Monday, 31 August 2009

Darren Olivier

ADR on its way - the Brownlee decision

Thanks to ADR specialist John Brand for highlighting an important judgment (click here) in a divorce case handed down in Johannesburg last week extolling the virtues of mediation. The case is likely to set an important precedent against attorneys attempting to claim attorney and client costs where mediation is not suggested at an early stage.

(Right: One suspects that The Browning, by its very nature, would not have approved of Brownlee)

"This is but an instance of what mediation might have achieved. In fact the benefits go well beyond it. In the process of mediation, the parties would have had ample scope for an informed but informal debate on the levels of their estates, the amount of their incomes and the extent of their living costs. Nudged by a facilitative intermediary, I have little doubt that they would have been able to solve most of the monetary disputes that stood between them. The saving in time and legal costs would have been significant and, once a few breakthroughs had been made, I have every reason to believe that an overall solution would have been reached. Everyone would, in the process, have been spared the burden of two wasted days trying to settle in judge’s chambers and four further days in which the minutiae of assets and liabilities and income and expenses were interrogated.

In short, mediation was the better alternative and it should have been tried. On the facts before me it is impossible to know whether the parties knew about the benefits of mediation, but I can see no reason why they would have turned their backs on the process, especially if they had been counselled on the matter by the attorneys. What is clear, however, is that the attorneys did not provide this counsel; in fact, in the course of the pre-trial conference they positively rejected the use of the process. For this they are to blame and they must, I believe, shoulder the responsibility that comes from failing properly to serve the interests of their clients.

In the course of the hearing, I asked counsel whether I had the power to cap the fees that the lawyers might derive from the case, and it was agreed that this is indeed my right. I can find nothing in the conduct of counsel to warrant such a move – they take their instructions from the attorney - but I am persuaded that the failure of the attorneys to send this matter to mediation at an early stage should be visited by the court’s displeasure. On this basis, I propose to limit the fees they can recover from their clients to the costs they can tax on a party and party scale. The client retains the right to pay more, but the attorney should not ask for this unless the client has obtained the advice of an independent practitioner."

This is very reminiscent of English judgments post the Woolf reforms and example of a growing trend for parties to show efforts to resolve disputes without recourse to Court. As an aside, the opposition period in trade mark proceedings is, in many ways, an ADR forum where issues are often resolved using cost effective Registry procedures and settlement agreements. In RSA the overburdened Courts and Registry are likely to make ADR more popular and I was reminded of this on Friday when consulting at a client who chooses to resolve a number of their IP disputes with a major competitor by each of them making representations to an agreed senior counsel, and then agreeing between them to adopt the decision. "It's quicker and cheaper" he says, and the client is assured of a competent decision maker. Although this client acknowledges that their method of dispute resolution, like mediation, is not always appropriate for resolving IPR disputes, one senses that Brownlee is another baby step toward more progressive ways of dealing with contentious matters.
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Friday, 28 August 2009

Darren Olivier

CIPRO CEO interview

Moneyweb has published a interview conducted with Ferdi Myburg (who is credited for breaking the story) and Keith Sendwe, the CEO of CIPRO. You can listen and read it all through the link below, but here is a snippet:

KEITH SENDWE: Well, currently with the help of Mr Myburgh alerting the public to the fact that there is this - and we are very glad he did - we started a process a few months back trying to alert the public of fraud. And I think he's brought it to the fore. Now we really need to get on to this. We have instituted a task team that is looking at this whole process of looking at all the duplicate names or associate names that we have on our system. Let me take an example. During the process that we were running we discovered 2 800 duplicate names. Now, without going through a process of investigating, it was easy to say they are fraudulent. But if you look at it, it was simply CCs that converted to companies. So we have to go and look at each and every instance of this. Any company can go on our system and do a search to discover if there is anything wrong there.

KEITH SENDWE: Firstly, we've done the investigation. We've also, over the last couple of months, spoken to our staff. We've gone through a process of alerting them to the fact that we will take stringent and very tough action against them. But I think it is more important to realise that this sort of thing is not confined to South Africa....

