Author Archives: tobiasschonwetter

Contracting Justice Workshop: Exploring socially just research processes

(this blog post by Cath Traynor first appeared on Natural Justice’s blog)

CJW_GroupPhoto (comp2)As part of the ‘Empowering Indigenous Peoples and Knowledge Systems Related to Climate Change and Intellectual Property Rights’ project, Natural Justice hosted on 13 and 14 March 2017 a workshop centred on community-research contracts ensuring socially just research processes. This workshop aimed to gain valuable insights from indigenous communities through exploring the development of a ‘community-researcher contract’ between communities and researchers within the context of researching indigenous knowledge related to climate change. The objectives of the workshop included legally empowering participants on issues related to laws and policies on indigenous knowledge systems, intellectual property rights and research ethics, and exploring the concept of contracts as a tool, and also critically reflecting upon the trail implementation of ‘community-researcher contract’ between two indigenous communities and three institutions conducting research with them. The first day focused on legal empowerment and internal community discussions with representatives from the Nama, Griqua and Khomani San communities and a legal adviser.  The following day wider stakeholders were invited, including representatives from the University of Cape Town, including the UCT IP Unit, Indiana University (USA), legal experts, civil society organisations including the Heinrich Boell Stiftung Southern Africa, the Open Society Initiative for Southern Africa, and the Open and Collaborative Science in Development Network (OCSDNet). These varied interests and opinions contributed to a productive discussion regards where the tensions lie between the respective parties regards how research with indigenous peoples, both in terms of the frameworks that guide research processes and how in practice research with indigenous communities is conducted. Areas of tensions were identified and the role that community-researcher contracts could play to resolve these discussed.

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Panels Present Importance Of Fair Use In South Africa’s Draft Copyright Amendment

(by Linda Daniels – first published for Intellectual Property Watch under CC BY NC SA licence)

“Fair use” was at the heart of discussions between intellectual property stakeholders at a recent workshop called to discuss the revised draft copyright amendment bill of South Africa. The one-day workshop, held in Cape Town on 6 December was the first of two IP sector workshops that brought together academics, activists and IP practitioners to discuss the merits and demerits of the copyright amendment bill and its anticipated revisions. The second one-day workshop was held in Johannesburg the same week on the 8th of December. The draft copyright amendment bill, was published in the government gazette by the Department of Trade and Industry (DTi) in July 2015. This opened a public submissions process into the bill which ran until 16 September 2015. During this period, government called a one day conference in Johannesburg to further inform the refinement process of the bill (IPW, Africa, 28 August 2016). However, the initial flurry of excitement around the bill’s first public appearance has been tempered by uncertainty over when the official revised version will be released. DTi spokesperson Sidwell Medupe told Intellectual Property Watch in December, “We are working on it with state law advisors (certification). Early next year this will be complete and will be introduced formally.” The revised bill has not been made public yet, however Intellectual Property Watch has seen a draft version.

According to one South African academic at the meeting. The current draft bill does not contain a US-style fair use right because – although it applies a similar flexible balancing test through a general clause – it is not open to any potential purpose. This may inhibit the clause from being applied to some purposes not included in the bill, for example to the millions of copies made each day by commercial internet search engines. Such copies are not for “research,” “education” or other specific purposes protected in the existing bill. Broadly defined, “fair use” refers to rights within copyright law to use protected works without license or permission of the rights holder to serve various public interests. Expanding such user rights in South Africa in a core purpose of the revision and the workshop explored the many ways in which users would benefit from the bill’s terms. These include expanding rights to use copyrighted works for education, libraries and to provide access for people with disabilities. The workshop also explored the extent to which the bill might implement the more specific “fair use” right that exists in the U.S., Israel, Singapore, and some other countries. Here, according to Professor Sean Flynn of American University Washington College of Law, “fair use refers to a general exception in copyright law that is open to use for any potential purpose and is applied through a flexible balancing test that considers the rights and interests of the author as well as that of the user and public at large.” It is less clear whether the South African bill will include a fair use provision that is general, open and flexible as is the US standard.

