by Wend Wendland, Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town, wend.wendland@uct.ac.za, @WendWendland

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy

Key points

Indigenous names, words, symbols and other indications are often used by companies to brand their goods and services: when this is done without the consent of the Indigenous People, it can cause offence and be derogatory, it can mislead consumers and it can deprive Indigenous Peoples of economic benefits.

Sometimes Indigenous Peoples themselves make proactive use of the intellectual property (IP) system to register their own indications as trademarks, collective or certification marks, or geographical indications.

Mostly, companies do not set out intentionally to misappropriate Indigenous indications. There are a few concrete steps that companies, communities and IP offices could take to avoid inadvertent misappropriations and the erroneous grant of IP rights.

There are legislative measures in a few countries aimed at preventing the registration of trademarks that falsely suggest a connection to or may offend an Indigenous People.

Terms such as “Redskins”, “Braves” and “Chiefs” are not Indigenous terms as such but, when used by sports teams and others, can be racist slurs and cause harm and injury to Indigenous Peoples. In the context of the Black Lives Matter movement, public pressure and sponsor and investor dissatisfaction, rather than trade mark litigation, have recently caused several sports teams in the United States of America (the USA) to abandon names they have used for decades.

Mutually-beneficial and equitable win-win collaborations between Indigenous Peoples and companies could benefit communities, companies and consumers alike. This would be “getting it right”.

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The IP Unit and the iNtaka Center for Law & Technology are pleased to again present a CopyrightX affiliated course in 2021 – this time presented remotely on Zoom. CopyrightX:UCT will be administered by UCT Law@Work: Professional Development Project of the Faculty of Law, UCT.

CopyrightX:UCT is a member of the growing CopyrightX Community, a network of affiliated courses offered by several universities and other institutions. Participants in these courses examine and assess the ways in which law seeks to stimulate and regulate creative expression. CopyrightX was developed by Professor William Fisher at Harvard Law School; it is hosted and supported by the HarvardX distance-learning initiative and the Berkman Klein Center for Internet and Society. A list of the other participating organisations and additional information concerning this educational initiative is available at http://ipxcourses.org/copyrightx/

CopyrightX:UCT consists of the Harvard pre-recorded lectures, accompanied by reading materials relating to U.S. and South African copyright law. Eight contact sessions will take place on Wednesdays between 17 February 2021 and 21 April 2021. The online seminars will discuss the pre-recorded lectures and will more closely analyse South African Copyright law and the issues faced. The seminars will be taught by Dr. Tobias Schonwetter.

The course is free of charge. Applicants must provide a motivation of approximately 400 words stating why they want to participate in CopyrightX:UCT, and how they plan on utilising their knowledge afterwards. Furthermore, applicants must make a commitment to actively participate in the course and attend the weekly seminars on Zoom.

Applications are open between now and 24 January 2021.  Successful applicants will be notified in early February 2021.

For more info and to apply click here.

By Charlene Musiza – first published on the Open AIR website

There have been many efforts to empower women, but rural women continue to face unique socio-economic challenges. A suggested approach to reach rural women has been to make use of museums and cultural heritage centres as focal points in empowerment. It can be a particularly effective approach when considering communities that are embedded in their culture. What also makes this useful is that women engaged in the production of arts and crafts get to not only express their culture and way of life but also earn a living through selling their arts and crafts to visitors. Museums can involve women in their exhibitions, sale of artistic works, and even provide training facilities, but constraints around funding limit their capacity to carry out some activities. Directing more resources to enable museums to undertake empowerment programs can make a difference in the lives of rural women involved in cultural production. In Zambia one museum that has been at the forefront of supporting Tonga rural women is the Choma Museum.

Traditional Cultural Expressions and Women

Traditional Cultural Expressions (TCEs), characterised as any forms in which traditional culture are expressed or manifested, occupy a significant role in the lives of indigenous peoples. Also sometimes referred to as ‘expressions of folklore’, TCEs include such diverse things as symbols, handicrafts, art, performances, music, and more. In Zambia, the Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act No. 16 of 2016 is the governing law and outlines the different categories of TCEs, including tangible expressions (for example sculptures, textiles, baskets) and intangible expressions (songs, performances, stories). Generally, women tend to be more involved in craft making because of cultural gender norms. Making arts and crafts is often a route for self-employment by women and can become a significant source of income for them. For example, many Maasai women sell their beadwork and the sale of other cultural expressions and souvenirs inspired by their culture, earning them incomes to sustain their families. It is therefore possible to consider cultural production as an avenue for women’s empowerment, particularly rural women.