KEITH SENDWE: I think as management, Alec, we would do everything in our power. You must remember, we are in a highly unionised environment. We have to follow due process. But the message is certainly out there and when I spoke to the DG last year, in fact in December, and I said to him look, this is the extent of the problem, he said we've got to go the whole way and just clean up. And one of the reasons I was brought in two-and-a-half years ago is to do this transformation and cleanup.

ALEC HOGG: You did make a statement today that a number of companies have incurred a considerable financial loss as a result of this fraud. What is the situation with those companies? Are they suing Cipro? 

KEITH SENDWE: Well, no company has come to us, and certainly from our side we'll engage with them in any discussion. But we don't think we are liable in any way in terms of the Companies Act.

ALEC HOGG: You don't think you are liable?


ALEC HOGG: So who's liable?

KEITH SENDWE: Well, we are all into this together. It is a process. Cipro does its part, the banks do their part, everyone does their part. Certainly from our side we've done everything on our side that we should have done to ensure that nothing has gone wrong.

Click here for the entire interview. 

It is quite incredible how blame is apportioned and nobody takes ultimate responsibility. It is true that these sorts of things happen in other countries (eg the ID scandal in the UK not long ago) but this is normally followed by a national outcry. Whilst Mr Sendwe should be commended for taking this head on in an interview he (and his bosses) have a very long way to go before credibility can be re-established at the national office, and that is a major problem for everyone interested in RSA's ability to attract investment. 

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Thursday, 27 August 2009

Darren Olivier

Alleged CIPRO corruption update

Afro Leo received a call last evening from a reliable Afro-IP subscriber, who preferred not to be identified, that CIPRO was taking significant steps to flush out the alleged perpetrators of the corruption. According to the source over 150 people may have been implicated. CIPRO apparently know who these people are but are conscious that immediate suspension could cripple the workings of the Office and so steps are being taken to address the situation in a more pragmatic way. In the meantime employees are apparently under close supervision.
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Aurelia J. Schultz

BA A2K Newsletter Available

The Access to Knowledege Newsletter put out by Bibliotheca Alexandrina in Egypt is now available online here.  The August edition features links to important IP papers that have been translated into Arabic, feature articles from the A2K toolkit and a Draft Law on Copyright by eIFL-IP (Electronic Information for Libraries).  The newsletter also includes information about upcoming events on: Intellectual Property Rights and Development in September and Copyright Protection in the Digital Age at the end of September.  Readers can also find information on ACTA and climate change.

[Note: a few of the links in the pdf newsletter do not work.  Here are corrected links.

eIFL-IP Draft Law on Copyright:

Creative Commons article: page 74

From TRIPS-minus to TRIPS to TRIPS-plus: Implications of IPRs for the Arab World (in Arabic): (the link is correct but does not connect from the pdf; requires cutting and pasting)

Dr. Mohammed El Said’s Biography:

Damages, Injunctions and Transparency Key Issues in ACTA negotiations:]

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Tuesday, 25 August 2009

Aurelia J. Schultz

Winners Announced in Nigerian Copyright Essay Competition

The winners of the Nigerian Copyright Commission’s Twentieth Anniversary Copyright Essay Competition were recently announced.  The theme of the competition was “Protecting Creativity for National Development”.   Winners and awards are as follows:

First Place to Oyebamiji Tunde Abdul-Fawas of GOF International College in Osun State.  He will receive a certificate of merit and a laptop computer.

First Runner Up is Anyassor Jedidah Kelechi of International Secondary School, Rivers State University of Science and Technology in Port Harcourt.  He will receive a certificate of merit and a desktop computer.

Second Runner Up is Adewale Ruth from Adesina College in Ibadan.  She will receive a Certificate of Merit and a portable DVD player.

All three students will be recognized at the Commission’s Anniversary Gala Nite at one of Abuja’s top luxury hotels in September.  Congratulations to all the participants for their hard work, and especially to the three students who placed!

Full newspaper report from The Guardian here.

