The University of Cape Town’s Intellectual Property (IP) 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. We aim at creating a leading IP programme in Africa that translates cutting edge research into excellent teaching and increases the number of highly-skilled African IP experts. Important issues range from the way in which we access and share knowledge to strategies how to commercialise inventions and avoid misappropriation. IP is a key determinant of human development, economic growth and competitiveness; and IP rules impact on various public policy areas including health, research and development, bio-diversity, clean technologies, food security, and education.
(First published in UCT’s Monday Monthly, Supplement: Faculty Focus, Faculty of Law)
Early stone tools fashioned by our hominid ancestors in sub-Saharan Africa show that innovation based on local knowledge has old roots in the continent. This early African innovation continued in agriculture, metallurgy, medicine and textiles; and even in building techniques, design and material. But Africa has learnt some hard lessons in properly managing its intellectual property. An often-cited case from the 1970s describes how the National Cancer Institute in the US invested in Maytenus buchananii, a plant that grows in the Simba Hills of Kenya. The institute had learnt what the local Digo communities have known for years: the plant is good for treating cancers. But the material was collected and traded without the Digo knowing – and without any acknowledgement of their knowledge, or reciprocal financial benefit. The Intellectual (IP) Unit, based in the law faculty, advocates for development-oriented intellectual property laws and policies in Southern Africa. At the forefront is an initiative the unit coleads with the University of Ottawa’s law faculty: the Open African Innovation Research & Training (Open AIR) project. Open AIR has hubs in Egypt, Nigeria and Kenya, and teams in 14 African countries, including Tunisia, Ghana, Senegal, Cameroon, Ethiopia, Uganda, Tanzania, Malawi, Mozambique, and Botswana. At the coalface is UCT’s Dr Tobias Schonwetter, who works to ensure knowledge and innovation – and the communities who create this capital – are appropriately protected through guidance as well as policy and research development. One example of this can be found in South Africa’s Kukula healers, the traditional health practitioners of Bushbuckridge who hold valuable knowledge about medicinal plants; knowledge passed down through generations. Custom doesn’t allow them to share all this knowledge (some secrets are kept in families and groups), but there’s much they are willing to share with the broader community; a pooling of knowledge for collaboration, protection and benefit-sharing.
On 19 May 2015, the IP Unit, together with colleagues affiliated with Indiana University in the U.S. and Cape Town-based Natural Justice, submitted to the Department of Science and Technology comments (click here) regarding the Draft Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill. The Bill was summarised here.
Our approach is to engage with the Protection, Promotion, Development, and Management of Indigenous Knowledge Systems Bill (“IKS Bill”) in a sympathetic and constructive yet critical manner. Our submission is structured as an outline document – it comments on a few provisions in the IKS Bill that are of particular importance and concern to indigenous communities. We do not attempt an exhaustive review of the IKS Bill but rather aim to highlight certain areas of concern. We hope this will generate a broader discussion into the contours of the IKS Bill as a whole. Among other things, we welcome the Bill’s intention to establish a sui generis approach for the protection of indigenous knowledge. This, in our view, is a positive change from alternative protections given to indigenous knowledge systems through the somewhat unfitting framework of intellectual property rights as evidenced by the most recent Intellectual Property Law Amendment Act 2013. When legislating in this area, emphasis must be on appropriately defining indigenous communities. Furthermore, lawmakers should generally be mindful that adding additional layers of IP or IP-like protection to hitherto unprotected subject matter also creates societal costs through further reducing a crucial and freely available knowledge resource – the public domain. As a vital engine for innovation, entrepreneurship and development in every country, the public domain is deserving of special protection. That being said, we are aware that indigenous knowledge has been historically characterised as in the public domain in order to appropriate such knowledge. Given such histories, the IKS Bill raises concerns over how to meet the interests of indigenous communities and attend to the interests of third parties to access such knowledge. One way to address these tensions is to put emphasis on developing a robust set of exceptions and limitations.
A new article by Dr. Bram de Jonge, Dr. Niels P. Louwaars and Professor Julian Kinderlerer addresses the issue that African countries are fast-tracking the protection of plant varieties by embracing the 1991 Convention of the International Union for the Protection of New Varieties of Plants (UPOV). The West-African Organisation Africaine de la Propriété Intellectuelle joined UPOV as its fifth African member in 2014. Around the same time, UPOV assessed a draft legislation of the African Regional Intellectual Property Organization to be in conformity with its 1991 Act, paving the way for this East-African organization to become a UPOV member as well. The Southern African Development Community is currently drafting similar legislation. Together, these regional organizations represent 42 African countries. These decisions at the diplomatic level create controversy regarding possible negative impacts on smallholder farmers’ seed systems. We show in this commentary that African countries, by seizing the opportunity to implement a broad interpretation of one of the UPOV 1991 provisions, can overcome the controversy and establish a PVP system that supports commercial seed systems without negatively affecting smallholders.
Nature Biotechnology 33(5), pp. 487–488, May 2015, http://www.nature.com/nbt/journal/v33/n5/full/nbt.3213.html
The Open African Innovation Research network, “Open AIR”, seeks an inspiring associate to co-manage the next phase of its collaborative research, training and outreach activities.
The Project Manager’s job is to help the network achieve our shared goals of:
- Executing large-scale, empirical research on knowledge governance and innovation;
- Building relationships among collaborators in Canada, the countries of Africa and the world;
- Mentoring students who will become the next generation of emerging global leaders; and
- Reaching out beyond the academic community to ensure our research has real-world impact.
