Sunday, 13 August 2017

Aurelia J. Schultz

First International Conference on Law and Digital Technology Explores Number of IP Issues for Africa

Babcock University torch at entrance to main campus
Little Leo recently had the privilege of attending the First International Conference on Law and Digital Technology hosted at Babcock University in Nigeria.  The ambitious conference title was well met during the two-day program with sessions covering everything from e-banking and e-health to Nigeria’s space program and international shipping law.  As may be expected, several sessions touched on intellectual property issues, and Professor Emeritus I.O. Agebede set the conference tone in his welcoming address with a charge to all to let law be a moderator of technology.

The Impact of Digital Technology and E-Commerce on Other Areas of the Law

Professor Joke Oyewunmi opened this session very optimistically, pointing out that Nigeria has the tools: the largest number of smart phone users and the most room for growth.  The point is, Prof. Oyewunmi stressed, to "enable our systems to use what we have to get what we want."  The speakers on the panel outlined ways e-commerce can be improved to improve Nigeria.  The draft copyright act was highlighted as one improvement, particularly for its provisions introducing ISP-liability for copyright infringement and addressing circumvention of technological protection measures.*  The Cybercrimes Act 2015  [more on this act] and the Nigerian Information Technology Development Agency (NITDA) were two other pieces highlighted as helping strengthen e-commerce in Nigeria.

In terms of needed changes to help e-commerce, Dr. Vera Ekundayo spoke about the need for more certainty on the validity of e-contracts in Nigeria.  Her research with Dr. Dorcas A. Odunaike found that there is little case law on clickwrap, browserwrap, or shrinkwrap licenses in Nigeria.  Overall, the Nigerian legal system needs a deeper awareness of the benefits of functioning e-contracts.  Adedotun Olusanya added that one of the main challenges for e-commerce is finding the correct price for intangible IP products, such as music, movies, etc.  This, indeed, is a problem companies around the world are trying to sort out.  He also discussed the need for companies, particularly start-ups, to have a better understanding of all the IP assets involved in a company: databases, copyright, design, patent, trademark, domain names, trade secrets, and know-how.  He urged IP attorneys to do more to help educate start-ups so they can succeed in the e-commerce field.

Even the seemingly-IP-less presentation "Information and Communication Technology for Shipping Operations: A Review of the Master and Crew in Maritime Employment Law" included potential ramifications for intellectual property.  Traditionally, the captain of a boat is responsible for the contents and everything that happens on the boat, not the owner of the boat.  The law developed this way because out at sea, the captain had all the control and the owner none.  But with new technology, the captain and owner can stay in constant communication, the owner can actually receive detailed data about the boat, and the owner can make decisions about things like cargo and course.  This may mean new legal responsibilities for boat owners, including responsibilities for the legality of their boats' cargo.  The law is changing, and new rules aren't settled yet.  Ship owners beware.  If you own a container freighter, say one that goes between China and Africa, you may suddenly find yourself liable for a whole lot of copyright and trademark infringement.

E-ADR: The Impact of Technology on Dispute Resolutions

Although this isn't a strictly-IP topic, it is one of importance for the area because of the difficulties IP-owners often site with attempting to bring cases in court.  Alternative dispute resolution (ADR) gives IP-owners another method to enforce their rights.  David T. Eyongandi introduced a number of global e-ADR platforms, highlighted the benefits such platforms can provide to Nigerians, and discussed changes necessary for these platforms to truly work in the country.  e-ADR can avoid complex jurisdictional issues, which can be a huge benefit for intellectual property creators who often have partners and audiences across the continent.  It is also relatively cheap and convenient compared to either court or in-person ADR. However, if e-ADR is to be a legitimate option for IP-owners in Nigeria, the law needs to clarify that electronic agreements with electronic signatures do count as "writings" under the ADR law; Nigerians need reliable power supply and internet connections so they can stay connected to the network long enough to complete e-ADR sessions; and Nigerians need to be assured of the confidentiality and security of their conversations that take place during e-ADR.  Eyongandi also recommended that a Nigeria-specific e-ADR platform be developed.

