South African IP researchers’ (AIPLITL) conference report – The IP and IT Law Innovation Interface

On Day 1, the conference kicked off with the Keynote Session after a warm welcome from the Dean of the Law Faculty at the University of Cape Town (UCT), Professor Danwood Chirwa. Thereafter, the first to take the floor was McLean Sibanda (The Bigen Group) who spoke on the topic: “Could the IP System be a catalyst for South Africa’s Development?” Sibanda provided a brief overview of the South African economy from the perspective of its IP systems. In terms of trends in using IP systems to drive economic growth, he noted that the rate of patenting by public institutions is significantly higher than the private sector and that is worrisome because government and public institutions are better deployed to regulation and providing an enabling environment for innovation. He suggested that the low level of IP education within the country has contributed to entrenching this trend. He advocated for the inclusion of IP education in primary school curricula rather than an elective module for LLB students. 

Yonah Seleti (South African Department of Science and Technology) followed with “The International Architecture of the Protection of Indigenous Knowledge”. He highlighted the various drafting and process stages at several international organisations such as WIPO’s Intergovernmental Committee (IGC); the Nagoya Protocol etc., on the issue of protecting traditional knowledge (TK). Regarding WIPO’s IGC, he noted that there has been some fracture lines in the negotiations (e.g. Developed Countries vs Developing Countries; Diplomats vs experts and indigenous peoples; Indigenous peoples vs states; Measures only vs Rights Approach etc.). In terms of negotiation strategies, he suggested that the IGC needed to develop more effective negotiation strategies by reducing the options, using minimum standards so that countries can do more or do less in their respective countries etc. He concluded by bringing it home to South Africa by providing highlights of the Protection, Promotion, Development and Management of Indigenous Knowledge Bill, currently awaiting presidential assent.

Marumo Nkomo (South African Department of Trade and Industry) focused on “An update on IP Policy Developments in South Africa – Carving a Greater Role for Academia” and mentioned the 3 phases of the implementation of South Africa’s IP Policy 2018. The 1st phase saw a lot of collaborations across nations. For example, in South Africa, collaboration with the EPO has helped with better training of patent examiners in South Africa and implementation of an optional proof of concept. This provides feedback to the applicant and also helps South African patent examiners gain practical experience. In phase 2, he noted that local patents do not go on to be patented in examining countries suggesting gaps in the patent grant process. Issues seen in phases 1 and 2 led to some moves in phase 3 where the DTI wants more robust response from academia and institutions. There are moves to organise a consultative workshop where there would be more robust conversations and invitations to submit comments. Africa correspondent expressed the hope that comments will be made publicly available to enable even more engagement.

After tea, it was time for the session on Industrial Property and the IT Innovation Interface and Mikhalein Du Bois (UNISA) spoke on what she called “State Use Provisions for Patents, and Expropriation Law”. She identified that South Africa’s Patents Act make certain provisions for use and acquisition of inventions or patents by the State on such terms and conditions as may be agreed upon. She argued that such provisions for State use of patents may be tested against constitutional principles in particular those which prohibit arbitrary expropriation and those which indicate factors that must be considered in determining amount of compensation to be paid. (i.e. section 25(2) and (3) of the Constitution). Bram Van Wiele (UCT) followed on with “Designs Law and Decentralised Manufacturing: Issues, Concerns and Realities” and took us through the world of 3D printing and the issues and concerns it raises for design protection. From the perspective of South Africa’s Design Act, he indicated that the prerequisites for design protection (originality and novelty assessed through the spectacles of a consumer), and the issues surrounding the enforcement of design rights (e.g. applying the test to determine infringement where the court assesses visual similarity for infringement the ‘spectacles of the customer’) in the digital environment make it problematic for beneficiaries of the design law system to enjoy design law protection or exemption (defences) in the 3D printing environment.

Sunelle Geyer (UNISA) flagged off Session 2 (Copyright and the IT Innovation Interface) with her presentation on “Multilingualism as a road to non-racialism: how copyright paves the way”. She pointed out that Chapter 15 of South Africa’s National Development Plan 2030 suggests that one of the ways to achieve transformation was that every South African should study at least one of the nine official African languages at school and appropriate second-language materials should be developed. She argues that the mention of “school” and “materials” brings in copyright matters of educational use (section 12(1) Copyright Act) and translations (section 12(11) of the Act).

