Friday, 11 October 2019

Darren Olivier

Cannabis, IP and Africa – 10 things to know

  The cultivation and use of the cannabis plant is ancient. Apart from the market for hemp, dealing in cannabis is still largely an illicit activity. It is only over the last decade that the cannabis market is becoming accessible.

·         A number of countries are now in various stages of decriminalising it with Canada leading the trend, after Uruguay started it. Possession of cannabis is still punishable by death in some countries and is highly regulated in all countries that have legalised it.

·         The size of the African market for cannabis is significant. According to recent data from New Frontier Data, there are 263 million consumers of cannabis products globally of which 83 million are in Africa, or a whopping 32%.

·         Ethiopia, Nigeria and Morocco are the 3 largest markets in Africa. Only South Africa and Lesotho have taken active steps to de-criminalising the cultivation, possession, ownership and use of Cannabis related products. In South Africa, for example, revenue streams from cannabis were a specific feature of the national budget speech in 2019.

·         Hemp is obtained from a strain of the cannabis plant. Hemp contains no or very little THC and is therefore a recognised raw material and has an established market. For example, over 20kg of hemp is contained in a Mercedes Benz C class motor vehicle. The changes in the cannabis market mainly do not include or refer to the established hemp market.

·         The cannabis “market” in South Africa consists of the following broad categories:

o    The established market for hemp that is generally lawful
o    The private possession and use market by adults in private, that is lawful following the constitutional court ruling
o    The regulated prescription market of products by practitioners containing cannabis with material levels of THC and/or CBD content for medical reasons
o    The licensed market:
§  for cultivating and producing cannabis and cannabis resin
§  extracting and testing cannabis, cannabis resin and cannabinoids
§  manufacture of cannabis or cannabinoid containing medicine
§  importation, export and distribution of cannabis containing medicine
o    The market for products bearing a low THP and/or CBD content that have been sanctioned for 12 months since May 2019.
o    The remaining “market” which is illegal.

·         Intellectual property (IP) has a considerable part to play in the cannabis market. Conceptually, IP is a legal mechanism to stimulate innovation by balancing effort with reward in the form of exclusivity or a monopoly. For example, the reward for a new pharmaceutical product containing cannabis is 20 years provided that the owner explain how it works so that other can benefit from either improving it or using it after the patent has expired.  

·         Relevant forms of IP or related considerations include:

o    Registered trade marks – used for protecting all distinctive features such as names, logos, packaging and vital protection for that first to market advantage. Registered for 10 years, renewed indefinitely.
o    Designs – used for all those visual attractive features and functional forms, as well as two dimensional logos applied to packaging. Not a bad option for immediate protection as they can often be obtained quicker then registered trade marks. Can give on 10-15 years protection.
o    Plant Breeder rights – if you are cultivar looking to protect innovation or new varieties then these rights can give you a significant advantage, up to 20 or 25 years depending.
o    Patents – although plants themselves are not protected, infused products could be or methods of extraction or production. A great form of protection for all things new and inventive, including any pharma products, for 20 years.
o    Copyright – a lengthy free form of protection for all drawings, databases, logos, formulations, recipes, training manuals and anything creative reduced to material form.  
o    Trade Secrets and knowhow – keep your methodologies and the secret sauce, secret and it could well last forever as knowhow protection. These are kept that way through agreement obligations and through practical measures.
o    Geographical indications – are relevant for state or regional protection of methods of production or notoriety of regions in relation to cannabis. They work like “champagne” does for sparkling wine or “gorgonzola” for cheese or “rooibos” for tea.
o    Internet names – such as domain names, Twitter handles and Facebook profiles will be relevant but please be aware that online advertising for drugs and cannabis is largely not allowed by most mainline social media channels.
o    Licenses – in many instances, permission for cultivation and the like of cannabis is regulated by the state. Those good enough to secure licenses enjoy a natural scope of exclusivity relative to those that are unable to obtain a license, for the period of the license

·         The use of intellectual property can not only protect market share and entrance but raise the value of the company. These intangible rights require proper management to be effective. They may also need to be enforced.

·         Enforcement of IP rights can take place through the courts, advertising authorities, customs (especially for counterfeit goods) and through strategic use of watching services and, of course, your friendly lawyer.

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Wednesday, 4 September 2019

Afro Leo

UJ's Annual Treat: 24 October - Don't Miss It!

