Thursday, 26 February 2015

IP policies in Africa no.52: Uganda

Elizabeth Tamale gives a very useful and detailed overview of Uganda's TRIPS Implementation which includes recent legislative developments in Uganda up to September 2014 here. This overview notes that whilst there are existing policies that are relevant to IP, 'an overarching national policy framework covering policy linkages between IP and other sectors such as public health, agriculture, environment, education, science and technology, culture and traditional knowledge, is still missing'.

Hopefully such a policy will soon be formulated. When it does it will no doubt be influenced by the
policy documents and positions of regional economic communities and  sub-regional IP organisations to which it belongs. The relevant policies include:
- the East African Community's Regional Intellectual Property Policy on the Utilisation of Public Health-Related WTO-TRIPS Flexibilities and the Approximation of National Intellectual Property Legislation (available here) and
- COMESA's regional IP policy (available here).
Uganda also has a vibrant IP community that includes organisations such as the Center for Health, Human Rights and Development (CEHURD). So IP policy formulation discussions are bound to be interesting.

see Uganda's IP laws on WIPOLex here
see IP-Watch's articles on the EAC Regional Intellectual Property Policy on the Utilisation of Public Health-Related WTO-TRIPS Flexibilities and the Approximation of National Intellectual Property Legislation here and here

Amstel Lite packaging too close rules ASA Directorate



The Advertising Standards Authority have this week published their ruling in the much awaited look-a-like case between South African Breweries (who produce the well known Castle Lite beer) and Brandhouse Beverages (who launched Amstel Lite last year). 

The ruling of the ASA Directorate sets out the grounds upon which South African Breweries complained of the look-a-like packaging and the response by Brandhouse. Relying on the Final Appeal Committee ruling in Amos/Pritt glue stick matter upholding the colour red in packaging (reported here and here), the ASA Directorate, finding in favour of the complainanat, rules that: 

 "In the present matter, the complainant has enjoyed significant sales of Castle Lite over a period of 20 years, and has spent millions of rands advertising it. The Castle Lite packaging, which features a colour combination of green and silver, has been used consistently over the 20 year period, together with the word "LITE”. This colour combination, together with the word "LITE”, has been used exclusively by the complainant in the South African market for a long time. Accordingly, the Directorate finds that, similar to the Pritt glue stick matter, the complainant has obtained advertising goodwill in the packaging of Castle Lite, specifically its six-pack shrink wrapping and its cans. 

The Amstel Lite six-pack shrink wrapping and cans feature a similar colour combination to that of Castle Lite, and the colours are used in similar ratios, as pointed out by Cartils. In addition, the Amstel Lite packaging also prominently features the word "Lite”. Given that the green and silver colour combination and the word "LITE” have been unique features of the Castle Lite packaging in South Africa for a very long time, the use of similar elements by Amstel Lite has effectively done away with the uniqueness of these features on the Castle Lite packaging, and is therefore likely to diminish the advertising goodwill that the complainant has built up over the years in its Castle Lite packaging.  
The Directorate therefore finds that the Amstel Lite six-pack shrink wrapping and Amstel Lite cans exploit the advertising goodwill of the complainant’s Castle Lite six-pack shrink wrapping and its Castle Lite cans. The respondent has therefore contravened Clause 8 of Section II. 

The full ruling can be obtained here. Brandhouse have lodged an appeal against the ruling and a suspension of the period within which to withdraw product bearing the packaging. So, more to come on this one.

Tuesday, 24 February 2015

Cochrane goes to the ASA in latest Adwords development in South Africa

Yesterday, boutique IP firm RM Tucker Attorneys notified Afro-IP of their article (Google Adwords - an even clearer picture) in the latest development in Adwords legislation in South Africa, once again involving fencing specialists Cochrane Steel and M-Systems. In this development, Cochrane Steel sought a ruling from the Advertising Standards Authority on the issue keyword bidding.

