Author: Caroline Ncube

The USTR Special 301 Report 2016 – Africa in Review

Cross posted from Afro Leo, Link (CC-BY) Afro-IP regularly reports on how Africa fares in the Special 301 Report issued annually by the USTR (see links to some previous posts below). The 2016 Report was released at the end of April 2016. The generation of the report through a unilateral US process and its goal have been protested by several countries. For instance, as noted by Mike Palmedo in his post on the 2016 report, both India and Chile have registered their displeasure. Palmedo writes: Indian Commerce Minister Nirmala Sitharaman gave a statement to the Lok Sabha (Lower House of the Legislature): “The Special 301 Report issued by the United States under their Trade Act of 1974 is a unilateral measure to create pressure on countries to enhance IPR protection beyond the TRIPS agreement. Under the WTO regime, any dispute between two countries needs to be referred to the Dispute Settlement Body of the WTO and unilateral actions are not tenable under this regime.” Similarly, some law professors and civil society groups have sounded the same caution about the listing of WTO member states  being a probable violation of  “either the WTO’s dispute settlement understanding or GSP enabling clause.” Following the filing of their Joint Special 301 Comment by Law Professors and Civil Society Groups, several scholars and activists participated at the Special 301 hearing (see here for a post hearing report...

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Fair Is As Fair Does: Contractual Normative Regulation of Copyright User Contracts in South Africa

Caroline B Ncube ‘Fair is as fair does: Contractual normative regulation of copyright user contracts in South Africa’ in GB Dinwoodie (ed) Intellectual Property and General Legal Principles:Is IP a Lex Specialis? (2015) Edward Elgar 49–68. Abstract: This chapter considers how contract and consumer protection law could be used to regulate or enhance the fairness of copyright licenses. It specifically considers reprographic reproduction licenses granted to universities and other higher education institutions in South Africa. Full Text:...

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South Africa Copyright Amendment Bill – Comments & Consultations

Cross posted from Afro Leo, Link (CC-BY) As reported by Jeremy Speres (here) South Africa’s Copyright Amendment Bill, 2015 has been published for public comment. The Department of Trade and Industry (DTI) has lined up several stakeholder consultations, one of which was held on 13 August 2015. The consultation process is intended to culminate in a Copyright Amendment Bill Conference on 27 August 2015. Stakeholders are also running with several initiatives to feed into the consultations. For instance, six university and civil society groups* hosted a meeting on Tuesday 11 August with DTI and Department of Arts and Culture (DAC) officials and other stakeholders in Pretoria on the Bill.  The well- attended meeting discussed the majority of the proposed reforms [see the agenda here]. Background information on the meeting is available  here. For some reports on the meeting see here and here. One of the outcomes of the meeting will be a series of written comments which will be submitted by stakeholders to the DTI on the Bill. These will be archived on Afro-IP as they become publicly available. Workshop on Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform. Photo credit: Theresa Hume One aspect that immediately caught my attention on a first reading of the Bill is the need to carefully integrate the Bill’s proposals with the amendments introduced by the IP Laws Amendment Act (IPLAA) of 2013. These proposals...

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Crucial Role of the Library, and the Book Famine for the Blind, Visually Impaired, or Otherwise Print Disabled

[Excerpt from op-ed in the Pretoria News] Tomorrow will see the launch of the 2015 South African Library Week with the theme connect @ your library.  The value of reading for people of all ages is indisputable, as is the crucial role libraries play in making books available.  But, as we prepare to celebrate the value of books and the role of libraries, let’s spare a thought for those who are blind, visually impaired or otherwise print disabled (VIPs). There is general agreement that books are limited and expensive for sighted people, particularly those who are economically disadvantaged. Imagine how much more so they are for VIPs.  The World Blind Union rightly says that they experience a book famine. Click here for the full op-ed...

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Copyright Policy and the Right to Science and Culture

[Cross-posted from Afro-Leo, Link (CC-BY)] 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 report is comprehensive and thorough and well worth a read. Due to this, it is also fairly difficult to summarise, so for purposes of enticing readers of this post to go and read the full report, I’ll simply highlight one aspect of the report, namely its overview of best practices. The report notes that copyright regimes may  be aligned with the right to science...

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The Draft National Intellectual Property Policy Proposals for Improving South Africa’s Patent Registration System: A Review

Journal of Intellectual Property Law & Practice. Abstract:  This article discusses South Africa’s draft Intellectual Property Policy proposed reforms. It considers how these may be practically implemented. In particular, it focuses on the phased sector specific introduction of substantive patent examination, possible co-operation with other national or regional patent offices to enhance examination capacity, the retention of non-examination for utility or second-tier patents and the involvement of third parties in the examination process. It also considers the re-introduction of opposition proceedings to further strengthen the patent system. The article points to other jurisdictions that have implemented some of these options such as Australia’s utility patent system, the successful implementation of the peer-to-patent project in countries such as the United States (USA) and the United Kingdom (UK) and opposition proceedings in Europe, the UK and Australia. It concludes that these are plausible and viable options that should be further explored for adaptation to the South African context. The article will be of interest to those following policy and legislative developments in the developing world and particularly Sub-Saharan Africa, where change often begins in South Africa then extends throughout the region as neighbouring states follow South Africa’s lead. Click here for the full paper on the Journal of Intellectual Property Law & Practice website....