Once again Prof Wim Alberts has put together a stellar program for the annual IP seminar from the University of Johannesburg. The seminars are always packed so be sure to sign up as soon as possible.

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Thursday, 22 August 2019

Darren Olivier

Diversity and Inclusion in IP: South Africa's opportunity

Yesterday, leading publication Managing Intellectual Property, published a Special Report on Diversity and Inclusion within the IP profession following a survey they conducted in July. The report can be viewed in full if you login as a guest subscriber, and it's worth a read. It will resonate with each and every one of you, but if that does not motivate you to read it, the fact that two thirds of in-house counsel advocate a diversity and inclusion policy, as one of their factors in choosing outside counsel, may just. 

For a South African, diversity and inclusion has been a subject of constant discussion for decades. Our unique past has made it that way and there is no respite because it remains as topical and important today. One may think that the South African discussion focuses only race and colour and less on other minority or alienation interests. There is no such thing as a "gender card", for example, but the term "race card" is easily understood, even by primary school children.

However, with the discussion on race and colour come the broader terms - discrimination, empathy, unconscious bias and understanding - which are so vital to dealing with the all aspects of diversity and inclusion. This is why I believe that South Africans can have a major part to play in the worldwide discussion on addressing the issues, so evident in the MIP report. In fact, I believe that South African firms and individuals have a unique opportunity to lead the discussion and debate on this aspect, and they should take it.

This is not to say that South African firms are diverse and inclusive and set the standard for a worldwide model. They, like many others, are simply not there yet. The opportunity lies in the daily conversation. There must be very few places on earth where, on a daily basis, a person will engage with others of such a broad spectrum of backgrounds, ethnicity, race, gender, means and cultures. With some self awareness, empathy, patience and fortitude there is an instant and live opportunity to practice and engage with the challenges and benefits of diversity and inclusion. 

The thing about South Africa too is that the polarising forces that are evident in worldwide politics today are too precarious here, to contemplate. We are destined to have the discussions, whether we like it or not, and with that comes unique advantages that enable us, as South African IP practitioners to develop skills and experience to contribute positively to the topic that the MIP Special Report highlights.

(edited on 23 August to remove a direct link to the Special Report, on request)

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Tuesday, 20 August 2019


Resources on the CAB debate: all the links you need!

South Africa: The Copyright Amendment Bill is presently on the desk of the President awaiting signature. There has been furious debate over the Bill, with supporters and detractors uniting on one of two predominant sides to voice starkly different opinions as to what the destiny of the Bill should be. For those who would like to understand the debate, Afro-IP has compiled this post containing links for further reading on the Bill and those engaging in activism surrounding it.

A group called ReCreate has emerged supporting the Bill. Recreate represents a spectrum of creatives, trade unions and members of civil society evidenced by their home page. It drafted an open letter advocating for the Bill to be signed in its current form and recently convened a seminar on Decolonising Copyright where the need for copyrighted items to be made accessible in a manner suited to the South African context was discussed. One of the most hotly-contested aspects of the Bill is the doctrine of “fair use,” which is introduced by the Bill. Recreate argues that this is in the interest of all South Africans and will not prejudice, but rather encourage creatives. It highlights that “fair use” will facilitate the realisation of rights such as the right to education. A further motivation behind their support of the Bill is that it will make copyrighted works more readily available to people with disabilities, for instance by allowing written works to be printable in braille.

The Coalition for Effective Copyright (“Coalition”) came into existence with a view to prevent the Copyright Amendment Bill from being signed into law in its current form. The Coalition represents creatives in the industry who do not support the Bill. Once the National Assembly and National Council of Provinces approved the Bill earlier in 2019, the Coalition formally petitioned the President not to sign it. A seminar was recently held, entitled “On a Knife’s Edge” under the auspices of Adams and Adams where the Coalition was represented by its spokesperson, Collen Dlamini who moderated a panel discussion where the need to alter the course of copyright reform was discussed from an industry perspective. The Coalition claims that the Bill does not pass constitutional muster on the basis that its prescripts amount to deprivation of property without compensation, that it has been tagged incorrectly, that inappropriate authority has been delegated to the Minister of Trade and Industry, that there has been inadequate public consultation, and that it violates the right to freedom of trade and occupation.

