|The Thinker by Gibran Khalil Gibran|
Wednesday, 22 May 2013
Monday, 20 May 2013
Swartkops unsuccessfully sued Cerebos for passing off claiming that the get up of Cerebos' Buffalo braai salt was confusingly similar to its Marina braai salt (read the judgement here). As predicted by Afro-Leo in a post on the first ruling in this matter here, Swartkops took the matter on appeal.
The court a quo relied on the approach of Harms JA in the Reckitt & Colman case, where Judge Harms said the following at pg 317:
The full bench seems to have over-emphasised the requirement to consider get-ups as wholes and simply identified certain broad elements that appeared on both products, i.e. the similarities – see para 17. It’s refusal to consider the individual elements of each get-up, as per the court a quo, led to a failure to consider the significant dissimilarities and therefore to a conclusion that confusion was likely. I’m not sure the court gave consumers enough credit here - I’d like to think I’m sufficiently conscious to distinguish between these two!'
Thursday, 16 May 2013
|Sisyphus, Titian, 1549|
Any thoughts from our readers?
Tuesday, 14 May 2013
Last month, the organization Article 19 released a report called The Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age. (Available here in multiple languages.) It took this Little Leo awhile to get through the 28-page document because, despite her experiences in copy-left circles, she found some of it a bit hard to swallow.
The report discusses a number of issues relevant to Africa and developing countries in general. It’s main focus is the importance of freedom of expression and how intellectual property law interacts with this freedom and it lists 15 principles related to this. The report does a great job of looking at some side-effects of international standards and intellectual property laws and pulling together connections that are often talked about but not explored. Little Leo was most impressed with the reports use of very US and UK-centric language and ideas to make points very much opposite of what these countries (or at least the US) usually propose.
The report also makes some great leaps and claims in its underlying premises. It begins with a reinforcement of the importance of “the right of freedom of expression,” which is supports with references to unspecified UN and regional human rights instruments. The report then goes on to describe freedom of expression in a very broad way, including the “the right not only to impart but also to seek and receive information.” (Principle 1, emphasis added.) This definition bring freedom of expression from beyond a freedom to express to a freedom to consume. This definition has great implications for how copyright interacts with the freedom of expression.
Half the basis for Copyright
As it explores the interaction of freedom of expression and copyright, the report frequently looks at how copyright laws fit balance freedom of expression and the goal of copyright. This type of comparison is very reminiscent of US Supreme Court jurisprudence, especially when it uses language like, “least restrictive means available” and “chilling effect.” While Little Leo likes the idea of balancing competing human needs or desires, this approach felt very disingenuous here because the report uses the US Constitution purpose for copyright as the underlying goal of all copyright law - “promote the progress of science and the arts.” That approach is very different than Continental Europe’s traditional copyright reasoning and ignores all Author’s Rights aspects. It focuses solely on the benefits to society. As a continent with countries encompassing both UK and Continental approaches, this assumption of purpose could alienate a good portion of the countries in Africa.
Ranking of Rights
Also having a great effect on how freedom of expression and copyright interact is the value placed on the right to freedom of expression as one of the most important rights humans have, placing freedom of expression above the right of property. (Principle 3.) The report claims that freedom of expression can only be restricted on “grounds specified by international law,” and more forcefully, “No restriction on freedom of expression on the ground of protection of the rights of others, including copyright, may be imposed…” (Principle 1.) There is an unless, the balancing test with the definition of copyright mentioned above. The Principle also suggests that states are responsible not only for refraining from interfering with freedom of expression themselves, but that they also must prevent others from interfering.
Little Leo found these claims a bit concerning. Property rights are also important and are often focused on by human rights organizations as an important path to development and the ability to obtain a certain standard of living. The lack of property rights is often cited as an impediment to development in many African communities. To say that one right is more important than the other as a matter of fact seems very presumptuous and quite possibly erroneous. In addition, the assertion of such a multitude of “rights,” such as the “right to personal enjoyment of cultural goods” and “the personal right to read, listen to, view and browse cultural goods without copyright restrictions” (Principle 7) starts to undermine the concept and value of “rights” like the boy who cried wolf’s repeated cries undermined the value of the content of such cries.