Dr. Tobias Schönwetter, director of the Intellectual Property Law and Policy Unit at the University of Cape Town (UCT) and the regional coordinator for Africa Creative Commons, opened the Cape Town workshop. He reminded workshop participants that the discussion would be limited to the published draft copyright amendment bill and what could be anticipated in the revised bill given that it has not yet been released. This latest workshop was organised by the IP Law and Policy Unit of UCT and follows on from an event entitled, “The Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform conference” which was held in August 2015 and hosted by the same organisers.

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Evergreening in South Africa – the debate goes on

ASK-LogoRecenly, Jasson Urbach, an economist with the Free Market Foundation, published an article in BusinessDay calling for an automatic approval in South Africa of drugs recognised in advanced countries. In his article, Urbach frames his proposal as a response to ever-longer approval timelines in South Africa that impede access to medicines in the country. Interestingly, and somewhat unconnected, he also laments that activists continue to wrongly accuse innovative pharmaceutical companies of making minor variations to existing drugs on which they hold a patent in order to ‘extend’ patent terms, commonly referred to as “evergreening”. He argues that new patents on the basis of a reformulated drug can after all only be granted if the reformation fulfills the requirements of, among other things, inventiveness and novelty as stipulated in the South African Patents Act. Otherwise, patented drugs would fall into the public domain after 20 years and competitors and generic drug producers are free to copy the drug.

In his response to the article, UKZN Professor and ASK Justice Steering Committee member Yousuf Vawda firstly suggests that Urbach significantly downplays the fact that oftentimes exorbitant prices are indeed the main reason why many South Africans can effectively not access essential drugs, and not their general unavailability as a result of overlong approval timelines. Perhaps even more importantly, however, Vawda correctly points out that in his analysis Urbach simply ignores that South Africa’s peculiar current depository system for patent protection continues to promote evergreening because secondary patents here can easily be granted “irrespective of whether they satisfy the criteria of novelty, inventiveness and industrial application”.

The above debate clearly shows that the issue of facilitating equitable access to medicines remains topical and controversial in South Africa, and that a deeper understanding of innovation dynamics and the role of IP law in this context is crucial to develop holistic policy responses. Projects like ASK Justice and Open AIR will continue to respond to what appears to be an obvious need of policy makers, grass-root stakeholders and civil society for scholarly research-based evidence in this area.

Wikipedia Primary School project workshop

wikipedia_primary_school_logo_2In 2014, a team of researchers, led by The University of Applied Sciences and Arts of Southern Switzerland (SUPSI) and the IP Unit at UCT, initiated the Wikipedia Primary School project to provide primary learners with the necessary information on Wikipedia to complete the cycle of primary education in their language of choice. In June 2014, a meeting was held with SA educators, other stakeholders and focus groups to plan the way forward for this open collaborative initiative. To conclude the project, interested stakeholders are now invited to again participate in a half-day workshop on 9 November to evaluate the project’s methodology, and discuss findings and models for replication. To register for the event click here.

ASK Justice Fellowship Program Kicks Off at UCT IP Unit

askjustice-fellowsIn October 2016, the ASK Justice project kicked off its inaugural Fellowship Program aimed at training the next generation of intellectual property (IP) scholars in Africa and sensitising them on the interlinkages between IP law and policy making and human rights issues. Three project Fellows -Ronald Kamya Nsobya, Victor B. Nzomo and Catherine Waithira Karanja – residing in three out of the four study countries (Kenya, Uganda and South Africa) were selected to work closely with network members at the Intellectual Property (IP) Unit within the Law Faculty’s Department of Commercial Law at the University of Cape Town (UCT), South Africa for one month. The Fellows’ biographies are summarised at the end of this article. The Fellows received a warm welcome from the ASK Justice Project team at the UCT IP Unit, including Dr. Tobias Schonwetter, IP Unit Director and Co-Principal Investigator for ASK Justice and Nan Warner, the ASK Justice Project Manager. According to Dr. Schonwetter, the Fellowship Program takes place at a crucial phase of the project where members are finalising their draft research findings on their country case studies concerning the extent to which human rights are considered in IP law and policy making processes in Botswana, Kenya, South Africa and Uganda. Theses research results are key for the project’s other main activities, namely the development of teaching resources and the project’s various outreach activities (“Public Voice”). While all Fellows are encouraged to work in areas of the project that they are most passionate about, the IP Unit will put emphasis on skilling up the Fellow’s social media skills in the upcoming weeks. For this reason, the IP Unit has already organised an in-depth training session on internet and social media to take place during the course of the Fellowship. The use of the Internet and social media is an integral part of the “Public Voice” component of the Project which aims to empower members of the ASK justice network to become advocates for positive policy change that improves access to knowledge and medicines on the continent. All ASK Justice Fellows have expressed their deep gratitude for the opportunity to interact with leading researchers and scholars with vast experience on issues of intellectual property and human rights on the African continent. According to one fellow: “The Fellowship Program also provides us an opportunity for training and mentorship, which will no doubt have an enormous impact on our future careers”.

