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 Desmond Oriakhogba
A major recurring issue during the public consultations on South Africa’s Copyright Amendment Bill – in which the UCT IP Unit actively participated – centered around how best to balance copyright to safeguard the public interest when promoting creativity, while affording adequate reward and incentives for creators. As expected, the option was between, on the one hand, adjusting and expanding the current set of specific copyright exceptions and limitations and, on the other, transforming the current fair dealing exception into an open and flexible fair use exception, modelled on similar provisions in countries like the United States, Korea, Israel and Singapore. These two options form part of copyright’s internal mechanisms for adequately balancing the competing interests of the stakeholders involved. This article aims to draw attention, however, to external mechanisms afforded by competition law that may, in addition, be deployed towards a balanced copyright regime in South Africa.
On 28 March 2018, Professor Caroline Ncube delivered her inaugural lecture at the University of Cape Town (UCT), with the topic: “The public interest in intellectual property law: African solutions to global challenges”
During her exciting lecture, Prof. Ncube relied on her extensive research to argue, among other things, that in order to create fair intellectual property systems, intellectual property rights must consider public interest concerns that are informed by societal values, and protect human rights. According to Professor Ncube:
“Using the public interest context would allow South Africa, or any other country, to custom make a suitable intellectual property system.”
Throughout her lecture, she raised pertinent questions and shared her thoughts on some of the most topical intellectual property issues from an African perspective. For example, she addressed the question of how accessibility to works produced at publicly funded research institutions can be increased for the public good, and how works created by indigenous communities can be protect adequately. And repeatedly, Professor Ncube referred to her research work carried out projects such as Open AIR and ASK Justice.
One thinks of Coleridge’s Ancient Mariner: “Water, water everywhere, nor any drop to drink.” Cape Town is a city surrounded by water: a peninsula at the southernmost tip of Africa, all around are vast expanses of clear blue and turquoise sea – scenically one of the most beautiful cities in the world. Its most striking physical feature is an imposing mountain range rising in the centre of the city, with numerous mountain streams running down it, to eventually drain into the sea. It is associated with water – that is why the Khoisan, the first people of this lovely peninsula called it //Hui !Gaeb,”, the place where clouds gather. Another phrase associated with the early city is its Khoisan description as the ‘place of sweet waters’, hence its choice as a watering place for ships sailing from the East to Europe, the premise for the first colonial settlements.
It is therefore startling to find the city now in a position in which it is threatened with becoming the first major city in the world to completely run out of water. Using disaster rhetoric, the city council has coined the phrase ‘Day Zero’ for the day on which the piped water supply to the city will be turned off, as the catchment areas run out of water, and citizens will be obliged to queue for water at water dispensing sites, each dealing with tens of thousands of people per day, to claim their limit of 25 litres per person per day. Continue reading
You are cordially invited to the second Vice-Chancellor’s Inaugural Lecture of the year, which is scheduled to be presented by IP Unit’s member Professor Caroline Ncube. The lecture is titled “The public interest in intellectual property law: African solutions to global challenges”.
Professor Ncube has served as deputy dean of postgraduate studies and head of the Department of Commercial Law at the University of Cape Town’s Faculty of Law. She is a fellow of the Cambridge Commonwealth Society and a Shell Centenary Scholarship Fund scholar. She is an associate member of the Centre for Law, Technology and Society at the University of Ottawa and a co-leader of the Open African Innovation Research Partnership.
by Tanveer Jeewa
Intellectual property law and human rights law are two legal fields which hardly intersected before the 90s. This might come as a surprise since the joining of the two has been intensely debated in this century. Yet, looking at the history of their meeting, one may easily understand why a human rights approach was not a priority for intellectual property experts and vice versa. In the post-world war II era, human rights experts were more focused with establishing international norms preventing gross human rights abuses, while intellectual property rights proponents were primarily focused on broadening the scope of IP protection with a view of rewarding and incentivizing innovative activity. Put differently, these were two rather diverging topics which did not allow for the two fields to merge easily.
Not surprisingly, human rights advocates were the first to take notice of intellectual property rights, due to two significant observations:
- The neglect of the rights of indigenous people, and
- The linking of intellectual property and trade through the TRIPS agreement in the mid 1990.
By Nan Warner
A number of senior members of the Open AIR Network – including UCT’s Prof Caroline Ncube, Dr. Tobias Schonwetter and Ms Nan Warner – participated in the Nigerian National Workshop on Research Grant Writing and Administration, hosted by Lagos State University (LASU), Ojo Campus, Lagos, on 13 and 14 February 2018.
