act or by including its provisions in the Copyright Act, Cap C20, Laws of the Federation of Nigeria, 2004 through an amendment. This piece argues that as we celebrate the ratification of the treaties, there is, however, a great need to pause and ponder on the effect of implementing ‘the standards stipulated in the treaties’ in Nigeria. What impact will the standards in the treaties have on creativity, innovation and access to information for educational purposes in Nigeria? Put broadly, what effect will they have on the knowledge economy and the overall development in Nigeria?
The IP Unit is pleased to announce a call for applications for a part-time student research assistant position. We are involved in several domestic, regional and international research collaborations, such as Open AIR, and we now seek an LL.B. student to join our team as a research assistant until March 2018.
Student research assistant duties will span the scholarly spectrum and can include: conducting literature reviews; creating surveys and other tools; collecting, managing and analysing data; co-writing peer reviewed articles and briefing papers; contributing to reports and submissions; co-presenting findings; writing blog posts and other media materials; network building through technology and social media; and assist with reporting and monitoring and evaluation duties. The student research assistant will also be encouraged and supported to conduct his/her own original research, under the direction and mentorship of academics based at UCT and/or other participating faculty, and could receive authorial or co-authorial credit. These activities will build academic skills like research methods, theory building, and scholarly publishing. The student research assistant will also have administrative duties in order to help build highly transferable professional skills such as leadership and teamwork, project management, and community engagement.
If you are interested in applying for this opportunity, please provide – via email to IP Unit Project Manager Nan Warner at email@example.com – a curriculum vitae, copies of your qualification certificates and a covering letter outlining your qualifications/experience and how they would support our work. The deadline for applications is 30 October 2017. The full call for applications is available here.
Open AIR invites proposals for short-term research projects that address Open AIR’s research questions on African innovation through the lens of gender equality, empowerment of women and girls, and inclusion of marginalised communities. Researchers will conduct their projects while based at one or more of Open AIR’s institutional hubs in Cape Town, Johannesburg, Nairobi, Cairo, Lagos, Abuja, and Ottawa. Thanks to the generous funding of the Queen Elizabeth II Diamond Jubilee Advanced Scholars Program (QES-AS), Open AIR will be able to grow the network of new and emerging researchers more deeply exploring this important topic. Interested candidates are encouraged to apply immediately. Please download the Call for Applications for detailed instructions how to apply. Applications will be considered starting 30 October 2017 and then on a rolling basis until suitable candidates are identified.
Also, as part of Open AIR’s ongoing research into IP and gender, we have recently produced a new briefing note, “Integrating Gender Perspective into African Innovation Research”. The briefing note addresses the prevalent issue of both overt and latent gender inequality as it relates to STEM, ICT, entrepreneurship, and IP in African countries.
This year’s SA Innovation Summit 2017 took place from 6 to 8 September in Cape Town at the Cape Town Stadium. It brought together academics, funders, founders, industrialists, entrepreneurs, inventors, business people and policy makers. The summit’s theme for 2017 was ‘Innovation Revolution’. It facilitated conversations on a wide range of topics, including BioTech, EduTech, AgriTech, Cities of the Future, Big Data and Artificial Intelligence. The major aim of the summit was the creation of an enabling environment for entrepreneurs, promoting an inclusive and impactful platform that inspires meaningful change. The summit also looked at ways of accelerating innovations from idea to market.
One of the IP Unit’s doctoral students, Aleck Ncube, presented at the summit. The topic of his presentation was ‘Patent Information as a tool for Accelerating Innovation Development, in Developing Countries’. Choosing this topic came from his observation that the application of patent information to accelerate innovation and overall development in developing countries is an angle that needs to be vigorously pursued. In his view, developing countries must be active participants in legal and technical transfer of innovations, including through patent searching to identify technologies of interest, patent owners, and the territorial scope of patent rights. During his presentation at the SA Innovation Summit 2 he argued that access to information is a key driver for innovation and posited that patents are potentially a unique source of information, containing not only legal but also technical, business and potentially policy-related information. He concluded his presentation by stating that patent information, if made available properly, can facilitate the transformation of a resource-based economy to a knowledge-based one.