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UCT IP Unit involved in submission concerning the dti’s IP Consultative Framework

Together with a group of local and international IP scholars, experts and pro-access advocates, members of the IP Unit have created and submitted detailed section-by-section comments concerning the dti’s Intellectual Property Consultative Framework, 2016. The submission was signed by dozens of international subject-matter specialist. Among other things, the submission links the dti’s policy effort to the recently released Report of the UN Secretary-General’s High Level Panel on Access to Medicines and emphasises the under-explored tension between overzealous IP protection and human rights. Crucially, the authors of the submission urge the dti in light of the critical public health and public interest issues at stake to move with utmost urgency to finalise an IP policy for South Africa. The submission contains the following overarching recommendations: Continue reading

“Books for the blind” treaty enters into force

On 30 September 2016 – 3 months after it gained the necessary 20 ratifications or accessions by WIPO member states – the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, entered into force. The “books for the blind” treaty was adopted on 27 June 2013 at a diplomatic conference organised by WIPO in Marrakesh, Morocco. It aims at tackling the book famine through making books and other published materials accessible to visually impaired persons by requiring contracting parties to adopt copyright limitations and exceptions that allow for the reproduction, distribution and cross-border exchange of works in accessible formats, such as Braille. According to an estimation of the World Health Organization in 2013, the world counts approximately 285 million visually impaired persons of which 90% live in low-income countries. For South Africa, during Census 2011, it was estimated that approximately 880 000 persons have no sight ability or have a lot of difficulty in doing so. The following 20 countries are now contracting parties to the treaty: Argentina, Australia, Brazil, Canada, Chile, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, India, Israel, Mali, Mexico, Mongolia, Paraguay, Peru, Republic of Korea, Singpore, United Arab Emirates and Uruguay. South Africa has neither signed nor ratified the Treaty; however, the recent draft Copyright Amendment Bill shows the legislator’s intent to soon implement the Treaty. The IP Unit’s Implementation Guide for South Africa can be found here.

Report of the United Nation’s High-Level Panel on Access to Medicines

On 14 September the United Nations (UN) released the long-awaited report by the UN High Level Panel on Access to Medicines. The panel, comprised of eminent and respected individuals from diverse stakeholder groups, was constituted in November 2015 with the mandate “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies.” A key issue raised in the report is that the prices of drugs need to be de-linked from the cost of research and development (R&D).

The report addresses four major areas: Health Technology Innovation and Access, Intellectual Property Laws and Access to Health Technologies, New Incentives for Research and Development of Health Technologies, and Governance, Accountability and Transparency. The report provides 30 recommendations – mainly for governments and private actors involved in R&D of health technologies.

In the field of intellectual property, the report calls on WTO members “to commit to the letter and spirit of the WTO Doha Declaration on TRIPS [The Agreement on Trade Related Aspects of Intellectual Property Rights] and Public Health, and refrain from any action that will limit their implementation and use in order to promote access to health technologies.” It calls on countries to make full use of the public health-related TRIPS flexibilities by, among other things, adopting and applying “rigorous definitions of invention and patentability that curtail the evergreening to ensure that patents are only awarded when genuine innovation has occurred” and “legislation that facilitates the issuance of compulsory licenses”. Moreover, the panel recommends that several UN agencies and other relevant bodies collaborate with each other to support governments in applying public-health-sensitive patentability criteria.