Nigeria has 40 Federal Universities, 44 State Universities and 74 private Universities, all approved by the Nigeria Universities Commission. This is a truly impressive number of universities, but it has proved challenging to provide the capacity to so many academics that is required to allow them to successfully attract research funding, both local and international. This is closely linked to the need for university resource persons who are specialists in the complexities of research grant-writing and grant management.
Thus the audience included researchers, academics, post-graduate students, and university administrators at all levels. Education policy makers and representatives of funding agencies were also present. Continue reading
The 35th session of the Standing Committee on Copyright and Related Rights (SCCR) took place at the World Intellectual Property Organization (WIPO) at the end of last year. Comprising of all members of WIPO, the SCCR analyses matters relating to the substantive law or harmonisation of copyright and related rights, and formulates recommendations. Current issues the SCCR is addressing include the protection of broadcasts and broadcasting organisations as well as copyright limitations and exceptions. With regard to limitations and exceptions the focus is now on three areas: educational activities, libraries and archives and disabled persons.
At the 35th session of the SCCR, UCT’s Professor Caroline Ncube presented, together with Professor Blake Reid from the University of Colorado, an important scoping study concerning access to copyrighted works by persons with disabilities.
Furthermore, a report titled “Updated Study and Additional Analysis of Study on Copyright Limitations and Exceptions for Educational Activities” by Professor Daniel Seng was presented that provides an analysis of the existing educational copyright limitations and exceptions in the copyright laws of WIPO member states. Against the background of South Africa’s current efforts to modernise its copyright legislation, one important aspect in the report concerns limitations and exceptions that enable the use of adaptations and translations for educational activities.
As regards exceptions and limitations facilitating adaptations and translations for educational activities, Professor Seng’s SCCR report distinguishes three approaches in existing copyright laws around the world:
- “adaptation or translation” formulations,
- “source work” formulations, and
- “use” formulations.
by Desmond Oriakhogba
The IP Unit
Sits on UCT Kramer Loft
As a Pulpit
Where diverse brains
Preach Afro IP
The sermon is simple:
For Afro development
The Head: a ‘German Afro’
The body: a mix of races,
Different ages and faces
All deep in IP mine
Hand in hand
Offering each a shoulder
In filial affinity
Though in a loft
The IP Unit is no Hermit:
He flows in Open AIR
And ASK Justice
With Afro, White and Coloured brains.
He speaks in his Gown
And shakes hands with Town
The end is simple:
For Afro development
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 21 February 2018 and 2 May 2018. The classroom seminars will discuss the pre-recorded lectures and will more closely analyse South African Copyright law and the issues faced. In 2018, we are planning to simultaneously deliver lectures online as webinars. Those who cannot attend the contact sessions in person, but want to participate in these webinars are invited to also registers, subject to confirmation of online content delivery in early 2018. 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 2018. Successful applicants will be notified by 31 January 2018.
For more info and to apply click here.
On 17 November 2017, the IP Unit submitted to the Department of Trade and Industry (DTI) its full set of comments on the Draft Intellectual Property Policy of the Republic of South Africa, Phase I, 2017. Some of our positive initial comments were reported in the media, e.g., here (Fin24) and here (Daily Maverick). The draft policy document was released in August and key aspects of it were summarised in an earlier post. In short, the draft policy is geared towards (i) advancing a balanced and coordinated approach to IP that regulates intellectual property rights in line with the South African Constitution; (ii) introducing key policy reforms that account for the development dynamics of South Africa; (iii) promoting innovation and a knowledge economy; and (iv) leveraging competitive and comparative advantages to advance the transformation of the South African economy. To this end, the draft policy proposes a number of key reforms, including the introduction of substantive search and examination system for patents; the leveraging of flexibilities contained in the TRIPS Agreement; the protection of “utility models”; and the creation of a system for protection for traditional knowledge which will safeguard misappropriation and exploitation.
In our comments, we commend the DTI’s drafting team on creating a well-considered document. We also express our strong support for the policymaker’s intention to link this policy to broader domestic imperatives and strategies — such as the National Development Plan and its emphasis on embracing the knowledge economy — and welcome that Constitutional and Human Rights dimensions of many of the issues raised in the policy document are considered. We submit that by adopting a balanced, coordinated and development- and public interest-oriented approach the policy maker has created a policy document that is context-specific and which addresses current tensions and inequalities, including those between IP owners on the one hand and users seeking equitable access to IP-protected goods on the other.
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