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Darren Olivier

More CIPRO woes

Afro-IP has been informed by several sources (including Adv Paola Cirone) about a devastating article penned by Mr James Myburg entitled CIPRO at epicentre of SA's fraud pandemic on Politicsweb. Afro Leo says that brand owners need to step up their efforts too.

"Over the past two years corrupt officials at CIPRO (the Company and Intellectual Property Registration Office), acting with seeming impunity, have facilitated hundreds if not thousands of scams which have hit the South African Revenue Service, a number of prominent companies, and hundreds of smaller private businesses."

There are apparently two forms of the fraud - so called counterfeit companies and hijacked companies:

Counterfeit companies

"One of the most prevalent scams involves the registration of duplicate or counterfeit companies. These are companies which almost the same name as the real company.... Once the company has been registered the fraudsters - who operate using stolen identities - then attempt to establish bank accounts in the name of the counterfeit company. ... This is then used to facilitate fraud against the legitimate company, its clients and suppliers, and innocent third parties....Clients are sometimes contacted and informed that the banking details of the real company have been changed (to that of the counterfeit.) ‘Overpayments' may be made using the counterfeit company's cheques to the legitimate company's suppliers and the fraudsters will ask for a refund.....In many cases cheques are intercepted at the South African Post Office. Companies with similar names to the recipients of the cheque are then fraudulently registered through CIPRO. Bank accounts are established in that company's name, the cheques are cashed, and the money removed. Usually, the counterfeit company uses the same name with a word (such as Gauteng) or a number (usually 01) added to the end. If need be, the fraudster can simply add the "01" to the named beneficiary on the stolen cheque, and it can then be deposited into their account."

"The following [companies] confirmed they had been targeted: Schindler's Lifts, SA Guide Dogs Association, Giants Canning, Trident Steel, Johannesburg Tractor Spares, G and L Agencies, Marlboro Crane Hire, Hypersave Supermarket, Space Television, Colletts Pharmacy, The Media Shop, and AfriSave Cash and Carry."

Hijacked companies:

Between 2007 and 2009 a series of well known South African companies have had their legitimate directors deregistered on the CIPRO system. New directors were inserted, probably using stolen identities. ..."companies affected by this type of fraud include Cashbuild (South Africa), The Lion Match Company, Trident Steel, Fleet Street Publications, Tedelex and Gardena (SA)...Most of these frauds were carried out using the electronic lodgement of the C29m (details of directors) form. Due to weaknesses in the system agents accessing the CIPRO database could change the names of directors of any company at will. This was done from ‘outside' but it did require insider knowledge. Despite being notified of the problem as early as October 2007 CIPRO only acted in February this year. E-lodgements of the CM29 form were temporarily suspended on February 25 2009 by then acting CEO Renier du Toit. However, this did not stop the problem completely. On April 8 2009 someone inside CIPRO deregistered the two legitimate directors of BLSA industries (the company which manufactures PoolBrite). One ‘Ndumiso Terran[ce] Mzazi' was inserted as the sole director instead."
Politicsweb Comment:

"Once the counterfeited (or hijacked) company has been registered and a bank account opened it becomes very difficult for the police to solve subsequent frauds. The new directors usually use forged or stolen identities. A common practice is for the fraudsters to use stolen identity documents and scan and electronically alter proof of residence documents in order to meet FICA requirements. Unless the fraudsters are caught in the act, or with the false IDs in their possession, it is almost impossible to successfully nail them. .. In a written response to a query from Politicsweb CIPRO CEO Keith Sendwe said he was aware of the basic points we raised. The organisation, he said, was "pulling out all stops to prevent fraudulent activities taking place." His full reply to our questions can be found here. "

Afro Leo's Comment:

This is a truly depressing article and the allegations against CIPRO, if correct, are very worrying. Corruption is inexcusable. However, it is important to note that by law CIPRO takes a limited role as public protector of the names of companies (justifiably so) and it is really up to the brand owners to police the register of company and cc names regularly to ensure that no confusingly similar names exist. CIPRO (like a number of other registries around the world) do not, for example, cross check the trade mark and company name databases when registering new names. Neither do a number of domain name registries which are often also quite prepared to register small changes to domain names and register them in the names of different applicants. Of course CIPRO needs to ensure that its staff are adequately trained and, above all, are not corrupt but beyond that it is up to the brand owner to employ a proper watching service and police trade marks and company names effectively. The recently reported Alliance case (see here) shows just how apathetic brand holders can be in RSA when it comes to looking after their IP. The alleged state of affairs at CIPRO is worrying and corruption needs to stop. However, brand owners also need to step up their efforts.
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Monday, 24 August 2009