Techno-Jurisprudence, E-Justice, E-Terrorism and E-Governance

As discussed above, the session on e-commerce talked about changes to the law that help secure IP rights in an e-commerce environment.  The techno-jurisprudence panel added some more, namely the recognition of electronic evidence in the 2011 Evidence Act.  Kingsley Osinachi N. Onu pointed out that although the law is there, this is only a first step.  In his research with Aniekan Andikan Ikpinyang, the pair discovered that the law's two subsections for authenticating electronic evidence are creating confusion.  Sections 84(2) and 84(4) both provide means for authentication.  Sometimes judges allow one method, sometimes they require both.  Onu recommended that more details be added to the law so that courts treat all e-documents the same.

New Dimensions for Copyright Works in the Digital Era

Now this one we can definitely see is IP straight off the back.  Dr. Ifeoma Oluwasemilore discussed open access and made a recommendation that Nigeria not join the WIPO Internet Treaties as she sees the requirements in these treaties impeding the goals and workings of open access.  Her presentation on open access was a little different than others Little Leo has seen on the continent as it was to a less-agreeable audience than usual on this topic.  Many were skeptical about losses to academics who might otherwise receive royalties for their publications.**

Bayo Ayo gave a count of the on-going collecting society saga in Nigeria, in which he has been involved for over two decades.  [Afro-IP has covered a good portion of the last decade of this battle with at least six different authors writing on the topic; relevant posts can be found here and here.]  Ayo cited the 2004 Copyright Act stipulating that there should be one CMO for each area that "adequately protects the interest of that class of copyright owners."  (Section 39(3).)  Up until April of this year, Nigeria had three main collecting societies: Repronig for reprographic rights, COSON for the music industry, and AVRS for the movie industry.  But on April 17th, the Attorney General gave approval for MCSN to return as a music collecting society, along with COSON.  This is the on-going battle.  So far, there are no specifics on how the two will co-exist.  Will they compete?  Will they complement?  Will time even tell?

In addition to the confusion surrounding the music collecting societies, Ayo pointed out other challenges that have led to Nigerian copyright owners earning more royalties from foreign collecting societies than from their own.  These include low data on tracking use of works, especially online uses of work.  John Asein, Executive Director of Repronig, was more optimistic on the ability to track uses, highlighting new tracking technologies such as DJ monitor.  Additionally, he urged collecting societies to have proper industry practices and to charge royalty rates appropriate to the market rather than attempting to charge 'international' rates across the board.

Artificial Intelligence and the Future of Innovation and Technology in Nigeria

Also of interest for attorneys following this blog, the conference addressed an issue creeping up on all of us: the effect of artificial intelligence on the practice of law.  Little Leo was impressed with the approach taken by all the speakers who acknowledged and highlighted legal tasks that could be done by AI in the near future.  She has heard the same topic oft discussed in the U.S. where attorneys take more of an ostrich approach and insist they are too special to be replaced by computers.  Various presenters discussed aspects of their practices that they could see artificial intelligence handling, including contract and license drafting.  Interestingly enough, Professor Bankole Sodipo pointed out that manufacturing jobs are unlikely to be turned over to AI in Nigeria the way they were in the West.  This is because most manufacturing is done by individual craftsman.  [Indeed, that is one of Little Leo's favorite things about coming to the continent, the ability for anyone, even of modest means, to have many items custom made for them: clothing, furniture, window grates.  These are luxuries available only to the very rich in the United States.]

2nd Annual?

The organizers at Babcock hope to follow-up this First International Conference with a second and third and so on.  Those interested in future programing can contact the organizer, Dr. Arowolo, here.

