Monday, 31 December 2012

A review of African official IP websites: no. 25: Republic of Kenya


As the year 2012 winds down in a few hours (though it is 1st January 2013 in Australia), this Leo is pleased to sign off the year with a country that has given us so much to talk about in the past 6 months or so. From switching off counterfeit mobile phones to discourse on protecting innovations in its mobile space, Kenya is indeed at the forefront of interesting intellectual property (IP) and IP-related developments in Africa. 

So, it is not surprising that this Leo finds Kenya's IP office (KIPI) still online and up-to-date with useful resources as we saw last year. He also discovers that both KIPI and the Kenyan copyright board (KECOBO) have remarkable social media presence (although KECOBO's website was down at the time of access). 

This Leo does not just note Kenya's ICT progress and innovation in isolation, he can foresee a vibrant and influential IP ecosystem or community (e.g. CIPIT) that may well complement the progress. Well done, Kenya.

Afro-IP wishes you, the reader, a prosperous, healthy and fulfilling 2013. Happy new year!

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Kenyan artists tackling music piracy using digital technology (mdundo), see here
Women are part of the technology and innovation boom in Kenya, see here

Monday, 24 December 2012

A review of African official IP websites: no. 24: Republic of Guinea-Bissau


The festive season is already upon us but Afro-IP never stops beinging you intellectual property (IP) news and update across the continent. First, as you expected, we found Guinea-Bissau as we left it last year. Now moving on to other news.

Mobile, software-related inventions and IP in Kenya: Here we go again!

This Leo learns of the dispute between the Kenyan microfinance provider, Faulu Kenya and Safaricom in respect of the mobile money service, M-Shwari. According to that report, Faulu commenced legal action alleging that Safaricom copied the idea behind its Kopa Chapaa service on the grounds that it was disclosed in a previous business meeting between the two companies. The first installment of the suit came before Justice Jonathan Havelock, sitting in the High Court, who apparently rejected Faulu's application having found that it had no IPRs in the first instance to bring such an action. Had Faulu succeeded in its application, over 640,000 customers would have been affected. (Afro Leo wonders how many mobile phone users are there in Kenya since the 'counterfeit phone shutdown')

This is just the sort of news which resurrects the debate on whether IPRs stifle innovation or go against the public interest. Often we hear of a large IPRs owner trampling on an innovative SME; this time around, it is the lesser-known player utilising the IP system to defend itself against the well-known big player. (Although he once thought social enterprises would dislike anything which could potentially have a negative effect on the poor e.g. IP, as some would argue, Afro Leo is not amazed that Faulu Kenya - a social enterprise in his eyes - values IP)


It also reminds me of this piece by Dr Isaac Rutenberg arguing against the grant of patent protection for computer software in a developing country like Kenya. Looking at the controversies or 'eagerness to grant' in the USA, Amazon's 'one-click' payment patent, and the 'mess' in Europe in this area, this Leo agrees with Dr Rutenberg. Nonetheless, the curiosity is whether the less stringent utility model could offer protection to mobile money services such as M-Shwari and Kopa Chapaa in Kenya or any other African country.

Afro-IP team wishes all our readers a merry Christmas and a prosperous new year. 

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Guinea-Bissau: A beneficiary of WIPO's technical assistance programme, see here
Who is Faulu Kenya? see here
Business methods and patents practice in the USA, see here

Boiling over - Africa's counterfeit drug problem highlighted again

The Guardian newspaper in the UK has published a piece on how counterfeit drugs from Asia are endangering lives in Africa. The information is not significantly different from that contained in posts  already on this blog. However, it is a reminder that counterfeiting is Africa's single biggest IP problem:

"It's a massive problem that people have simply ignored. It's not like a boil that's beginning to burst because it's been a problem for a long time. What has happened is we are beginning to recognise it more." (Nick White quoted)

Of course it is much wider than just an IP problem but effective IP policies and enforcement are key steps to managing and combating this issue. A number of countries in Africa (eg Kenya) are adopting specific anti-counterfeit legislation. Kenyan AC laws have had to endure scrutiny from the their Courts because they were perceived to restrict access to legitimate drugs. Getting the legislation right is not an easy task and requires considerable thought, consultation and discussion. However, the need for that is glaringly urgent not just on the African continent but also in places where the counterfeit drugs are produced.

The Guardian article, like many, places much blame on China for allowing such vast numbers of counterfeit products to be made for sale on the continent. 

