Monday, 4 June 2018

Afro Leo


Prof Wim Alberts' pen has been at work. This time its nib is directed at the shapes of vehicles. Have you ever had anyone ask you whether you could start a toy business based on model cars, or create a car kit business, or how to describe a prize in a competition which is a car, or use models of famous cars in an amusement park for kids, or use a toy car in a promotional campaign for your business? This article will assist you understand some of the legal aspects as applied in South Africa, insofar as the shape of the car is concerned. Click here for more. 

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Wednesday, 16 May 2018

Chijioke Ifeoma Okorie

Infighting at Nigeria’s main collecting society raises CMO governance issues

On 30th April 2018, the Nigerian Copyright Commission (NCC) suspended the licence of music collecting society, Copyright Society of Nigeria (COSON) stating that the suspension was consequent upon COSON’s “continued failure and/or refusal” to comply with NCC’s earlier issued directive. The NCC had directed COSON not to give effect to the resolutions taken at COSON’s meeting of 19 December 2017 except the resolution on distribution of royalties to members.

This suspension comes on the heels of Afroleopa’s views expressed in this IPKat guest post on the infighting at COSON and the powers of the NCC as sector regulator. As Afroleopa had opined, the powers of the NCC in relation to the issues at stake regarding COSON include the power to suspend the licence of a collecting society by virtue of the CMO Regulations.

It is no longer news that despite these directives from the NCC, Mr Tony Okoroji (the purportedly reinstated COSON Chairman) had gone ahead to conduct an Annual General Meeting of COSON on 10th May 2018 and contrary to the NCC’s directive, ratified the resolutions reached at the meeting of 19th December 2017.

In the circumstances, COSON’s governance challenges show no sign of abating. However, while it is expected that the suspension will move COSON to regroup and take the necessary steps to put its affairs in order for the benefit of its members who are right-holders, it is pertinent to note the suspension of COSON’s operating licence may not be the panacea to its problems. For one, COSON is the exclusive assignee of performing rights assigned to it by its members. In essence, COSON is the monopoly publisher of the performing right in Nigeria. As the Nigerian member of the International Confederation of Authors and Composers Societies (CISAC), pursuant to its Matrix User Tools Agreements, COSON remains the owner of the world’s performing rights in Nigeria. Its membership of CISAC guarantees it access to the CIS-Net database (a network of database for sharing works metadata) as well as monopoly control in Nigeria to issue all of the requisite qualifiers and identifiers such as International Standard Musical Work Code (ISWC), the Tune Code, the Interested Party Name Number (IPN#) and the Interested Parties Information system (IPI), which inter alia forms the basis for determining authorship and ownership of musical works and literary works (where songs have words) and by extension, accrued royalties and members entitled to such royalties. CISAC does not require its members to be accredited by their national sector regulator. 

Corollary to the foregoing, COSON’s suspension may not have the desired impact in its operations. Ironically, COSON’s crusade against the MCSN may have succeeded in procuring judicial precedent that may help the Tony Okoroji-led COSON. Nigerian courts have held in several decided cases that an exclusive assignee of copyrights do not require collecting society license in order to enforce such rights.

That said; the NCC’s directive regarding COSON’s bank accounts might achieve the desired results if the NCC is able to procure a freeze on COSON’s bank accounts such that the current COSON Board can no longer incur expenses until the dispute is resolved. IP blogger, Victor Nzomo has indicated that he is conducting research into the best way for African countries to tackle CMOs’ governance issues and the form such regulations may take. Afroleopa opines that such research agenda should inform CMO regulations all over Africa and the rest of the world.

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Wednesday, 9 May 2018

Afro Leo

Guest Post: Taking Admiration too far?

Afro-IP's 2000th post touches on the interesting question of cultural appropriation. This opinion* is expressed by the CEO of Proudly South African Eustace Mashimbye (pictured below), whose organisation stresses the need to buy local to create local growth, and draws on recent examples of cultures increasingly being used to promote goods of others, without compensation. Let us know your thoughts especially in the light of traditional knowledge legislation in your country by emailing us here.

Taking Admiration too far?
They say there’s no such thing as a new idea, and that can go for the melody of a song, a novel’s storyline, or a fashion design. Proudly South African recently came out in defence of Laduma Ngxokolo in his case against retailer Zara when a range of socks that bore a striking resemblance to his Khanyisa cardigan design appeared in their stores. Zara subsequently discontinued sale of the socks, but stopped short of an apology, promising only ‘an internal investigation’.