Achieving our goals requires a Canada-based Project Manager to coordinate an array of complex tasks, working closely with our current management staff and research personnel throughout Africa. Our new Canada-based Project Manager will work especially closely with our network’s co-manager based at the University of Cape Town. More information, including salary, application deadline and contact details, is available here.
In recognition of World IP Day 2015, the UCT IP Unit has published its Briefing Paper ‘Marrakesh Treaty – Implementation Guide South Africa‘. The guideline document aims to enable the South African lawmaker to swiftly move forward with the implementation of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, in line with the country’s public expression of support for the treaty. The document examines the compatibility of the provisions of the treaty with the current copyright regime in South Africa and, where necessary, it provides suggestions for legislative amendments. The copyright law revision process currently underway in South Africa, together with the country’s goal of introducing a national IP Policy, provide a unique opportunity for making these changes in a timely manner.
At the end of March 2015 the Draft Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill was published in Government Gazette 38574. Written comments on the draft bill by members of the public and interested parties may be submitted to the Department of Science and Technology until 19 May 2015.
The IP Unit intends to submit its comments before the deadline on 19 May 2015.
The Bill aims to provide for:
- the protection, promotion, development and management of indigenous knowledge systems
- the establishment and functions of the National Indigenous Knowledge Systems Office
- the management of rights of indigenous knowledge holders
- the establishment and functions of the Advisory Panel on indigenous knowledge systems
- access and conditions of access to knowledge of indigenous communities
- the registration, accreditation and certification of indigenous knowledge holders and practitioners
- the facilitation and coordination of indigenous knowledge systems-based innovation.
The South African Intellectual Property Law Journal (SAIPLJ) hereby calls for submissions for publication in the 2015 issue.
Contributions on all aspects of intellectual property law that have relevance to Africa, particularly South Africa, are welcome. Submissions may be in the form of articles or notes not exceeding 10 000 words and 6000 words respectively. All submissions must be of a scholarly nature and conform to the SAIPLJ house style (available at www.jutalaw.co.za).
The journal is published by Juta & Co and is double peer-reviewed.
The SAIPLJ accepts submissions on an ongoing basis, however, the final submission date for consideration for the 2015 issue is 30 April 2015.
Submissions and enquiries can be directed to the Editors at email@example.com
The Network of African Science Academies (NASAC) in collaboration with the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Royal Netherlands Academy of Arts and Sciences (KNAW) recently held a ‘Consultative Forum on Open Access: Towards high level interventions for research and development in Africa’ in Nairobi, Kenya, on 29-30 January 2015.
Michelle Willmers, former Programme Manager of the Scholarly Communication in Africa Programme and current Project Manager of the Open Data Africa Initiative in the UCT IP Unit, was one of the scholarly communication experts invited to present in the forum. The two-day meeting drew together senior representatives from African science academies and was intended as a springboard to consolidate and promote a regional approach in advancing the Open Access agenda in Africa. The discussion covered a wide range of scholarly communication issues, ranging from new approaches to journal publishing and peer review to curation and intellectual property.
Questions around intellectual property, rights management and patenting are of central importance in the local debate around Open Access as many African institutions straddle the space between new open approaches and traditional more closed systems of practice. The need to consolidate efforts at regional level and lobby government for support and engagement with Open Access issues was one of the principle recommendations emerging from the forum.
The full set of final Scholarly Communication in Africa Programme (SCAP) outputs (including useful briefing papers on various aspects of Open Access) can be accessed here.
By Caroline Ncube, Reposted from Afro-IP
A report entitled ‘Copyright policy and the right to science and culture’ authored by the Special Rapporteur in the field of cultural rights, Farida Shaheed has been released (download it here, ref A/HRC/28/57 ).
The document summary reads:
‘In the present report, the Special Rapporteur examines copyright law and policy from the perspective of the right to science and culture, emphasizing both the need for protection of authorship and expanding opportunities for participation in cultural life.Recalling that protection of authorship differs from copyright protection, the Special Rapporteur proposes several tools to advance the human rights interests of authors. The Special Rapporteur also proposes to expand copyright exceptions and limitations to empower new creativity, enhance rewards to authors, increase educational opportunities, preserve space for non-commercial culture and promote inclusion and access to cultural works. An equally important recommendation is to promote cultural and scientific participation by encouraging the use of open licences, such as those offered by Creative Commons.’
The IP Unit is involved in a new project carried out under the Open and Collaborative Science in Development Network (OCSDNet). The ‘Empowering Indigenous Peoples and Knowledge Systems Related to Climate Change and Intellectual Property Rights’ project examines processes of open and collaborative science related to indigenous peoples’ knowledge, climate change, and intellectual property. Participatory action research (“PAR”) will be carried out together with indigenous KhoiSan peoples to assess the following: (1) how climate change has impacted their communities; (2) how they have produced indigenous knowledge related to addressing climate change and alternative strategies; (3) how such knowledge is characterized (or not) as indigenous intellectual property and openly shared (or not) with the outside public; (4) and what types of laws and policies (including intellectual property rights) promote and/or hinder these strategies and open collaboration with the public? The 2-year project is led by Natural Justice researcher Catherine Traynor, who explains the project in this YouTube clip.
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