Saturday, 31 January 2009
Friday, 30 January 2009
"The case of Les Laboratoires Servier et al v Cipla Medpro et al (Patent 2002/10092) is set down for hearing in the Court of the Commissioner of Patents on 2 – 4 February. Servier is applying for an interim interdict to prevent Cipla Medpro from selling its generic perindopril medicine.
Perindopril (Servier’s brand, “COVERSYL”) is a long acting ACT inhibitor (an anti-hypertensive medication). COVERSYL was first marketed by Servier in the late 1980s, but in 2000 Servier characterised various crystalline forms of perindopril and filed patent applications covering these forms, including the “alpha” form now in dispute. The equivalent UK and Netherlands patents have already been found to be invalid, with the UK Court of Appeal (per Jacob LJ) calling the UK patent “the sort of patent which can give the patent system a bad name”. (ed - reminds Afro-Leo of one of his favourite rock tunes)
This is the first of what is expected to be a number of cases between Servier and generic suppliers regarding the South African patent on the alpha crystalline form of perindopril, with Servier having subsequently also instituted separate proceedings against Ranbaxy on the same patent, and an action against Cipla Medpro.
Next week’s hearing should be a fine show, with Fanie Cilliers SC and Gavin Marriott (instructed by DM Kisch) appearing for Servier, and Cedric Puckrin SC and Reinhard Michau (instructed by Tim of Brian Bacon & Associates) appearing for Cipla Medpro."
One wonders if everyone is not missing the boat, certainly from a trade mark point of view - if the function of a trade mark is to indicate the origin of the services/goods in respect of which the trade mark (in this case the Springbok emblem) is used and there is so much debate about origin/ownership, then perhaps nobody owns it? Furthermore, does the emblem, as a traditional national symbol once used in respect of all sports, indicate origin at all ie is it a trade mark? And of course, does the owner of the copyright in the emblem co-incide with the alleged trade mark ownership if copyright still subsists in the emblem? Readers will be aware that a trade mark registration certificate is only first glance proof of valid title.
...another debate for the braai
Date: 25 February, 2009
Duration: 1 hour
Those following copyright issues in Nigeria are probably familiar with the long-standing battle between Nigeria's collecting societies and the government agency in charge of copyright, the Nigerian Copyright Commission (NCC). The Daily Independent recently interviewed the Director-General of Musical Copyright Society of Nigeria (MCSN). Here's a little synopsis of this perspective on the relations between MCSN and the NCC. [Overview of the collecting society v. NCC battles here. Update on the overview here.]
MCSN still has animosity towards the NCC, but Mr. Ayilaran, the DG of MCSN, repeatedly expressed his belief that the NCC Director-General is not at fault. This is a slight shift from previous discussions on the relationship between the NCC and Nigeria's collecting societies. Ayilaran describes the NCC as a "stumbling block" for copyright owners and decries the lack of due process involved in piracy raids conducted by the government. [NOTE: MCSN had one of these raids done on Virgin Nigeria, just days after giving this interview.]
One of the biggest challenges faced by MCSN: the government doesn't recognize copyright as private property, but instead sees it as "part of social public property." Ayilaran described the government's proper role in copyright:
"The role of government is, if I, as a copyright owner, has [sic] an issue with a radio station which has been playing my music without paying me royalty, the role of the government, when I complain, is to back me up to collect my claim effectively from that radio station."
Although the collecting societies and government haven't worked out all their disagreements yet, MCSN continues to represent its members internationally and enjoys recognition from various copyright organizations, including PRS in the UK.
Wednesday, 28 January 2009
According to their flyer:
The two hour discussion will first introduce the protection of Indigenous Knowledge through the intellectual property system from a policy perspective followed by specific trade mark law scenarios based on the South African Trade Marks Act having been amended as proposed in the Intellectual Property Law's Amendment Bill, 2007.
The Protection of Traditional Knowledge in South Africa is the perfect vehicle to network and trade thoughts with your peers, compare and learn new strategies, and address common issues and challenges facing the trademark and intellectual property communities.