Africa Correspondent, Chijioke Okorie (UCT) closed Session 2 with a presentation on “IP, Internet and the right to economic freedom” where she pointed out that given that economic freedom as a human right seeks to inter alia protect the freedom of individuals to own and exercise property rights, the nature of use of copyright-protected material on the Internet seems to undermine that right. Copyright owners especially in the African context have to rely so much on digital platforms to obtain revenue for uses of their protected materials. Given the concentration of power on the operators of these digital platforms and the fact that there are only a few of them may mean that they exercise their powers in a way that undermines the economic freedom of copyright owners.

The next session was one of the highlights of the 2019 conference – a special panel session for PhD Researchers and works in progress. Veit Erlmann (University of Texas, Austin) kicked off this session with discussion on some aspects of his upcoming book, “Lion’s Share. Remaking South African Copyright”. This was followed by presentations from Nkem Itanyi (Queen’s University, Belfast) on “Sanctions for Copyright Infringement in Relation to the Film Industry in Developing Economies: Nigeria as a Case Study”. The session closed with Ghati Nyehita’s (UCT) presentation on “Copyright and distributive justice in the context of royalty distribution”.

After lunch, it was “open mic” session and attendees shared thoughts on various developments in the world of IP and the African context. Caroline Ncube (UCT) who had just recently returned from Addis Ababa where the subject of the AfCFTA ratification and implementation was discussed under the auspices of United Nations Economic Commission for Africa (UNECA). Caroline indicated that the implementation of AfCFTA was on course. [See some thoughts on the IP Protocol here]. The Assessing Regional Integration in Africa report (ARIA IX), which tracked development on AfCFTA matters would be released soon, she stated. [The Report is out now and Nigeria has just signed AfCFTA – more on that in an upcoming post]. The delay in the presidential assent to South Africa’s Copyright Amendment Bill 2018 was also a hot topic. See here for some discussion on one of the Bill’s “hot” topics – fair use.

Day 2 was much shorter day with only 3 sessions: Innovation Context; Applications of the IP and IT Innovation Interface and Legal Aspects of the IP and IT Innovation Interface. Eve Gray (UCT) opened with a neo-colonial background into South Africa’s copyright reform noting the interplay of colonialism in the fair use v fair dealing debate. Ghati Nyehita (UCT) appeared on the scene again, this time with a presentation on “The Legal Implication of AI on South African Copyright Law” raising issues surrounding the assignation of authorship to works created by AI to the AI or the person directing/coordinating the AI. Desmond Oriakhogba (UCT) opened the next session with a focus on “Regulation of collecting societies in South Africa: Exploring the interface between copyright and competition law” arguing that the South African regulatory framework for collecting societies does not sufficiently address key competition-related concerns raised by the operation of collecting societies. Ways to fill this gap include: making subsidiary regulation under the Copyright Amendment Bill and applying relevant provisions of the Competition Act. Priscilla Makwela (UNISA) spoke on “Technological Protection Measures (TPMs) role in the South African Development Plan 2030, a stumbling block or a vehicle to advancement” arguing that circumvention of TPMs should not be permitted and where they are circumvented, courts should interpret in a way to protect individual artist as the creators rather than focus on corporates.

Nojeem Amodu (UCT), who spoke on “Corporate Control of Intellectual Property for Wealth Maximization: Prospects for Stakeholders’ Protection within Corporate Law”, suggested that corporate law can complement IP law to interpret the interests of stakeholders such as employees and individual creators. He argued that the way to do this is for corporate law to no longer hold the interests of shareholders as paramount but rather, adopt a stakeholder approach that involves other members of the society.

The last presentation was by Steve Cornelius (University of Pretoria), who spoke on “Legal Aspects of Information as Corporate Asset” using several decided cases to point out that because of technology; there is superior ability to gather and manage information. This has made information to be recognised as a “quasi-property right” that may be protectable. He concluded that one of the necessary controls to protect information might be to have it reflected on financial statements.