*Note: the introduction to the last public version of the draft Nigerian copyright law stated that changes in the law are intended to implement the WIPO Internet treaties (WCT and WPPT), among other agreements.  The public comment period for the law has ended, so the dedicated portal for the draft, http://www.reform.copyright.gov.ng/, is no longer available.
**Many scholars in Nigeria publish books with local publishers rather than publishing in international legal journals which are rather notorious for not paying royalties.  Whether these locally published books result in substantial royalties for the authors, Little Leo knows not.  She will however, remark that such publications are much more difficult to find outside of Nigeria than articles from said journals.
Little Leo with Dr. Ayoyemi Arowolo and John Asein

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Tuesday, 8 August 2017

Darren Olivier

Dimensions of a Tour De France Sponsorship

Recently I attended an inspiring and interesting presentation involving sports sponsorship. Hosted by Price Forbes, Ant Garstang took us through Dimension Data and Qhubeka’s journey to compete and partner in the greatest cycle event on earth, in a two hour talk.
The Tour de France needs little introduction but perhaps the best way of describing the scale of the TDF event is to borrow the jaw dropping infographic contained in BusinessInsider’s portal: Tour de France, world's biggest annual sporting event, is an amazing race and breathtaking logistical feat. Click and peek, then read on.
The presentation was an informal, anecdotal account of what the tour is about that gave one the feeling of being privy to an inside scoop on the drama that is the TDF. And there is drama, from “Cav” being knocked off his bike by Peter Sagan’s now infamous elbow to the logistics of feeding riders an equivalent calorie intake of >40 odd hamburgers a day (and a few pomme frites no doubt) from different local kitchens, as the tour travels. All very interesting indeed, especially the firsthand accounts.
To the uniformed, Dimension Data are the headline sponsor of a team competing in the TDF. They also provide groundbreaking technical services to the Amaury Sports Organisation (A.S.O) the owners of the TDF enabling the viewer and competitors access to data such as speeds, times and distance, relating to the race and competitors in an unprecedented way, realtime.  Price Forbes are insurers of Dimension Data. Qhubeka is an inspiring charity which gives purpose to the riders and opportunities for sponsors to leverage off the good that they do.
Apart from the intrigue of the race itself, the human machines that compete in it and the logistical operation that follows the event daily, the presentation to an IP lawyer is equally, if not more fascinating, in other ways. These observations stood out:
The Philanthropic Message
There seems no doubt that Dimension Data’s partnership, through Ant, with charity Qhubeka and the Team is attractive. The fact that the companies have African heritage, empower African cycling and Africans must have created a compelling message to the TDF event owners that enabled them to be involved in such an elite event. For this to have made sense, both the company and the charity needed to be world class, innovative and have a track record. Put differently, both the event and the sponsors were able to leverage off the philanthropic and empowerment message which is significantly more compelling than the usual pay-to-play sponsorship package. To understand this point better it is worth reading the Dimension Data website which details their history in cycling and the relationship with the Team and the Qhubeka Charity. A stand out from Qhubeka is that their own message is neither patronizing nor stereotyping of Africa and its people; they identify a problem and explain how bicycles can fix it. In philanthropic terms, this is desirable.
Senior Executive Engagement
I have always felt that unless there is board level support in a top level sponsorship deal, it is unlikely to succeed. Sponsorship often simply creates the platform to promote a brand. That platform is created through the event or initiative. However, the ability and desire of the brand itself to use that platform creatively is what differentiates a poor sponsorship from a bad one. In other words, the sponsorship agreement is where the relationship only begins. Dimension Data’s Senior Executive has/had some cycling enthusiasts and clearly supported the decision. This quite obviously galvanized others to innovate around the concept and make a success of the partnership. There are other examples where the board inherits a sponsorship from a previous leadership group, or changes the direction of the company so that it no longer fits with the sponsorship alignment. In those cases the sponsorship will inevitably not deliver.
Return on Investment
It is often difficult to know what exactly is achieved through a sponsorship. Yes, the relationship looks and feels good, gives brand exposure but it can be very difficult to measure. Red Bulls F1 sponsorship cleverly positioned their energy drink and the results could be measured in sales, I imagine, quite instantly. For a technology service provider I suspect that the ROI is not as tangible. The same would be the case if a law firm sponsored a golf event. However, discrete measurables are becoming more available and increasingly useful as a gauge of the effectiveness (or not) of a sponsorship. Social media activity, website traffic monitoring, granular viewership information, social return on investment algorithms and increasing access to benchmark norms and information make sponsorship easier to track, assess and ultimately negotiate. In this instance, the fact that Dimension Data are both sponsor and service provider must have also made the ROI more attainable. In addition, the return is not just a measure of sales return but brand positioning and awareness. 
African companies are no strangers to global sponsorships. The presentation provided a unique insight on what appears to be a very successful and innovative partnership. Thanks to Greg Dillon for the invitation and to Price Forbes for their wonderful hospitality.
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Tuesday, 25 July 2017