The session will be hosted by IP expert Charles Webster (Spoor and Fisher) and has guest speakers Tom Suchanandan, Department of Science & Technology and Tracy Rengecas, (Spoor & Fisher). Registration costs R100 ($10).
Readers may recall that Tracy published her thoughts in De Rebus a few months back, as reported by Afro-IP here. Additional reading on traditional knowledge on Afro-IP can be located here - if you wish to come prepared.
The full brochure can be downloaded here.
Tuesday, 27 January 2009
Stephen Nel (SuperSport) warns that South African rugby should jealously guard its "intellectual property", according to former tighthead prop Cobus Visagie. The words "intellectual property", "rugby" & "loosehead props" are not normally syntactical teammates which is why the use of the term IP is unusual, if not amusing, especially as the warning had nothing to do with trade marks, patents, designs or copyright. The term as used by Nel appears to refer to the knowhow and trade secrets (also IP) possessed by props and the rugby scrum, which according to Visagie "has gone backwards because players are discarded too quickly".
One question posed by Afro-IP is whether a tight head will have more intellectual property than a loose head?
Friday, 23 January 2009
Monday, 19 January 2009
Vice President of the Motion Pictures Practitioners Association of Nigeria (MOPPAN), Dr. Ahmad Saari reported on the film industry's reactions to new government guidelines enacted in 2008 following the release of a pornographic clip involving a Nigerian film star. The clip was in fact a private video taken before the actress had become a star and not connected with the Northern film industry (Kannywood) and had surfaced early in 2008. Kano state is predominantly Muslim and thus it's laws incorporate Shari'a law.
The new guidelines are as follows (English has not been edited for corrections):
1. Singing and Dancing is prohibited.
2. Actresses are prohibited from appearing in trousers, skirts or short tops.
3. Dressing in see-through or tight costumes that expose body features is prohibited.
4. Male Actors are prohibited from appearing in tight fitted clothes that expose their features or haircuts that do not fit with our culture.
5. Actresses are prohibited from combing or exposing their hair.
6. Indecent utterances and seductive actions or immoral dialogue are prohibited.
7. Ridiculing of any religion, tribe or a section of the community is prohibited.
8. It is prohibited to use children in films that are prohibited. (If the films are already prohibited, does this really add anything?)
9. Re-inserting expunged scenes from an already censored film, and taking such film into the market is a major crime.
10. Fetish (things associated with witchcraft, animism and traditional religions) activities and the wrong use of weapons are prohibited.
11. Producers are prohibited from releasing posters and trailers without the permission of the board.
12. Films must have a clear meaning (message) with appropriate names.
13. No films can be produced in Kano, or brought in for sales or exhibition without the permission of the board.
14. All Actors or Actresses and other filmmakers are prohibited from doing film business without obtaining license from the board.
15. Sleeping overnight at film locations with males and females are prohibited.
16. No films shall be made without censorship of its script.
In reaction to the new guidelines and corresponding six month ban on film activities, MOPPAN convened a Stakeholders Forum that included representatives from the National Film and Video Censors Board, the Nigerian Film Corporation and the Nigerian Copyright Commission. The consortium of national organizations agreed upon a number of resolutions, full text of which can be found in the Communique.
The resolutions present an interesting dichotomy of respect and anger. The stakeholders agreed to abide by both the national and state laws with respect to making films, and they agreed that more Nigerian films should include and conform with Muslim values. However, the stakeholders also argued that their fundamental human rights were violated in the creation of these new guidelines and related six month suspension imposed on film activities in Kano state, because the government did not give the film industry a chance to defend itself. The resolutions seem to say, "we respect the Muslim faith and culture and agree that your actions would be warranted had we insulted the faith in anyway, but we have not; you are punishing us for something we did not do, and that is unfair."
The movie industry is one of the most important sectors of the Nigerian economy and a major proponent for increased enforcement of intellectual property laws.