Aurelia J. Schultz

Exploring Open Content at IGF in Egypt

This year, the UN’s Internet Governance Forum is holding its fourth annual meeting in Sharm El Shiekh, Egypt.  Of course, being about the internet, nearly every topic relates back to intellectual property in some way.  However, there is one topic that Afro-IP would like to highlight.

The workshop on Open Content and Open Licensing in the Arab World: Opportunities and Challenges Facing Their Use and Applicability is intending to combine contributors from across Northern Africa and the Middle East.  Creative Commons Jordan is organizing the workshop.  Expected African contributors include the Egyptian Linux Users Group, the Creative Commons Tunisia team and Unesco Egypt.

Although this particular workshop is focused on issues in the Arab world, it is likely that many of the take-aways from it will be applicable to the entire continent.  The proposal for the workshop explains:

“The debate over the use of open content licences has increased recently in the Arab world, where enforcement of copyright laws is limited and piracy rates are high. The use of Free Open Source Software (FOSS), Creative Commons and other voluntary mechanisms could provide a meaningful alternative to those problems.”

Limited enforcement and high piracy rates are certainly concerns applicable to all of Africa.

Based on the contributors, the topic, and the sure-to-be-highly international group of participants, this workshop is bound to produce good things for Northern Africa and the rest of the Arab community.  Perhaps the future may even hold an adapted version of the workshop, addressing these issues in Sub-Saharan Africa.

List of other workshops, proposed and to be included, here.

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Thursday, 20 August 2009

Aurelia J. Schultz

Egyptian Organization Makes Important Study Available in Arabic

Arab_World_Green The Bibliotheca Alexandria A2K project in Egypt just announced release of an Arabic translation of Professors P. Bernt Hugenholtz and Ruth Okediji’s study on copyright limitations and exceptions.  ““Conceiving an International Instrument on Limitations and Exceptions to Copyright” looks at limitations and exceptions under Berne, in the context of the TRIPs three-step test and in relation to other areas that might influence exceptions.  The study also explores possibilities for new international instruments and makes recommendations for the future of limitations and exceptions.

Both the Arabic and English versions of the reports are released under a cc-by-nc-nd license.

A2K expressed special thanks to the authors for the ease in which it was able to obtain permission to translate the work.  It is very encouraging to see so much collaboration, an organization in Egypt obtaining permission from a Nigerian professor in the US and a professor in Amsterdam to translate an important study for the benefit of people across the Middle East and North Africa and around the world.  Kudos to all involved!

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Wednesday, 19 August 2009


Should Kenya merge its industrial property and copyright offices?

International Law Office carries a note which proposes centralising the administration of IP in Kenya ("Improving the IP Rights Protection Regime") by David Kimani, of Njoroge Regeru & Company.

This note explains the legal basis and functional ambit of the country's Industrial Property Institute and its Copyright Board, which were established under different acts of Parliament and operate fall under the jurisdiction of different governmental bodies. The Industrial Property Institute, he explains, is a semi-autonomous institution, able to control its own affairs easily, while the Copyright Board is run similarly to mainstream government departments and is thus bureaucratic in nature. Copyright holders complain that no action is taken when their rights are infringed, and that any action taken takes place too late to prevent significant losses, while the Institute has been commended for its efficiency in protecting the rights of trade marks and patent holders. The author concludes:
"Considering that both the Industrial Property Institute and the Copyright Board were established to protect intellectual rights, it is logical that these two institutions be merged. Accordingly, Section 3 of the Copyright Act must be amended so as to establish the Copyright Board as a department within the institute. Sections 5 and 7 of the Act will also require amendment in this regard. This suggested change would mean that the registration and protection of all IP rights were overseen within one institution, thus significantly improving the effectiveness of the IP rights protection regime".
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Tuesday, 18 August 2009

Darren Olivier

Tuesday's toffees

Algeria has had a Thursday-Friday weekend since 1976, but is now aligning itself with other states in the region that have a Friday-Saturday weekend. However, the change is causing confusion and consternation that it may lead to more long weekends as people adjust. Afro Leo wonders about what happens to that deadline which fell on a Thursday - for more info click here.