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IP Unit director Tobias Schonwetter, together with Associate Professor Laura Foster (Indiana University, U.S.) and Dr. Bram van Wiele (University of Auckland, New Zealand), recently won the award for best overall paper at WeRobot 2020, which is the premiere international conference on law and policy relating to Robotics. Both professor Foster and Dr. van Wiele are affiliated with the IP Unit.

Based upon a qualitative discourse analysis of media accounts by and for African-based sources and/or directed at audiences on the continent of Africa, their paper Narratives of Artificial Intelligence in a Gendered and Racialized World: Emergence on the African Continent identifies four related narrative frames that are giving normative meaning and value to AI-related technologies: optimism; value-neutrality; linear time and progress; and disruption. Very few media sources explicitly reference “gender,” “women,” or “men” when discussing AI-related technologies. The authors argue that these narrative insertions and gender deletions reinforce and design the default settings of AI-related technologies as masculine, white, heteronormative, able-bodied, and Western, which simultaneously limits and makes apparent alternative possibilities for articulating AI otherwise.

Never before have global South or African perspectives been presented at WeRobot. The first conference was hosted by the University of Miami School of Law in 2012, and recent successful bids for the conference include Yale and Stanford University. This year, WeRobot was to be hosted at the University of Ottawa, Canada, by the Centre for Law, Technology and Society. But due to COVID-19, WeRobot was held virtually at the end of September 2020. WeRobot seeks to bring together a mix of scholars, policy-makers, regulators, and entrepreneurs to discuss topical issues concerning robots and AI, at a time when robots and AI disrupt existing legal regimes and require new approaches to difficult policy issues. The award-winning paper was one of two papers submitted by the Open AIR network. The second paper, Towards Integration of African Priorities into Artificial Intelligence (AI) Policy Agendas, is a broader policy paper summarising some of Open AIR’s work in this area and was also very well received. Video recordings of conversations about both papers are available here and here.

by Wend Wendland, Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town, wend.wendland@uct.ac.za, @WendWendland

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy

Key points

The continent-wide free trade zone created by the Agreement Establishing the African Continental Free Trade Area (the AfCFTA) has the potential to catalyse intra-African trade, boost economic development and lift tens of millions of Africans out of poverty.

From a trade and development perspective, the AfCFTA advances a fresh trade model focused on inclusive and sustainable development. In recognizing the centrality of intellectual property (IP) protection in today’s economy, and the benefits of continental cooperation on IP, the AfCFTA will include a Protocol on IP. Finalization of the IP Protocol holds the promise of a home-grown, single, coherent and Africa-centred IP regime. This could harmonize the fragmented IP landscape of today while safeguarding national policy space on key issues, strengthen the hands of African negotiators in international forums and even help propel currently deadlocked international negotiations towards the finish line. It is hoped that the IP Protocol will realise its promise and advance the policy objectives, principles and transformative potential of the AfCFTA.

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By Clarence Lakpini

In July 2018, I arrived in South Africa for the first time from Nigeria to commence my Masters in Intellectual Property Law at the University of Cape Town (UCT). I took a year of Copyright Law during my fourth year of undergraduate studies, but nothing would prepare me for what was ahead. Although I was to commence my studies at UCT in February 2018, a delay with my visa caused me to have to defer till the second semester. As a new student from a more temperate clime, arriving in winter ensured I had a steep adaptation period. On the academic side, I needed to hit the ground running and start working on a dissertation that would be due in September 2019. During one of our classes, we watched a documentary titled “Fire in the Blood”; it showed the grave difficulties that people living with HIV in the 2000s, particularly in developing countries faced due to an inability to access the antiretroviral therapy that was available at the time. Multiplied thousands of people lost their lives needlessly because the patented medicine which could prolong their lifespans was completely out of their price range. In the course of my studies, I came to realise that this access problem was not only an isolated event with HIV, but that there was a bigger problem of access to affordable medications that dogged South African society. I set out to write a thesis titled: “An Examination of South Africa’s Efforts at Patent System Reform: TRIPS Flexibilities Fully Appropriated for Public Health Needs?” It examined the current South African Patent Act and matched it up against the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) to see to what extent South Africa takes advantage of the flexibilities available in the agreement and highlighted the urgent need to reform the country’s patent law to take advantage of those flexibilities. Sadly, the reform process is slow and after the release of the IP Policy Phase One of 2018, not enough progress has been made in the area of patent law reform in South Africa.