Readers will remember that Cochrane Steel had sued M-Systems for unlawful competition for bidding on the mark CLEAR VU as an adword. Cochrane Steele lost, setting a precedent that the mere bidding on a competitor's mark as a keyword without more (eg it appearing in the ad text) is not unlawful competition. The High Court case is well covered by this blog and you can view those summaries here, herehere and on CNBC Africa, here.

In January, Cochrane Steel lodged a complaint before the Advertising Standards Authority. Ryan Tucker, and advocate Lisa Oken  set out the ASA development in their summary as follows:


In a ruling handed down by the ASA Directorate on 3 February 2015 (M-Systems Group v Cochrane Steel Products; Case number 2014-1859F), the next stage of the saga between the parties was decided. The complaint lodged by Cochrane was based on identical facts as contained in the above judgment. The facts form part of the ruling and are as follows:
  1. Cochrane started advertising its fencing in 2006 under the trade mark CLEARVU.
  2. In 2010, Cochrane lodged 2 trade mark applications for the CLEARVU trade mark – these were opposed by M-Systems (currently before the Registrar of Trade Marks).
  3. Cochrane still uses CLEARVU to advertise and sell its fencing.
  4. In 2012, M-Systems began trading in similar fencing products and it started bidding on the keywords “ClearVu”, Clearvu” and “clear view” on the Google Adwords advertising service. (for further detail on how Google Advertising works, please see this links provided below).
  5. Other competitors have also started to bid on similar keywords and Cochrane has had to increase its bids on its own trade mark (product name) in order to lessen/decrease the damage as a result of “concurrent use with competitors”.
Cochrane argued that despite the same facts being in issue as in the Gauteng Local Division, Johannesburg judgment, the ASA is still obliged to ‘determine whether or not the Adwords used by M-Systems amount to “unlawful advertising”, more specifically, a breach of clause 8 of Section II of the Code’ (the Advertising Code), which relates to the ‘exploitation of advertising goodwill’.
M-Systems responded to the complaint as follows:
  1. The matter has been decided already by the High Court, which held that M-Systems Google advertising practices (i.e. bidding on Cochrane’s trade mark or similar thereto) were not prejudicial to Cochrane’s business – M-Systems was competing fairly and legally.
  2. None of its advertisements incorporate the word “clearvu”, thus they cannot be construed as implying that M-Systems’ product is the same as Cochrane’s.
  3. It alleged that Cochrane was merely trying to prevent fair competition by lodging unfair complaints.
The main issue that the ASA Directorate dealt with was its jurisdiction in the current matter. It stated that the ASA only hears matters relating to “published advertising” (in relation to the definition of ‘advertising’ in the ASA Code). Despite the fact that Google’s Terms and Conditions for its Adwords specifically incorporating ‘any applicable advertising codes of practices’, this does not automatically extend the scope of the ASA Code to include Adwords purchased on a “behind the scenes” basis’.
The ASA Directorate proffered that Cochrane is not objecting to the actual content or claims of M-Systems’ GoogleAds that appear when one does a search for “clearvu”, but rather finds it objectionable that M-Systems uses the keyword “clearvu” to ensure its sponsored link appears as one of the GoogleAds.
Clause 4.1 of Section I of the ASA Code defines an ‘advertisement’ as follows:
‘… any visual or aural communication, representation, reference or notification of any kind which is intended to promote the sale, leasing or use of any goods or services; or which appeals for or promotes the support of any cause. Promotional content of display material, menus, labels, and packaging also fall within the definition. Editorial material is not an advertisement, unless it is editorial for which consideration has been given or received.‘
The ASA then referred to Revivo Tea v P Linzer / 13898 (29 June 2011), Loan Discovery SA v Brown / 21626 (17 April 2013) and the websites, and , in coming to its decision that an Adword is not regarded as the “advertisement” itself, but merely as a trigger that ensures that a person’s advertisement is displayed. There is a marked difference between what is considered as the person’s “advertisement” and the “Adwords” selected. The ASA acknowledged that there was a relationship between the keyword and the advert but for the purposes of applying the code, they were different.