"Patrick Lukulay, vice president of the US Pharmacopeial Convention's global health impact programmes, said it was no secret that the majority of dangerous medications came from China and India, as those countries had the world's largest production bases for both active ingredients and finished drugs."

There is a perception that Chinese laws are completely ineffective in halting the problem. Whilst that may not be entirely correct it is interesting that China's approach to drug smuggling (as opposed to the more dangerous illicit drug production) is extreme - a year ago, Janice Linden (an African) was executed in China for the deed. Afro Leo is not calling for the death penalty for producers of fake drugs in China but if the effect of fake drugs from China in Africa is any indication of how seriously China should be treating the problem in its own country, then Afro Leo would welcome much more effort from them in dealing with it. Perhaps, with the increasing number of Chinese companies and people living in Africa, the effect of counterfeit drugs will become more notable. 


Friday, 21 December 2012

Starving artists or hungry heirs?

Art lovers might have noticed the appearance of a new copyright notice on some auction catalogue illustrations ‘©the estate X/DALRO’ . The most recent issue of the SA Art Times (Dec 2012-Jan 2013) explains this here (www.arttimes.co.za Michael Coulson “Behind the DALRO copyright campaign” at 7). DALRO (Dramatic, Artistic and Literary Rights Organisation) has started to manage the reproduction rights of art works by a number of deceased and living artists.


The Copyright Act 98 of 1978 grants a copyright owner of an artistic work the exclusive right to reproduce, or authorise the reproduction of the work in any manner or form (s7(a)). DALRO interprets this as permitting the artist or his or her estate, as copyright owner, to charge for reproductions of the work for resale purposes. According to Coulson, an alternative interpretation is that, when an artistic work is sold, the artist grants an implied licence permitting the purchaser to advertise the work for resale. This permission is formalised in legislation elsewhere. For example, section 63(1) of the UK Copyright Act 1988 pertinently provides that it is not an infringement of copyright in an artistic work to copy it, or to issue copies to the public, for the purpose of advertising the sale of the work.

As usual, there are arguments for both sides. DALRO, and by implication the artists, argue that levying a charge for reproduction ‘provides visual artists with the only financial reward they’re entitled to once they’ve sold a work of art’. Together with this, it is argued that, as South Africa has no ‘resale right’ which entitles an artist to a percentage of any subsequent sale, this reproduction charge should be viewed as some recompense.

Contra, is the fact that this adds to the cost for auction houses although, given the amounts involved, it is probably more of an irritation than a vast expense. Also, the only artist whose works are regularly used as cover illustrations for catalogues will soon no longer enjoy copyright protection - Irma Stern died in 1966, so protection will end in 2016.

So what is the fuss about? For me, the answer has more to do with art than copyright.

An artist needs publicity – without this, there will be minimal sales. Arguably, publicity on resale does not benefit the artist, but the fact of a successful subsequent sale enhances the value of other works by that artist. So, for a living artist, the benefit of publicity will be apparent at later sales by him or her. For the estate of an artist, only the first point is relevant, but equally, without positive publicity, the artist’s reputation will shrivel away.

Other arguments are apparent from the same issue of the Art Times. Piet Viljoen, opening a new contemporary art museum in Cape Town, said that ‘[f]or a real investment value determines price, while for art price determines value. As a result, most art will never – and I do not use this word lightly – show any return at all, except possibly a negative one.’ (at 14). Most purchasers buy art because it gives pleasure, and because for them it has an intrinsic value. It is not bought with the thought of resale, or as an investment. And most of it does not increase in value – wander round any English stately home and look at the acres of what were expensive works at the time, that now have no greater financial value in real terms than at the time of purchase. Collectors who buy from an artist before he or she is recognised, buy because the work has value for them, not because it will increase in value. And when works are bought once an artist is famous, he or she does receive the financial advantage that publicity has occasioned.

So it is possible that demanding a royalty for publication for resale purposes is a case of killing the golden goose – when the publicity is absent, the sales will disappear. As Michal Coulson points out, the leading South African auction house, Strauss and Co, has not featured Irma Stern on a cover since DALRO demanded royalties.

