Thursday, 29 January 2015

Copyright policy and the right to science and culture

A report entitled 'Copyright policy and the right to science and culture' authored by  the Special Rapporteur in the field of cultural rights, Farida Shaheed has been released (download it here, ref A/HRC/28/57 ).

The document summary reads:
'In the present report, the Special Rapporteur examines copyright law and policy from the perspective of the right to science and culture, emphasizing both the need for protection of authorship and expanding opportunities for participation in cultural life.
Recalling that protection of authorship differs from copyright protection, the Special Rapporteur proposes several tools to advance the human rights interests of authors. The Special Rapporteur also proposes to expand copyright exceptions and limitations to empower new creativity, enhance rewards to authors, increase educational opportunities, preserve space for non-commercial culture and promote inclusion and access to cultural works. An equally important recommendation is to promote cultural and scientific participation by encouraging the use of open licences, such as those offered by Creative Commons.'

The report is comprehensive and thorough and well worth a read. Due to this, it is also fairly difficult to summarise, so for purposes of enticing readers of this post to go and read the full report, I'll simply highlight one aspect of the report, namely its overview of best practices. 
The report notes that copyright regimes may  be aligned with the right to science and culture by 'reforming copyright laws to better protect the right to science and culture or supporting novel approaches that encourage innovation and creativity for broader access'. Either of these approaches may be used or they be used concurrently. Brazil and the UK are cited as examples of countries that have used 'highly participatory'  copyright reform processes that have enabled the public to engage with the law and led to better alignment with 'human rights and other public interests'. 

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

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

Tuesday, 27 January 2015

IP policies in Africa no.50: Togo

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

Sunday, 25 January 2015

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

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

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

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

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

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

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

·         Vigilance and public relations

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

Tuesday, 20 January 2015

Morocco and the European Union agree on Geographical Indications

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

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

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

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

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

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

Monday, 19 January 2015

Morocco recognises European patents nationally: what will this mean?

Afro Leo posts, below, the text of a media release from the European Patent Office which reads as follows:
Morocco recognises European patents as national patents  
A win-win agreement: Morocco is the first non-member country of the European Patent Organisation to validate the legal effects of a European patent on its territory  
Casablanca/Munich, 19 January 2015  The President of the European Patent Office (EPO), Benoît Battistelli, and the Moroccan Minister of Industry, Trade, Investment and the Digital Economy Moulay Hafid Elalamy announced today that an agreement allowing European patents to be validated in Morocco will enter into force on 1 March 2015. 
This is a historic step for the European patent system, and it brings to 41 the number of countries for which patent protection can be obtained simultaneously with a single European patent application,” said EPO President Battistelli.
Mr Battistelli also praised “Morocco’s strategic vision with regard to building up a national patent system that is firmly anchored in the international system”. He noted that the legal certainty of patents granted by the EPO and validated in Morocco will strengthen the economic benefits of the Moroccan patent system and increase the country’s attractiveness for foreign investment. 
Minister Elalamy underlined the advantages of the country’s newly reformed intellectual property system for both local companies and foreign investors. Speaking about the validation agreement with the EPO, Mr Elalamy said it confirmed Morocco’s strategy of integrating itself into the global economy. 
The Director-General of the Moroccan Industrial and Commercial Property Office (OMPIC), Adil Elmaliki, said Morocco’s new intellectual property law was a turning point for the country’s patent system, which will enable the granting of IP rights of the highest international standard. 
Starting on 1 March 2015, anyone filing a European patent application will be able to request validation for Morocco against the payment of a fee. European applications and patents validated for Morocco will have the same legal effects there as Moroccan ones and will be subject to Moroccan patent law. 
The EPO and OMPIC highlighted the benefits of their long-standing strategic partnership, which serves to improve the quality of patents granted and offer better services to users. Co-operation between the two offices has intensified since 2010, enabling Morocco to become the first country for which a validation agreement with the EPO enters into force.
From the point of view of a patent applicant seeking maximum protection via his EPO application, this is clearly good news.  However, this blogger is not quite sure how recognising European patents as national patents is going to build up Morocco's national patent system. Presumably it will reduce demand for patent examiners in Morocco and will give the local profession even less practice at dealing with patent applications than they have at present.  It is hoped that Morocco's move will be closely monitored by economists and intellectual property lawyers alike and that all consequences for Morocco's economy and its infrastructure are carefully weighed up.

Friday, 16 January 2015

“Yahoo Yahoo” in Nigeria – Trademark Dilution or Defamation?

Since starting her usual daily drive to work in 2015, this Leo has heard the new MTN Nigeria’s internet advert (or “Better Me Bundle”) on her car radio. In the advert, a father accuses his son of engaging in “yahoo yahoo” on the internet but the son ends up convincing his father that far from engaging in “yahoo yahoo”, he is using the internet to check his examination results. The son also lists other useful activities that may be carried out on the internet and the father, convinced, asks to be taught how to use the internet.  

MTN Better Me
Aware of the meaning ascribed to “Yahoo Yahoo” in Nigeria (“Yahoo Yahoo” is another name for “internet scam” as shown here, here, and here) as well as the popularity of Yahoo as a trade mark, this Leo wondered what Yahoo could make of such negative connotation involving its mark.