Afro Chic

When Fashion Meets Mother Teresa, Louboutin, Louis Vuitton and Vilakazi Street Soweto

Nothings catches my eye like a little bit of fashion controversy and there is a been quite a bit in the news lately.

The BBC carried a story of why it was necessary to trade mark the dress/uniform of Mother Teresa, explaining, quite rightly in my view, that sometimes IP registration is required to preserve rather than to exploit. This BBC piece has implications for legacies too - the Nelson Mandela Foundation, for example, advocates that despite the best wishes of the icon not to commercialise his name, it is still necessary to protect it.

Then there was the opinion of AG Szpunar to the Court of Justice of the European Union that a red sole (in the context of a question involving of the famous Louboutin shoes) may not just be a colour but could also function as a shape in the context of the European Trade Mark Directive. The IPkat's Eleonora provides commentary here. This case will influence how African registries and courts protect colours and shapes. In particular it seeks to address the following, according to the post:

"Can a colour be considered akin to a shape, so that a sign that consists exclusively of a colour "which gives substantial value to the goods" cannot be registered as a trade mark?"

The answer appears to be yes, it can, and so the ruling of the Court will be interesting.

Closer to home, the IPLive blog of Adams & Adams is promoting their #IPEvening Series using the recent controversy over Basotho designs and well known fashion house Louis Vuitton as a case study. Speaking with Lita Miti-Qamata and Nic Rosslee, Afro-Chic has learnt that "fashion and crafts are a vibrant industry amongst entrepreneurs in Africa, and we are taking IP to the former townships to help entrepreneurs cost effectively use IP systems to create value for their creativity". You can learn more about that initiative here.


Afro Leo has asked me to remind you that you can use this blog and community in the following ways. You can contribute by sending us information to report, by commenting on the blog posts in the comment column, by submitting a guest post (ask for the style guide first), by becoming a regular contributor or by taking up one of the characters. Please just email us here.

This blog receives between 20000 to 40000 page views a month in addition to an email subscriber base nearing 1000, which together with platforms on Facebook (>1700 likes) and LinkedIn (>750 members), creates a meaningful platform for your news and views on African IP.
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Monday, 10 July 2017

Afro Leo

Circulating with SAIIPL, dotAfrica, ASA and Silverware

Several years ago the irrepressible Dr Madelein Kleyn revived the South African Institute of Intellectual Property Law’s newsletter – “IP Briefs”. Afro-IP is pleased to announce that it will assist SAIIPL and Dr Kleyn disseminate the news through the blog in a bid to make the information more accessible.

We start with this month’s newsletter published just recently. In this issue Prof Karjiker provides his perspective on Herbal Zone v Infitech, a triumvirate of talent from CIPC (Sher-Muhammad Kahn, Christiaan Steyn and Warren Rossouw) unpack shape marks in a comprehensive exposé,  Chezanne Haigh from Kisch IP takes a bite at the Kit Kat four finger decision, Darren Olivier provides tips for franchising, Alessia del Bianco provides an in-house perspective on creative IP management, Darren Margo is relaxed over the latest exchange control amendments, and the editor contributes with a nifty piece on SME’s and IP. You can read them all here.
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On Friday Afro-Buff stuck his horn in it by recording that the world’s largest lithium battery may have been destined for Jamestown, SA when in fact it is actually Jamestown, SA. Huh? .. well the difference between them is roughly an ocean, one SA being in South Africa and the other in Southern Australia.
“The post has since been corrected and I hope, unlike the Bell Pottinger apology, largely accepted” said the red faced buffalo on Friday.
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News on the ASA seems to be getting even better. Those companies supporting them that were listed on the blog on Friday reflected the list of supporters on the ASA website. That page (on their website) lists those supporters that have actually paid. Afro Leo now understands that there are a whole heap more that have pledged but not yet paid! That’s got to be good news. Remember if you want to lend them your support, just send them a note here. C’mon IP firms, a fully functioning ASA is good for you too.
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For those interested in the dotAfrica domain name space developments, Tuesday, 04 July 2017 was the start of .africa’s General Availability phase where anyone can register .africa domains through Registrars listed here: http://registry.africa/registrars/. You can find more information on that development here.

