Wednesday, 22 December 2010


WIPO Magazine shines its light on Africa, but ...

The most recent issue of the WIPO Magazine (December 2010, here) carries two features of African interest.

The first is "A new dawn for custodians of TK in Africa" (here), which is summarised as follows:
"In early August, the African Regional Intellectual Property Organization (ARIPO) and its 17 member states took an historic step in adopting a legal framework, known as the “Swakopmund Protocol for the protection of traditional knowledge and expressions of culture” [on which see Afro IP here and here]. This landmark event – which took place at a Diplomatic Conference in the coastal town of Swakopmund, Namibia – was the result of 10 years of intensive consultations. ...Emmanuel Sackey, ARIPO’s Program Manager for the Protection of Genetic Resources, Traditional Knowledge and Expressions of Folklore, explains how this new legal framework came into being and what it means for custodians of traditional knowledge (TK) in Africa".
The second is "Morocco displays its cultural wealth" (here) and it features a review of "The depth, diversity and distinctiveness of the cultures of the Kingdom of Morocco":
"At the crossroads between sub-Saharan Africa, Europe and the Middle East, the Kingdom of Morocco is “a place where civilizations meet and cultures converge.” Its unique geographical location and historical heritage have influenced and shaped the country’s distinctive personality, enabling the development of an amazing wealth of art forms. These range from architecture, calligraphy and metalwork, to pottery, leather and woodwork, weaving and jewelry-making – each combining tradition with modernity. Crafts and products from ceramics to kaftans and saffron to tagines were on display".
This particular contributor to Afro-IP is hugely unimpressed by all of this.  Do the countries of Africa not see that, in humouring their requests for the protection of their genetic resources and traditional knowledge, and in exhibiting their past as though it was their IP future, the rest of the world is writing them off as sources of creativity and innovation, denying their relevance and their potential as creators of new intellectual properties?  Where will genetic resources be once the last laboratories have finished milking them and have moved on to newer biotechnologies?  Where will traditional knowledge be once a modest price has been paid for access to and use of it, and the world has moved on to newer, cheaper, purer and better targeted medicines and remedies?  Where will expressions of folklore be, other than as oddities and amusements for the cultural tourist?  It would be great if Africa, without forgetting its precious and varied past and its natural resources, looked forward into a future in which its interests lay in creating the sort of market conditions in which African innovators, entrepreneurs, writers and composers looked to IP as a means of expanding their countries' traditions rather than turning them into cultural fossils.

Comments, please!
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Wednesday, 15 December 2010



The above was the subject matter of the 2nd annual workshop by the Anti-Counterfeiting Collaboration (ACC) and the International Trademarks Association (INTA) held in Lagos, Nigeria on the 27th October 2010. The workshop had as its aim, the tackling of the issue of counterfeit goods in the Nigerian market and discussing means and ways to alleviate these problems.

The workshop was divided into three sessions:

  1. The Brand Owners Perspective
  2. General Overview and the Regulators Perspective
  3. The Bar and the Bench perspectives

Speeches and presentations were given by a number of influential individuals in the Nigerian I.P society, including lawyers, judges and brand owners alike. As well as that, a number of foreign guest speakers were in attendance. Most notably, the workshop was chaired by Tee Mac Omatsola Iseli and a speech was given by Victor Guizar of the World Intellectual Property Organisation.

A number of opinions were given through the course of the one day workshop including reasons for the growth in the presence of counterfeit goods in the country, i.e. there is a high demand because they are cheaper and in some cases more easily accessible than their original counterpart. Ideas for reform were also given including the need for more laws to be put in place, better implementation of the laws and more collaboration between agencies who have anti-counterfeiting as their mandate.

Although it was agreed that all the speakers were specialists in their field and full of sound legal and industrial opinions, in my opinion, the cause for concern lies in the aftermath of the event. Two issues come to mind.

First of all, before the close of the event, the view was expressed that it would be disappointing if after the session, no further actions were taken by the ACC and its members and it was stated that something should be put in place to ensure that the actions in the communiqué were taken in a timely fashion. This writer remains hopeful that the reforms suggested will indeed be carried out, and soon.

Secondly, as an attendee of the event, I was encouraged by the number of industry insiders who were willing to speak out on their opinions of the cause of the rapid spread of counterfeit goods in Nigeria; they must be commended for their efforts on the day. What wasn’t encouraging was the minor number of participants who were in attendance just out of interest. One could argue that perhaps the event wasn’t well enough publicized but I feel that the issue of counterfeit goods is still seen as being relatively low on the priority scale and a one- day workshop to discuss the ways to alleviate the problem isn’t enough to get people out of their office (even if there is free lunch involved).

Raising awareness is the current priority of organisations such as the ACC and this writer is full of praise for their efforts. I personally feel that more initiatives such as the ones by the ACC are fully needed.

