Wednesday, 27 October 2010

Aurelia J. Schultz

Pro Bono IP for Developing Countries–Panel Tomorrow

Afro-Leo apologizes for the late notice, but readers who happen to be in Washington D.C. tomorrow may find this program of interest:  The Role of Pro Bono IP in Developing Countries.

This free event is sponsored by the Public Interest Intellectual Property Advisors (PIIPA), a group of volunteer attorneys who provide pro bono assistance on intellectual property issues to clients from around the world.  The panel speakers include the founder of of PIIPA, Michael Gollin; Executive Director of African Artists Collaborative, Caroline Okolo; President of Global Bioscience Development Institute, Dr. John Kilama; and others with experience at WIPO, OECD and WHO.

The panel will be held at the Venable LLP offices on 7th Street in Washington DC.  It runs from 8:30am to 10:00am, 28th October 2010.  If any readers attend, Afro-Leo would love to hear about how the event went.

For those interested in attending, registration and more info is here.

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Tuesday, 26 October 2010


New Zim trade mark laws now in force

Court fees and damages awards are
now calculated and paid in US dollars
10 September was the commencement date for Zimbabwe's Trade Marks Amendment Act (Act No. 10 of 2001) and Intellectual Property Tribunal Act (Act No. 5 of 2001). These two regulations implement a range of amendments to the Trade Marks Act [Cap 26:04] and require the establishment of a separate tribunal to handle IP disputes.

The Trade Marks Amendment Act applies gives retroactive protection to all trade mark registrations that designated Zimbabwe under ARIPO's Protocol system. It also widens the scope of the definition of a "mark", provides for registration of collective marks, offers broader protection by way of border measures and allows for punitive damages awards in respect of flagrant infringements.

Source: INTA Bulletin, vol.65, no.18, 15 October 2010
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Friday, 22 October 2010

Darren Olivier

Where in Africa is Afro Leo?

It’s Friday and Afro Leo has decided to take a break from it all. What better than to safari in one of Africa's premier wildlife destinations just before the rainy season (perhaps even keeping an eye out for meerkats eating jam). Here are some clues:

· Over 70% of the country is covered by desert;
· It is the world's largest producer of diamonds;
· It has the continent's longest multi-party democracy and is one of the great development success stories;
· Registered trade marks become vulnerable to cancellation on the basis of non use after three years;
· IP licenses must be registered to be effective;
· Adequately protecting rights to traditional knowledge is a serious challenge for government, especially as it is home to an ancient hunter-gatherer tribe;
· Patents undergo a substantive examination;
· It is about the size of France;
· It is well known in popular culture for The Gods Must Be Crazy, Meerkat Manor and the inspired Afrikaans hit "Die Meerkat eet nie jam nie"
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Wednesday, 20 October 2010


Cape Town graffiti code: some implications for copyright

A new by-law in Cape Town, South Africa, is set to target antisocial graffiti such as tagging by criminal gangs while still tolerating works of graffiti that constitute art, according to "Cape Town city and graffiti artists face spray-off", an article by Justine Gerardy (AFP).  This by-law, which will be enforced by a four-man control unit, comes with real clout for offenders.  A first-time offender can expect a fine of up to 15,000 rand (US$ 2,200 or three months in prison.

Graffiti: art or vandalism? 
The policing and elimination of graffiti has interesting implications for the art world, since much graffiti is now commercially exploited as a highly-valued commodity, which itself is protected by copyright in artistic works.  Copyright continues to subsist even if the original work is obliterated, but it may be more difficult to prove copying or to establish originality where that original has been destroyed.
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Aurelia J. Schultz

Book Review: International Copyright–African Relevance

imageAfro-Leo, in a less furry and (unfortunately) nsima/ugali-free alter-ego, posted a book review of the Second Edition of Paul Goldstein and Bernt Hugenholtz’s International Copyright on the copyright-specific The 1709 Blog.  Now, back in furry form, Afro-Leo would like to focus on the specifically African aspects of the book.

Perhaps the biggest benefit of this book is not its mentions of Africa, but the references to which it points.  Only one small section on “Other Regional Agreements” specifically covers ARIPO and OAPI, but the footnotes in the section point to a number of authoritative works written by top IP experts from Africa.  Seeing that made Afro-Leo very happy.

