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.
An occasional blog on international developments related to intellectual property, innovation, development and public policy
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.
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.
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.
On 24 October 2019, the University of Johannesburg (UJ) hosted the Industry 4.0 and Intellectual Property (IP) Colloquium organised by Prof Wim Alberts of UJ’s law faculty. The main objective of the colloquium was to discuss the impact of the fourth industrial revolution (4IR), especially artificial intelligence (AI), on IP. Speakers at the colloquium were drawn from academia, government and largely from practice and industry. Yours sincerely was there to register the presence of the University of Cape Town’s NRF/DST/SARChI Chair on IP, Innovation and Development.
After a warm welcome from Prof Letlhokwa Mpedi, Executive Dean of UJ’s law faculty, the colloquium commenced with a very educating and authoritative keynote address by Prof Coenraad Visser of the University of South Africa (UNISA). The keynote address did not only set the tone/agenda for discussion, but also summed up and foreshadowed the key issues addressed at the colloquium, especially in relation to the impact of AI on knowledge creation, IP regimes, and the ‘deepening tension between the explicit welfare objectives of trade policy’ and the existing global IP legal architecture that shapes transactions in the digital and information markets.
By Dr. Desmond Oriakhogba
On 25 to 27 September 2019, the Law and Development Research Network (LDRN) held its 4th annual conference at the Humboldt University, Berlin, Germany. The conference attracted over 220 scholars, both established and emerging, from the Global South, including Africa. With generous funding from the LDRN and UCT’s IP-Unit, I had the opportunity to participate in the conference and speak about my ongoing research being conducted under the Open African Innovation Research (Open AIR) network.
According to the host of the conference, Prof Philipp Dann, the LDRN aims ‘to pool […] knowledge to understand better the role that law plays in creating [and] combatting inequality, environmental degradation and social injustice, particularly in the Global South [and] through the entanglements between the South and North’. To this end, the conference, which devolved into 55 panels running through eight tracks, sought to highlight the plurality and diversity of the ‘voices and stories that mark’ the field of law and development. In this connection, discussions in the panels addressed diverse and cross-cutting issues relating to socio-economic development; human rights; international and regional trade; technological changes in law and development; legal pluralism and non-state law; intellectual property (IP); gender identities, empowerment and development; among others.
By Lenon Rwizi
In celebration of Heritage Day, the UCT IP Unit hosted a lunch hour seminar on 25 September. The seminar was put together by the Unit’s student research assistants who also acted as the resource persons (Clarence Lakpini, Bontle Monnya, Tanya Magaisa and Lenon Rwizi). The seminar ran under the theme: What is the status of Traditional Knowledge on the continent and in South Africa? Who are the winners and losers? A case study on the Hoodia Gordonii. The event was well attended by students, academics, faculty and staff.
Clarence Lakpini started his presentation by defining and exposing the various forms of intellectual property (IP). He took strides to use visual images of food products, décor, clothing and traditional pharmaceutical products that classify as traditional knowledge (TK) in order to give the audience an appreciation of the subject of the day. Clarence explored the related international, regional and local legal instruments regulating TK. In this connection, he placed particular emphasis on the efforts that have been invested at the World Intellectual Property Organization (WIPO) and other international fora to reach consensus on an international normative framework for TK. For instance, he pointed out the efforts of the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore, which made significant strides in developing concepts and draft international instruments (as proposals) for TK protection. Highlighting the Convention on Biological Diversity (CBD) of 1992 and the Nagoya Protocol, he further demonstrated various efforts that have been invested to harmonize international TK. Continue reading
By Charlene Musiza
The Development Agenda (DA) is a pro-development reform of the international intellectual property (IP) system. It was initiated by a joint proposal by Argentina and Brazil at the 15th Extraordinary session of the World Intellectual Property Organisation (WIPO) General Assembly in 2004. The proposal, which called for a development dimension to IP, led to a negotiation process that spanned three years, from 2005 to 2007. The process included submission of over a hundred proposals, and deliberations in the Inter-sessional Intergovernmental Meeting, and the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA). Different stakeholders, including government, academia, industry and civil society, participated in the negotiations, and in October 2007 the DA was finally adopted. Broadly speaking, the DA brings reform in two aspects: recalibrating the IP system to bring a balance; and reforming WIPO and making development central in its activities. Continue reading
An occasional blog on international developments related to intellectual property, innovation, development and public policy
It’s under national laws that intellectual property (IP) rights are defined, held, exercised and enforced.
International IP instruments mainly provide for, among other things, the protection of foreign subject matter: for instance and put simply, if country A and country B are parties to the same international IP instrument, this means that IP subject matter from country A that is protected in country A under that country’s national IP laws can also be protected in country B under country B’s IP laws, and vice versa.