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Finally, Afro-IP is pleased to announce that unlike Liverpool (afraid so, Jeremy Speres), they have some silverware in 2017. News just in is that this little community interested in spreading news and views on African intellectual property is ranked in the Top 100  IP blogs in the World. Considering that there are more blogs than impala in mating season these days, that is no mean feat.
Just remember, if you want to get involved, you can in a number of ways. You can contribute by sending us information to report, by commenting on the blog posts in the comment column, by submitting a guest post (ask for the style guide first), by becoming a regular contributor or by taking up one of the characters. Please just email us here.
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Friday, 7 July 2017

Afro-Buff

ASA update, Pottinger & Guptas, Ethiopia's bootleggers and the world's largest battery

Friday first week of July, Africa’s Dimension Data sponsored Tour de France team lost Mark Cavendish; Wimbledon 2017 features Africans from Tunisia, Zimbabwe and South Africa; FIFA has banned Sudanese football clubs from participating in African football competitions, Africans appear on both teams in the Lords cricket test, and CJ Stander turns out in red in New Zealand.

But the "biggest" news of all involves a small town in the Southern Australia, called Jamestown after Africa born and educated Elon Musk (right) announced that the world’s largest lithium ion battery will be built there! Read more about that here and here.

For those readers following the resurgence of the ASA in South Africa, considerable progress has been made. The following companies have come to the party by pledging between them in excess of R4million  (roughly 50% of their immediate requirements) to help fund the ASA:
JHNet Web Development; McDonald's; Gendel Strategic Marketing Group; J Walter Thompson - Cape Town; TopCo 500; TBWA\Hunt\Lascaris; Brand et al; MAKRO; 99c; King James; Promise Group; Clover South Africa; GWK; Pack Leader Pet Foods; Colgate-Palmolive; Pioneer Foods; KIA Motors SA; MTN; SC Johnson; Boxer Superstores; Joe Public; McCann World Group; Wuma Dog Food; Montego Pet Nutrition. Legal firm ENSAfrica has also pledged its support behind the campaign.


Acting CEO Gail Schimmel is pleased with the progress to date saying that there may soon come a time when she has to close the promotional offer to supporters. Basically, if you want to show allegiance to the appeal for an independent regulatory authority, now is the time.

The Economist ran a story on Ethiopia’s ingenious bootleggers highlighting what they regard as endemic culture of IP theft in the country. They hail ATM style kiosks allowing transfer of pirated music and movies as "the brainchild of three Ethiopian science graduates". East African blogger Afro-Gore says this is opportunism and no different to what has happened elsewhere, eg  Piratebay, and that IP rights have been successfully enforced in Ethiopia. Don't write off Africa's second most populous, and oldest independent country!

Yesterday UK based PR firm Bell Pottinger issued an apology to the citizens of South Africa for spreading fake news that had incited racial violence in their work for Gupta owned Oakbay. To readers not familiar with this story, BusinessLive contains the gist of it  here and the commentary will give you an idea of the vitriol that exists against the firm. Locally, the main banks have refused to work for Oakbay over their unique relationship with the President. Afro-Buff wonders if the legal community, including advocates, will take the lead and refuse briefs to represent Oakbay and/or Pottinger, and whether CIPC could refuse to register their IP?
Error: the original post said South Africa and not Southern Australia in reference to the lithium battery development! "SA"is short for both and there is also a Jamestown in SA. This post has been updated to reflect the correct position - apologies though I am.pleased to say Elon Musk is still African. That is no mistake.

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