The issue raises many interesting questions around cultural appropriation (or misappropriation), inspiration and copy catting. When is it OK for a company to take inspiration from a cultural group and use it in their music, textile design or whatever their narrative or medium is? Doesn’t it happen all the time? Can only an Italian open a pizza/pasta restaurant? Can only a Scotsman wear tartan? Was it OK for Louis Vuitton to use the Basotho blanket as inspiration for a garment that carried a R33 000 price tag? Is it OK for Dr, as she is now, Esther Mahlangu to replicate Ndebele designs and paint New York streets with them? Was it OK for Laduma to take inspiration from Xhosa culture for the patterns on his cardigans in the first place?

It is also said that imitation is the best form of flattery but when is admiration taken too far? Product development and evolution is a fact of life, but begs even more questions. Did Taxify copy Uber, or have they differentiated their product significantly enough other than on price? And what about the world of pharmaceuticals with the immediate entry into the market of generics when a drug licence expires? I heard for the first time a couple of weeks ago about drug ‘cloning’ – this is when the original drug manufacturer clones their product, replicates the packaging exactly but alters the name slightly, in order to retain a share of the generic market for their own drug.

It can be argued that licence expiry gives everyone a chance at accessing a lucrative
market, once the drug manufacturer has recuped the costs of research and development. Perhaps this business model should be adopted in other sectors. It makes it important for companies or original idea holders to register their trade mark, copyright their idea and establish their rights to their intellectual property. Registering a cultural emblem is one option for ethnic groups such as the Basotho to ensure cultural preservation of a design or artefact, but this may not translate into real protection in the commercial market place.

If we are to bring ethics into the issue of appropriation, for me the difference between Louis Vuitton’s use of Basotho cultural elements and MaXhosa by Laduma and even Mam’ Esther’s use of Ndebele designs is that the Basotho people did not benefit from LV’s sales in any way, whereas both Mam’ Esther and Laduma are using inspiration from their OWN cultures to create their artworks. In particular in Ngxokolo’s case, we know that his value chain in terms of local procurement has integrity and is ethical. The wool for his garments comes from Eastern Cape farmers, even though he could buy it more cheaply from overseas.

In researching this piece, I found another great example of ethical use of an ethnic group’s culture and this was by Brazilian luxury brand, Osklen whose Spring 2016 collection used symbols and references from the Amazonia Ashaninka tribe. In exchange for the use of Ashaninka elements in their designs, Osklen gave royalties from the collection to the tribe who also got a platform to raise awareness about their struggle to protect their land against illegal loggers. Now that’s a proper collaboration and engagement with someone whose original work or property you admire.

Susan Scafidi, founder of the Fashion Law Institute and author of Who Owns Culture: Appropriation and Authenticity in American Law, says , “designing with both inspiration and respect for other cultures in mind is a challenge that actually requires more creativity and transformative vision than just copying someone else’s culture and claiming it as your own.” and we would echo this.

We believe that Zara simply plagiarised a pattern by a fashion designer who in this case happens to be South African. Laduma is fighting his own legal case in this regard, but our gripe against Zara goes further. We are calling them out on 0% local South African content in their stores, even though they’re happy to ‘admire’ Laduma’s cardigan, put it on a pair of socks, call it their own and make money from it.

As for a song, this week I’ve chosen ‘ Izinja’ . Did Mapaputsi admire, copy or appropriate Baha Men’s Who Let the Dogs Out? You decide!

*This article is also published as an Opinion in BusinessReport and reproduced on request. Links and pics sourced by Afro-IP.