A reminder to check alongside the Upcoming Events and to please send Afro Leo details of any events you are organising.

John Syekei has, with thanks, informed Afro-IP that the commencement date of the Kenyan Counterfeit Goods Act was 7 July 2009. John could you let us know if the regulations are in place and whether any raids have been conducted under the Act?

In South Africa, there has been a re-shuffle in the IP profession following the move of two Bowman Gilfillan partners to Edward Nathan Sonnenbergs (ENS). Bowman Gilfillan has recruited an IP partner from another leading local IP firm and UK based IP Counsel from Telefonica (O2). A number of associates also moved between the leading IP firms as a result. ENS is known as a corporate firm in the local environment and their recruitment of the partners indicates an intent to gain credibility for IP work. Meanwhile, the local IP profession celebrated Women's Day with their annual lunch last week Friday. The SAIIPL Golf Day takes place this coming Friday.

Afro Leo is working on an article for MIP on outsourcing IP work to Africa and would welcome any contributions, examples etc of where this is occurring and how effective it has been. Africa can benefit from its low labour costs, favourable exchange rates, small (in number) but highly skilled IP professionals, reducing technology costs, time zone efficiencies, brain drain boomerangs, and recession to put itself in a position to gain from the worldwide need to reduce costs.  All African IP professionals stand gain by Africa making a credible play as an IP outsourcing destination, so Afro Leo is hoping his call is met with enthusiasm. Drop him a note

Alien action film "District 9" topped the box office according to this Washington Post and Reuters report: "District 9," a gritty, low-budget space alien movie set in South Africa with a cast of unknowns, opened as Hollywood's No. 1 film, grossing more at the box office its first weekend than it cost to make. The sci-fi action thriller depicting extraterrestrials as unwanted immigrants stranded in Johannesburg took in $37 million in North America, distributor Sony Pictures said on Sunday. Read the wiki here.
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Monday, 17 August 2009

Darren Olivier

South Africa - lessons from Alliance

The latest passing off case reported here as Alliance Property Group (Pty) Ltd v Alliance Group Limited (8828/2007) [2009] ZAKZPHC 31 illustrates just how difficult it is to protect an inherently weak company name, especially when there has been trade mark neglect.

The Applicant (Alliance Property Group) sought "a permanent interdict/injunction restraining the Respondents (Alliance Group Limited) from passing-off their services in the field of property as those of the Applicant, or as being associated with the Applicant in the cause of trade by using the name, mark & trading style “Alliance Group” or any other name, mark & trading style which is confusingly or deceptively similar to the Applicant’s mark & trading styles “Alliance Group”."

The Applicant failed because they were unable to show that they were entitled to exclusivity in the name despite having used it since 1997. Factors that weighed against the Applicant included that:

a. they had failed to keep the company/close corporation name register clear of names including the word Alliance suggesting that it was a commonly used trading style;

b. the company name that the Applicants had chosen was descriptive (as opposed to fanciful or distinctive) such that "the Applicant cannot claim a monopoly [ed - not a big fan of this term - prefer exclusivity] on this widely used and descriptive term";

c. there had been a gradual erosion of whatever distinctiveness the name Alliance may have had vis-a-vis the Respondent who had used the name in one form or another since 1998 ie the Applicant had failed to take action quick enough (or in fact any action at all until this application). They had also allowed a "massive number of other businesses" to co-exist using the name Alliance;

d. because the Applicant had not registered a trade mark for the name it had to rely on trying to show a reputation in the mark which it managed to do ie a "sound reputation in the property industry and has been well known in the Durban area [presumably under their name]". However, given the adverse circumstances around the mark (eg a weak mark) it had failed to show that the name had acquired a secondary meaning [ed - I am not altogether clear there is a difference ie having a reputation but no secondary meaning in the mark];

e. the Applicant did not, in its papers, show evidence where it actually claimed rights in the name Alliance [typically this could have been achieved through proper use of a tm sign];

e. the Applicant had failed to show actual or a likelihood of confusion despite a finding that there was an overlap in businesses of Applicant and the Respondent.