In August 2017, the UCT IP Unit and the African Regional Intellectual Property Organization (ARIPO) signed an MOU for 4 years with the aim of establishing a general framework for cooperation to develop IP in Africa and ensure IP policy coherence on the continent. The MOU was signed to facilitate future collaborations between the two entities such as joint research projects and programmes as well as joint awareness raising activities that recognise and build upon the IP Unit’s important role in research and scholarship in IP law and policy in Southern Africa. ARIPO is an intergovernmental organization headquartered in Harare, Zimbabwe, for the cooperation among African states in intellectual property matters. It was established by the Lusaka Agreement in 1976. ARIPO’s objectives as an organisation are listed here. As of August 2017, ARIPO has the following 19 Member States: Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, São Tomé and Príncipe, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
South Africa’s Department of Trade and Industry has released the Draft Intellectual Property Policy of the Republic of South Africa Phase I (2017) (“the Policy”). Once the Policy has been published in the Government Gazette, submissions can be submitted within 60 days from date of publication.
The Policy describes IP as “an important policy instrument in promoting innovation, technology transfer, research and development (R&D), creative expression, consumer protection, industrial development and more broadly, economic growth“, and emphasis the link between IP and some of the key goals contained, for instance, in the country’s National Development Plan as well as the National Industrial Policy Framework as implemented through the Industrial Policy Action Plan. A domestic IP Policy is seen as a core tool to facilitate South Africa’s transition from over-reliance on natural resources towards a knowledge economy, with the aim of promoting “a holistic, balanced and coordinated approach to IP that is mindful of the many obligations mandated under the South African Constitution.”
The overarching goals of the Policy are summarised as follows:
- To consider the development dynamics of South Africa and improve how IP supports small institutions and vulnerable individuals in society, including in the domain of public health
- To nurture and promote a culture of innovation, by enabling creators and inventors to reach their full potential and contribute towards improving the competitiveness of our industries
- To promote South African arts and culture
- To solidify South Africa’s various international obligations, such as the Convention on Biological Diversity (CBD) and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (Nagoya Protocol on ABS), in the service of our genetic resources and traditional knowledge associated with genetic resources
by Eve Gray and Tobias Schonwetter
The Copyright Amendment Bill of 2017 currently undergoing the consultative process in South Africa, proposes overturning the longstanding prohibition against parallel importation provided for in the present South African legislation, an action that could undo more than a century of colonially-based market manipulation. Clause 11 of the 2017 Bill proposes the insertion of the following Section 12B into South Africa’s Copyright Act:
(1) Notwithstanding anything to the contrary in this Act, the Trademark Act, 1993 (Act No. 194 of 1993), and the Counterfeit Goods Act, 1997 (Act No. 37 of 1997), the first sale of or other transfer of ownership of a transferred original or copy of a work in the Republic or outside the Republic, shall exhaust the rights of distribution and importation locally and internationally in respect of such transferred original or copy.’’
This article reviews the proposed elimination of parallel import restrictions (PIRs) in the light of the South African legislature’s revision of copyright law in the draft Copyright Amendment Bill of 2017, currently under discussion with stakeholders. The issues are explored against the background of a colonial history, involving the power politics that still prevail in the former British colonial territories. As a hangover of British imperial politics, most countries in Africa have prohibitions against parallel importation.
The Background – What is Parallel Importation?