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Tuesday, 8 May 2018


AI, specialisation & copyright: Graeme Gilfillan comments

Here is a reply received from copyright expert Graeme Gilfillan (Nisa Online) to the recent guest post on artificial intelligence by Messrs Tyler Golato (InterProVise) and Rob Green (GRM Search). What are your thoughts on the disruption caused by AI and automation? - email Afro-Buff or comment on the post.
  • The deployment of AI by law firms (traditional as well as new entrants) has (its already here) very specific implications as far skills in the future are concerned in that there are identifiable skill sets that AI specifically will eliminate on the one hand (automation and analytics) and create demand for (qualified specialized skills) on the other hand.
  • The skill sets that are square in the sights so to speak are all those ‘general’ skills…….from secretarial and administrative all the way to senior partners.
  • Automation is one aspect, but the real impact is that in all general intellectual property law matters and cases, AI will outperform an attorney… the same way that in medical diagnostics AI outperforms a GP
  •  As the dust settles in the wake of AI’s intervention into the lives of “IP” law firms an inspection of the legal landscape confirms the following challenges:
    • Legal specialization – there is an imperative to take specialist qualifications to go where AI can’t so to speak – as far as “IP” is concerned this means postgraduate qualification in any one of the “IP” bouquet.
    • There are no badges for copyright lawyer trying to be a trademark specialist – so specialised is each sector – much like an orthopaedic surgeon will not consider trying to ‘double-up’ as a cardiovascular specialist i.e. there is little room in the future for the ‘IP’ specialist, an extremely heterogeneous concept in a specialised world of homogeneity.
    • The reality that in an internet borderless world, qualifications (in the intellectual property bouquet) that stop at a country’s national border have less and less utility – there is an urgent need for intellectual property bouquet law firms to completely re-think about how they understand and operate in a borderless world, and exactly what specialised skills and qualifications are required to service clients in the/of the future
    •  The ubiquitous, infringing nature of a smart phone has brought copyright law into all aspects of everyday life. Intellectual property law firms in South Africa are underinvested in copyright law skills and it’s an indictment of the entire legal sector. No different than patent law, post-graduate qualifications are requisite with copyright law and there has been little to zero investment in copyright law qualifications and skills. The 35 hours (of effective teaching) “IP” elective offered to BA LLB students does not prepare or qualify an attorney admitted to the High Court in South Africa to offer advice in copyright law, nor patents, trademarks, designs, trade secrets or geographical indicators.
    •  There will be little utility for the ‘generalist’….. nor will there be need for big expensive buildings that clearly cost clients a fortune.
    •  There will be (already is) significant demand for highly specialized legal skills in all areas of intellectual property law – which more and more the traditional law firm is failing to/cannot provide.
    •  There will be (already is) a real premium for scarce top legal skills – much of which will have little to do with litigation per se
Your post is very welcome and the first sign at Afro-IP that this critical issue of AI is starting to get attention.

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Friday, 4 May 2018

Darren Olivier

The Zulu Challenge

"Millions More for Zulu King Goodwill Zwelethini" is a headline that appeared in yesterday's TimesLive circulation creating the usual outcry, provoked by the title of the piece. It is a pity that the value of the Zulu monarchy is so misunderstood, even if a component of this emotive criticism is warranted.

KwaZulu-Natal Premier Willies Mchunu announced during his budget vote for the 2018/19 financial year in the provincial legislature in Pietermaritzburg on Thursday that the Zulu monarch's annual budget has been increased by R7-million‚ from R58.8-million last year to R65.8-million this year. (about USD520k)

The article explains that the budget is required to support the King, his family, their farms and the Royal Household Trust which was set up to make the Zulu Royal family self sustainable. This may therefore sound like a few people benefitting from the allocation but in reality every single person in South Africa stands to gain from it if this money is properly spent and frankly, the budget is probably still far too small.

Whilst the amount of money is significantly large in comparison with the median income of a Zulu person living in Zululand or to the average South African, it is less than is received by South Africa's top earning CEOs and not even double the median pay for a Facebook employee. However, even my own comparison is misguided for the function of the Zulu King is not equivalent to a CEO or to a Facebook employee, it is substantially greater than that.

Whilst I am aware that the Zulu nation dislikes comparison with any other monarchy or nation (I made this mistake once in a presentation to them) the criticism it faces is much the same as those critics of say, the British monarchy. At the same time, its part within southern african culture is also no less significant than that of the British monarchy to its own culture. Arguably the role of the Zulu nation (and others) is even more important in the context of a continent where cultural identity and understanding is so critical, and where misappropriation is commonplace (there are well over 100 cases of potential misuse of Zulu cultural expressions, for instance).

Part of the Zulu King's function and responsibility to his people is to preserve Zulu culture and so the money designated to his household, in part, is required for this purpose. It is estimated that the value of the British monarchy is USD88 billion. This article claims that each royal costs the British taxpayer 18.5 million pounds, and David Haigh of Brand Finance describes the British monarchy spend as "a giant PR campaign for the UK".

Against the numbers in the Brand Finance reports, a spend of USD529k per annum for the Zulu monarchy is meagre. The challenge faced by the Zulu nation is then, not only to justify this spend in terms of accountability but also to communicate its own worth by delivering, not only to their people but to the region in general. It will need to partner with professionals to do so, as the TimesLive article explains.

From an IP perspective there is much to be done and a start has been made. Quite apart from the spend required to "put the genie back in the lamp" and secure, audit and preserve the culture through traditional IP systems available to them and, in time, indigenous knowledge legislation there is a need to embark on a revenue building model based on that IP. This requires expense and the portion that may be allocated out of the USD529k for such a project, is a shoestring in comparison to what is required.

There is also need to assist rather than criticise the Zulu nation, and others in South Africa, and the Zulu nation needs to meet their challenge responsibly, or continue to face the adversity.

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