Sunday, 21 April 2019

Afro Leo

Join LES in Cape Town on World IP Day

Links to the speakers:

The impressive Brian Steinhobel through his website Art Steinhobel.
The tax specialist and ENS executive - Mansoor Parker

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Friday, 12 April 2019

Darren Olivier

The Acute IP Information Gap in South Africa

I have been busy this past month researching and speaking on the important relationship between IP, governance, business finance and accounting in the context of the collapse of Steinhoff involving irregularities in reporting on IP, the dramatic sale of EOH shares following the termination of Microsoft reseller license, the ongoing Makate drama involving the value of a payment for IP successfully taken to market by Vodacom and the reputational elements of allegations of copying by Woolworths. These examples exist against an international backdrop created by the Theranos demise, following revelations that its patented technology did not work.

The research included a collaboration with the CEOs of governance group FluidRock - Ronelle Kleyn and Adv Annamarie Van Der Merwe, time spent with the helpful Institute of Directors in Southern Africa's new CEO - Parmi Natesan, a great read of the new book by Janice Denoncourt "Intellectual Property, Finance & Corporate Governance", an analysis of Brand Finance's Global Intangible Asset Tracker 2018, various discussions with local financial guru and Managing Partner of Cartesian Capital - Anthea Gardner, assistance from Adams & Adams' Mark Beckman and progressive associate Nicholas Rosslee.

In summary, there exists an increasingly important IP information gap in financial disclosures in South Africa that is severely hampering business growth, cultural preservation and opportunity. The IP information gap exists across the business spectrum; large, medium and small businesses are affected. Whilst this is a global challenge, it is particularly acute in South Africa especially in the area of patents. South Africa's patent economy is woeful and stands in stark contrast to its capacity to innovate. It is extremely important to address this gap which starts with a concerted drive on IP education, self audits and the cultivation of an economy that understands the benefit of investing in IP to stimulate growth and further innovation, and also how to draft, use and interrogate an IP narrative in financial accounts effectively.

The slide deck for the seminar co-hosted with FluidRock at the Johannesburg Stock Exchange that attracted over 200 people can be found: here, the article published in Business Day: here, the PowerTalk interview with the award winning journalist Iman Rappetti: here, and the talented 702 Morning Show presenter Relebogile Mabotja: here.

This is an ongoing conversation that traverses a number of different disciplines. I am hoping that this is start of more on the subject for a richer understanding of how innovation and stakeholder interest can be made more transparent, open and effective through the use of IP.  

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Wednesday, 27 February 2019


Uganda’s Movie Collecting Society to be disbanded

As the movie industry in Uganda continues to grow, so do the squabbles among some of the players that feed into and out of that industry. However, as an optimist, I can say that there does seem to be a faint light at the end of the tunnel that keeps glowing brighter. Ordinarily, a Collecting Society is meant to make the job of collecting royalties easier for its members. Basically, if one cannot realistically go around collecting royalties for his or her hard-earned work in the creative arena, then let the Collecting Society for which he or she is a member undertake that responsibility. In return, the Collecting Society must jealously guard the member’s copyright assigned to it; ensure efficient accountability of funds collected; and periodic remission of those funds to its members. All this time, the Uganda Registration Services Bureau (URSB), which is the Ugandan government’s Intellectual Property Office, is meant to play the role of “Big Brother” by ensuring that the Collecting Societies and their members abide by their obligations as spelt out in the Copyright and Neigbouring Rights Act of 2006 (CNRA). This, at least, is what some members of Uganda Federation of Movie Industry (UFMI) explained as their expectation from UFMI and URSB – an expectation which, in their view, was not being fulfilled.

Early in 2018, a group of seventeen artists in Uganda’s Movie Industry, led by Julius Bwanika and Gerald Sserunjogi, filed a case against UFMI and URSB in the High Court of Uganda (Bwanika Julius and Ors v. Uganda Registration Services Bureau & Uganda Federation of Movie Industry, Misc. Cause. No. 083 of 2018). The case was filed by way of an application for judicial review to compel a Government Institution to abide by its duties. In a nutshell, the prayers before Court were for URSB to fulfill its statutory obligations as a supervisory body over Collecting Societies in Uganda and reign in on UFMI; and for UFMI to furnish accountability over its activities as well as terminate illegal issuance of licenses to audio-visual vendors. Opportunities for resolving the matter through mediation were explored without success and towards the third quarter of 2018, the parties went back to Court. On the face of the case, it was clear that UFMI had been flouting some of its obligations under the law (CNRA). For instance, there was no record of audited accounts; no records on income and expenditure; no establishment of a Provident and Benevolent Fund; and, no provision of a security device on all audio-visual recordings under its membership. Meanwhile, URSB too, had not been cracking the whip on UFMI.