For those unfamiliar with the terrain, the question of parallel importation arises at the boundaries of copyright law and commercial practice across international markets. It is a term applied to goods protected by IP rights, including copyrights, and produced with the permission of the rights holder overseas, but then imported into another country without the permission of the rights holder in that country. This article will focus on the parallel importation, or the prohibition thereof, in the context copyright protection. If national copyright legislation contains PIRs — as is the case with most ex-British colonies, including South Africa (see s23(2) of the South African Copyright Act as interpreted by the courts in Frank and Hirsch (Pty) Ltd vs A Roopanand Brothers (Pty) Ltd 199) — this gives copyright holders the right to control importation of their works, enabling rights holders to charge different prices for different countries and to vary the quality of the products in different countries – in other words it provides for price discrimination based on geography. Importantly, PIRs are not required by international copyright instruments such as the Berne Convention and the TRIPS Agreement. This geographical discrimination is underpinned by the idea of ‘territorial rights’; the ability to provide different pricing and sales conditions in different countries. It is PIRs that allow for the enforcement of this price discrimination across different territories.
Together with two institutions in India and Brazil, UCT’s IP Unit has just co-published a paper with the title ‘Innovation, Intellectual Property and Development: A Better Set of Approaches for the 21st Century.’ The paper is authored by Dean Baker, Associate Professor Arjun Jayadev and Nobel Prize winner and former Chief Economist of the World Bank Professor Joseph E. Stiglitz. It is part of a series of arguments from AccessIBSA: Innovation & Access to Medicines in India, Brazil & South Africa, a project supported by the Shuttleworth Foundation.
In the paper’s introduction, the authors state that “[i]f the knowledge economy and the economy of ideas is to be a key part of the global economy and if static societies are to be transformed into ‘learning societies’ that are key for growth and development, there is a desperate need to rethink the current [intellectual property] regime and to allow for a much less restrictive flow of information and knowledge. Moreover, if we are considering questions of ethics, the current regime is deeply regressive and inefficient.”
The paper aims to provide an intellectual basis to think about the relationship between development, intellectual property and innovation; where we currently are and what alternatives are available. The authors outline the basic logic for the implementation of intellectual property rights and detail alternatives to providing private monopolies to promote innovation. The paper then turn to the question of intellectual property rights and the process of development. The authors argue that both theory and the preponderance of historical evidence suggest that development, at least in its initial stages, is best promoted by a weaker intellectual property regime than reflected in TRIPS, or at the minimum a markedly different regime. The paper shows that the current global regime of intellectual property rights is inadequate in serving the purpose of economic development and welfare. This claim is supported by an extensive set of case studies in the areas of food security, education and climate change. Finally, the paper provides a simple laundry list of ways in which better laws could facilitate development and prevent the worst excesses of the global IP regime.
The paper is available in English and Portuguese under a Creative Commons licence, and in the next few weeks we will publish a series of short summaries of different parts of the paper on this website.
by Desmond Oriakhogba
A five-years courtroom tussle concerning the rights of access to knowledge for the advancement of education in India was brought to an end in May 2017 by the Indian Supreme Court (ISC). Interestingly, the struggle ended in favour of the right of access to knowledge. A petition for leave to appeal lodged by the Indian Reprographic Rights Organisation (IRRO) against the decision of the appellate division of the Indian High Court (IHC – which upheld the right of access to knowledge) was summarily dismissed by the ISC.
It all began in 2012 when three publishers (Oxford University Press, Cambridge University Press and Taylor & Francis) filed a suit before the High Court in New Delhi (trial court – the trial court was constituted by a single judge of the IHC.) against the University of Delhi and a photocopying services provider. The publishers sought a permanent injunction restraining the defendants from infringing the copyright in their publications. The publishers also applied for interim injunction pending the trial for the main suit.
The uncontested facts of the case are that the University of Delhi identified course materials based on its syllabi. The course materials included extracts from textbooks published by the publishers. The extracts where photocopied and bound in four course packs by the photocopying services provider and sold to students and faculty of the University of Delhi at a fee of 40 paise (~ZAR 0.08 at today’s conversion rate) per page. The photocopying services provider operated from the premises, and on the authorisation, of the University of Delhi. On the average, the extracts constituted 8.8% of the textbooks each of which cost 2,500 Indian Rupees (~ZAR 510).