Is the Burden really balanced?
Although the report stresses balance, there are some places where its principles seem to have missed that mark. Principle 10 addresses intermediary liability and content removal. One of the proposals suggests that intermediaries should only remove content when ordered to by a court or tribunal. This would involve a huge amount of expense and time on behalf of the copyright owner. For small owners, especially those of works not published through traditional corporate sources such as record labels or publishers, obtaining this sort of order would be very, very difficult. It’s important to remember that copyright owners are both little guys and big guys and copyright infringers are both big guys and little guys. For example, if a Nigerian artist had a hit song in Nigeria that was picked up by an American website and distributed without permission, how likely would it be for the Nigerian artist to obtain an order to have the work removed verses how difficult is it to send a notice?
A Better Outlook
Those criticisms being said, the report makes a lot of good points that I hope are acknowledged and addressed in the wider, global copyright discussions. The report looks at the history of copyright law, especially its recent history and how it has been “increasingly used to discourage creativity,” and compares this to the value and benefits of new works, including new transformations of existing works.
Public Domain Value
The report also has two principles, Principles 4 and 5, that address the importance of the public domain. The idea that “once information and cultural goods fall into the public domain, they must remain” there seems pretty simple. Little Leo read this as a bit of an attack on the US law that removed works from the public domain. However, this Principle also seems to run counter to the idea of protection of traditional knowledge and cultural expressions, which is so important in many developing countries. Little Leo wonders if that was intentional. The report recommends in Principle 5 that copyright protection not be allowed to go beyond an author’s death. That idea seems worth bringing back into the international discussions, though it’s unlikely to get much traction at the moment.
Access and encouragement of creation
Principle 13 is one of the most well-thought-out principles in the document. It reiterates the importance of freedom of expression that underpins the report but also acknowledges the importance of remuneration for work. Principle 13 suggests a number of balancing options, such as Creative Commons licenses, special exceptions for libraries and people with disabilities and accessibility of resources in multiple languages especially where countries have minority language groups. (Although Little Leo is tempted to get nitpicky and point out how these concepts can be taken too far…)
Broad Limitations and Exceptions
The report also mentions fair use and fair dealing, the encouragement of which can be very beneficial to balancing the competing needs of freedom of expression and copyright protection. The report, in Principle 6, encourages that limitations and exceptions to copyright be interpreted broadly.
Internet loss is unfair Punishment
Even some of the more extreme-sounding propositions are worth a good look. For example, Principle 8 declares that “Disconnection from access to the Internet on grounds of copyright is always a disproportionate restriction.” People are beginning to clamor that internet is a vital resource, like water or electricity. While we might not all agree that these three are vital resources, it is worth recognizing the role internet access plays in some societies and what the true ramifications of losing such access could be. Principle 8 also offers some rebalancing for countries with take-down and filtering systems, the requirement of penalties for requests to remove or block content to which the requesting party does not actually have rights.
Fighting the US and its Influence?
There’s a number of Principles that seem targeted specifically to US law and exported US law. For example, caps on statutory damages, penalties for abusive copyright infringement litigation, removal of criminal sanctions for non-commercial infringement and removal of criminal sanctions of circumvention of digital rights management.
Little Leo hopes that many Afro-IP readers will also take a look at the full report and share their thoughts on the Principles.
Monday, 13 May 2013
Friday, 10 May 2013
|[Sadak in Search of the Waters of Oblivion|
oil on canvas by John Martin, 1812]
Wednesday, 8 May 2013
The progress of first bill (the IP Laws Amendment Bill No.8 of 2010) through parliament, is at an advanced stage. It was passed by parliament in 2012, but was denied Presidential Assent (read the president's letter - p.2 - 4). It was then sent back to parliament for reconsideration. At its meeting of 2 May 2013, the relevant parliamentary committee decided that it has adequately reconsidered the first bill and it now seeks to move the Bill forward. This reconsideration entailed referring the bill to the National House of Traditional Leaders (NHTL) and reclassifying it from a section 77 to a section 76 bill. The reclassification was necessary as the bill is not a money bill and section 77 of the Constitution deals with money bills. Despite objections from some members, the committee voted to adopt the bill without amendment. (The minutes of this meeting are available here - subscription required).