The pattern of passage of the Bill through Parliament prior to reaching the president had essentially 5 prongs. Debate of the Bill took place throughout the process, it was released for public comment, public hearings were held, it was passed by the National Assembly and then the National Council of Provinces. As is customary, the Parliamentary Monitoring Group kept records of the process with the debates and submissions of all parties concerned being made publically available. The Department of Trade and Industry, as the ministry responsible for copyright reform, has also made public all of their submissions on the Bill as well as their responses made to issues raised by the public in the parliamentary hearings concerning the Bill.

According to section 84(2) of the Constitution, the President is faced with a number of choices. He can either sign the Bill into law as it stands, refer it back to the legislature for its consideration and subsequent to this if he deems necessary, refer it to the Constitutional Court for its consideration. As is clearly evident, the proponents and naysayers will not have a meeting of the minds any time soon and it is anyone’s guess what will ensue subsequent to the President making his choice. All that is evident is that seemingly everything in copyright law is up in the air and that a resolution is urgently needed.

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Monday, 12 August 2019

Afro Chic

The Copyright Amendment Bill: Where to from Here? Aluta Continua!

South Africa: The much-discussed Copyright Amendment Bill is in a critical point in the post-legislative phase. It has been passed by the National Assembly and the National Council of Provinces and is currently on the desk of the President. Questions have swirled about its constitutionality and a delay in its being signed has prompted rumours that the President is having doubts but what his options are and where to from here? Afro Chic explores.

As long as the Bill remains a Bill it is a living document, subject to change. Of course, the President can conclude that no changes are required and can sign the Bill into law, promulgating it into an Act as per the provisions of section 84(2)(a) of the Constitution. Such a step is taken when the President has satisfied himself that the Bill passes constitutional muster. This is what the Department of Trade and Industry (the Department/DTI) feels ought to be done. After what they indicate was a long period of consultation and efforts to ensure that the Bill is in compliance with international treaties and standards set by the World Intellectual Property Organisation (WIPO), the Department feels that the Bill ought to be signed into law forthwith and as it stands. It has been averred by sources that the delay in signing could well emanate from there being over 18 Bills awaiting signature and that the President has to to work through all of them, resulting in the process being stalled for now. It has been highlighted that the Bill, once it becomes an Act will serve as an instrument of ratification for the, WIPO Copyright Treaty illustrating compliance with this treaty.

Of course, not everyone agrees. The Coalition for Effective Copyright (the Coalition) has clearly set forth that it feels the Bill is unconstitutional as it is of the view that some of its provisions, for instance those surrounding “fair use,” amount to arbitrary deprivation of intellectual property without compensation; something prohibited by the Constitution in section 25. They are of the opinion that it ought to be referred back to the National Assembly for reconsideration of its constitutionality in terms of section 84(2)(b) of the Constitution with a possible referral to the Constitutional Court for a decision on the Bill’s constitutionality as per section 84(2)(c) on the cards and as done in cases such as Ex Parte the President of the Republic of South Africa In Re: Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC). The Coalition claims that consultation was inadequate and that many of the provisions of the Bill do not accord with the prescripts of international law. In the event that the Bill is passed by the President, the Coalition has indicated that it will mount their own challenge to the Constitutional Court with a view to invalidate the offending sections of the legislation. It would then be sent back to the legislature for it to correct the defect the court has identified and ruled upon, if any.

One means of determining the constitutionality of the Bill lies in section 36 of the Constitution; that is the limitation of rights in terms of law of general application. Rights are not absolute and the exercise of the rights of one individual or group should not “spill over” and violate the rights of another.  Conversely, some limitations can be fair and ought to be permitted. In analysing whether a limitation is justifiable or not, section 36 provides certain factors that must be taken into account, specifically 1(a) the nature of the right; (b) the importance and purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; (e) less restrictive means to achieve the purpose. This is a process of balancing of interests that would certainly be utilised in any constitutional challenge by parties on either side.

The path forward is thus far unclear. The President has his options as do the naysayers of the Bill. It would appear that either way, the constitutionality question will play a big role in the process of finalisation. As we wait for the outcome with bated breath, let us hope that the President will be guided by a basis steeped in proper evidence and that due consideration is given to the intricacies and effects of this important Bill. 