[Image from http://www.ngex.com/nigeria/places/states/kano.htm]
Despite the poor state of the available equipment, Aouragh has disclosed that Algeria is still ranked third in Africa in terms of scientific research performance, having received seven innovation patents and following the publication of 2,500 research articles that had been published in different scientific magazines worldwide.
Friday, 16 January 2009
Judge Harms has also accepted the position of Professor Extraordinary at the University of the Free State, and the article based on his inaugural lecture is compulsory reading for all IP practitioners. The title ‘ A few negative trends in the field of intellectual property rights’ says it all, and his analysis of the proposed IP Laws Amendment Bill of 2007, which will allegedly protect all traditional knowledge, is scathing. It can be found in the most recent issue of the Journal for Contemporary Roman-Dutch Law (Tydskrif vir Hedendaagse Romeins-Hollandse Reg) 2009 (72) THRHR 1.
Thursday, 15 January 2009
According to the Department of Science and Technology "The specific object of the legislation is that intellectual property emanating from publicly financed research and development should be commercialised for the benefit of all South Africans, and protected from appropriation."
This new Act is intended to provide for an enabling environment for intellectual property (IP) creation, protection, management and commercialisation, and the country's knowledge-generating institutions would now have clear guidance on how best to manage IP, as well as how to ensure that publicly financed IP went out into the market place and was used.
"Key to this, the law is aimed at facilitating the creation of new knowledge that is derived from public funding and to secure this knowledge in the form of IP rights, including, but not limited to patents, for IP that could have economic and social benefits."
The Bill came in for some criticism, not only because it envisaged a complex regulatory environment, which some felt would stifle, rather than encourage, research.
One of the articles on the Bill, Coenraad Visser’s “Intellectual Property Rights from Publicly Funded Research: The Way to Research Hell Is Paved With Good Intentions” (2007) SA Merc LJ 363) describes the Bill as ‘flawed by a misunderstanding of basic intellectual property concepts and tenets’. One can only hope that the Act, when available, shows that this, and other criticism, has been taken into account.
Wednesday, 14 January 2009
Last week, the Nigerian Copyright Commission (NCC) raided the Calabar office of Multimesh Communications, a Nigerian telecommunications company. The raid was conducted on the basis of a complaint lodged by HiTV claiming that Multimesh was pirating HiTV's broadcasts of English Premier League games.
Both Multimesh and HiTV claim their respective behaviors are appropriate. Multimesh asserts that it has secured and paid for a license from HiTV to broadcast English Premier League games in two areas of the country, "South South and South East." Therefore, its broadcasting of games in these areas was not piracy. HiTV, however, claims that negotiations were only entered for a license to rebroadcast in the city of Port Harcourt and that those negotiations fell through before a license was issued. Since no license was issued, the broadcasts were illegal and the raid was justified.
Multimesh has petitioned the Attorney General and the Minister of Justice in the matter. The company feels that the NCC and HiTV are in cahoots to eliminate them from the market, and it wants the government to step-in and stop the duo from achieving this outcome. Multimesh would also like the return of its equipment that was confiscated in the raid.
Whether either the Attorney General or the Minister of Justice (who oversees the NCC) will step-in on behalf of Multimesh is not clear yet. It is also not clear if the NCC will be bringing its own case against Multimesh on behalf of HiTV for infringement. It appears that a major question in this case will be: did Multimesh and HiTV have an agreement? The role of funds deposited by Multimesh into HiTV's accounts may play a large role in determining if as agreement in fact existed. (Read the whole news report from The Vanguard here.)
Tuesday, 13 January 2009
Monday, 12 January 2009
"Since a majority of medicines manufactured by Indian companies are under patent protection in some country or the other (though they do not enjoy patent protection in India or Kenya), the definition, in its current form, can be misused to delay or prevent supply of low-cost generic medicines to Kenya, industry experts fear. Kenya imported Rs 342.4 crore worth of medicines in 2007-08. Africa accounts for 14 per cent of India’s $8-billion medicine exports.