Readers may have noticed the presence of (?) in the title of this posting and the reason is this, i am putting the question to you. So what exactly do you the readers think? Do you think events such as this are useful in raising awareness of the growing menace of counterfeit goods in Nigeria, and also in Africa as a whole?
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Wednesday, 8 December 2010

Darren Olivier

The Power of Dreams takes on reverse engineering clause in RSA

The latest IP case to come out of the South Gauteng High Court reveals a constitutional challenge to Section 15(3A) of the Copyright Act (the reverse engineering clause) by Honda. The case itself (click here) is an interim decision to determine what will eventually be subject to, in this case, a trial. Of interest is that the Honda plead that the reverse engineering clause is unconstitutional because it "amounts to an arbitrary deprivation of property which is in conflict with section 25 of the Constitution of the Republic of South Africa Act 108/1996". Although Willis J declined to express an opinion on the pleading he observed that "if the matter does eventually fall to be determined by the Constitutional Court, it is not “obvious” that the plaintiffs would fail. The question raises issues of considerable technical and legal complexity. It also touches upon important issues of policy. The matter would need to be carefully considered". An understatement says Afro Leo noting that Honda are taking it seriously, with three counsel employed to argue their point in the interim case. 
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Tuesday, 7 December 2010

Darren Olivier

RSA: SCA clarify procedure under the Counterfeit Goods Act

The SCA continues to to aid brand owners by clarifying provisions of trade mark legislation in RSA. This time it is the turn of s 5(4) of the Counterfeit Goods Act which sets out the procedure to be followed in the event of a search and seizure without a warrant. Until this decision (Minster of Trade and Industry v E L Enterprises) uncertainty over the procedure had caused advisors to recommend a conservative approach which often meant additional costs and delay. 
A seizure can take place without a warrant in RSA in the event that an inspector has reason to believe that the required warrant will be issued to him if he were to apply for the warrant and the delay that would ensue by first obtaining the warrant would defeat the object or purpose of the entry, search, seizure, removal, detention, collection of evidence and other steps. (Section 5(2))
The Act states further (section 5(4)) that "any acts performed by an inspector by virtue of subsection (2) must be confirmed by a magistrate or a judge of the High Court having jurisdiction in the area where the acts were performed, on the application of the inspector brought within 10 court days of the day on which those acts were performed. . .
"It is the interpretation of this Section 5(4) that was in issue. The appellants launched an application on notice of motion within the required 10 day period but only served that application on the respondents after the expiry of the 10 day period. The argument by the respondents was that having served the application outside the prescribed 10 day period the appellants failed to have ‘brought’ it within 10 court days. The court below upheld this argument."
The court then took a closer look at conflicting wording of different sections: "The wording of s 6 is clearer in excluding the giving of notice to any potential respondent than s 5(4)(a). The warrant in terms of s 6 is issued by a judge or magistrate in chambers on the strength of information on oath or affirmation. Section 5(4)(a) does not refer to the warrant being issued ‘in chambers’, unlike s 6 requires an ‘application’ and does not require that the information be placed before the judge or magistrate on oath or affirmation. The essential question is whether these differences in the wording of the two sections justify an interpretation that s 5(4)(a) prescribes formal application procedure on notice of motion with notice to a respondent."
However, the court held that the slight difference in wording does not result in a substantial difference in procedure and declared that an application in terms of S5(4) of the Counterfeit Goods Act 37 of 1997 is not an application on notice of motion addressed to the court which has to be served on the respondent.
It is interesting that this judgement was pursued despite the fact that the parties had agreed a settlement disposing of the matter in view of the need to seek clarity in the face of conflicting judgements.
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Sunday, 5 December 2010

Aurelia J. Schultz

PIIPA Explores the Relationship between IP and Human Development

PIIPA, the Public Interest Intellectual Property Advisors, which Afro-Leo has mentioned on a few occasions (here, here and here), has recently released a new book entitled Intellectual Property and Human Development: Current Trends and Future Scenarios.  From the Overview, the purpose of this book is to examine the social impact of IP laws.

“Going beyond Anglo-American analyses of IP (particularly copyright and patents) as mainly providing economic incentives for innovation, or the natural rights arguments for protecting IP as an extension of the ‘personality’ of creators (Fisher 2001), this book explores how different cultural values and contexts shape the motivations and capabilities of individuals and communities in their innovative endeavours.”

The book begins by analyzing the rational behind existing models of intellectual property protection.  It then explores the relationships between IP and basic human needs: health and food security.  From there it moves onto spreading of culture and information: traditional knowledge, traditional cultural expressions, education and access to information.  The last two chapters again take up the analysis of how current IP laws and policies fit with cultural diversity and what’s desired for human development.  There are also several informative appendices exploring new ways of both creating innovation and measuring development. 