Image Credit: Thomas Martinsen

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Afro Chic

Decolonising Copyright: Building our Creative and Information Economy

On the 7th of August 2019 RecreateSA convened a seminar in association with the South African Guild of Actors, the University of the Witwatersrand’s Library, Blind SA, the University of Cape Town’s IP Unit, the South African Democratic Teacher’s Union, Washington College of Law’s Programme on Information Justice and Intellectual Property and the University of the Witwatersrand’s Institute for Social and Economic Research. The seminar was entitled “Decolonising Copyright: Building our Creative and Information Economy” and took place in the Senate Room of the Solomon Mahlangu Building.

Tusi Folane outlined that RecreateSA- who she represents- is constituted of a broad spectrum of stakeholders including creatives, activists and trade unions who are all interested in what the Copyright Amendment Bill could mean for them and the work that they do. At the seminar, she highlighted, the aim is to interrogate who stands to profit or benefit from copyright reforms. She indicated clearly that one of the objectives was to accommodate the views of all and for participants to expose themselves to different narratives. Some have been very vocal about pending law reform, making the claim that we are “on a knife’s edge.”

Mandi Vundla then presented three poems surrounding creativity, ownership and sharing. A short film was scheduled to be shown at this point on the expressed need for the Copyright Amendment Bill but due to technical difficulties it was shown later on in the programme. In the film a spectrum of interested parties’ views were expressed, among others a university student and a law professor, both of whom expressed the need for proliferation of information.

Professor Adam Habib of the University of the Witwatersrand delivered the Welcome and introduced the speakers. He explained the fundamental nature of decolonisation (it's about contextualisation) and discussed the tensions within his own university with regard to copyright reforms. He had the Library, on the one hand which would like to start enabling open access to journals and knowledge that is collectively produced and Wits Press on the other hand who feared for their sustainability in the event that this became a reality. He posed the question as to how these competing priorities ought to be married. This is, he said, the purpose of these discussions.

The keynote address was delivered by Professor Ruth Okediji, of Harvard Law School and Co-Director of the Berkman Klein Center for Internet and Society at Harvard University. She discussed copyright in the context of development. The history of intellectual property in South Africa is both factually and theoretically complex. Questions in this regard, she said, will lead South Africa’s process in determining what the law is supposed to deliver. In terms of norms, constitutions and cultures, the reality is that much of copyright law remains ill-suited for the socio-cultural and political landscape in Africa. She then went on to highlight that access to knowledge goods is crucial for development and that policy-makers must thus deal with options that offer different outcomes in intellectual property and copyright law. There is a complicated system of checks and balances needed, she explained and there is tension between rewarding creativity and remuneration and in ensuring diversity. It is all very well, she said, to compose a creative work like a book, but if the book is simply warehoused and nobody reads it, it doesn’t mean anything. We have to have both creation and dissemination to promote social welfare. It is not just individual benefits to creators that is important but also the interests of the public- shaping debate, educating and having a vibrant public domain.

Subsequent to the keynote address was a panel discussion consisting of Ben Cashdan, a filmmaker and television producer representing RecreateSA, Justice Zak Yacoob formerly of the Constitutional Court of South Africa, Professor Daniel Mashao of the Faculty of Engineering and Built Environment at the University of Johannesburg and Mugwena Maluluke, of the South African Democratic Teacher’s Union.

Cashdan expressed that there have been threats by multi-nationals that their support of South African work would be withdrawn if the Copyright Amendment Bill is passed. He indicated that this is because although other jurisdictions have principles such as “fair use,” South Africa adopting this will cause their deals to be less lucrative. He indicated that we must not allow multi-nationals to threaten us. He further highlighted that it is through monopoly power that there arises a situation of exclusionary pricing- something we cannot accept. He pointed out that fair use only allows work to be copied reasonably, so if, for instance, the work is priced absolutely excessively. He said that whether use is fair is an enquiry satisfied by answering questions such as: What is the nature of the original? How much is used? What are the effects on the profits?\

Yacoob indicated that on the basis of Constitutional prescripts that fair use is justifiable. We want to improve upon the quality of life of all people- not only the powerful but the majority. We have to look at where the majority of South African’s are situated. They live in terrible conditions, he expressed. Colonial dispensations were derived overly from freedom and on capital gain while the Constitution is based on human dignity, equality and freedom. Importantly, he said, the Constitution contains the right to freedom of expression- that is, the freedom to receive and impart information. There is a dynamic between the two. Most important, he illustrated, is that rights can be limited by law of general application as long as the limitation is based on human dignity, equality and freedom. Yacoob highlighted that we have a society committed to improving the human condition- trying to achieve the appropriate balance. The balance we get, he stated, develops a civilisation as we understand it and fair use does do this through ensuring that people can access rights such as the right to education.

