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.
by Wend Wendland, Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town, firstname.lastname@example.org
An occasional blog on international developments related to intellectual property, innovation, development and public policy
Countries have begun to negotiate a new international legally binding instrument on marine genetic resources in the high seas.
The negotiation is an opportunity for countries to re-think existing frameworks which regulate access to and benefit-sharing in genetic resources.
Countries have divergent views on if and how IP issues should be addressed in the new instrument.
Developing countries have an interest in the establishment of mechanisms for the fair and equitable sharing of benefits from research into marine genetic resources and for the transfer of marine technologies. IP issues are relevant in both cases.
What is the issue?
International law already regulates access to and fair and equitable benefit-sharing in genetic resources located within the territories of countries.
The Convention on Biological Diversity, 1992, its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, 2010, the Food and Agricultural Organization’s International Treaty on Plant Genetic Resources for Food and Agriculture, 2001, and, the World Health Organization’s Pandemic Influenza Preparedness Framework, 2011 are some of the main international instruments that currently regulate access to and benefit-sharing in genetic resources.
However, it’s not clear what legal regime applies to marine genetic resources (MGRs) in areas beyond national jurisdiction – such as in the high seas and the seabed beyond the limits of national jurisdictions.
Member countries of the United Nations (UN) have therefore begun to develop a new international legally binding instrument on MGRs beyond national jurisdiction. This negotiation is taking place under the United Nations Convention on the Law of the Sea, 1982 (UNCLOS).
This negotiation touches on a panoply of issues – realization of the Sustainable Development Goals, poverty alleviation, the reduction of hunger, mitigating climate change, biodiversity conservation, the improvement of health, the “Blue Economy” and so on.
This blog post focuses on one aspect of this process: the intellectual property (IP) dimension, and its relationship with two issues that are of particular interest to developing countries: fair and equitable benefit-sharing and the transfer of marine technologies.
As the negotiation has only just started – there is not even a zero draft text of the instrument yet – this first post simply sketches the main issues and navigates the broad contours of the process so far. It will be followed by updates as the process evolves.
by Wend Wendland, Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town, email@example.com
The Multilateral Matters is an occasional blog on international developments related to intellectual property, innovation, development and public policy.
Multilateral institutions matter because that is where international rule-making takes place. And, multilateral institutions are useful, especially for smaller and less powerful developing countries, because they are rules-based and every state, no matter its size, has a voice.
However, in reality, it is profoundly challenging for developing countries to engage effectively in international negotiations and achieve their preferred policy outcomes.
How effective a state, or group of states (such as the African Group) is in participating in multilateral negotiations depends on a number of factors, such as, clearly, the issues at stake and each individual country’s interests, priorities, resources, and capacity, but also the role of regional organizations, the potential for coalitions and, what Nelson refers to as the relevant “institutional system(s)” – meaning the number and nature of the multilateral institutions that are active in relation to the issue at stake.
By Lucy Montgomery and Cameron Neylon
(This article was first published by LSE Impact Blog)
Eve Gray, a researcher at the IP Unit, has contributed to the writing of the book Open Knowledge Institutions. A group of researchers met earlier this year and a first draft of the book was published within a week – a remarkable feat to say the least.
Digital ubiquity has disrupted the traditional university model. The internet has shifted the balance of a tension between control and disorder in knowledge production, with many of the opportunities the web brings leading directly to many of the challenges we now need to address. Lucy Montgomery and Cameron Neylon advocate for the idea of universities as Open Knowledge Institutions, which would support and provide spaces for the world’s creative diversity to contribute to a common stock of global knowledge. This means reinventing some of our ideas about what university is, or should be, while also recognising that this change has to be an evolution, not a revolution.
by Bram Van Wiele
This blogpost is the second in a series on the protection of data and databases. The previous blog post provides a broad discussion on the intellectual property protection of data and data bases in South Africa. The present article looks at the issue of protection of data from a different angle and examines data protection by technological means, in particular through encryption.
