On 17 October 2013 the comment period for the Draft National Policy on Intellectual Property ended. According to DTI Minister Rob Davies, “[t]he majority of the comments are positive and are commending the South African Government in taking this major step in coordinating its efforts in the IP sphere both nationally and internationally”. UCT’s IP Unit, together with colleagues affiliated with the University of KwaZulu-Natal, also submitted comments to the Department of Trade and Industry (click here). In a media statement earlier this months, the DTI has announced that a conference on the policy will be held in November to address the main issues brought up during the public consultation process. Dates and venue will be communicated as soon as all logistical arrangements are finalised.
[originally posted under CC-BY licence by Isaac Rutenberg on Afro-IP]
Why this conference, in this place, at this time? The major organizers are the Department of Science and Technology (DST), the Companies and IP Commission (CIPC, which is part of the Department of Trade and Industry), and the National IP Management Office (NIPMO), all SA Government organizations. It seems no small coincidence that the SA “Draft National Policy on IP, 2013″ was launched only two months ago, and indeed the Draft Policy is a major topic at CLIPDC. Also, CLIPDC is being used as a forum to launch an “IP Trade Portal“, which functions as a sort of matchmaking service for technologists and investors. It is not exactly clear why CLIPDC is in Durban specifically, although certainly the views of the ocean are worth the journey…
Who’s here? The list of speakers is impressive. Nevertheless, quite honestly, most of the speakers are American or European. South Africa is represented to some degree, but the non-South African voice is all but absent. Frustratingly (at least to this Leo), a representative from ARIPO was scheduled to be present and speaking, but was reportedly unable to attend on account of issues with immigration and obtaining a visa. Consider also that SA seems to have little interest in joining ARIPO (see here, which reports that SA “is counted as a potential member in the near future” but closer look shows that this page was last updated in 2004…). And how many national or regional African patent offices outside SA are represented at the conference? Zero. Even the audience contains only a few non-South Africans from the Continent. It’s hard not to reach the conclusion that CLIPDC is not actually interested in listening to perspectives from developing countries in Africa. On the other hand BRICS countries are well represented. An impressive video-linked session provided presentations from representatives of all of the BRICS patent offices.
What are we talking about? The topics over these three days have been heavily [nay, almost exclusively] related to patents. Other forms of IP are mentioned in passing or in the questions raised from the audience, but are quickly discussed before returning to patents and innovation. The focus on patents can be understood, perhaps, when one considers the non-government sponsors, which include Big Pharma (Pfizer), Health and Personal Products (Philips), the American IP Law Association (AIPLA), an American consulting firm (Knowles IP Strategies), and a local law firm (Hahn & Hahn). The patent-heavy and pro-protection side of the conversations have been somewhat balanced by the presence of representatives from MSF (Doctors Without Borders), University of Cape Town, WIPO, and even the DST itself. Refreshingly, these speakers and delegates have mentioned access to medicines, open access to copyrighted works, protection from biopiracy, and the like. The SA government has clearly put a lot of resources into this event and into IP generally. The Ministers from the Ministry of Science and Technology and the Ministry of Trade and Industry attended and spoke at CLIPDC on Monday [there seems to be some tension between these Ministries, but politics and social issues in SA are too complicated for this Leo to comprehend]. It’s nice to see so much discussion about IP in SA, although it is also clear that the rest of Africa is being left out of the discussion.
A related article about CLIPDC, authored by William New, can be found on IP Watch.
On 20 November 2013, the former federal Minister for Health and Attorney General of Australia, Ms Nicola Roxon, will be giving a keynote address at the Faculty of Law at UCT to discuss the advent of the plain packaging legislation and its aftermath. In Australia, starting on 1st December 2012, it became illegal for tobacco companies to sell cigarettes and other tobacco products in anything other than generic or ‘plain’ packaging. Tobacco packaging must be a standard drab dark brown colour, and the printing of tobacco company logos, brand imagery, colours, or promotional text is prohibited. It is a world first and represents a remarkable victory for public health. But this life-saving, public health-focused victory did not come easily. From the time that the Australian Government announced its intention to pass a law mandating plain packaging, the tobacco industry mounted a multi-million dollar campaign to thwart the measure. And once the legislation was passed, four multinational tobacco companies – British American Tobacco, Imperial Tobacco, Japan Tobacco and Philip Morris – challenged the legislation in the Australian courts on constitutional grounds that the government’s action amounted to an acquisition of property other than on just terms. The case was heard in April 2012 and the High Court ruled that plain packaging was constitutional and awarded costs, estimated to run into hundreds of thousands of dollars, against the tobacco companies. New Zealand, Ireland and Scotland have announced that they will follow Australia’s move, and other governments, including South Africa, are considering doing so. Could it happen in South Africa?