Although that is the only section that particularly mentions Africa, the book still includes a lot of information that is relevant for African practitioners and scholars.  There’s the obvious bit, the parts that are relevant simply because so many countries in Africa have copyright laws inherited from European countries.  There’s also the information on Berne, the UCC, TRIPs and the WCT, agreements to which many African countries belong.  (Every country but Western Sahara, Congo DRC, Sudan, Ethiopia, Somalia and Eritrea belongs to at least one.)  See the 1709 post for more about the book’s coverage of these things.

The real bonus in the book comes with coverage of certain topics often at issue in many African countries: boarder control measures, piracy, and the intersection of copyright and human rights, to name a few.  This is one book you’ll enjoy more than the termites. (So keep it away from them.)

Book details:
Title: International Copyright: Principles, Law and Practice
Authors: Paul Goldstein (Stanford University) and Bernt Hugenholtz (University of Amsterdam)
Publisher: Oxford University Press
Pages: 407 (book-book), 565 (with appendix and index), 592 (with preface and everything)
Color: very pretty medium green
Sturdy, heavy-weight paper-back cover
List Price: $95.00

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Tuesday, 19 October 2010


Algeria curries favour with Gurry

A WIPO media release has announced that the organisation's Director General Francis Gurry ended his two-day official visit to Algeria yesterday. While there he met with Government Ministers to discuss the role of intellectual property in stimulating innovation and development and ways to strengthen cooperation between WIPO and Algeria. According to WIPO,
"Bilateral discussions focused on how Algeria can best exploit the IP system for economic and cultural development, as well as ways in which WIPO can support national efforts to strengthen the country’s IP capacity"
This author recalls Algeria's disappointment, following the euphoria of independence, when it first became apparent that the possession of a full set of French patent records was not a short-cut to industrial success and innovative competence.  Last year Afro Leo reported on the finding that much of Algeria's laboratory equipment was broken or had never even been assembled for use, through neglect or lack of know-how.  Whatever support WIPO and others can give to developing countries so as to avoid these mishaps will surely be welcome.
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Monday, 18 October 2010

Aurelia J. Schultz

WIPO Gatherings in Nigeria

This week, Abuja, Nigeria is hosting two separate regional WIPO meetings.  Today through tomorrow morning (Monday and Tuesday) is the WIPO Regional Seminar on the Protection of Broadcasting Organizations.  The broadcasting meeting is followed tomorrow afternoon and Wednesday by the WIPO Regional Seminar on the Protection of Audiovisual Performances in Africa.  Both programs are co-organized by WIPO and the Nigerian Copyright Commission.

Broadcasting Organizations Meeting

The agenda for the Broadcasting meeting (pdf) includes special sections on broadcasting for development and the need for an international agreement to protect broadcasting.  The attendees will be discussing the Draft WIPO Treaty on the Protection of Broadcasting Organizations and looking at a number of case studies of broadcasting infringements in Africa.

Several studies relevant to the meeting are available from WIPO at the meeting’s main page.  One paper, entitled Study on the Socio Economic Dimension of the Unauthorized Use of Signals: Part I: Current Market and Technology Trends in the Broadcasting Sector (pdf), gives an overview of the broadcast/cable/satellite industry from the point of view of Screen Digest Ltd in London.  The study also includes a detailed synopsis of the industry in particular countries, among them Egypt (pdf pg 47), Ghana (pdf pg 50), Nigeria (pdf pg 51) and South Africa (pdf pg 52).

Part II: Unauthorized Access to Broadcast Content – Cause and Effects: A Global Overview (pdf), takes a regional look at unauthorized access, the effects of it, and barriers to legitimate access of broadcasts.  Most African piracy is still in physical form (such as DVDs), but there is also a large number of pirated satellite broadcasts, including showing of broadcasts to large public audiences without authorization.  The main causes listed are low incomes and lack of competition, and the main effect is a move away from satellite distribution and reduction in content production.  [Afro-Leo would have liked to see some citations or support for these later statements, especially the lack of competition and reduction in content when Nollywood is one of the to producers in the world and Nigeria has at least 5 satellite providers.]

Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organizations (pdf) was prepared by a group of professors and researchers, instead of Screen Digest Ltd.  This 75-page document attempts to analyze the impact the proposed WIPO treaty will have on the many involved stakeholders (including artists, broadcasters and society).  After looking at many different types of unauthorized behaviors, the contributions theses uses make to society and the ramifications these uses have on stakeholders, the study concludes, “There is no way to effectively project the global effects of the treaty.” (pdf pg 72)  As unhelpful as that sounds, the next several paragraphs do offer some interesting insights.

Audiovisual Performances Meeting

The agenda (pdf) for the Audiovisual meeting is much more modest, a presentation on legal and policy considerations, a presentation on contracts and collective management, and then a day of discussions.

On the meeting’s main page, WIPO provides two other related documents, a summary of previous seminars on the topic and

Technorati Tags:
information on the main issues in protecting audio-visual performances.  Neither document specifically focuses on any countries in Africa, although conversations from the 2008 Regional Seminar in Lilongwe, Malawi did contribute to the summary of previous meetings. 

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Asiimwe Paul

Kenya Launches 'virtual' Courts

Kenya has launched 'virtual' Courts in a move that could have a huge impact on Intellectual property disputes.

According to the Daily Nation newspaper, the Kenyan Judiciary launched the project with technical support from Cisco Systems. In order to use this system, the parties must consent to using this forum. This system would have a great impact if parties outside the High Court's jurisdiction, particularly witnesses were allowed to use it. Currently, many cases get delayed due to the fact that it is not always possible to secure the presence of key witnesses in Court. Could this also be a new dawn for cross border litigation, and trademark enforcement in particular?

Hopefully, other commercial courts in the region and Africa as a whole will study this system and adopt it.
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Darren Olivier

How close is the SADC to signing an EPA?

The Southern African Development Community (SADC) inch closer toward signing a European Partnership Agreement (EPA) according to this report in Botswana's Mnegi Online.

"A series of meetings involving senior officials and experts from the European Commission and SADC are scheduled before year-end as the two groups attempt to wrap up a full Economic Partnership Agreement (EPA) before the New Year."

Right: but black clouds still loom over EPA (pic source:

The report makes it clear that a number of SADC states (including South Africa and Namibia) are a long way from ratifying an EPA. Afro Leo wonders if the EPA includes reciprocal respect for rights in traditional knowledge. In principle such an arrangement could assist overcome one significant criticism of TK legislation - that it cannot be enforced against those that are most often alleged to have infringed upon TK rights - foreign nationals. There are of course well documented other criticisms of the current proposed legislation, especially in RSA.
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Sunday, 10 October 2010


Perfecting security interests: can you help?

Emmanuel Kedi Beh, a Masters student who is studying the Bank Management course at the University of Yaoundé II, Cameroon, is in need of urgent assistance  He is preparing a Masters dissertation on "The perfection of security interests relating to intellectual property rights".

It seems that Emmanuel is having substantial trouble in locating and obtaining suitable reading materials. He writes: "I have serious difficulties in finding books on security interests relating to intellectual property and the perfection of such security interests. Please could somebody help me or direct me?"

A request for assistance will also be posted on the IP Finance weblog tomorrow, but I'm posting here in the hope that readers who are familiar with African materials on this topic will be able to share them with Emmanuel.

If any readers of this weblog can send him links to recent publications and helpful websites, this assistance would be grateful.  Please email Emmanuel here, and/or post your recommendations as comments below this request for assistance.

Good luck, Emmanuel!
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Friday, 8 October 2010

Aurelia J. Schultz

TANCon 2010

For any of Afro-Leo’s readers that just happen to be in Northern California at the end of this month, The African Network is holding its annual conference, TANCon, at the Santa Clara Hyatt Regency on 30th October.  TANCon focuses on topics related to entrepreneurial activities in Africa.  While there is no intellectual property specific panel this year, IP is sure to be lurking in the background whenever new business ideas are being discussed.  For more information, please see the link in the following release:

The African Network (TAN) is pleased to announce that registration is open for TANCon 2010 being held October 30th in Santa Clara.  For registration and information, visit, as well as the attached flier.
The African Network is a Bay Area non-profit organization devoted to all aspects of entrepreneurship in Africa.