Portions of the book, including the prefaces, appendices and first two chapters are available on PIIPA’s site.  Do be sure to check out the acknowledgments page.  There’s a nice shout-out to Afro-IP’s own Paul Asiimwe.

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Friday, 3 December 2010

Aurelia J. Schultz

Fighting Piracy with Quality

Zambian newspaper The Post recently ran a story about the release of new gospel albums and videos from label Doxa Music.  Normally, that sort of thing wouldn’t be of much interest for those thinking about the legal side of intellectual property.  However, there’s an interesting side to this story.

The Zambian Association of Musicians (ZAM) and the Zambia Copyright Protection Society (ZAMCOPS) both gave Doxa Music recognition for its approach to fighting piracy in Zambia.  Doxa’s weapon in that fight?  Quality.  According to The Post, “the Christian music label has been a leading production house in as far as quality was concerned.”

This high level of quality should not only give consumers an incentive to buy the original product but should also help consumers distinguish between originals and pirated copies.

Afro-Leo recognizes that this method of fighting piracy may not work in countries with more advanced pirating facilities, such as Nigeria.  But, it is good to hear that in Zambia the fight against piracy is producing better goods for consumers and encouraging labels to take pride in their products.

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Wednesday, 1 December 2010

Darren Olivier

Quand les éléphants luttent, ce sont les herbes qui souffrent

Le Président de la République du Cameroun, répondant à un journaliste avait un jour dit : « LE CAMEROUN, C’EST LE CAMEROUN »

Ce qui se passe actuellement au Cameroun confirme bien cet adage et démontre aux sceptiques que tout est bien possible dans ce pays de l’Afrique Centrale.

La loi de 2000 sur le droit d’auteur et les droits voisins dispose qu’il ne saurait y avoir deux sociétés de gestion collective par catégorie de droits. Le texte d’application de la loi précitée a créé 4 catégories de droits. Il s’agit de la Catégorie A concernant les arts de la littérature et les arts dramatiques, la Catégorie C concernant les arts graphiques et plastiques, la catégorie D pour les arts audiovisuels et photographiques, tandis que la Catégorie B concernent l’art musical.

Cette dernière catégorie est l’objet de notre propos.

Depuis deux ans en effet, il subsiste bel et bien au Cameroun deux sociétés de gestion pour une même catégorie, ce en violation de la loi et au détriment de tous les puristes (j’allais dire juristes) qui avaient espoir que le temps pour le respect des droits des auteurs était arrivé. Cet état de choses n’émeut par contre ni les autorités judiciaires, ni les autorités administratives qui depuis plus d’un an laissent pourrir une telle situation préjudiciable aux intérêts des auteurs et jetant un discrédit profond sur le système : comme avait dit un chanteur, « le système est tranchant ». Les faits sont simples.

Au cours d’une Assemblée Générale de la Cameroon Music Corporation (CMC), société de gestion collective pour l’art musical, le Ministre de la Culture dissout cet association par arrêté au motif que les dirigeants de cette dernière société n’ont pas respecté les règles de fonctionnement prévus dans leurs statuts et n’ont pas obtempéré aux rappels à l’ordre de la tutelle. Immédiatement après cette dissolution, Madame (le ou la, c’est selon) Ministre de la Culture, donne son onction en vue de la création d’une nouvelle association à laquelle elle donnera un agrément pour gérer les droits de la Catégorie B. La SOCAM est ainsi née et remplacera ainsi la CMC pour la gestion de cette catégorie de droits.

Mais cette décision de Madame le Ministre est attaquée devant les juridictions compétentes et la Cour Suprême, après avoir suspendu cette décision par un premier arrêt, prend plus tard un autre arrêt pour … annuler simplement et purement la décision retirant l’agrément de la CMC.

Cette décision de la Cour suprême devrait logiquement amener Madame le Ministre à réhabiliter la CMC et à dissoudre la SOCAM. Mais que non ! Nous sommes au Cameroun et personne n’est obligé de respecter la décision de la Cour Suprême.

Conséquence : Madame le Ministre refuse d’appliquer une décision de la plus haute instance juridictionnelle du Cameroun sous prétexte que même l’agrément attribué à la CMC d’une durée de cinq ans a déjà expiré et qu’il n y a plus lieu d’appliquer la décision de la Cour Suprême : On croit rêver, mais c’est vrai.

Dès lors jusqu’aujourd’hui, les deux sociétés (CMC et SOCAM) revendiquent le droit de gérer les droits de la Catégorie B et certains usagers profitent de cette cacophonie pour ne pas payer leurs redevances privant ainsi les sociétés de gestion collective de toute autorité pour les contraindre à obtempérer.

Pendant ce temps, ce sont les artistes et musiciens qui paient le prix de cette bataille des grands.

En tous cas, quand les éléphants luttent, ce sont les herbes qui souffrent.

En attendant, le Cameroun demeure …

Posted on behalf of Christian Djomga and worth a read.

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