The UCT IP Unit, in its capacity as an institutional hub for the Open African Innovation Research (Open AIR) network, is managing Open AIR’s participation in the EU-funded African European Maker Innovation Ecosystem (mAkE) project. Launched in 2022 and running until 2025, the mAkE initiative is facilitating collaboration between, and strengthening of, African and European hardware-focused Digital Innovation Hubs (DIHs) and makerspaces. DIHs and makerspaces are key players in their local innovation environments – through their support of innovators, entrepreneurs, start-ups and SMEs seeking to create solutions to local problems and generate livelihoods through sustainable digital innovations.

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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by guest contributor Professor Dalindyebo 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 26^th 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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by 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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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 →

By Charlene Musiza – first published on the Open AIR website

There have been many efforts to empower women, but rural women continue to face unique socio-economic challenges. A suggested approach to reach rural women has been to make use of museums and cultural heritage centres as focal points in empowerment. It can be a particularly effective approach when considering communities that are embedded in their culture. What also makes this useful is that women engaged in the production of arts and crafts get to not only express their culture and way of life but also earn a living through selling their arts and crafts to visitors. Museums can involve women in their exhibitions, sale of artistic works, and even provide training facilities, but constraints around funding limit their capacity to carry out some activities. Directing more resources to enable museums to undertake empowerment programs can make a difference in the lives of rural women involved in cultural production. In Zambia one museum that has been at the forefront of supporting Tonga rural women is the Choma Museum.

Traditional Cultural Expressions and Women

Traditional Cultural Expressions (TCEs), characterised as any forms in which traditional culture are expressed or manifested, occupy a significant role in the lives of indigenous peoples. Also sometimes referred to as ‘expressions of folklore’, TCEs include such diverse things as symbols, handicrafts, art, performances, music, and more. In Zambia, the Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act No. 16 of 2016 is the governing law and outlines the different categories of TCEs, including tangible expressions (for example sculptures, textiles, baskets) and intangible expressions (songs, performances, stories). Generally, women tend to be more involved in craft making because of cultural gender norms. Making arts and crafts is often a route for self-employment by women and can become a significant source of income for them. For example, many Maasai women sell their beadwork and the sale of other cultural expressions and souvenirs inspired by their culture, earning them incomes to sustain their families. It is therefore possible to consider cultural production as an avenue for women’s empowerment, particularly rural women.

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IP Unit director Tobias Schonwetter, together with Associate Professor Laura Foster (Indiana University, U.S.) and Dr. Bram van Wiele (University of Auckland, New Zealand), recently won the award for best overall paper at WeRobot 2020, which is the premiere international conference on law and policy relating to Robotics. Both professor Foster and Dr. van Wiele are affiliated with the IP Unit.

Based upon a qualitative discourse analysis of media accounts by and for African-based sources and/or directed at audiences on the continent of Africa, their paper Narratives of Artificial Intelligence in a Gendered and Racialized World: Emergence on the African Continent identifies four related narrative frames that are giving normative meaning and value to AI-related technologies: optimism; value-neutrality; linear time and progress; and disruption. Very few media sources explicitly reference “gender,” “women,” or “men” when discussing AI-related technologies. The authors argue that these narrative insertions and gender deletions reinforce and design the default settings of AI-related technologies as masculine, white, heteronormative, able-bodied, and Western, which simultaneously limits and makes apparent alternative possibilities for articulating AI otherwise.

Never before have global South or African perspectives been presented at WeRobot. The first conference was hosted by the University of Miami School of Law in 2012, and recent successful bids for the conference include Yale and Stanford University. This year, WeRobot was to be hosted at the University of Ottawa, Canada, by the Centre for Law, Technology and Society. But due to COVID-19, WeRobot was held virtually at the end of September 2020. WeRobot seeks to bring together a mix of scholars, policy-makers, regulators, and entrepreneurs to discuss topical issues concerning robots and AI, at a time when robots and AI disrupt existing legal regimes and require new approaches to difficult policy issues. The award-winning paper was one of two papers submitted by the Open AIR network. The second paper, Towards Integration of African Priorities into Artificial Intelligence (AI) Policy Agendas, is a broader policy paper summarising some of Open AIR’s work in this area and was also very well received. Video recordings of conversations about both papers are available here and here.

by 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

The continent-wide free trade zone created by the Agreement Establishing the African Continental Free Trade Area (the AfCFTA) has the potential to catalyse intra-African trade, boost economic development and lift tens of millions of Africans out of poverty.

From a trade and development perspective, the AfCFTA advances a fresh trade model focused on inclusive and sustainable development. In recognizing the centrality of intellectual property (IP) protection in today’s economy, and the benefits of continental cooperation on IP, the AfCFTA will include a Protocol on IP. Finalization of the IP Protocol holds the promise of a home-grown, single, coherent and Africa-centred IP regime. This could harmonize the fragmented IP landscape of today while safeguarding national policy space on key issues, strengthen the hands of African negotiators in international forums and even help propel currently deadlocked international negotiations towards the finish line. It is hoped that the IP Protocol will realise its promise and advance the policy objectives, principles and transformative potential of the AfCFTA.

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By Clarence Lakpini

In July 2018, I arrived in South Africa for the first time from Nigeria to commence my Masters in Intellectual Property Law at the University of Cape Town (UCT). I took a year of Copyright Law during my fourth year of undergraduate studies, but nothing would prepare me for what was ahead. Although I was to commence my studies at UCT in February 2018, a delay with my visa caused me to have to defer till the second semester. As a new student from a more temperate clime, arriving in winter ensured I had a steep adaptation period. On the academic side, I needed to hit the ground running and start working on a dissertation that would be due in September 2019. During one of our classes, we watched a documentary titled “Fire in the Blood”; it showed the grave difficulties that people living with HIV in the 2000s, particularly in developing countries faced due to an inability to access the antiretroviral therapy that was available at the time. Multiplied thousands of people lost their lives needlessly because the patented medicine which could prolong their lifespans was completely out of their price range. In the course of my studies, I came to realise that this access problem was not only an isolated event with HIV, but that there was a bigger problem of access to affordable medications that dogged South African society. I set out to write a thesis titled: “An Examination of South Africa’s Efforts at Patent System Reform: TRIPS Flexibilities Fully Appropriated for Public Health Needs?” It examined the current South African Patent Act and matched it up against the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) to see to what extent South Africa takes advantage of the flexibilities available in the agreement and highlighted the urgent need to reform the country’s patent law to take advantage of those flexibilities. Sadly, the reform process is slow and after the release of the IP Policy Phase One of 2018, not enough progress has been made in the area of patent law reform in South Africa.

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By Desmond Oriakhogba

Introduction

The media is awash with the long-drawn dispute between the Khoi and San indigenous peoples, on the one hand, and the Rooibos industry, on the other hand, about the ownership of the traditional knowledge (TK) in the use of Rooibos and the entitlement of the San and Khoi communities to share in the benefit arising from the exploitation of the Rooibos by the industry. However, a settlement has been reached between the Khoi and San communities and the Rooibos industry in form of a benefit-sharing agreement concluded in November 2019, while the dispute over the ownership of the TK seems unsettled. Among others, this article traces the history and background to the dispute, discusses the settlement and its significance to the promotion and protection of indigenous peoples’ TK through Access and Benefit Sharing (ABS) regimes.

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