In assessing the case, the Judge also spelt out bad news for the Respondent who was said to have also failed to make out a case for exclusivity in the word Alliance (see para 58) [the perils of taking this type of dispute to court] thus opening the doors for others to trade off any goodwill either of them has/had in the name. The case was heard in the Kwazulu Natal High Court by Judge Sishi who granted costs of two Counsel to the Respondent in finding for them. It is not clear whether the case will/has been appealed.
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Friday, 14 August 2009

Darren Olivier

Whose right? - HIV activists call for People's Property Rights

The concept of a People's Property Right apparently conceived by economist Joseph Stiglitz is the solution supported by Javed Jabbar, a former senator and minister from Pakistan, in a speech in Bali at the 9th International Conference on AIDS in Asia and the Pacific (ICAAP). He suggests setting up a fund to pay fees to scientists who come up with cures for key diseases - after which the [IP rights in and to] the drugs would go into the public domain instead of being ‘owned’ by pharmaceutical companies. Johanna Son reports further here and the leo highlights:

"These are medicines that make for life and death," argued Jabbar, also global vice president for the International Union for the Conservation of Nature. By applying the patent system to the drug product and the process, "we create inherently unjust monopolies and block knowledge transfer" that could save so many lives around the world.

It is time to rewrite the rules of intellectual property rights, a pillar of the world trade system, critics like Jabbar argue. "In the context of HIV and AIDS, we need a new concept of people’s property rights instead of intellectual property rights."

This Afro Leo believes that the concept of "people's property rights" already exists. For example, exclude recipes, algorithms, business methods, software etc from patent protection and what happens, they cannot be protected by patents and end up in the public domain ie they are no different to "people's property rights" and the people who create them are paid by way of a fee or charge. Assume for a moment though that the concept evolved from a Jabber/Stiglitz soundbite into a recognised form of property right, then consider what would would be right in circumstances where a HIV scientist employed by a pharma company came up with a cure for Aids using a plant extract that had been developed by a poor (in terms of money) indigenous community (protected by TK) with a high HIV mortality rate. Jabber would want that cure to be free for all (the People's Property Rights soundbite), the indigenous community (assuming it could be defined) would want recognition and wealth (through some right to the IP in the cure) to help its people, and the pharma company an incentive (in the form of an IP right) to keep on employing good HIV scientists. Whose right?
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Thursday, 13 August 2009


The Grid: a first for Africa?

This week's BrandChannel carries an article ("The Grid: line by line") by Mandy de Waal on The Grid. Explains the article, The Grid is a mobile social network that allows users to chat with friends, locate them on a map and share media:
"... The Grid is a first for the African continent. Part Facebook, part Flickr, and a dash of Twitter combined with a GPS-type navigation system, The Grid allows customers to share their lives in a mobile location-based matrix with all of their friends.

The application is all about socializing on the go. If users want to have a cup of coffee with a friend, all they need do is log into The Grid to see which friends are nearby and tag the location of a nearby coffee shop. Then they send a coffee invitation with directions to tempt their mate to pop on over. If the coffee drinking duo wants more friends to join them, they can log in again and type up a blog, message or record a quick video and invite everyone who’s free and happens to be nearby.

Because The Grid displays the user’s approximate position on a street map, everyone can easily see where friends are and what they are doing where. Users from any network can join in because the independent and network-neutral application was developed to showcase innovative new technologies to all South Africans".
Promoted by Vodacom, The Grid has generated its own commissioned content:
"... the world’s first geo-tagged documentary for mobile phones, which centered on the issue of youth culture in South Africa’s biggest urban township, Soweto. Called Mobikasi (literally translated this means mobile township), the mobile documentary utilizes The Grid’s location-based service capabilities to tag real-life physical locations and link them to relevant content in the movie.

