UCT’s Intellectual Property Unit strives to add an African voice to the global debate on IP-related issues. Our focus is on examining the link between IP, innovation, development and public policy, taking into account the needs of society, rights owners and consumers. Our vision is to be a leading voice in realising a continent where there is an open exchange about African ideas, creativity and innovation, in pursuit of sustainable development. We promote research, teaching, and learning in IP through holistic, balanced and open approaches, in order to stimulate innovation that drives development. Our core values are integrity, inclusiveness and relevance. We believe that South Africa has a leadership role in defining IP challenges in emerging and developing countries. We develop our programs through dialogue, research, debate and capacity building.

Multilateral Matters #7: Intellectual Property Rights in the African Continental Free Trade Agreement (AfCFTA): Initial Observations

wendland_wendby 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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The Time is Now: The Need for Urgency in South Africa’s Patent Law Reform Process

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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Reflections on the San and Khoi Rooibos benefit-sharing agreement.

DesyBy 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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The ‘Madagascar cure’ for Covid-19 puts traditional medicine in the spotlight

Charlene 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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The new Open AIR Research Report. Scaling Innovation: How Open Collaborative Models Help Scale Africa’s Knowledge-Based Enterprises

Screenshot 2020-06-16 at 11.37.58(this post was first published on the Open AIR website)

Global discussions often repeat the need for African businesses to “scale-up” in order for the continent to experience rapid economic growth that is truly “homegrown.” This is especially the case for knowledge-based businesses, which are essential in the modern global economy. Clarity as to what is meant by scaling-up and how African businesses can and should do this, however, is often lacking.

Drawing from more than 20 case studies of open, collaborative innovation in Africa, Open AIR has identified numerous dimensions of, and approaches to, enterprise-scaling. These case study findings are the core of Open AIR’s newest report, Scaling Innovation: How Open Collaborative Models Help Scale Africa s Knowledge-based Enterprises. This report, draws on research conducted since 2015 in Egypt, Tunisia, Morocco, Nigeria, Ghana, Ethiopia, Uganda, Kenya, Botswana, and South Africa.

The report shows there are four scaling “archetypes” that are frequently present in African knowledge-based enterprises:

  • scaling by expanding coverage;
  • scaling by broadening activities;
  • scaling by changing behaviour; and
  • scaling by building sustainability.

The report then gives detailed accounts and research findings from our five years of case studies, through the lens of this four-component taxonomy. These case studies reflect the range of knowledge-based businesses that are already present across the continent, such as:

  • footwear and textile enterprises operating in informal-sector clusters in Addis Ababa;
  • a beadworking and craft collective in KwaZulu-Natal Province, South Africa;
  • vanilla-growers in Mukono District, Uganda;
  • micro, small, and medium-sized enterprises (MSMEs) in Botswana;
  • fishers in South Africa’s Western Cape Province;
  • maker communities, including FabLabs, in Egypt, Tunisia, Morocco, Kenya, and South Africa;
  • Nigeria’s Nollywood film industry;
  • Indigenous enterprises growing medicinal plants and practicing traditional healing in South Africa’s rural Bushbuckridge area; and
  • startups and established enterprises operating in technology hubs in Egypt, Nigeria, Ghana, Ethiopia, Kenya, and South Africa.

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.

Postdoc opportunity at the IP Unit – apply now!

OOHlogoThe 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.

Multilateral Matters #6: What Can African Countries Do To Make Sure They Have Affordable Access to a COVID-19 Cure?

Bonginkosiby guest contributor Bonginkosi Shozi, PhD Fellow, African Health Research Flagship, School of Law, University of KwaZulu-Natal

Multilateral Matters

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


 

Preface by Adjunct Professor Wend Wendland

The COVID-19 pandemic has exposed the eggshell fragility of global human health, safety and well-being.

The pandemic is causing severe disruption to societies, economies, supply chains, trade and travel, erasing development gains and devastating the livelihoods of people, especially the poor and most vulnerable.

As a fine dust of anxiety settles over everything we do, never before has the global race for a vaccine, treatment and cure been as urgent.

Once health products of assured quality and safety are developed, global cooperation will be needed to ensure that they will be accessible and affordable to all at the same time.

Availability, accessibility and affordability of health products (such as medicines, vaccines, diagnostic and testing kits, medical devices and protective devices) depend on several factors, such as a country’s manufacturing capacity, the height of trade barriers, the strength of its competition (anti-trust) regulations, the efficiency of procurement procedures, the effectiveness of transportation and delivery mechanisms, and the adequacy of health systems and infrastructure. The pharmaceutical and medical R&D, innovation, production and supply ecosystem is complex.

Intellectual property (IP) rules are relevant too. IP protections may secure the investments needed to produce life-saving innovations, just as they may also hinder competition and constitute a barrier to collaborative innovation and impede access to those innovations. Governments the world over grapple with designing IP systems that incentivize innovation while safeguarding public health.