Most companies, including Yahoo, warn users of their trademarks (for example, see here and here) against using the company’s trademark in a manner that disparages such company.  Such derogatory use of trademark may amount to dilution by “tarnishment” or defamation of trademark. According to the International Trademark Association (INTA), the distinctiveness of a famous trademark may be weakened by inappropriate or unflattering associations regarding the mark.

While there is no Nigerian case on this issue (as far as this Leo is aware), whether the fact of associating “Yahoo” with internet scam or fraud amounts to a dilution of the Yahoo trademark by tarnishing its reputation for use in lawful exercises will depend on several factors including:
(a)   Whether Yahoo is a famous or well-known mark (This Leo takes this as a given)
(b)   Whether there was actual dilution (for example, has the term “Yahoo Yahoo” prevented or adversely affected the use of Yahoo Products and Services by consumers in Nigeria?)

These factors, taken from the general application of US law on trademark dilution, are quite similar to the factors that may be necessary to sustain a case of trademark defamation. In both cases, the trade mark is used or referred to in a manner that reduces its reputation in the minds of the public.

One of the Yahoo marks
Yahoo expressly states that it does not grant permission to any person to use the Yahoo trade mark or related marks “in a manner that is misleading, defamatory, libelous, obscene, infringing or otherwise objectionable”. It is up to Yahoo to evaluate any use of its mark and to decide whether such use violates the stated restrictions.

Readers, what are your thoughts on possible actions by Yahoo?

For a consumer sued for defamation of trademark, see here
For a discussion on product disparagement and trademark law, see here and here.
For a comparison of Yahoo and Google users in Nigeria, see here.

Thursday, 15 January 2015

South Africa: kitkat trademark battle off to the Constitutional Court

The SABC recently reported (here) that the long running dispute between Nestle and the IFFCO is now heading to the Constitutional Court. In November 2013 the Pretoria High Court ruled that IFFCO's Tiffany Break did not infringe the Kit Kat trademarks (see the judgement here). Nestle successfully appealed the matter to the Supreme Court of Appeal which handed down its decision in November 2014 (see the judgement here).

see  an earlier Afro-IP post on this case here

IP policies in Africa no.49: Tanzania

At the end of 2014, WIPO reported that it is was in consultation with Tanzania in relation to the formulation of its IP Strategy and IP Policy.[1]  Since Tanzania has a dual national IP system that caters for the Mainland and Zanzibar separately, it is likely that the IP policy will be bifurcated. Indeed, the Business Registrations and Licensing Agency (BRELA) that administers IP for the mainland has published an action plan for harnessing the IP potential of Tanzania (here) that states that two IP policies will be developed. Tanzania was one of the six countries in which WIPO piloted the Development Agenda Project DA_10_05  entitled ‘Improvement of National, Sub-Regional and Regional IP Institutional and User Capacity’. The outcome of this project is the Methodology for the Development of National Intellectual Property Strategies Toolkit which was published in 2014 and consists of the following four tools (available here)
source License: CC0 Public Domain
Tool 1 - The Process 
Tool 2 - Baseline Questionnaire 
Tool 3 - Benchmarking Indicators 
Tool 4 - National IP Strategies (NIPS) Online Survey

[1] WIPO Committee on Development and IP (CDIP) Revised Report on the Measurement of the Millenium Development Goals (MDGs) in other United Nations Agencies and Specialised Agencies , and on the Contribution to WIPO to the Implementation of the MDGs (November, 2014) CDIP/14/12 Rev. Annex II, 8. 
See Tanzania's IP laws on WIPOLex here

Monday, 12 January 2015

First January Post

Greetings from the Afro-IP team and best wishes to our readers for 2015. As this little blog and community heads towards their 10 year anniversary, 2000th post and their first million page views we take an opportunity to reflect briefly on 2014. Our ten most popular posts, in no particular order, are as follows:

  1. International Patent Forum 2014, 18 - 19 March, London - Afro-IP reader discount rate inside

Special mention is made to the IPKat weblog, our guest bloggers and our readership both local to the continent and internationally, all of whom continue to support the journey into the heart of African IP which is appreciated; the blog continues to boast the single largest resource of searchable information on recent African IP news.

We are always looking for good content and bloggers and so if you feel that you are up to the task or want an outlet for your talents, please contact us here for further information.


Afro-IP blogging team

Wednesday, 7 January 2015

Marrakesh Treaty: Mali takes the plunge for Africa

By Marrakesh Notification No. 5: Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, WIPO has announced the deposit by the Government of the Republic of Mali, on 16 December, of its instrument of ratification of the Marrakesh Treaty (which won't come into force till the required number of ratifications or accessions is reached in accordance with Article 18 of the Treaty -- that's three months after 20 eligible parties have deposited their instruments of accession or ratification).  At the time of writing this blogpost, the number of countries signing up for the Treaty stands at just five, of which Mali is the first and only representative from Africa.

Full text of the Treaty here
Ratifications and accessions here
Blindness and visual impairment in Mali here
River blindness in Mali here
Amadou and Mariam: blind performers in Mali here