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 #14: WIPO Decides to Hold Two Diplomatic Conferences no later than 2024

wendland_wendby Professor Wend Wendland, Adjunct Professor, Faculty of Law, University of Cape Town

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

 

INTRODUCTION

On July 21, 2022, the General Assembly of the World Intellectual Property Organization (WIPO) decided that, by 2024, two diplomatic conferences should take place, one on a proposed new Design Law Treaty, and the other on genetic resources and associated traditional knowledge (TK).

Diplomatic conferences are held to negotiate and adopt or revise multilateral treaties and conventions.

This decision was as unexpected as it is momentous.

Negotiations among member countries on both subjects have been deadlocked for many years, on design law in the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) and on genetic resources and associated TK in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

What are the substantive issues concerned? What was decided exactly? And what are some of the implications of the decision taken?

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Multilateral Matters #13: What happened to the IP Waiver? Reflecting on the shortcomings of pro-access initiatives for COVID-19 healthcare

1628187600083by guest contributor Dr Bonginkosi Shozi, Postdoctoral Fellow, Institute for Practical Ethics, UC San Diego, and Honorary Research Fellow, School of Law, University of KwaZulu-Natal

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

Introduction

In May of 2020, just over a year into the COVID-19 pandemic, and before a publicly available vaccine, I was invited by Professor Wendland to write a blog post on what was, at that point, the most promising initiative for advancing access to healthcare products necessary for responding to the ongoing public health crisis: a voluntary pool of exclusive rights on COVID-19–related subject matter (see Multilateral Matters #6 “What can African Countries do to Make Sure they Have Affordable Access to a COVID-19 Cure?”).

The global calls in support of a voluntary pool led to the launching of the COVID-19 Technology Access Pool (C-TAP), which was endorsed by 45 World Health Organization (WHO) Member States.[1] The operation of this initiative was supported by the Medicines Patent Pool (MPP) – an organization dedicated to advancing access to life-saving medicines in low-to-middle income countries by facilitating voluntary licensing and patent pooling.

The widespread support the voluntary pool received raised the hopes of many that it would help secure equitable distribution of the COVID-19 vaccines which were, at that point, still in development. Ultimately, these hopes were in vain. The first wave of vaccines received approval in December of 2020. In the year that followed, high-income countries were able to procure a sufficient supply of vaccines to vaccinate 75-80% of their populations while low-income countries struggled to secure access to and distribute vaccines, leading to less than 10% of their populations being vaccinated.[2] The so-called global ‘vaccine apartheid’ has persisted into the present day, with massive inequalities in access to COVID-19 healthcare products (including vaccines, diagnostics, and therapeutics).

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NFTs and IP Law – a series of blog posts.

Hanani-Hlomani-200x300Gabe-Rybko-150x150
By Hanani Hlomani and Gabriel Rybko

The path ahead for non-fungible tokens (NFTs) appears turbulent. Over a year ago, NFTs attracted attention primarily over the absurd prices they fetched on digital auctions. For instance, the first tweet of former Twitter CEO Jack Dorsey was sold as an NFT for $2.9m in March last year. Just last month, however, the same NFT was re-auctioned and the highest bid was around $270 (or 0.09 ETH at the time of the auction). It appears that the wheels on the NFT ‘hype-train’ may have seized up, but there may still be a case to be made for the existence and use of NFTs. 

In this series of blog posts, we take a look at what implications NFTs have in terms of IP law. We look not only at the challenges that NFTs pose to IP law, but also to the solutions they might pose in protecting various intellectual property rights. Before we can assess how NFTs can aid our current IP regime, we need to understand what they are, and why they have anything to do with IP at all.

