The IP Unit is looking for outstanding LL.B. and LL.M. students to join our team as student research assistants for 6 months, beginning 1 April 2019. 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; cowriting peer reviewed articles and media materials; co-presenting findings; and managing the activities of a unit within a broader organisational structure. Student research assistants will also be encouraged and supported to conduct their 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. Student research assistants will also have administrative duties within Open AIR in order to help build highly transferable professional skills such as leadership and teamwork, project management, and community engagement. Student research assistants are expected to work in the IP Unit shared office space for up to 35 hours per month at an hourly rate of R95.

If you are interested in applying for this opportunity, please provide – via email to Open AIR Project Manager Nan Warner on nan.warner1@gmail.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 28 February 2019. The full advertisement can be found here.

Later this month, we will be welcoming Professor Chidi Oguamanam at the IP Unit for a research visit. Professor Oguamanam recently published a fascinating study ,entitled, “Wandering footloose: Traditional knowledge and the ‘Public Domain’ revisited,” in which he addresses the meaning of “public domain” in the context of traditional knowledge (TK). The study was picked up in a recent Intellectual Property Watch article by Damillola Adepeju and summarised as follows: The study highlights that it provides a non-Eurocentric conception of “public domain” in order to recognise the customary laws and practices of indigenous and local communities (ILCs). The idea of a public domain in intellectual property rights is that of limited term rights where such rights are seen as a trade-off as part of a social contract. “The state incentivises those who have made useful innovations or other creative works by way of a state sanctioned monopoly,” the paper states. “At the end of the monopoly, they are required to hands-off or take off tolls on the innovation so that it would be flushed into the sinkhole of the public domain for members of the public to freely access for various ends, including the creation of more useful innovation(s).” Regarding this public domain, the study highlights that the United States and its allies have been putting pressure on traditional knowledge stakeholders concerning the protection of traditional knowledge. These countries are of the view that effective protection of traditional knowledge will “undermine” the public domain, the study explains. This pressure, the study points out, is ironic considering that these countries, led by the United States, have “worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain.” These are the same countries that “have now reconstituted themselves into its later day champions when it comes to TK,” the study states. “United States insists that the primacy for the protection of TK lies with the recognition of ‘the value of a vibrant public domain, the body of knowledge that is available for all to use and which is essential for creativity and innovation,’” it says. But the study shows that indigenous and local communities have not disregarded the public domain. However, their worldviews differ as “[t]here is little or no emphasis on the appropriation narrative or appropriation imperative in the mould of Western social contract philosophy.”

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by Cath Traynor
(this article was first published by Natural Justice)

Research involving communities and their knowledge can result in unintended negative impacts: A new guide – co-published by Natural Justice, the IP Unit and Indiana University-Bloomington’s Department of Gender Studies – supports communities to understand the law, harness their rights and negotiate more socially just research processes. The guide discusses indigenous rights in the context of academic research practices, including free, prior and informed consent (FPIC) and intellectual property rights. Adhering to the principles of FPIC, communities should be in a position to make an informed decision on the potential risks and benefits of proposed research, and the guide highlights some key areas.

During a collaborative research project of the Open and Collaborative Science in Development Network (OCSDNet) that investigated climate change and the role of indigenous knowledge in assisting communities to adapt, members of Indigenous Nama and Griqua communities in South Africa raised concerns about research processes in general. As expert knowers in how research and knowledge has historically been produced involving indigenous peoples, they articulated inherent conflicts that arise when participating in research that is primarily designed and led by those outside of their communities. Conversations revealed that although their communities have a culture of sharing, they were hesitant to share their knowledge with researchers because of the risks involved, and that in the past their contributions had been left unacknowledged and they had received little or no benefit from participation. The guide was created in response to these concerns.

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As we await the finalisation of South Africa’s IP Policy Phase I (the 2017 draft is available here), the IP Unit’s latest publication ‘Innovation and Intellectual Property in South Africa: The Case for Reform’ seeks to contribute to the debate about the introduction of a substantive patent examination system in the country by providing some much-needed empirical evidence. To date, a comprehensive analysis of who patents what in SA is simply missing

For their report, the authors Dr. Andrew Rens and Jonathan Berger analysed more than 4,000 patents granted by the dti’s Companies and Intellectual Property Commission to South African individuals and bodies over the period January 2005 to July 2015, about 10% of those granted domestically to South African individuals and bodies. They show that currently, the South African patent landscape is characterised by easy grants of patents of dubious quality and value. According to the authors, their data strongly suggest that the existing deposit system in South Africa stifles rather than stimulates innovation – contrary to the argument of those defending the current system that our soft regulatory touch stimulates innovation and any departure from it would kill innovation. Thus, the introduction of a substantive examination system for patents, as proposed by the dti, is to be welcomed. It is worth noting that numerous countries and regions already have substantive patent examination systems in place, including the U.S., Europe, Brazil, India, China and Kenya. Continue reading →

by Charlene Musiza

The 35^th session of the Standing Committee on Copyright and Related Rights (SCCR) took place at the World Intellectual Property Organization (WIPO) at the end of last year. Comprising of all members of WIPO, the SCCR analyses matters relating to the substantive law or harmonisation of copyright and related rights, and formulates recommendations.  Current issues the SCCR is addressing include the protection of broadcasts and broadcasting organisations as well as copyright limitations and exceptions. With regard to limitations and exceptions the focus is now on three areas: educational activities, libraries and archives and disabled persons.

At the 35^th session of the SCCR, UCT’s Professor Caroline Ncube presented, together with Professor Blake Reid from the University of Colorado, an important scoping study concerning access to copyrighted works by persons with disabilities.

Furthermore, a report titled “Updated Study and Additional Analysis of Study on Copyright Limitations and Exceptions for Educational Activities” by Professor Daniel Seng was presented that provides an analysis of the existing educational copyright limitations and exceptions in the copyright laws of WIPO member states. Against the background of South Africa’s current efforts to modernise its copyright legislation, one important aspect in the report concerns limitations and exceptions that enable the use of adaptations and translations for educational activities.

As regards exceptions and limitations facilitating adaptations and translations for educational activities, Professor Seng’s SCCR report distinguishes three approaches in existing copyright laws around the world:

• “adaptation or translation” formulations,
• “source work” formulations, and
• “use” formulations.

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by Desmond Oriakhogba

The IP Unit
Sits on UCT Kramer Loft
As a Pulpit
Where diverse brains
Preach Afro IP

The sermon is simple:
Open access;
Open Knowledge;
Knowledge sharing
For Afro development

The Head: a ‘German Afro’
The body: a mix of races,
Different ages and faces
All deep in IP mine
Quarrying together
Hand in hand
Offering each a shoulder
In filial affinity

Though in a loft
The IP Unit is no Hermit:
He flows in Open AIR
And ASK Justice
With Afro, White and Coloured brains.
He speaks in his Gown
And shakes hands with Town

The end is simple:
Open access;
Open Knowledge;
Knowledge sharing
For Afro development

 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.

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By Desmond Oriakhogba (PhD candidate and researcher in the IP Unit)

On 4 October 2017, Nigeria deposited during the 57^th 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?

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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 nancy.warner@uct.ac.za – 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.