Encryption is the process of encoding any type of data in such a way that only parties with access to a decryption key can access its readable content. It does not prevent interception and interference of the encoded data but prevents access to the intelligible content. Encryption is a particular feature of the digital environment. For example, popular messaging service WhatsApp started protecting messages sent via its platform through end-to-end encryption in 2016, preventing third parties from accessing the intelligible content of the messages while being transferred. Encryptions are becoming increasingly difficult to hack, and this has incited a debate over whether privacy should trump security.
At the end of August, the UCT IP Unit participated in UCT Law Faculty’ Research Week. This initiative was presented for researchers and research units to engage with each other’s work and potentially work together. Various members of the IP Unit presented on the intersections of intellectual property rights with, amongst other things, human rights, big data and innovation.
Student research assistant, Tanveer Jeewa, presented on the nexus between intellectual property rights and human rights, based on work carried out under our ASK Justice project. She started by recounting the history of the two fields of law and how they eventually merged. This discussion is expanded on in an early blog post entitled: Intellectual Property Rights and Human Rights Law: A Difficult Relationship. Through various examples that showed the impact of IP on human rights, she demonstrated the need for projects like ASK Justice. ASK Justice contributes to positive policy change – specifically, informing and influencing current and future IP law and policy reform processes, from a human rights perspective – with regard to increasing access to knowledge and access to medicines in four Southern and East African countries: Botswana, Kenya, South Africa and Uganda. The project sought to achieve this using a multipronged approach involving networking and collaboration, teaching and research, capacity-building, and contributing to public understanding, discourse and debate.
The DST/NRF funded South African Research Chair in Intellectual Property Innovation and Development, at the Department of Commercial Law, University of Cape Town has one post-doctoral fellowship available for 2019, for which applications are invited. The successful candidate must be capable of participating in the Chair’s research focus areas of intellectual property and innovation, within the context of South Africa’s National Development Plan Fellowships are awarded on a competitive basis, taking into account the applicant’s academic achievements and researcher potential. The applicant’s research outputs contribute significantly to his/her selection for an award. Applicants should ensure that a full list of their research outputs, including publication records, are included in their CV.
by Charlene Musiza
Zimbabwe launched its National Intellectual Property Policy and Implementation Strategy on 28 June 2018, just a few weeks after the South African Cabinet approved South Africa’s IP Policy, Phase 1. Zimbabwe joins Mozambique which adopted a National Intellectual Property Strategy (2008-2018). Zimbabwe’s IP Policy, produced by the Ministry of Justice, Legal and Parliamentary Affairs, is the result of technical assistance from WIPO under the framework of the WIPO Development Agenda [http://www.wipo.int/ip-development/en/agenda/] and various stakeholder consultations beginning with the first draft IP Policy compiled by the Inter-Ministerial Committee on Intellectual Property back in 2014. The IP Policy is a cross cutting document aimed to enhance economic, social and cultural development.
The overall objective of the IP Policy is to ensure that the IP governance framework leverages the country’s IP potential for inclusive and sustainable economic growth and development. It outlines specific objectives which, among others, include: raising and consolidating IP awareness; enhancing IP knowledge and professional skills capacities; protecting and enforcing IP; and encouraging and facilitating IP commercialisation.
by Tanveer Jeewa
For years now there have been discussions about the possible plain packaging of tobacco products in South Africa. Several other countries such as England, Ireland, France and Australia have already introduced laws prescribing tobacco plain packaging. And some of them had to put up a fight at either the World Trade Organization (WTO) or the World Health Organization (WHO). In fact, very recently, on 27 June 2018, a dispute settlement panel set up by the WTO ruled over a six year long legal battle: the dispute was brought forward in 2012 and the complainants were Honduras, Cuba, the Dominican Republic and Indonesia. The complainants were all party to the issue due to their trade relations with Australia concerning tobacco products, and as many as 35 countries were involved in the dispute in their capacity as third parties. The complainants had each asked for a panel to be set up for consultations but, as their subject matter was similar, their cases were merged.
According to the news outlet The Guardian, the Australian Government has used close to 40 million Australian dollars against Phillip Morris Asia to defend its plain packaging laws. This puts in context how controversial tobacco plain packaging has been and still is.
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.”
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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