On 11 November 2013 the IP Unit welcomed Dr. Colin Darch – an honorary research associate in our law faculty’s DGRU and one of the founders of the international CopySouth research group - for a lunchtime seminar in the law faculty. Dr. Darch presented an account of developments in intellectual property law and policy since the end of the apartheid regime in 1994 in an attempt to provide a much needed general overview from a critical perspective of the political economy of copyright, patents, trademarks, geographical indications and so on as a system. Dr. Darch highlighted exemplary cases from South African jurisprudence and characterised various stakeholder groups, incl. politicians, lawyers, creators of IP, universities. He then linked current South African policy and law to developments in the international IP and trade environment. His presentation was followed by a lively discussion with members of the IP Unit and other invited guests.
The South African Intellectual Property Law Journal (SAIPLJ) hereby calls for submissions for publication in the 2014 issue. Contributions on all aspects of intellectual property that have relevance to Africa, particularly South Africa, are welcome. Submissions may be in the form of articles or notes not exceeding 10 000 words and 6000 words respectively. All submissions must be of a scholarly nature and conform to the SALJ house style (available at www.jutalaw.co.za). The journal is published by Juta & Co and is double peer-reviewed. The 2014 issue will be submitted for accreditation with the DHET. The SAIPLJ accepts submissions on an on going basis, however, the final submission date for consideration for the 2014 issue is 30 March 2014. Submissions and enquiries can be directed to the Editors at email@example.com
On 17 October 2013, the IP Unit, together with colleagues affiliated with the University of KwaZulu-Natal, submitted to the Department of Trade and Industry comments (click here) regarding the DRAFT NATIONAL POLICY ON INTELLECTUAL PROPERTY. In our submission we comment on the broad issues of principle, indicate where we find the draft policy desirable or undesirable, and add some of our own recommendations. Although the current policy document contains confused drafting as well as several erroneous factual and legal statements that require to be rectified, the overall intention of the draft policy is in our view good: it is grounded in a developmental approach appropriate to our country, and seeks to eliminate the many negative outcomes of IP protection which are detrimental to the broader society. The current draft suggest that the drafters of the policy are aware of the many and complex issues related to intellectual property, especially in times of rapid technological advances and globalisation. And it appears the drafters’ overarching objective is to strike a fair balance between competing private and public interests in the field – taking into consideration South Africa’s specific needs and circumstances. The drafters of the policy are to be commended for their boldness and willingness to fundamentally question some of the existing IP paradigms and practices in South Africa in their quest to develop an IP framework that truly benefits the people of South Africa and propels the country’s IP framework into the 21st century.
On 14 October 2013 the IP Unit and the South African Department of Arts and Culture (DAC) jointly hosted a workshop on IP instruments impacting the creative sectors in South Africa. Among other things, the 2012 Beijing Treaty on Audiovisual Performances and the 2013 Marrakesh Treaty to Facilitate Access to Published Works For Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled were discussed. This workshop formed part of a series of workshops with academics and other experts currently hosted by the DAC to examine selected issues of IP in South Africa as a result of new international treaties in the field before South Africa decides whether or not to accede to these treaties. The event took place at the Slave Lodge, 49 Adderley Street, Cape Town.
[originally posted by Caroline Ncube on infojustice.org] The Law and Economics of Copyright Users Rights conference probed the value of economic empirical evidence to copyright reform discussions. This post gives an account of the use of such evidence in current reform discourse in South Africa. The Department of Trade and Industry (DTI) has taken some initial steps towards a comprehensive IP reform process by publishing a draft national IP policy, which is currently open for public comment. The copyright sections of the draft policy do not engage with user rights in a detailed manner. Some mention is made of the need to have meaningful exceptions and limitations (E & L) ( at p16) and the need to ensure that these are not abrogated online through the use of technological protection mechanisms protected by anti-circumvention provisions (at p29). Currently the Copyright Act falls far short of reasonable expectations – it does not provide for E & L for the visually-impaired and does not cater adequately for online and distance learning (see the findings of the African Copyright and A2K project). One would therefore expect the draft policy, as the first step towards copyright reform, to raise these issues and to do so in a robust manner informed by empirical and other evidence. Continue reading
On 4 September 2013 the Department of Trade and Industry (DTI) in South Africa has published its long-awaited DRAFT NATIONAL POLICY ON INTELLECTUAL PROPERTY for public comment. Interested persons can now submit written comments on the proposed policy within thirty days from the date of its release. According to the draft, the policy has 18 broad objectives, including promoting development and innovation in the country and improving access to IP-based goods and technologies. The draft policy expressly states that “[n]ational IP laws must be appropriate to the level of development and innovation of the country” – a notable move away from a ‘one size fits all’ approach to IP. As mentioned in this article in Intellectual Property Watch we at the IP Unit are very excited to engage with this draft policy as the final policy will shape future lawmaking in the area of IP in South Africa. If you want to comment on the draft IP Policy without having to submit your own document to the DTI please feel free to add your comments into this public Google document.
The South African Cabinet has approved the publication of the National IP Policy for public comment for a period of 30 days. According the Government Communication’s website, “the Policy aims to holistically align and address the various issues relating to intellectual property, which cut across various disciplines, including: trade, science, agriculture and health. There is therefore a need for a one-policy approach at national and international level from Government.” We will link to the IP Policy on this website once it becomes publicly available.