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Moneyweb vs. Fin24: South African Court to Find Whether News Aggregation Constitutes Copyright Infringement

[Reposted from Aro-IP, Link (CC-BY)]  Moneyweb is suing Fin24 for copyright infringement arising out of Fin24’s (re-)publication of eight articles which had been initially published by Moneyweb (see a Mail and Guardian report here). Moneyweb has created a dedicated website (here) where it has posted all of the pleadings filed to date and media articles. This Leo rarely has an opportunity to read litigants’ court documents and is delighted that these documents are so readily available. Alas, the opening salvo of this battle, Moneyweb’s Founding Affidavit, is not available  on the site (the link opens Annexure C1 instead). However, the answer, Fin24’s Answering Affidavit , is available, as is Moneyweb’s Replying Affidavit. This Leo finds it all very interesting and useful. Thanks to Moneyweb’s website, she can share recent pleadings with her IP students and she is certain that many Afro-IP readers will find the documents interesting too. This will be a very interesting case to follow, as it is the first time a South African court has had an opportunity to consider whether news aggregation constitutes copyright infringement. Anton Harber succintly captured what’s at stake, when he blogged “This is a battle of our media giants, as Moneyweb is owned by Caxton and Fin24 by Nasper’s Media24. The elephants are fighting and the ants are watching, as always, nervously.” (Read his full post here). ————- For how other...

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South Africa’s National IP Policy – academics’ joint submission

[Reposted from Afro-IP, Link (CC-BY)] Following UCT’s invitation to crowd-source comments on the draft national IP policy (here), several scholars jointly submitted comments on the draft IP policy yesterday. It is couched in a sympathetic and constructive yet critical manner as its authors applaud the initiative to begin national dialogue on the IP policy while calling for an extensive and rigorous engagement with the process going forward. The submission (available here) is in the nature of an outline document – it comments on the broad issues of principle, and indicates where its authors find the draft policy desirable or undesirable. It also contains some recommendations which it suggests should be enacted through the amendment of  relevant IP legislation. It concludes by calling upon government to ensure that the resultant IP policy is informed by the following principles-    IP policy must be development-oriented, aimed to benefit all sectors of society, particularly the most vulnerable, and consistent with the fundamental rights under our Constitution. The policy should not under any circumstances endorse any more than the minimum requirements of the TRIPS Agreement and other international obligations to which South Africa is a party. All available flexibilities (drawn from TRIPS, Doha Declaration, and other international, foreign and domestic law sources) should be incorporated into the policy. In view of the severe public health impact of unexamined pharmaceutical patents, an express commitment is needed to...

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Evidence Based Copyright Reform in South Africa

The  Law and Economics of Copyright Users Rights conference probed the value of economic empirical  evidence to copyright reform discussions.   This post gives an account of the use of such evidence in current reform discourse in South Africa.  The Department of Trade and Industry (DTI) has taken some initial steps towards a comprehensive IP reform process by  publishing a draft national IP policy, which is currently open for public comment.  The copyright sections of the draft policy do not engage with user rights in a detailed manner. Some mention is made of the need to have meaningful exceptions and limitations (E & L) ( at p16)  and the need to ensure that  these are not abrogated online through the use of technological protection mechanisms protected by anti-circumvention provisions (at p29). Currently the Copyright Act falls far short of reasonable expectations – it does not provide for E & L for the visually-impaired and does not cater adequately for online and distance learning (see the findings of the African Copyright and A2K project). One would therefore expect the draft policy, as the first step towards copyright reform, to raise these issues and to do so in a robust manner informed by empirical and other evidence. Disappointingly, the policy only cites the following two sources at p 29: Pouris ‘Copyright TRIPS Exceptions in South Africa, Access to Education, Learning Materials’ (2009) WIPO...

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South Africa’s Draft IP Policy – Patent Notes

[Reposted from Afro-IP, Link (CC-BY)]  A number of commentaries have been published on the Draft IP Policy’s suggested patent reforms (see below for links to some of these). In general, the draft policy has been lauded as a welcome step for South Africa. For example, the TAC and MSF have welcomed the policy as they are of the view that, if implemented, these reforms will curb harmful practices such as the evergreening of pharmaceutical patents. However, there seems to be general consensus that the wording of the policy could be improved in future iterations so as to achieve coherence, clarity and certainty. The draft IP Policy makes the following recommendations in relation to institutional reform: use a combination of the depository and substantive examination systems introduce pre-grant and post-grant opposition procedures introduce utility or second tier patents The idea is to retain the depository system for some fields of technology and to introduce substantive examination for others. The question is; how this distinction will be made? The introduction of substantive examination of patents will pose capacity and resource problems but these can be overcome by careful planning and some imaginative thinking. For example, in the short to medium-term, South Africa may consider collaboration with a similarly placed country for the training of patent examiners, and perhaps to outsource examination. It would also be prudent to use a peer or...