When users look at the film, they can explore Sowetan youth culture on their mobile phones from anywhere in South Africa through The Grid’s map interface, or by physically touring the famous township and watching documentary clips on their phones at the locations where they were shot.

Mobikasi features people, music, fashion, social issues and places of interest and is unique in that it is not linear in nature. Rather, Mobikasi splits the content up into 25 one-minute inserts, and each is geo-tagged to the location where it was shot. This means that viewers can now explore Soweto’s vibrant youth culture by virtually “traveling” through a mobile street map of the township and stopping off at points of interest to enjoy the short video clips about each destination.

The mobile documentary has proved so successful that a second season of Mobikasi is on its way and will take place in other townships around South Africa".
How much of a first this is, Afro Leo isn't sure. The Grid, which is also available in Tanzania, is said to have been around for a couple of years. Nor is our lion certain whether this is truly a genuine networking product or merely an advertising and marketing gimmick that was found to have wider uses. He wonders whether the same mix of media is available outside Africa, under the same name or not, since he's embarrassed to say that he has never come across it before and thinks he should have done if it were launched in, say, the US or Europe. In any event, readers' comments are welcomed.
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Wednesday, 12 August 2009

Darren Olivier

Report on the South African Copyright Act - Shuttleworth Foundation

Thanks to tip-off from Denise Nicholson (Copyright & A2K Issues) Afro-IP is pleased send you the link to the Shuttleworth Foundation's 79 page "Report on the South African Copyright Act" which was produced by the Open Review.

"The Review engaged civil society and ordinary South Africans in a review of how they understand copyright, and how South African copyright law affects them and the work that they do.

After many discussions and workshops, and the opportunity to comment on an online wiki, the various concerns, comments and suggestions made were combined into this Report which includes a plain language review of South African copyright law, as well as a critique of the areas of the Copyright Act (referred to as the “Act”) that should be reviewed and recommendations of possible changes that should be made. The Report is not just for lawyers or copyright experts but for everyone affected by copyright law.

The huge advances made in technology (particularly in the digital realm) since the Act was passed in 1978 have also completely revolutionised the way South Africans engage with content, copyright and media. The 1978 Act passed before these changes. The Review makes recommendations that take these advances, and future development that into account.

The Report also looked at areas of the Act that are vague or poorly defined like the definition of licence, and 'fair dealing'. The Report also examines concepts inadequately addressed in the legislation; like Orphan Works, Parallel Imports and the Public Domain. All three of these areas offer important freedoms, which could improve access to learning materials. The Report couldn't cover everything to do with copyright law, but focuses on how copyright affects all South Africans.

The Open Review was carried out by the Shuttleworth Foundation with assistance from the Trade Law Centre for Southern Africa (tralac) and the Open Society Institute (OSI).

The Report is published under a Creative Commons licence that gives you the freedom to use, share and remix it. "

You can download the report in PDF format or request a copy in Open Document Format by using their contact page here.
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Tuesday, 11 August 2009

Asiimwe Paul

Orange Telecom strengthens brand in African football

Orange Telecom has landed a deal to sponsor major Confederation of African Football (CAF) events after the sponsorship period covered by MTN for a record US$12.5 million ended. This deal gives Orange exclusive media and marketing rights over the Afican Cup of Nations held every two years, the annual CAF champions league as well as several other soccer tournaments on the African continent.

According to the CAF web site, "following the acquisition of TV and mobile rights of African football in France for the coming 4 years, this key agreement with the CAF will enable Orange to accelerate its contents strategy expansion as well as improve its brand awareness on African continent and main European markets".

This deal is of great importance as it signifies the increasing importance of media and marketing rights in sub saharan Africa's under developed sports. The wider availability of internet access when the various sub-marine fiber optic cable projects are completed should also widen viewership through provision of sports offerings over the internet.