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By Desmond Oriakhogba

Introduction

The media is awash with the long-drawn dispute between the Khoi and San indigenous peoples, on the one hand, and the Rooibos industry, on the other hand, about the ownership of the traditional knowledge (TK) in the use of Rooibos and the entitlement of the San and Khoi communities to share in the benefit arising from the exploitation of the Rooibos by the industry. However, a settlement has been reached between the Khoi and San communities and the Rooibos industry in form of a benefit-sharing agreement concluded in November 2019, while the dispute over the ownership of the TK seems unsettled. Among others, this article traces the history and background to the dispute, discusses the settlement and its significance to the promotion and protection of indigenous peoples’ TK through Access and Benefit Sharing (ABS) regimes.

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By Charlene Musiza– first published on AfronomicsLAW

Traditional medicine and Covid-19

Mystery has surrounded what is contained in CVO, the packaging does not specify the ingredients, but it is said to contain artemisia, a plant that is known to alleviate malaria symptoms. In an interview with France 24 and Radio France International (RFI) the President of Madagascar said the medicine was composed of 62% artemisia, and a mix of herbs derived from the traditional knowledge of the Malagasy.

CVO has been criticised for the lack of scientific evidence of its safety and quality. The Madagascar Academy of Medicine issued a statement that no scientific evidence for the medicine had been established and there was risk to damaging the health, particularly of children. The practice is to undertake research and approve traditional medicine in line with international standards, that is research protocol, tests and clinical trials. Madagascar has so far not presented any scientific evidence to back up its claims. Aware of this, the President of Madagascar said there was a distinction between clinical observations and clinical trials and lauded the success of CVO based on the recovery of patients as clinical observations, done in accordance with WHO guidelines.

Madagascar, however, is not the first to use traditional medicine to treat Covid-19, in Asia countries like Indonesia, Thailand and Malaysia have been using herbal remedies. In China and South Korea, the governments have issued guidelines for herbal treatments for the different stages of the disease. They outline the herbs, herbal formulae and composition of the various remedies, some with antiviral and/or anti-inflammatory properties. China also used traditional medicine before to fight the SARS and H1N1 influenza epidemics, and some research has now shown a high efficacy of Chinese medicine in the prevention of SARS. But just like with CVO, the Chinese medicines have been challenged on the lack of scientific evidence.

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(this post was first published on the Open AIR website)

By viewing these enterprises’ scaling efforts through the lens of the four-component taxonomy, the report offers unique insights into the motivations and actions of these enterprises. The report also finds that there are clear challenges African enterprises face when trying to scale. We caution that scaling must always be pursued with a clear awareness of its complexities. In addition, we highlight the ways in which African enterprises’ knowledge governance systems are often intertwined with their approaches to scaling, impacting these enterprises’ abilities to be socially and economically inclusive.

The report’s overarching aim is to illuminate scaling’s profound dynamism and complexity in African innovation settings. Such research is critical for the continent’s innovators, small enterprises, researchers, academics, private-sector actors, civil society players, and policymakers.

The IP Unit invites applications for a Postdoctoral Research Fellowship in the area of Intellectual Property Law. The selected fellow will primarily work on one of our projects: One Ocean Hub. The One Ocean Hub is a community of scholars from 22 leading international Universities and Research Centres from the UK, South Africa, Ghana, Namibia, Kenya, the South Pacific and the Caribbean, led and hosted by the University of Strathclyde, Glasgow, UK. Broadly, this full-time fellowship is intended to support the One Ocean Hub project by contributing towards the understanding of various intellectual property aspects related to ocean exploration, exploitation and management. The initial tenure of the fellowship is for one year, from 1 August 2020 to 31 July 2021. If the start date for this position is affected either by the candidate being under COVID-19- related travel restrictions or the campus being closed, remote working options can be negotiated. Further details about this opportunity are available here. The deadline for applications is 15 June 2020.