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The Africa IP Forum – a retrospective

The Africa IP Forum was held in South Africa on 25-27 February 2013.  Attendees were welcomed at a cocktail on the evening of 25 February and substantive discussions were held on 26 -27 February. There were 4 plenary sessions each complemented by 2 parallel sessions.  The following topics were discussed: Promoting a development oriented IP system (plenary) Achieving developmental objectives, building technological capacity in Africa WIPO Development Agenda, what it means for Africa Access to Affordable medicines, incentivizing local production of generic medicines in Africa (plenary) Benefits of substantive examination of patents versus the depository system ( See commentary by David Cochrane on Afro-IP ) Facilitating R&D into disease that predominantly affect Africa Bridging the knowledge gap in Africa: Role of Copyright Exceptions and Limitations (plenary)  (See commentary by Denise Nicholson on Afro-IP and on her  Copyright & A2K Issues newsletter) Public Interest and Development Issues in IP enforcement Achieving Food Security, Challenges and Issues in Africa Challenges & Issues in Protecting Traditional Knowledge, Genetic Resources & Traditional Cultural Expression of Africa (plenary) (See commentary by Tracy Rengecas on Afro-IP ) The exclusion of discussion PAIPO from the agenda was unfortunate (see PAIPO at the Africa IP Forum: the elephant in the room) but it will be on the agenda at the AU May Summit to be held in May 2013. For details of the speakers, see the Africa...

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PAIPO Phoenix

Since the publication of my post (PAIPO is dead. Long live PAIPO) last week, I have received the full text of the Ministerial Decisions passed at Brazzaville in November 2012 (AUMINST Dec. (V) (01)) from the AU. The relevant paragraph (2.2.15) reads: AMCOST takes note of the draft statutes of the Pan-African Intellectual Property Organisation (PAIPO) and commends the [African] Commission for the progress made so far in the implementation of the AU Assembly Heads of State and Governments’ decision Assembly/Decision AU/Dec.138 (VII). AMCOST requests the Commission to liaise with AMCOST Bureau and take the necessary actions to implement the assembly decision by 2013 in consultation with sectors dealing with intellectual property in Member States. A University World News report ‘Political boost for university and research initiatives‘ (2 February 2013) provides more detail on this decision. It reports that AMCOST V asked the Commission to convene an IP Summit by May 2013 ‘to debate implementation of the organization.’  Therefore it appears that PAIPO is on the rise, like a phoenix, from the ashes. If all goes according to plan, there will be concerted efforts to move it forward this year, primarily through the proposed summit. It will be interesting to see how the Commission proceeds with regard to this Summit – its structure/format and how open the consultative process will be.  I would certainly welcome the opportunity to participate...

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PAIPO is dead! Long live PAIPO!

[Reposted from AfroLeo] “PAIPO is dead! Long live PAIPO!” Thus exclaims Afro Leo’s friend and PAIPO-watcher Caroline Ncube, who has just sent us the latest news on this very sensitive, potentially valuable proposal: Afro-IP carried an impassioned discussion on the Draft PAIPO Statute last year and a petition on PAIPO was hosted on change.org. In a recent paper in the Journal of Intellectual Property and Practice (JIPLP — abstract here) I outlined the gist of the debate over the Pan-Africa Intellectual Property Organization (PAIPO) and shared some thoughts on how to improve the statute. The keenly-watched Brazzaville 5th African Union Conference of Ministers of Science and Technology (AMCOST V ) has come and gone. PAIPO was discussed on 15 November 2012.  The documentation and presentations prepared for the meeting are available here.  It is not exactly clear what the Council of Ministers decided about PAIPO. The only publicly available official document on the results of the meeting is a press release that does not mention PAIPO. Some accounts state that they have shelved the statute and the organisation (see W New). Others indicate that they decided to proceed with PAIPO (D Ndhlovu ‘Pan African IP body survives a high level attack’, here). The AU’S STRC, which is the custodian of the drafting process, does not provide any details on its website, beyond describing the project and hosting the text of the statute. I have not received a reply to my email requesting details of the outcome of...

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PIJIP Working Paper: An Examination of How ACTA Impacts the Creation of a Moroccan Orphan Works Regime

AUTHOR: Carolyn B. Ncube. ABSTRACT: This paper briefly examines the current regime of copyright law in Morocco and seeks to examine the status of orphan works in Morocco, in lieu its membership as the sole African country in the recently signed Anti-Counterfeiting Trade Agreement (ACTA). The paper concludes that Morocco can, and ought to, enact exceptions and limitations that facilitate meaningful access to orphan works in both analogue and digital formats. Click here for the full...

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