According to the ASA, all of this supports the argument that the “adwords” selected are not the actual advertisements, but merely the variables that trigger the display (or not) of a person’s advertisement.
The ASA held that the “Adwords” in which Cochrane seeks to establish goodwill are not “advertisements” as defined in Clause 4.1 of Section I of the Code. In the circumstances, the ASA does not have jurisdiction to rule on the business or advertising practices of Google Adwords. Rather than the complaint’s dealing with the “content” of advertising as such, it rather deals with the advertising practices of Google AdWords.
Bearing this in mind, and given that the words “clearvu”, “clear vu” or “clear view”do not appear in the GoogleAd submitted by the complainant, the complaint cannot be entertained, as it does not relate to any published “advertisement” as defined in Clause 4.1 of Section I of the Code."

Afro Leo contacted the ever efficient ASA yesterday and was told that no appeal had been filed. So it is 2-0 for M-Systems, but the saga is not over. There has been a request for leave to appeal in the High Court case due to be heard soon. There is also a pending trade mark opposition case in which M-Systems has claimed that the mark CLEAR VU is not registrable in the form in which it has been applied because the words clear and vu (as a misspelling of view) are descriptive. The law on keyword bidding is also developing in other jurisdictions.

Tucker and Oken suggest that the ASA should not have dismissed the complaint and used the opportunity to embrace digital advertising.

"We would like to stress that the definition of ‘advertisement’ includes ‘any visual or aural communication, representation, reference or notification of any kind…’ Surely the use of the words “of any kind” should have been taken by the Directorate to incorporate digital advertising and Google Advertising in particular."

Afro-IP would like to know your views. Is bidding on a keyword, without anything more, advertising or would you have preferred the ASA to have become a forum for these types of disputes if misuse of advertising goodwill can be shown, as Tucker and Oken suggest?
The ruling can be downloaded here.

Monday, 23 February 2015

USPTO dismisses cancellation action for 'nollywood' trade mark

That home DIY moment when you realise you only have two options: down tools and live with it, or spend some cash for an expensive expert to sort it out. This Leo has just learned (a few months later) that the ‘nollywood’ trade mark challenge reported here last year ended without much argument.
Do I need a forklift for this?

Reproduced below is the body of the withdrawal letter to the Trademark Trial and Appeal Board (TTAB) in which the petitioner also asked for a chance to slug it out again in the future. 

Today September 1, 2014, I Olusola Osofisan, wish to withdraw petition #92059251 because I have been unable to secure legal representation due to its cost and my financial limitations.

The withdrawal of this petition does not in any way mean that I am admitting that the Registrant should have been given the trademark of the term Nollywood by the USPTO. In fact, I am more convinced than ever that he pulled a fast one on everyone, but it is what it is and I do not want to set up a potentially bad precedent by mishandling the case that should be left to an attorney.

I believe the USPTO should revisit its approval of this registration by doing additional investigation – or simply review the original due diligence done when the trademark was granted. Somebody goofed in a big way. Dictionaries now list the word as the name of the Nigerian movie industry and this registration flies in the face of simple research. Registrant’s claim to First Use is nullified by the New York Times usage and his further claim to consistent use is nullified by the attached survey and a simple Google search.

This misguided granting of the ownership of the term Nollywood to the Registrant is going to cause havoc for thousands of legitimate businesses around the world (It has already sent an aspect of my business on a downward spiral through Registrant’s C & D, resulting in the loss of hundreds of Dollars). Even the Nigerian Federal Government support of the Nollywood industry through is now threatened through the use of the name. Another party or agency with adequate resources may take up the challenge in a new filing at a future date. I reserve the right, if I can, to join such new filing at a later date.”

TTAB’s response
Unfortunately it didn’t show much sympathy to the petitioner. The cancellation petition was not only terminated but also dismissed with prejudice for failure to follow Rule 2.114(c). So, it seems the petitioner may not get a second bite at the Nollywood cherry. Anyway, let’s see if the ‘nollywood’ trade mark owner will be able to maintain the mark on the register and take enforcement actions where/when necessary.

The moral of the story for this Leo is this: obtain appropriate legal advice from the outset (Says Afro Leo, “it’s meant to help not just for the law but also costs v benefits analysis which includes having your name, documents and so on all over the internet.”).