The hope is that as big brands like Orange get better visibility, the small township brands will also grow through the sponsorship and training packages offered by Orange.
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Thursday, 6 August 2009

Jeremy for sale

ZimEye reports that the domain name is available for sale. Some lively comments have been added by way of discussion as to whether only governments can acquire 'country name + tld' domains. Anyway, if you're in the market for this particular item, now's the time to get bidding.

The author of this article, Robert Ndhlovu, concludes his piece by writing:
"Considering that South Africa would be hosting the first soccer world cup in Africa , it takes no rocket science to figure out the internet spill over traffic that this 30 day , once in 4 years event will bring to that region".
Without wanting to sound in any way surprised by this statement, Afro Leo wonders how much internet spillover traffic was experienced in 2006 by the nine countries which border the host nation in that year, Germany.
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Wednesday, 5 August 2009


AGOA: trade breaks or heartbreaks?

The Los Angeles Times carries an excellent story ("Struggling to make it in Kenya", by Edmund Sanders) on the efforts and aspirations of Kenya's government to make Kenya an attractive and viable destination for the "Made in Kenya" outsourced manufacture of leading brands and the subsequent events -- some encouraging, others disheartening.

The trigger for all of this was the US's Africa Growth and Opportunity Act (AGOA), which was signed into force by President Clinton nearly 10 years ago. Well-known brands currently manufactured in Kenya include Dockers, Gloria Vanderbilt and Izod, made principally for the US market -- but for many AGOA, and the trade agreement with the US that supported it, hasn't been as successful as was hoped. Economic conditions have depressed the US market but, even if they hadn't, AGOA's provision have been severely under-utilised. Of somet 6,400 products and goods that qualify for duty-free export to the US under the AGOA programme, Kenya is shipping only 20, including apparel, flowers and coffee.

Beneficiaries of AGOA, for whom US duties are waived, are 39 qualifying sub-Saharan African countries. This waiver lets them to sell African goods to US customers for between 15-30% less than rival exporters. The idea was that AGOA would help free-market African economies diversify their manufacturing bases and create jobs. In reality, its critics claim, it has mainly subsidized the export of oil to the US by waiving duties for firms in a small number of petroleum-producing nations which hardly needed increased incentives.

AGOA's trade breaks are set to expire in 2015.
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Tuesday, 4 August 2009


Libya, Canada sign nuclear pact -- but what of the IP?

OilVoice reports that Libya has signed a memorandum of understanding with Canada for cooperation in the peaceful use of nuclear energy. The MoU, signed in Tripoli on 29 July, provides for cooperation in several fields. These include research; uranium mining, processing and transport; enhancement of radiation technology for the prevention and treatment of diseases and the development and management of seawater desalination technology.

The secretary of the management committee of Libya's Atomic Energy Institute said that the signing of the MoU represents a progressive step in relations of both countries and opens new opportunities for cooperation in the area of promoting nuclear energy development programmes.

Nothing has been said publicly about the provision of background intellectual property which will be needed in order to kick-start the cooperation or about the control or exploitation of any IP rights resulting from research contemplated under the MoU.
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Saturday, 1 August 2009

Darren Olivier

Traditional Knowldege - Aladdin's lessons?

Two recent articles reveal the difficulties in finding a workable solution for protecting traditional knowledge. RSA's attempt (in its "Intellectual Property Laws Amendment Bill" - which aims to use forms of existing intellectual property legislation such as trademarks, copyrights, geographical indications, designs and patents to protect indigenous culture) is slammed (again) by critics in this Mail and Guardian article, which itself has generated comment. Meanwhile Kenya's Maasai have linked up with WIPO in an interesting recording project which uses Apple technology and recording lable Putumayo to create a digital library which will rely on copyright for the protection of certain aspects of traditional knowledge(see article here). Afro Leo's three year old son explains the difficulties trying to harness something from the public domain and then using established IP principles to protect it:

Afro Leo: why cant Genie protect anymore?

3 year old: because Genie got out of the lamp

Afro Leo: well put Genie back in the lamp then!

3 year old: don't be silly [you fool]... Genie can't go back into lamp!
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