“African countries have been the most vocal critics of Indian pharmaceutical industry for export of sub-standard and counterfeit products for the last several years. We have expressed our concern about such exports time and again and even suggested measures to address the concerns. Kenya’s Anti-Counterfeit Bill, if enacted, will ring the death knell of India’s pharmaceutical exports to African countries as others may follow suit”, says DG Shah, secretary general, Indian Pharmaceutical Alliance (IPA).
Incidentally, a majority of the African nations and India are on two sides of the table in the ongoing talks to review the World Health Organisation’s definition of “counterfeiting”. While India opposes all attempts to link intellectual property issues with “counterfeiting”, African nations have a different view.
“The Kenyan definition is contrary to the IP Act, 2001, and doesn’t distinguish between different categories of goods (e.g. counterfeit trade mark goods, pirated copyright products) as is done in TRIPs (Trade-Related Aspects of Intellectual Property Rights of World Trade Organisation). The definition is ‘TRIPs-plus’ as it includes non-obligatory issues for inclusion under TRIPs”, Shah complains.
In a letter to the department of pharmaceuticals, Shah has sought the help of the Ministry of Commerce, the Ministry of External Affairs and Indian missions in Geneva and Kenya to convince the government of Kenya to prevent it from taking more international obligations than required under the WTO’s TRIPs Agreement and WHO’s “Draft Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property”.
The letter alleges that “the African lobby did not support India on the Scope and Definition of Counterfeit Medicines at the World Health Assembly meeting in May 2008 in Geneva”. It also says that some of the African members had accused India of opposing the (WHA) resolution to protect its export of sub-standard medicines”.
Thursday, 8 January 2009
Wednesday, 7 January 2009
Is this not an open-and-shut case of trade mark infringement: unauthorised use of an identical mark on identical/similar goods covered by a ManU registration by Necessities or is there a possibility that Necessities could raise a defence like store trader Reed did very effectively against Arsenal in the UK (by arguing that his use of Arsenal's trade mark was as a badge of allegiance to the Club and was not trade mark use)*? Perhaps Manu's logo consists of a coat of arms that requires peculiar steps to protect that have not been followed**? Perhaps Necessities is dealing in grey goods? If there is a suggestion any defence may hold water in RSA***, then what impact does that have on how this case is handled under RSA law? Bear in mind that Necessities (apparently a small trader) is incurring stock holding costs and loss of Xmas profit for merchandise which has been in detained (on a warrant issued unopposed by a non-IP specialist Magistrate) since September. But then again, is such an apparently brand-owner friendly position not acceptable in a country like South Africa where counterfeiting is so rife that any benefit of doubt as to whether an item infringes or is counterfeit, should sit with the rights holder?
There are commercial issues too for ManU. The football club does not receive royalties on merchandise that Necessities sells and there is also the risk that such merchandise is sub standard, effecting their brand overall. However, the merchandise is sold to fans who they risk marginalising, possibly by a fan who they are now suing (according to the Argus Report, a small local trader) who has apparently not yet had a chance to have his say. How unfair? Or is it? The real risk to ManU is that if it continues to allow its brand to be sold in an unlicensed fashion it faces the prospect of losing the brand to the public altogether so one cannot blame them for being vigilant. But is court action their only recourse? Is there not a case for legitimising Necessities by making and training them to be a licensee or are they a trader that they would never do business with? Perhaps contact would have put the trader on notice allowing them to scurry away fake goods? No doubt these were all considered beforehand.
* see for example Arsenal v Reed
** Dr Alberts has kindly pointed me to paragraph 3 of the Commercial Auto Glass decision (Harms ADP) and paras 11 and 13 of the Verimark decision where the European cases involving Reed v Arsenal and others were discussed
*** see Manchester Corp v Manchester Palace of Varieties Ltd  P 133;  2 WLR 440 discussed here http://www.geocities.com/noelcox/Ip.htm
Whereas the Somali pirates hold their victims at ransom, the Mombasa residents reportedly are ready and willing to pay as little as Ksh. 2,000 installation fee and Ksh. 1,000 per month for unlimited access to channels such as DSTV, GTV and Al-Jazeera. On average, the official connection fee by each operator is about Ksh 10,000 in addition to a monthly subscription fee of Ksh. 1800.