International IP instruments are usually developed “bottom up”, which is to say that they build upon and harmonize those existing national regimes that are regarded as successful and representative of widespread practice.
At least when they are first adopted, international IP instruments are often not too detailed and prescriptive, leaving policy space for national implementation.
The negotiations so far in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the WIPO IGC), are more “top down” than “bottom up”, at least on traditional knowledge (TK) and traditional cultural expressions (TCEs). This is because national regimes are relatively recent and few in number, and experiences with them so far are inconclusive.
The “top down” nature of the IGC may be one of the reasons that its progress has been slow so far.
While this would be contrary to the way in which most international IP instruments have been developed in the past, perhaps the unique policy, legal and operational challenges associated with TK and TCEs protection requires a dual and coordinated approach that is both “top down” and “bottom up”.
In some respects, the IGC’s draft instruments on TK and TCEs are detailed and prescriptive, not leaving much leeway for national implementation. This may also partially explain the IGC’s slow progress.
However, while leaving policy space for national implementation may be desirable, an international legal instrument should establish standards which mandate effective and consequential protection at the national level. In the absence, so far, of many exemplary national regimes to draw from, this may be the very guidance that national policy-makers seek.
Multilateral negotiations are often aimed at the reaching of an agreement on the contents of an international legal instrument.
International legal instruments can take several forms: they may, for instance, be binding or non-binding. An instrument can, however, never be binding as such, it can only become binding on those countries that either accede to or ratify it.
Non-binding instruments include guidelines, recommendations, protocols, model provisions, declarations and the like. Some of the best known international legal instruments are, in fact, non-binding, such as the Universal Declaration of Human Rights, the United Nations Guiding Principles on Business and Human Rights and the United Nations Declaration on the Rights of Indigenous Peoples. In the IP area, member countries of the World Intellectual Property Organization (WIPO) have adopted several joint recommendations related to trademarks1 and standards, in the form of recommendations, on industrial property information and documentation.2
As these and many other examples show, even non-binding instruments can exert considerable influence.
The purpose of this blog post is to offer some reflections on the respective roles of and interaction between national and international legal instruments in the IP field.
On 8 August, the IP Unit had the immense pleasure of welcoming highly acclaimed Harvard Professor Ruth Okediji – Co-Director of the Berkman Klein Center – for a seminar on why the decolonisation of intellectual property matters. The seminar at UCT was co-hosted by the IP Unit, the South African Research Chair in Intellectual Property, Innovation and Development, Recreate South Africa and the Program on Information Justice and Intellectual Property (PIJIP) at American University in Washington, DC. The well-attended event was opened by the law faculty’s dean Professor Danwood Chirwa, and Professor Okediji’s talk was preceded by remarks from PIJIP’s Professor Sean Flynn. A brief write-up about the event can be found on the SARChI chair’s website, and a video of the proceedings is available here.
By Dr. Desmond Oriakhogba
Phase 2 negotiations towards the objectives of the AfCFTA, which will include Intellectual property (IP) rights, will afford “an opportunity for Africa to craft a new path for knowledge governance” and “redefine the agenda for negotiation of IP issues” in future trade agreements. However, as African countries go into the negotiations, it is important for them to first clarify their respective “fundamental priorities for IP” and development (Ncube, et al). To do so, African countries will require a well-articulated IP policy based on their individual national development objectives. Such policy should articulate goals and strategies that will enable them to harness the gains of IP and innovation for their respective development in the fast-growing, technology-driven, global economy.
In an article for AfronomicsLAW, UCT’s IP-Units Dr Desmond Oriakhogba briefly highlights some key policy and legal steps South Africa has adopted to take advantage of the gains of IP and innovation for its national development. the article also draws lessons from South Africa’s experience that IP negotiations in the AfCFTA can benefit from.
By Charlene Musiza
On 20 May 2019, the second International Conference on Intellectual Property (IP) and Development was held at the World Intellectual Property Organization (WIPO) in Geneva, Switzerland. A diverse crowd from industry, academia, international organisations, non-governmental organisations and students attended the event and some participated via the webcast. The panels, comprising of experts, discussed various topics in relation to IP and development. Discussion in the panels are summarised below.
How the IP System Benefits Innovation
The first panel, made up of Dr. Fernanda de Negri, Professor Marzenna Weresa and Professor Dominique Foray, discussed how the IP system benefits innovation. Dr. Negri spoke about some factors and conditions for innovation, and gave a historical perspective, and the empirical literature on IP and innovation that highlighted the important of patents for pharmaceutical and chemical innovations. According to Dr. Negri patent systems have an important and a positive influence on innovation in home countries. She stated that IP rights had positive effects on innovation in developed countries but the results for developing countries were not so clear. On the other hand, according to her, innovation required a broad sector of conditions, for example qualified people to innovate, infrastructure and good economic environment. Continue reading
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