The report also engages extensively with free trade agreements, which often contain far-reaching patent and data protection clauses on health technologies that nullify the flexibilities that were envisaged in TRIPS and the Doha Declaration, hereby blocking access to such technologies.

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An Elsevier African Megajournal Proposal Re-colonising the university in Africa?

by Eve Gray, first published on http://www.gray-area.co.za/

In 2015, South African universities saw widespread student protests against a neocolonial heritage at universities that stood accused of a lack of post-apartheid transformation in institutional ethos, curriculum, and racial demographics. Operating under a number of hashtags, such as #RhodesMustFall, #DecoloniseTheUniversity and #FeesMustFall, the one issue that no-one seemed to speak about was the influence of the scholarly publishing system, which has a strong influence on faculty reward and promotion systems, entrenching many of the trends that students were protesting against. A series of blogs will explore the political economy of scholarly publishing and the role of Open Access in South Africa at a crucial time in its university history.

Elsevier has recently rattled the rather glum view of the prospects of African journal publishing with what looks like a major intervention – a proposal to explore the potential for the development of an African megajournal. Could this mean that Africa – which until recently has hardly been on the radar of the big international journal publishers – has something to offer to this large and hard-nosed multinational academic journal publisher? Could this venture under the Elsevier banner provide the impact and prestige that the continent’s research has been so sadly lacking? Or could it be simply that it could provide a blank slate for Elsevier, experimenting in the face of market uncertainty?  Or, at its crudest, just a neo-colonial land-grab in the face of challenges in the markets that Elsevier dominates?

It is perhaps a sad commentary on perceptions of the African continent that when a big corporation targets Africa as a new market, as Elsevier appears to be doing with this proposal, one of the first questions that can be asked is, ‘Does this mean that Elsevier’s business model is under threat?’  Given that the European Union, for example, is aiming for mandating full Open access to research by 2020 – with no embargoes, and affordably – and given also that governments like the Dutch government have been engaged at national level in hard negotiations with Elsevier to reduce subscription costs at a national level, it is quite possible that the commercial publishers are indeed worrying about the future of their current very high profit business model.

This is not without it ironies, however, as these developments have also come at a time when some major OA advocates are arguing that the current vision of OA is failing, a victim of its own tendency to over-zealousness and and lack of strategy and its capture by multinational journal publishers in the wake of the adoption of  ‘gold’ open access journals funded by Article Processing Charges (APCs). The field is thus very uncertain indeed.

From the publishers’ side, it is very telling that Elsevier has recently acquired SSRN, the social sciences open access collaborative platform, after buying Mendeley some years ago. The most probable motivation behind these purchases would seem to be a strategic vision of the power to leverage open data in a networked research environment in which data analysis has become a powerful strategic research tool. Controlling large data sources is likely to become a very powerful base for a commercial company that wants to provide metrics as a core competence, as Elsevier already does through Science Direct.

The main problems for African research publishing up until now have been interconnected: a general lack of interest on the part of African governments in funding or supporting scholarly publishing activities; and exclusion from the mainstream of prestigious international scholarly journal publishing, with African journals and their content being regarded as of ‘local’ interest only, with very few of them qualifying for the citation indexes. So for research institutions to be courted by Elsevier might prove very seductive, offering as it does the potential for the ‘international’ cachet of association with a big name in global scholarly publishing. Continue reading

South Africa’s Intellectual Property Consultative Framework released for comment

Linked to the publication of South Africa’s Draft National Policy on Intellectual Property in 2013 [see our comments from 2013 here], Cabinet approved at the beginning of July 2016 the Intellectual Property (IP) Consultative Framework. According to the dti, “[t]he IP Consultative Framework aims to facilitate what will be continuous engagement with governmental partners and society at large towards the formulation of South Africa’s IP policy.” Comments should be sent to ipframework@thedti.gov.za by no later than 31 August 2016 (subsequently extended to 30 September 2016). The IP Unit, together with a team of global experts, intends to submit its comments before the deadline.