Mashao discussed the Fourth Industrial Revolution (FIR). He indicated that it is a fusion of technologies producing new business models which produce new value systems. The FIR has four components- digital, biological, physical and energy and the environment. It will provide many opportunities for copyright, he stated. It will enable, for example, the recouping of invested creativity, time, money and resources. He highlighted that it is important to note that while copyright supports creativity, it can also stifle innovation and that this is something that could do with change.

Maluluke shared experiences of children having one book between five of them at schools, copying each other’s work because it was too hard for all of them to get a turn with the textbook. He discussed the exorbitant price of textbooks and how many of them are cheaper overseas. He stated that a point that has been well-noted by United Nations Rapporteurs is that education has to be accessible. We need to make sure that even students in the most remote of areas have proper access to education. In South Africa, he pointed out, five companies monopolise 71% of publishing. This drives up prices, making education inaccessible to poor learners. In an analysis of what we need, he suggested that a number of factors be taken into account: facet; numbers; experimentation; language; culture and changing power relations.

In the discussion subsequent to the panel discussion, questions surrounding collecting societies, 25-year reversion and royalties emerged.

The event was a fantastic conversation-starter and provided deep insight into different perspectives surrounding pending copyright reform. It is our hope that such rigorous debate can continue around these important issues.

Brought to you by Afro-Chic.

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Critics of South Africa's Copyright Amendment Bill Gather

This seminar took place at World of Yamaha in Sandton. The venue, an auditorium on the premises, was packed to capacity with over 300 participants, and proved to be an ideal and well thought out choice to host the event, not only because of the huge turnout but also the quality of sound during the panel discussions as well as the entertainment in between.

Breakfast was served in the foyer just before the seminar kicked off, and consisted of a tasty variety of sandwiches, cold meat, salmon, cheese, fruit and even muesli with yoghurt!

To kick off the discussions for the day, a music video featuring various South African artists singing “Vikela Mina”, which translates to “protect me”, resounded at the venue.  Vikila Mina, inspired by President Cyril Ramaphosa’s use of Hugh Masikela’s “Thuma Mina”, in his first State of the Nation Address, is a cry to President Ramaphosa to protect the copyrights of South African artists. The dominating views of the speakers and audience is that the President should not sign the Copyright Amendment Bill because, according to them, it is seriously flawed and will not protect, as the song title pleads. The Bill, which has been approved by Parliament, has been submitted to President Ramaphosa for his imminent approval, or rejection. 

The seminar took the shape of a discussion rather than a debate. The participants and panellists consisted of a healthy mix of legal practitioners and creative minds from the arts and entertainment industry, which resulted in discussions that were easy to follow even for the layman.

Where the legal experts shared on their experiences during the apparently rushed consultative process with Government and the submissions they made, the creative minds from the music and film industry gave practical examples of the challenges with the current outdated current copyright legislation, and the impact the Bill would have on their work, if adopted in its current state. The speakers in the third panel focused on international perspectives, challenges and opportunities.

The “fair use” doctrine appeared to be the most controversial aspect of the Bill, which if approved, will introduce a US styled approach that the critics feel will be counterproductive and have unintended consequences.

Though there was a general consensus that there is a need for further consultations and proper research and impact assessment before the Bill can be approved in the South African context, there were a several participants who felt there had been enough consultation and that Government had to come up with the amendments in order to protect artists.

There was so much to discuss that even a week’s seminar would not have been enough. These appear to be the main takehome aspects:
  • From a domestic perspective, the Bill in its current state is flawed and does not meet constitutional muster; 
  • The Bill fails to meet international standards in line with the Berne Convention and TRIPS, both of which South Africa is signatory to; 
  • The Bill has the potential to be best in class legislation especially for developing countries. Consequently, there is a need to look and consider in depth, other best practices and identify how to align with them; 
  • Missed opportunities which should have been addressed by the Bill include the so-called “value gap” which sees big digital providers benefiting at the expense of artist and authors, as well as the  introduction of a private copy levy; and 
  • There is a need for further industry engagement with Government and to this end both legal stakeholders and industry must engage positively with Government.
For pics of the event, please check out the Sightings section here.

This post was brought to you by Afro-Elle. 
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