Stellenbosch IP Conference: Part 4

Part 4: For links to Parts 1, 2 and 3 click here.

Harms started the morning session with a paper entitled “The Ossification of IP Law in South Africa”.

RSA laws are not adapting at the rate appropriate for sustainable development. This is not the first time Harms has said so and Afro Leo was able to scribble down notes of his discontent over “misfiling and lost files”, “delays in processing trade marks at CIPRO”, the “state of our legislation” eg Counterfeit Goods Act conflicts with the Customs Act. Yet we carry on regardless … “on the rims” and his view that the proposed Traditional Knowledge legislation “will kill IP as we know it”.

Harms was critical of the Government’s apathetic attitude toward IP and their perception that it is “for rich countries” citing several examples that illustrate the direct relationship between patent applications and economic growth. He felt that there is only a reaction when “parochial issues hit Government in the eye” eg the latest ant-counterfeiting Government initiative.

He also pointed out that practitioners are failing to create arguable cases on the issues. His talk was peppered with interesting personal anecdotes and examples but was not intended to be “profound”. He concluded that there is a “vital role in revitalising the subject [IP in RSA]”.

Next up was SAIIPL president, Tshepo Shabangu speaking on "Future Challenges [for SAIIPL] for Intellectual Property Law and its Practice in South Africa".

She focused on three key areas; the lack of appropriately skilled IP specialists in the judiciary [and what can be done about it, highlighting an international trend toward specialist courts, and possibilities of lawyers and advocates sitting as adjudicators]; the need for SAIIPL to train and educate [which it does] and its ability to assist draft (or have an impact on) new legislation [blunted by a lack of trust and perception that it serves only its self interest i.e. mainly law firms].

Mr P Siemsen (Danneman Siemsen) shared his thoughts on IP and its relationship with sport as an instrument that could be used for economic growth in developing economies. Essentially, “IP is a very important tool to ensure possibilities that sport can deliver to developing countries”.

The next slot could have sparked debate for a week. Ginsburg, Gielen and Bereskin took us to that feint edge between trade mark rights and freedom of speech using RSA’s famous Laugh it Off case as a main reference. All three speakers were a treat and the presence of Harms (who gave the AD Laugh it Off decision) in the audience caused a natural and at times, humorous, tension. In a few words, dilution is only reserved for a very limited set of circumstances and the panel was, perhaps surprisingly, split as to whether Laugh it Off had been correctly decided by the Constitutional Court.

Congrats to the Chair on their first effort. 

Afro Leo departed with a sense that there is much frustration and dismay at where IP is going in South Africa. In order to influence future changes he feels that those skilled in IP will need to figure out a new way of working with Government, a way that takes IP (and more specifically, the changes required within it) from its esoteric (a word used by a recent past SAIIPL president when describing the profession) and perceived elitist perch to a point where it can be understood by Government (eg measurable job creation), and from a Group that they trust. Government though does not appear to be totally ignorant of what IP and innovation can deliver (as this blog has noted) but needs to trust, engage and implement changes effectively.