Friday, 20 February 2015

Teaming up with Thomson Reuters for IP Due Diligence Seminar

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19 March 2015
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Find out why the world’s leading decision makers rely on our knowledge, insight and expertise—at every stage of the IP lifecycle.
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Thursday, 19 February 2015

IP policies in Africa no.51: Tunisia

Tunisia does not yet have an IP policy but in 2013, a new Constitution was passed which provides that “intellectual property is guaranteed” (Article 41) and that the“State encourages cultural creation” (Article 42). As noted by Abdel-Latif (here) this will require unpacking in a proper public policy instrument to ensure that both aspirations are realised through an IP framework that appropriately nuanced. Hopefully, work will soon begin on a policy to  inform such a framework.

PAIPO host
Tunisia was confirmed as the host of the Headquarters and Secretariat of PAIPO by
the AU Assembly’s 23rd Ordinary Session held in June 2014. This decision is recorded as item 6 of the Assembly/AU/Dec.522(XXIII) which you can view here.

As noted by Jeremy recently (here), it has been incorrectly reported that Tunisia will host OAPI (Africaine de la Propriété Intellectuelle) which already has a home in Yaounde, Cameroon. This error seems to have come about the omission of the 'Pan' in PAIPO's name. So it was reported that the African IP Organisation (OAPI) was going to be hosted by Tunisia, rather than the Pan-African IP Organisation (PAIPO).  The two organisations' names are very similar and the distinction between them is likely to be lost to those outside the IP world, so it is easy to see how the error occurred.

If both organisations are to co-exist in the future, we'll probably see many more instances of the same error. Especially since sometimes OAPI is referred to AIPO, which is its Anglophone name's acronym. So the organisations may  find that an educational campaign will be in order. This Leo's not copywriter, but perhaps  PAIPO not OAPI/AIPO! will do.  

Some Tunisian architecture from Promotunisis

See Tunisia's WIPOLex entry here 
See Ahmed Abdel-Latif's commentary on Tunisia's constitutional provisions on IP here  and a related Afro-IP post here

Wednesday, 18 February 2015

Important IP Considerations for Entrepreneurs

Now here's a remedy for the post lunch slump or a bad case of the itis. Speed date on IP with a bunch of talented entrepreneurs on their ideas, ventures and thoughts at around 2pm! It's the equivalent of an intravenous dose of caffeine administered in an ice bath. And cats are jumpy in water as it is.

This Afro Leo has just spent the last 90 minutes with some of Africa's most talented entrepreneurs fielding questions in one-on-one sessions on their IP requirements, across Africa.

Hosted by Bowman Gilfillan's David Geral and their client African Leadership Network, this Afro Leo spoke to founders of BanaPads, Capture, GiftedMom, Learning Horizon, Madlyn Cazalis, MDAS, Nikweli, TastemakersAfrica and Stawli Foods. You can find out more about them at ALN's website here. I shall be following them too.

Here is a summary of important aspects a start-up should know and consider from an IP perspective:
  • The 5 basic forms of IP (including knowhow) and how they link into your business:
    • Patents
    • Trade Marks (including domain names and social media names)
    • Copyright
    • Know-How
    • Designs
  • How to use non-disclosure agreements effectively
  • That IP is territorial, creating a cost of doing business in each new country that needs to be funded and managed
  • The importance of a pre-clearance trade mark search
  • How to ensure that copyright developed outside the business eg in logos, computer programs, database creations etc gets licensed or assigned into the business
  • How telling a story using basic IP protection can make start-ups attractive for funders or valuers 
  • How it is not all about IP; the value often lies in effective implementation, first-to-market advantage and hard work
  • Where to house the IP considering tax efficiencies, ease of enforcement, ease of maintenance and marketing credibility
  • How to set-up basic processes for patenting and knowhow protection
  • The importance of IP clauses in agreements with employees, partnerships and sub contractors
  • Why its not always about exclusivity, and the value of open innovation
  • Where to get valuable information, for free
  • The value of local advice