IP rights are not absolute. They are subject to exceptions and limitations and countries can take advantage of these provisions (also called “flexibilities”) in international instruments to address public health objectives. Further, IP rights don’t apply in all countries:  for example, patents apply only in the countries in which they have been applied for and granted. And, under the World Trade Organisation’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), least-developed countries need not protect pharmaceuticals until 2033.

More broadly, this extraordinary global threat underscores the critical importance of international solidarity and effective multilateralism. This “Multilateral Matters” blog series shines a beam on the need for and relevance of multilateralism in the IP arena.

For all these reasons I decided that the next “Multilateral Matters” blog post should address the IP/health question, which, with great pleasure, I invited Bonginkosi Shozi, PhD Fellow, African Health Research Flagship, School of Law, University of KwaZulu-Natal, to write under his own responsibility as a guest contributor to “Multilateral Matters”.

While acknowledging the relevance of copyright to access to health-related data and knowledge contained in scientific and medical journals and other literary works, his post specifically addresses the freighted and fraught relationship between patents and health.

This post is also timed to acknowledge “The International Day of Multilateralism and Diplomacy for Peace”, which is celebrated in April each year.[1]

Additional readings will as usual be posted on the Multilateral Matters website.

With my thanks to Bonginkosi, over to him.

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Event Report: Multi-sided Music Platforms and the Law (Book Launch)

By Clarence Lakpini – first published by The IPKat under Creative Commons Attribution Non-Commercial License.

okorie_bookLast month, the South African Research Chair in Intellectual Property, Innovation and Development (the IP Chair) hosted the official book launch for Dr Chijioke Okorie’s new book, Multi-sided Music Platforms and the Law, at UCT’s Faculty of Law. The event consisted of a “fireside chat” between Dr. Okorie and Adam Haupt, a professor of Film and Media Studies at UCT. Clarence Lakpini, a PhD Candidate under the IP Chair and a Research Assistant at the IP Unit was in attendance. Below, he reports on what happened that day:

“Phenomenal.” The word that jumped out to the audience when Professor Caroline Ncube, the holder of the South African Research Chair in IP, Innovation and Development, after her characteristically warm welcome to all the attendees, commenced her description of Dr Chijioke Ifeoma Okorie. It was clear to see that this was not just a word thrown out for the sake of it, but a heartfelt endorsement of a person the distinguished Professor considers a protégée. Having supervised Chijioke’s doctoral thesis, she is in a better position than most to give a candid opinion on the author. After all, Chijioke commenced her PhD studies, with her in 2015 and in her words, “finished in record time…”

The event, which was scheduled to mark the launch of Chijioke’s book, was held on the 12th of February 2020 and well attended from within and without the University of Cape Town’s Faculty of Law. Taking a conversational tone, the central event was the discourse between the author and Professor Haupt of the Centre of Film and Media Studies at the University of Cape Town, who steered a riveting and engaging conversation with his typically well thought-out questions. The conversation lasted for approximately 30 minutes, and was followed by a short Q&A session between Chijioke and the audience. It will be impracticable to turn this post into a transcript of everything that was said. However, some key points which were highlighted therein will be summarized in subsequent paragraphs.

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Multilateral Matters #5: The Protection of Country Names and its Contribution to Development: A Brief Introduction to the Intellectual Property Issues

Photo September 28 2019-2Wend 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

Country names are valuable intangible assets, and developing countries can exploit their own names for economic and cultural benefit.

Country names are, however, vulnerable to misappropriation and exploitation by entities which have no connection with the country concerned.

This situation is exacerbated by the evolution of new top-level domain names, with countries struggling to prevent the misappropriation of their country names in the domain name system.

Country names receive some indirect protection against their registration as trademarks but are otherwise not adequately protected within the international intellectual property (IP) system.

Views differ as to whether country names should be regarded as part of some sort of “geographic commons” and protected defensively against misappropriation using conventional trademark principles, or whether they require positive sui generis protection as integral parts of a country’s identity and sovereignty.

Most people seem to agree, however, that it is in the public interest for country and other geographical names to remain available for use by entities connected with the countries and geographical areas concerned.

Complex multilateral discussions are underway at the World Intellectual Property Organization (WIPO) in Geneva on this topic. Several proposals from a mix of developing and developed countries are on the table.

Introduction

While there is as yet no international agreement on what a “country name” is exactly, for present purposes the concept covers the short name of a State or the name that is in common use, and may also include the country’s official name, historical name, translation and transliteration of the name as well as the use of the name in abbreviated form and as an adjective.

For example: “South Africa” (short name), “Republic of South Africa” (official name), “South African Republic” (historical name), “Zuid Afrikaansche Republiek” (historical name in Dutch), “Afrique du Sud” (short name in French), “ZA” (official abbreviation), “South African” (use of country name as an adjective).

This topic is important from an IP and development perspective because country names can be powerful brands.

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CopyrightX:UCT – applications now open!

copyxThe IP Unit is pleased to again present a CopyrightX affiliated course in 2020. 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 between January and April of each year. 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://copyx.org

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 19 February 2020 and 6 May 2020. The classroom 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 at the University of Cape Town.

Applications are open between now and 26 January 2020.  Successful applicants will be notified by 3 February 2020.

For more info and to apply click here.

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