In its defense, UFMI argued that it has been going through turbulent times over the past few years with a lot of infighting, disorganization and limited operational funds. As such, it is only beginning to stabilize itself in the murky waters of Uganda’s entertainment industry to take care of all the concerns of its members. As part of its efforts in re-establishing itself, a General Assembly of its members was held in January of 2018 and new Leaders were brought on board to run the Society. The ‘elephant in the room’ over that matter was that the Seventeen artists that instituted the Court proceedings considered themselves as members of UFMI but were not recognized as such by the current UFMI leaders. These Seventeen, therefore did not recognize the General Assembly of January 2018 and were demanding for a fresh General Assembly in which they can also come in and contest for leadership of the Society. Not only that, they also contended that UFMI was wrongly constituting itself as a Collecting Society for all artists in the Visual entertainment industry and thus stifling growth and expansion of the creative industry into other areas. As such, the argument was that Performers – inclusive of standup comics – and producers, should not all be bundled up together under UFMI.

In his judgment delivered in mid February 2019, his Lordship Justice Musa Ssekaana pointed out that although it was clear that UFMI has not been able to comply with the law, blame games do not help to resolve the current impasse between the parties. The judgment goes on to add that the “1st Respondent (URSB) should render guidance to the 2nd Respondent (UFMI) on how to make or amend the Constitution that would govern and include all the members. The membership should [be][sic] open to any person who is a stakeholder of the Film and Movie Industry. Once a person is admitted as a member of the organization, he/she should always remain a member but is supposed to pay annual subscription fees to activate his or her membership or be able to take part in the affairs of the organization. . .” The judgment states further that “it was wrong to merge a federating body with a Collecting Society because the two institutions do totally different works and as such, cannot be merged whatsoever. The single role of a Collecting Society is to collect royalties and distribute them on behalf of their members. The membership for a Collecting Society of Audio Visual Society [sic] in this case should be restricted to either producers or performers.”

The final nail on the UFMI coffin is when the judgment states that: “The 1st respondent (URSB) should consider separating societies like in some jurisdictions by having a Society for Authors, performers and Producers because the nature of interests from the rights holders is normally different and, as such, requiring the separation of Copyright holders and related rights holders. This is buttressed by the fact that it is only authors, producers and performers who are entitled to equitable remuneration as provided under Section 31 of the Copyright and Neighbouring Rights Act of 2006. The solution in this case would be that URSB which is the one that issues Collecting Society licenses, calls on fresh applicants with knowledge and experience in copyright management to take on the roles of a Collecting Society for the Film Industry.” Essentially, Justice Ssekaana was agreeing with the Petitioners that UFMI needs to be disbanded because in its current format, it cannot play the role of Collecting Society for different categories of artists within the movie industry.  

The Court then granted the prayers of the applicants and ordered URSB to guide the stakeholders in getting a competent and qualified Collecting Society for the Film Sector in accordance with the law. This ruling on the disbandment of UFMI thus leaves Uganda with currently only two Collecting Societies – the Uganda Performing Rights Society for music artists and producers of audio-visual works, and the Uganda Reproductive Rights Organization for book publishers and authors. It will be interesting to see how the film industry re-aligns itself to get back on track in the collective management of royalties. Hopefully, with the help of URSB, this will be sooner than later because of the promising nature of the film industry. In the meantime, thanks to this judgment, URSB itself is now cognizant of the fact that it must up its game as “Big brother” in the supervision of Collecting Societies in Uganda.

The writer is a legal scholar and Intellectual Property law practitioner at Sipi Law Associates.

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Tuesday, 5 February 2019


Congrats to our own Leo, a new IPKat

It appears to have so far gone unrecognised on this blog, but one of our very own is the first African correspondent over on the insanely busy extraordinary IPKat blog. See the announcement, here. Fittingly, Chijioke Okorie blogs on Afro IP as a lady leo, and is now perhaps the biggest cat on the block in Europe?


We look forward to reading more great posts on IPKat, now with more of an African perspective. 
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Wednesday, 30 January 2019

Afro Leo

Read all about it! IP Briefs latest

The South African Institute of Intellectual Property Law's 6th issue of its IP Briefs edited and compiled by Dr Madelein Kleyn is out. You can read it all here. In this issue:

Vanessa Ferguson, the SAIIPL president for 2019, outlines the focus of SAIIPL for the current year, having take the reigns from Debbie Marriott who presided over the Institute in 2018. Morne Barradas' piece then assesses how and why patent assets can become valuable to a business. 

There is an interesting article from Nordely Wright on the steps that one can take to protect confidential information when dealing with the Competition Commission. This is followed by Amanda Lotheringen's holistic approach to training law enforcement agencies that are so vital to protecting IP rights. 

The issue goes abroad and obtains a view from Professor Charles Gielen, former partner of the eminent firm NautaDutilh NV, on the Court of Justice decision of the EU on the technical function exclusion in design law, reviewing the Doceram decision (the first case to deal with it). 

Getting local again, Thapelo Montong, the bright patent lawyer at Adams & Adams, contemplates inventorship in the age of artificial intelligence and concludes that under current patent laws, all inventions from superhuman AI machines could well be free and open to the public, at least until antiquated patent laws undergo reform.

There is news too that Wend Wendland, the respected policy strategist and capacity builder, and trainer, has gone online to share his experience and advice in a new blog "Multilateral Matters" which is featured on the IP Unit website of the University of Cape Town. 

This post brought to you by Afro Leo.
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