The dynamics of innovation, traditional medicine and the experience of Ghana: an article

"The Dynamics of Innovation in Traditional Medicine in Ghana", by George O. Essegbey and Stephen Awuni (both of the Science and Technology Research Institute, Council of Scientific and Industrial Research, Accra, Ghana) has just been published in issue 1/2015 of the WIPO Magazine. You can read it in full here. Of particular interest to this blogger was the following paragraph:
"Many practitioners, especially those operating in the informal economy, are not aware of the potential advantages of acquiring IP rights, such as trademarks, designs or patents. And for those aware of the IP system, the stringent requirements associated with obtaining IP protection are often beyond their reach. Much still remains to be done to raise awareness and understanding among practitioners about how to use IP rights to support their longer-term business interests. How to encourage innovation and strengthen entrepreneurship among traditional medicine practitioners in the informal economy is a crucial policy challenge in Ghana".
Can the gap between traditional medicine and innovation as understood by the IP community ever be properly and efficiently bridged? That is the question ...

Friday, 13 February 2015

5 Reasons why Zuma should have mentioned IP at #SONA2015

IP - he he he 
#SONA2015 trended last night in South Africa with around 3.5 million tweets, mainly because opposition party the EFF was kicked out, the official opposition the DA walked out and then most people seemed to fall asleep. If only JZ mentioned intellectual property, this could have been so very different.  Here are 5 reasons why Zuma should have mentioned IP during his State of the Nation address:

1. "Pay Back the Money" JZ, this is a potentially registrable trade mark. Register it, license it and you could potentially have more than enough money to pay for Nkandla, and statutory rights to deliver up young Julius with or without police force.

2. Property repatriation. There is a saying - "you can take a farmer out of the bush, but you can't take the bush out of a farmer". Link the repatriation scheme with meaningful know-how, patent and PBR protection, focus on free-flow of IP and who knows, the displaced farmer may well find himself a movable asset capable of delivering revenue streams across the continent, all taxable in RSA #justsaying.

3. Celebrating Mandela. You used him in your address, well done. His legacy is so valuable to South Africa as are others. Yours could still be too. So develop working IP infrastructure that supports legacy and traditional knowledge protection (did you mention those IPR Act regulations, languishing somewhere for over a year, or that draft IP Policy?).

4. The Energy Crisis: in the medium and long term innovation is going to solve the energy crisis in South Africa. I mean just look how Sasol did it in the 80s when we were last "cut off". It is no coincidence too that Sasol has one of the largest patent portfolios in the country. Strong, robust and efficient IP infrastructure is key to stimulating and supporting innovation. By the way, those exchange control measures on IP, they are deterring foreign direct investment into our energy sector. True Story.

5. Unemployment:  When resource based industries that have traditionally supported South Africa's workforce are under stress then focus shifts to other means of employment and self sufficiency. The move to a knowledge based economy requires access to information, protection for creative thought and incentives. Copyright legislation and IP infrastructure are key to supporting this transition. 

So, for next year if you need some help with your speech contact us here. We won't charge you time, our IP is far more valuable.

Wednesday, 11 February 2015

Morocco's new IP laws

Following Jeremy's post last month on an agreement reached between Morocco and the EPO whereby the country recognises European patents nationally, local law firm H&H Consulting has reported that Morroco has also updated its laws on IP:

"Morocco has issued an new Law No .23-13 on the protection of industrial property, which amends and completes that actual Law No. 17-97. This new law entered into force on December 18 – 2014.
The new law includes provisions on the protection of patents, industrial designs, trademarks and strict measures for combating counterfeiting."
Further information on the effect and changes can be obtained in H&H's summaries here
The summaries provide:
- more information on the agreement with the EPO regarding patent recognition.
- that absolute ground examination has been introduced for trade marks.
- that trade mark and design splitting has been provided for.
- that design protection has been extended to 25 years, from 15 years.

- information on the stronger protection against counterfeiting with fines of up to $55000 being legislated for, together with wider powers for issuing search warrants.
-information on certain measures that make the IP system more efficient, less bureaucratic and more structured.