TANCon 2010 will feature guest speakers and panelists discussing a variety of topics including energy security, mobile banking, and the African movie industry. A special session will focus on the involvement of African Americans in African entrepreneurship. Don't miss this exciting opportunity to network and to learn about Africa's most exciting entrepreneurs.

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Monday, 4 October 2010

Darren Olivier

Has the The Gap highlighted a gap?

The Constitutional Court (right) has issued a caution to judges who take shortcuts in delivering decisions by, for example, cutting and pasting heads of argument. This latest decision has bubbled up from that potjie (cauldron) of disputes over rights to The Gap trade mark in South Africa - click here and here for a refresher. Afro Leo questions whether this decision is just symptomatic of a greater challenge in the dispute resolution system in RSA.

The decision is over an application for leave to appeal to the Constitutional Court to contest an order against the refusal by a High Court judge (Basson J) to recuse himself after he had handed down judgment in 2007.

"The recusal application was based on the contention that the main judgment exhibited little or no sign of any original or independent application and reasoning, that it essentially copied the written heads of argument of Salt’s counsel and, consequently, created a perception of bias in favour of Salt. Basson J refused to recuse himself. The Full Court dismissed the appeal against his refusal. The present application seeks to have the recusal issue reconsidered on appeal by this Court."

The 9! judge bench refused the application because they felt that it would have no practical effect (see the peculiar facts at para 7) but not before quoting former Chief Justice Corbett:

“The true test of a correct decision is when one is able to formulate convincing reasons (and reasons which convince oneself) justifying it. And there is no better discipline for a judge than writing (or giving orally) such reasons. It is only when one does so that it becomes clear whether all the necessary links in a chain of reasoning are present; whether inferences drawn . . . are properly drawn; whether the relevant principles of law are what you thought them to be; whether or not counsel’s argument is as well founded as it appeared to be at the hearing (or the converse); and so on.

The very act of having to summarize in one’s own words what a witness has said, or what is stated in an affidavit or what a document says or provides, is in itself a very good discipline and is conducive to a better and more accurate understanding of the case.”

As astute as these comments are, the reality is that judgements can take a significant amount of time to be handed down in the High Court and the reason oft cited is the enormous workload on the judges. It is also somewhat ironic (and appropriate too) that this decision arises from The Gap litigation which has itself worked through South African courts for almost 15 years, with numerous delays along the way. This judgement, for example, is three years post the original decision.

Afro IP has illustrated, for example, how the ASA has begun to usurp the Court as a forum for trade dress disputes because it is accessible, relatively inexpensive (but not cheap) and above all, quick. On the other hand speed cannot be dispensed with at the expense of quality. In 2009, 3 out of 4 High Court decisions on IP were reversed on appeal to the SCA and in Afro Leo's opinion a number of others would have too, had they gone on appeal.

Is it too that the very fact that The Gap litigation has been ongoing for as long as it has, also symptomatic of a system that does not appear do enough to incentivise settlement at an early stage? Why is it that it is more beneficial to litigate for over a decade in our courts than to settle? Why is it beneficial for The Gap to take this matter to a 9 judge sitting in the Constitutional Court when, according to the CC, a decision would have no practical effect?

In my experience, it is often the delay and risk that accompanies litigation that encourages litigants to settle rather than any positive dis-incentives (eg high cost orders) or incentives (mediation or arbitration) in legislation designed to avoid litigation. Cost can be a deterrent too but RSA is still a relatively cheap place to litigate especially when compared to the UK and USA and there is a need to ensure that litigation is not only for big brand owners by making litigation accessible to SME budgets. The situation is complex.

To be fair to those litigating over the Gap trade mark, earlier judgements have not created sufficient clarity over the respective rights and the very nature of a user rights system is that rights ebb and flow with reputation and goodwill. It is also not uncommon for intense litigation over trade mark rights to extend over long periods of time, as illustrated by the Bud wars.

Trade mark oppositions can also be a very effective "alternative dispute resolution" forum to full scale litigation in the High Courts because they deal with similar issues to trade mark infringement and are generally cheaper. In the UK for example, brand owners frequently push disputes (where appropriate) into the opposition forum for this very reason. For CIPRO this is a big opportunity because there is a market that will pay for the effort in creating a quick and effective opposition dispute resolution centre.
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