The second bill, (the draft Protection of Traditional Knowledge Bill) is fairly new, having been released for public comment in April this year. It was submitted to the Speaker of Parliament at the beginning of May as a private member's bill by the opposition Democratic Alliance's shadow minister for trade and industry, Dr Wilmot James. It has thus not yet been considered by parliament.The introduction of a second alternative bill to parliament as a private member's bill is unprecedented in South Africa. It only became possible to introduce private members' bills pursuant to a Constitutional Court decision in October 2012 which struck down certain parliamentary rules as unconstitutional. Section 73(2) of the Constitution provides that any member of the National Assembly can introduce a bill to parliament. However, this power could not be exercised as parliamentary rules provided that a private member's bill could only be introduced with the permission of parliament. A member of the opposition Inkatha Freedom Party, Dr Mario Ambrosini, successfully litigated to have this, and other related rules, struck down as unconstitutional (read the judgement here).
The Constitution and Parliamentary Rules are unclear on this point as they do not envisage the situation we are in: that is two competing bills seeking to regulate the same issue proceeding through parliament, at different paces.
One possible solution is for the matter to be referred to the parliamentary rules committee for its guidance. If parliament proceeds with the first bill and ultimately obtains Presidential assent for it, the second bill still has to be properly considered by parliament. If it also is passed by parliament and obtains Presidential assent, it will repeal or supersede the first law. However, this is highly unlikely because the opposition parties do not have the necessary voting majority to pass the bill. Nonetheless, the introduction of the second bill to parliament is still very important as it forces parliament to confront the substantive IP debate about the best way to protect TK and provides the opportunity for reflection on, and perhaps reform of, parliamentary procedures.
Tuesday, 7 May 2013
My graduate degrees are in Chemistry and in Law. To me, this is perfectly natural, and many of my friends in America have similar backgrounds. Any time I tell this to people in Kenya, I am met with amazement and disbelief. I can hear them thinking “why would anybody study both chemistry and law?“Unlike in America, law is an undergraduate subject in Kenya so the vast majority of lawyers have no training beyond their training in the law. After law school, lawyers here (it is hoped) find jobs; I have heard of no instances where they pursue an additional degree or additional training in science/technology.At CIPIT, I have been training patent drafting skills. Both legal and scientific literacy are needed for the task. I originally assumed that it would be easier to train an inventor the required legal skills rather than training a lawyer the required technology skills. I have since decided that both are hard, and neither is necessarily “better” or “easier”. As long as the trainee is not scared away by scientific or legal technical terms, the main inquiry seems to be whether the individual is dedicated and focused.If there is ever to be a good number of patent drafting professionals in Kenya, people need to believe that a living can be made doing such work. But if nobody is doing the work, then the number of patent applications stays low. If the number of applications is low, there is a perception (actually a misconception – see my earlier diary entry here) that there is no demand for drafting skills. This Catch-22 is one of several reasons that patent drafting is a skill that remains elusive in Kenya.So what of the scientific literacy that is needed for patent work? In the case of chemistry, without a doubt one needs a formal education to do any patent work. In other fields such as mechanical devices, I know that non-scientist lawyers can learn enough to draft good applications. My lawyer trainees have shown this, at least so far.
Monday, 6 May 2013
RT50 Regional Update: Africa (3.30 to 4.45pm, Dallas Convention Center, Level 2, Ballroom A)
Over the past 10 years, Africa has experienced rapid and significant development, on both economic and legislative fronts, but challenges still remain. Panelists will discuss issues of importance such as the development of various IP laws, the organization of IP Offices, Madrid Protocol and developments in case law, as well as counterfeiting, enforcement and brand protection issues in Africa.You can check out the full INTA programme here.
Simon Brown, Adams & Adams (South Africa)
William I. Maema, Iseme, Kamau & Maema Advocates (Kenya)
Uche Nwokocha, Aluko & Oyebode (Nigeria)
Darren Olivier, Adams & Adams [and Afro-IP] (South Africa)