More on Morocco.
Hat tip to Debbie Marriott for the heads up.

Monday, 9 February 2015

Book Review: Dean & Dyer Introduction to Intellectual Property Law

The latest IP book to hit the sparse South African bookshelves is a collaborative effort between The Anton Mostert Chair ofIntellectual Property at the University of Stellenbosch, and Spoor & Fisher partners. It’s academia and practice together, focusing on introducing IP to its reader in 500 odd pages of paperback published by Oxford University Press. As 50 Shades of Grey screens for the first time in RSA this week, Afro-IP asks - can this book emancipate IP from its current lofty place of sacredness to something interesting, enticing, useful and fun? Let’s take a closer look.

Its authors: Beharie, Bagio, Blignaut, Cilliers, Cochrane, Du Bois, Foster, Grant, Karjiker, Khader, Reimers, Shabangu, Van Der Merwe and Van Wyk. This is quite a team, edited by the formidable Dean and Dyer. Not a bad start, especially if you were going to write a book on IP law destined for the shelves of lawyers, businessmen and students.

Its content: The obligatory chapters on trade marks, designs, copyright unlawful competition, counterfeit goods, patents, plant breeder’s rights, designs are well covered PLUS (and this is where it really stands out) there are chapters on traditional folklore, commercial considerations for transactions, IP law in the digital environment (EIP law) and IP rights and the constitution.

The compendium of information is really useful and relevant. For example (and to focus only a few parts of the book), the chapter on EIP starts with a romantic cruise into the history of computer law then takes you through fast-moving Bit torrents and file sharing, before ending in the currents that make social networks and IP, challenging; all well explained by Cobus Jooste and Sadulla Kariker. Dina Bagio’s chapter provides a neat summary of all IP legislation affecting commercial transactions whilst Tertia Beharie and Tsehpo Shabangu tackle biodiversity and traditional knowledge with aplomb, even referencing the Afro-IP blog. Merci.

Afro Leo is also highly impressed by the Foreword written by Judge Mabel Jansen who pays testimony to the editors and writers, making special mention of the contributions of Dean and Dyer to South African IP law and, in the case of Alison Dyer, to becoming a role model for women in a field traditionally dominated by men. Ms Jansen, of course, may well also refer to herself.

Its style: With multiple authors it can be difficult, if not impossible, to achieve a single consistent style. The structure of the book helps this tremendously. Chapters are broken down into short paragraphs; headings are plenty as is the cross referencing making this book easy to follow and pick-up on a specific topic. It contains regular “Pause(s) for Reflection” and “Counter Points” which assist to create depth to some of the more interesting or contentious points.

Overall recommendation: This book gets the Afro-IP thumbs up. It may not be the book that you hide between the covers of 50 Shades on the Gautrain on the way to work, but it could help spawn a much needed boom of IP savvy lawyers, and business folk. It's well priced too - you can get it here. for R549.00 (around $50)

Sunday, 8 February 2015

Book review: Pirates of Bollywood: A Tale of Piracy and Conspiracy

Kaylan Kankanala's  first novel Road Humps and Sidewalks was well-received (see a review by this Leo here). He has published another IP novel, starring the protagonists from his first novel, Arjun Mamidi, a visually impaired lawyer and his sidekick Jose Fenil. His over-protective wife Shreya and loyal dog Neo also feature in the background. Arjun is drawn into the complex and dangerous world of copyright infringement involving Bollywood stars, corrupt policemen, the mumbai mafia, a bogus copyleft foundation and the hapless IIahi, a street-hawker of infringing music and films. Arjun eludes a bumbling assassin several times and catches the baddies in the end, with the help of the stunning Assistant Police Commissioner Helen Joseph and the Commissioner of Police  Shivaji Savarkar, for whom Helen seems to have more than collegial regard.