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Multilateral Matters #12: COP 26 on Climate Change: Reflections on Technology and Intellectual Property Issues

by guest contributor Professor Dashabalala_dalindyebo_1lindyebo Shabalala, Associate Professor, University of Dayton School of Law

Multilateral Matters

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


 

Preface by Adjunct Professor Wendland

The 26th meeting of the Conference of the Parties to the United Nations Framework Convention on Climate Change (the UNFCCC) was held in Glasgow, Scotland in late October to mid-November last year. This meeting is referred to as COP 26. The UNFCCC’s COPs are both formal negotiating sessions for countries to advance their climate commitments and actions as well as forums for many, diverse constituencies and stakeholders from around the world to gather and discuss the climate crisis and possible solutions. The centrepiece of ongoing work under the auspices of the UNFCCC, and which provided the main focus of COP 26, is the so-called Paris Agreement, agreed on at COP 21 in Paris, France in 2015. The role of intellectual property (IP) protections, green innovation and technology transfer in green technologies are among the many issues included in this work. However, these issues were not discussed in any meaningful way at COP 26. To find out why I requested Professor Dalindyebo Shabalala, a South African academic currently based in the USA who follows these and other issues closely, to share his reflections on this topic. Over to you, Professor Shabalala.

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Multilateral Matters #11: “Consensus” in Multilateral Negotiations: What does it Mean and Does it Produce Effective, Wise and Durable Agreements?

wendland_wendby Professor Wend Wendland, Adjunct Professor, Faculty of Law, University of Cape Town

Multilateral Matters

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


 Key Points

In multilateral negotiations, in which up to 200 countries participate, most decisions are meant to be taken by “consensus”.

“Consensus” means the absence of opposition. “Unanimity”, on the other hand, means that all parties approve the decision.

In majority voting, all countries have an equal vote. However, voting creates “winners” and “losers”.

By contrast, consensual decision-making aims at reaching an overwhelming agreement among everyone at the table, maximizing joint gains and coming as close as possible to meeting the underlying interests of all countries. Decisions by consensus build a sense of cohesion, solidarity and joint ownership.

However, in practice, in consensual decision-making less powerful countries may not be able to or wish to express their objections. In some ways, consensual decision-making is, therefore, less democratic than voting.

Furthermore, achieving consensus in multilateral negotiations is proving an insurmountable obstacle, especially negotiations aimed at agreement among all countries on a detailed and legally binding treaty or convention. Some negotiations have not been able to conclude in over 20 years. There are also other disadvantages to consensual decision-making.

It is useful therefore to explore ways in which to relax the consensus principle and/or reduce the number of countries participating in a negotiation (by, for example, concluding plurilateral agreements). Additionally, it might be easier to achieve full consensus on outcomes that are not detailed, legally binding treaties and conventions.

Procedural questions aside, failing multilateralism is, in essence, a failure of Member State leadership. There are several ways in which countries could strengthen multilateralism through more effective leadership.

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Multilateral Matters #10: A Sea of Possibilities: Intellectual Property Considerations in the BBNJ Negotiations (Part Two)

 

Carla Bengoa RojasPag-yenduPicture 1

by guest contributors Carla Bengoa Rojas, policy advisor on biodiversity and intellectual property matters and Pag-Yendu M. Yentcharé, Postdoctoral Research Fellow at the Intellectual Property Unit of the University of Cape Town.

 

Multilateral Matters

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


Preface by Adjunct Professor Wend Wendland

In November 2018, Multilateral Matters #2 described the context and background to this negotiation, flagged the main intellectual property (IP) issues and described the process up to that time. At that stage, there was not yet a zero draft of the instrument. As of today, an Intergovernmental Conference on an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction has met three times, most recently in August 2019. The fourth session had been scheduled for March/April 2020, but the formal negotiations were interrupted by the COVID pandemic. The fourth, and formally the final, session is now scheduled for 2022. The latest draft of the text of an “agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” will be the focus of the continued negotiations.

In view of the imminent resumption of the negotiations, I invited two experts who have been following the process closely to provide a refresher on the main IP issues and an update on the process, Carla Bengoa Rojas and Pag-Yendu M. Yentcharé.

For readers who may not know, “BBNJ” is shorthand for “biodiversity of areas beyond national jurisdiction”.

Over to Carla and Pag-Yendu.  Continue reading

Multilateral Matters #9: The Marrakesh Treaty and the Accessible Books Consortium: What Lessons for Successful Intellectual Property Multilateralism?