It should be observed that section 29 of the Copyright Act of 2001 prohibits rebroadcasting of whole or substantial part of a broadcast in its original form or in any form derived from the original. A person convicted of such an offence is liable to a fine not exceeding Ksh. 100, 0000 or to imprisonment for a term not exceeding two years or to both. For the pirates, this is perhaps a small “price” to pay considering the enormous profits they are reaping.
Tuesday, 6 January 2009
In 2007, Nigeria introduced Optical Disc Regulations in order to gain some control over the increasing number of optical disc plants in the country. These regulations require optical disc plants to register with the Nigerian Copyright Commission (NCC). A This Day article reports that not all of the twelve replicating plants registered in 2008 renewed their registration. Notably missing from the renewal list is Akina, the Chinese owned replicating plant that has previously been shut down twice by the Nigerian Copyright Commission for producing pirated discs. Akina's current problems again stem from possible unauthorized reproduction. The plant failed to notify the NCC of two new production lines that began operating last year and failed to pay the requried registration fees for these new lines. Whether the current denial of registration is due more to the failure to report or the failure to pay is a matter of speculation.
The This Day article lists ten other replicating plants that are registered. Director General of the NCC, Adebambo Adewopo said during a meeting of the House Committee on Information & National Orientation in December of 2008 that there are currently 14 optical disc plants operating in Lagos alone, plus others elsewhere in the country. The This Day article makes no mention of the status of any of the rest of these plants.
Monday, 5 January 2009
"Unless Africa significantly increases its intellectual capital, the continent will remain irrelevant in the 21st century and even beyond. Africa needs innovators, producers of knowledge, and wise men and women who can discover, propose, and then implement progressive ideas. Africa’s fate lies in the hands of Africans and the solution to poverty must come from its people. The future that lies ahead of Africa is for Africa to create, after the people have outlined their vision. We owe it to our children to build a firm foundation to enable them go places we only dreamt. For Africa to take center stage in today’s economic world, we have to go out and compete on a global basis. There is simply no other way to succeed."
Afro-IP is about African intellectual property and the people and organisations who strive to protect, create, licence, harness and enforce it, which is why the piece is a useful reminder on Afro-IP's first birthday. Emeagwali lectures that:
"When African men and women of ideas, who will give birth to new ideas, have fled to Europe and the United States, then the so-called African Renaissance cannot occur in Africa. It can only occur in Paris, London and New York. There are more Soukous musicians in Paris, than in Kinshasha; more African professional soccer players in Europe, than in Africa. African literature is more at home abroad than it is in Africa. In other words, Africans in Europe are alleviating poverty in Europe, not in Africa. Until the men and women of ideas — the true healers of Africa — start returning home, the African Renaissance and poverty alleviation will remain empty slogans. After all, the brightest ideas are generated and harnessed by men of ideas."
This may be so but it is nevertheless a controversial and ironic statement to make. Take for example, the case of musicians whose music (their intellectual capital) is grossly underprotected in most countries in Africa - so who would blame them for leaving, on that basis alone? Emeagwali himself is a case in point - his Wikepedia extract reveals that apart from a few very good pats on the back for his achievements (he is mooted as the father of the Internet), he holds no recognised patents for his results and his defining piece of work was not accepted for publication by his peers. Moreover, he studied in the US and appears to still live there, together with the irony.
The links to this article can be found here: http://www.australia.to/index.php?option=com_content&view=article&id=2785:ideas-not-money-alleviate-poverty&catid=93:philip-emeagwali&Itemid=122 and here: http://en.wikipedia.org/wiki/Philip_Emeagwali