The novel contains detailed court room scenes where Arjun and his opponent argue over whether or not SHARE, a peer-to-peer file sharing network, should be held liable for secondary copyright infringement. The arguments are reminiscent of those made in real cases and so play an important educational role.  IP Scholars and practitioners will enjoy evaluating these arguments and identifying the cases they are drawn from. However, the court does not get to pronounce on SHARE's liability as the matter is withdrawn and resolved in the real world through murder and mayhem.

Compared to Road Humps and Sidewalks, this novel is considerably longer (450pp) and has a much more detailed plot. Like Road Humps and Sidewalks, it is a compelling mix of law, love and crime - a rewarding weekend read.

see here for another review of the novel on IPKat.
see here for ordering information

OAPI -- or OAPI? A bit of confusion

From a news item on AllAfrica and also from the SMAS-IP Newsletter this blogger understands that Tunisia will be hosting two African institutions: the African Intellectual Property Organization (OAPI) and the African Statistical Institute.  This is apparently in accordance with the decision taken by the African Union of 9 January 2015.

Can someone explain to this blogger precisely what is going on? This blogger knows of only one OAPI: it's based in Yaoundé, Cameroon. There is nothing on its website to suggest that the organisation is to be relocated. Further, this blogger recalls that Tunisia is not a member of OAPI. Some sort of clarification would be greatly welcomed.

Thursday, 29 January 2015

Copyright policy and the right to science and culture

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 and culture by 'reforming copyright laws to better protect the right to science and culture or supporting novel approaches that encourage innovation and creativity for broader access'. Either of these approaches may be used or they be used concurrently. Brazil and the UK are cited as examples of countries that have used 'highly participatory'  copyright reform processes that have enabled the public to engage with the law and led to better alignment with 'human rights and other public interests'. 

Mexican, Indian and South African efforts to encourage open access scholarly publishing and the production of open educational resources were cited as examples of  novel approaches to stimulating  innovation and creativity for broader access. Whilst in Mexico these efforts are driven by government agencies and universities via the the National Consortium of Scientific and Technological Information Resources , in South Africa the cited example is Siyavula, a private entity created to serve the dire need for current and relevant learning materials in many public schools. Siyavula  has partnered with government to distribute these books, which are creative commons licensed (see the list of books and distribution information here). India's Pratham Books produces creative commons licensed  'high-quality, low-cost children's books for a massively muliti-lingual and multi-cultural market'.   It ' partners with government agencies, corporate sponsors and non-profit organizations to disseminate more than 1 million books each year'. 
Plenty of inspiration for determined states and interested persons. The Report is concluded with a series of recommendations relating to 
1. Ensuring transparency and public participation in law-making
2. Ensuring the compatibility of copyright laws with human rights
3. Protection of the moral and material interests of authors
4. Copyright limitations and exceptions and the “three-step test”
5. Adopting policies fostering access to science and culture 
6. Indigenous peoples, minorities and marginalized groups
7. The right to science and culture and copyright in the digital environment

Farida Shaheed will present this report at the 28th session of the Human Rights Council on 11 March 2015, in Geneva.  

Tuesday, 27 January 2015

IP policies in Africa no.50: Togo

Togo is listed as one of the countries in which WIPO was involved in the IP policy formulation process in the 2010/2011 biennium (see WIPO report here). No further information is publicly available about the current status of this process. As a member of OAPI, Togo will also be influenced by any IP policy initiatives driven by that body, about which little is known (see an earlier post on this here).
See Togo's WIPOLex entry here
See Kingsley's review of Togo's IP websites here

Sunday, 25 January 2015

IP and Legacy Projects - Indians Can't Fly and others

The world of IP is fascinating because it is omnipresent. Whether it is your coffee in the morning, your transport to work, the phone you communicate with, the doctor’s prescription, your daily work or read, there are intellectual property rights, obligations and issues that affect them. Working with IP can therefore expose you to just about anything which is why I, like many others, enjoy it.

IP is also a useful analysis of trends. For example, IP filings stats are useful indicators of innovation, growth and economic well-being. A trade mark by J.K. Rowling could be the title of her next Harry Potter blockbuster and a patent filed or bought by a competitor, a strong indicator of their business strategy or maybe, a bluff. It is therefore relevant, interesting and potentially useful.