Charleneby guest contributor Charlene Tsitsi Musiza

Multilateral Matters

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


Preface by Adjunct Professor Wendland

Multilateralism has produced few successes in recent years, including in the domain of international intellectual property (IP) rule-making. While coordination among countries on technical standards for IP administration is easier, collaboration in agreeing multilateral responses to substantive legal and policy challenges has become more and more difficult. Yet, in 2013, member countries of the World Intellectual Property Organization (WIPO) adopted a treaty in the area of access to copyright works for the visually impaired, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled[i] (Marrakesh Treaty). Given the prevailing difficulties in multilateralism, what were the conditions and factors that made this agreement possible? To explore this question further, I invited Charlene Tsitsi Musiza, a PhD candidate from Zimbabwe, to describe the treaty briefly and examine the process that led to its adoption.

When one thinks “multilateralism”, one usually thinks of formal international conventions and treaties like the Marrakesh Treaty. However, collaboration platforms are increasingly features of the IP ecosystem. They may also serve as vehicles for multilateral cooperation, by facilitating exchanges of experiences and information, connecting innovators with innovation seekers, improving conditions for creators or directly supporting the implementation of conventions and treaties. One such example, which Charlene also describes, is the Accessible Books Consortium (the ABC platform), a public-private platform which complements the Marrakesh Treaty.

Over to Charlene.

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Apply now: Student Research Assistant Positions in the IP Unit

Screen Shot 2015-05-19 at 16.36.20 PMThe IP Unit is looking for outstanding LL.B., LL.M. and Ph.D. students at UCT to join our team as student research assistants for 6 months, beginning 15 June 2021. Student research assistant duties will span the scholarly spectrum and can include: conducting literature reviews; creating surveys and other tools; collecting, managing and analysing data; cowriting peer reviewed articles and media materials; co-presenting findings; and managing the activities of a unit within a broader organisational structure. Student research assistants will also be encouraged and supported to conduct their own original research, under the direction and mentorship of academics based at UCT and/or other participating faculty, and could receive authorial or co-authorial credit. These activities will build academic skills like research methods, theory building, and scholarly publishing. Student research assistants will also have administrative duties within Open AIR in order to help build highly transferable professional skills such as leadership and teamwork, project management, and community engagement. Student research assistants are expected to work for up to 35 hours per month at an hourly rate of R98 (LLB), R139 (LLM), or R144 (PhD). If the campus is closed, remote working options can be negotiated.

If you are interested in applying for this opportunity, please provide – via email to Open AIR Project Manager Nan Warner at nancy.warner@uct.ac.za – a curriculum vitae, copies of your qualification certificates and a covering letter outlining your qualifications/experience and how they would support our work. The deadline for applications is 1 June 2021. The full advertisement can be found here.

Multilateral Matters #8: Intellectual Property and Indigenous Names, Words and Symbols: Getting it Right for Communities, Companies and Consumers

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

Indigenous names, words, symbols and other indications are often used by companies to brand their goods and services: when this is done without the consent of the Indigenous People, it can cause offence and be derogatory, it can mislead consumers and it can deprive Indigenous Peoples of economic benefits.

Sometimes Indigenous Peoples themselves make proactive use of the intellectual property (IP) system to register their own indications as trademarks, collective or certification marks, or geographical indications.

Mostly, companies do not set out intentionally to misappropriate Indigenous indications. There are a few concrete steps that companies, communities and IP offices could take to avoid inadvertent misappropriations and the erroneous grant of IP rights.

There are legislative measures in a few countries aimed at preventing the registration of trademarks that falsely suggest a connection to or may offend an Indigenous People.

Terms such as “Redskins”, “Braves” and “Chiefs” are not Indigenous terms as such but, when used by sports teams and others, can be racist slurs and cause harm and injury to Indigenous Peoples. In the context of the Black Lives Matter movement, public pressure and sponsor and investor dissatisfaction, rather than trade mark litigation, have recently caused several sports teams in the United States of America (the USA) to abandon names they have used for decades.

Mutually-beneficial and equitable win-win collaborations between Indigenous Peoples and companies could benefit communities, companies and consumers alike. This would be “getting it right”.

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CopyrightX:UCT (online!) – applications for 2021 now open

copyxThe IP Unit and the iNtaka Center for Law & Technology are pleased to again present a CopyrightX affiliated course in 2021 – this time presented remotely on Zoom. 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. 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://ipxcourses.org/copyrightx/

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 17 February 2021 and 21 April 2021. The online 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 on Zoom.

Applications are open between now and 24 January 2021.  Successful applicants will be notified in early February 2021.

For more info and to apply click here.

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