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).
by Bram van Wiele
3D printing technology holds great promise for social entrepreneurs to develop and produce affordable and locally needed products. But the cost of 3D printers remains a key challenge. One Open African Innovation Research (Open AIR) case study executed by members of the IP Unit — “3D Printing: Enabler of Social Entrepreneurship in Africa?” — examines the role of two types of initiatives in facilitating affordable access to 3D printing technology: so-called ‘Fab Labs’, which provide public access to a wide range of tools and machinery, including 3D printers, and the local production of low-cost 3D printers. In early July, Dr. Tobias Schonwetter and Bram van Wiele went to Nairobi, Kenya, to interview individuals involved in African Born 3D Printing (AB3D), the Happy Feet project, Fab Lab Nairobi and Artisan Hive.
Only a few days after convening a 2 day general copyright workshop at parliament for members of the portfolio committee Trade and Industry, the IP Unit submitted, based on an in-depth analysis carried out by domestic and international copyright experts, its comments regarding South Africa’s 2017 Copyright Amendment Bill. Our submission aims to speaks to most of the issues introduced by the Bill, and where appropriate suggestions and model language are provided for further improvement. We note that the 2017 Bill is, as far as the drafting is concerned — and subject to a number of specific comments contained in our document — a marked improvement to the 2015 Copyright Amendment Bill. Some technical drafting errors do, however, remain. In particular, in many sections of the Bill, the word “author” is used, sometimes with a list of others, instead of the term “rights owner” being used. In our comments concerning the 2015 Bill, we expressly welcomed the proposed introduction of a more flexible and open fair use provision. We therefore note with concern that the lawmaker has since decided to significantly reduce the provision’s utility by limiting its applicability to a closed list of permitted purposes, and we strongly urge the lawmaker to reconsider this decision and amend s12 of the 2017 Bill by opening it up again in line with the suggestions in our submission. (One key reason for adopting an open fair use right, i.e., to authorise so-called non-expressive uses of works, is further explored in this Intellectual Property Watch op-ed by professors Flynn (Washington) and Sag (Chicago).) A partial collection of other comments submitted to the South African Parliament’s Portfolio Committee on Trade and Industry regarding the Copyright Amendment Bill can be found here.
(this blog post by Cath Traynor first appeared on Natural Justice’s blog)
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.
(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.
Recenly, 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.
In 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.
In 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”.
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
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.