Over the past two years, I have noticed that the preservation, control and commercialisation of legacies has become a popular query in my day-to-day work. The focus on traditional knowledge is an example of this on a state level and the tension over the Mandela legacy illustrate it on a private level. There are many others. Africa is also slowly starting to understand its own value and IP has a part to play in the nurturing it. WIPO call it IP for developmental countries or economies in transition.

Moreover, in places like South Africa there is a growing need to preserve a recent past so that it is never forgotten. This is because of the importance of the time period and the struggle, the passing of time and all that goes with it and concerns over moral values in the country. Again IP has role to play and this is partly how I met Imtiaz Cajee, the author of “Timol A Quest for Justice” the story of Ahmed Timol (Imtiaz’s uncle) a 29-year-old Roodepoort teacher and anti-apartheid activist who “fell” from the 10th Floor of the security police building in Johannesburg in 1971, the year that I was born. The actual events that caused his death are still a mystery.

The interaction with Imtiaz and others has lead me to the State Archives to read previously secret documents of surveillance (those that evaded destruction) by the Security Police in South Africa in the 70s and 80s. It’s like reading a spy novel, only the events are devastatingly true and clinically captured. So it is with some anticipation that I await the debut screening of Indians Can’t Fly  which is described as an important milestone in preserving his legacy.

From a legal perspective, legacy projects typically require the following consideration:
·         IP protection – mainly trade marks and copyright
·         Legacy legislation such as heritage, archive, heraldry or traditional knowledge laws
·         International agreements eg those that protect national symbols or places of geographic significance
·         Ownership vehicles, structuring and licensing
·         Image, format, personal or constitutional rights to the extent that they may be relevant

·         Vigilance and public relations

If you are reading this on the blog you can wait for the documentary trailor to download below or you can click here.

Tuesday, 20 January 2015

Morocco and the European Union agree on Geographical Indications

Swiftly following yesterday’s post, on a historic IP development on the African continent (as expected), this hibernating Leo adds that Morocco and the European Union have reached agreement on Geographical Indications (GIs). Delighted representatives from both sides said:

Image result for european union"This agreement gives relations between the European Union and the Kingdom of Morocco a new impetus. It reinforces our partnership, aiming at promoting and protecting quality products, benefiting farmers and industries in both Morocco and the EU. Agriculture constitutes an important chapter of our bilateral cooperation, notably in the 2013-2017 Action Plan, which constitutes the roadmap of our cooperation for the years to come. Cooperation in the field of geographical indications is part of our mutual commitment for a quality agriculture that preserves local products", said EU Agriculture and Rural Development Commissioner Phil Hogan 

Image result for morocco
According to EU Trade Commissioner Cecilia Malmström, “the EU and Morocco are very close trading partners. The negotiations concluded today will be an incentive for even more trade and investment. The protection of Geographical Indications is a win-win – it will make it clear to consumers where products come from, so that they can make an informed choice. It will also increase the quality of products and bring additional revenue to farmers. Furthermore, today’s deal is an encouragement for both the EU and Morocco to continue our negotiations towards a Deep and Comprehensive Free Trade Agreement.”

"This agreement provides a real opportunity for our growers and especially the smaller ones who have real authentic know-how to maximize the added value of their production" declared Moroccan Agriculture Minister Aziz Akhannouch."

GIs can bring considerable economic benefit to a country if the necessary system(s) can be set up, easily, and managed properly. A number of African countries, eg Uganda (with a little nudge), are now taking GIs seriously. Afro Leo, a geography/trade expert, believes he can make sense of these deals having considered that North Africa (particularly Morocco) is in close proximity to Southern Europe (especially Spain and Portugal). This Leo, however, is cautiously optimistic about the ‘win-win’.  

Previous related Afro-IP posts on the EPO and EU:
  • South Africa, EU and the GIs are here
  • The U.S. isn’t happy with South Africa-EU GIs plan here
  • Sadly, our IP-friendly Morocco doesn’t yet have an IP policy here
  • OAPI and the EPO tie the knot here