Tuesday, 18 December 2012

IP and the Public Interest: this year Rio, next year Cape Town

Here's some news from Dr Isaac Rutenberg, Director of Kenya's CIPIT.  Writes Isaac:
I have just concluded attending the three-day Global Conference on IP and the Public Interest, which was held from 15 to 17 December in Rio de Janeiro, Brazil. CIPIT attended the conference in its new capacity as the East Africa Hub of the Open A.I.R. project.

The conference was interesting and educational, to say the least. The most notable aspect may have been that it was truly a global conference. Attendees were present from six continents. 

As a conference devoted to the Public Interest, there was naturally a heavy slant against maximalist IP policies and institutions that live or die based on strong IP protections. In fact, the overriding theme seemed to be open access in a variety of areas. For example, breakout sessions were devoted to: 

  • access to medicine; 
  • access to open scholarship and 
  • access to software using open source. 
It was no surprise that pharmaceutical companies were not represented, did not present, and did not attend (as far as I could tell). 

Copyright issues were on center stage for much of the conference. Specifically, the difficulty of libraries to access materials was described, as were the proceedings on the Trans-Pacific Partnership, a little-mentioned and ongoing trade negotiation that is being heavily pushed by the United States, has the potential to directly impact 40% of the world's population, and may (when adopted) have provisions that seriously influence IP policies (particularly on copyright).

An emotional speech was made by Egyptian academic Nagla Rizk, who painted a depressing picture of the state of IP issues in post-Arab-Spring Egypt. Unfortunately, open access and other IP issues have been pushed aside as more important issues such as security, women's rights, and human rights take center stage. 

Finally, some good news for those of us on the African Continent. The 2013 Global Congress is scheduled for 9-13 December, 2013, and will be held in Cape Town, South Africa. Looking forward to it!

Monday, 17 December 2012

A review of African official IP websites: no. 23: Republic of Guinea

This Leo was on the verge of mixing up Guinea-Conakry or the Republic of Guinea with its neighbours Guinea-Bissau and the Republic of Equatorial Guinea. Even if he did, he can be excused as they all have one thing in common: no website for their intellectual property offices. 

Although lacking a basic website for its IP office for the second year running, the resource-rich Republic of Guinea does not lack interests from 'commercial' entities such as the commercial law firm, Herbert Smith Freehills and the commercial airline, Etihad Airways. It manages this whilst facing EU sanctions like its neighbour, Republic of Guinea-Bissau.

One of these images is not a guinea; which one is it?


Image 1 
Image 2








Image 3



Image 4

Free Trade Agreements (FTAs) and TRIPS: A reader's comment

Having raised curiosity on the effectiveness of Article 67 of TRIPS in 'TRIPPING on IP Technical Assistance parts I and II', this blog is pleased to host this comment by Tom Suchanandan of the South African Department of Science and Technology. Taking a slightly different perspective, this is what Tom had to say regarding the use of FTAs by developed countries to derogate from the flexibilities under TRIPS:

"Just some concerns which should be brought to the fore in the implementation of Article 67 of TRIPS. It is obvious that DC have no intention in committing to its implementation. FTA have been the vehicle to work around Article 67. In all fairness DC should take measures to clarify and where necessary amend FTA provisions. My concern is that most FTA have a non-derogation clause – hence it is not clear if this clause would override a specific obligation to relinquish flexibilities under TRIPS. 

A careful study of these FTAs seems to effectively take away flexibilities under TRIPS in many respects for example protection of information. Some of these FTAs go even further and require automatic patent term extension. So what’s the point in having domestic IP offices when the rules of engagement are determined outside  national borders. What is more ridiculous in the FTAs is that test data and term of protection are linked which effectively makes mockery of domestic laws. Perhaps DC should get together and ensure that  all flexibilities under TRIPS should be retained and respected in the FTAs. 

To ensure that flexibilities are respected the IP components in the FTAs must clearly spell the objectives of IP with the focus of assisting developing countries in strengthening their IP offices.  Where developing countries have entered into FTAs should seek creative ways to amend or at least clarify those provisions that impede the development of strong national IP legislation.  Similarly, those developing counties intending entering into FTAs should resist for example changing patentability or any other IP criteria to conform to DC standards.  

In sum my view is that FTA’s have turned IP on its head – rather than having a harmonized treaties on patents, copyright etc we should have a treaty on FTA."

Afro Leo & Zebra
 happily signed a FTA to swap diets
Yet more questions?
Indeed, Afro Leo envisages how certain regional and bilateral FTAs between developed and developing/least-developed countries can become like suitcases stuffed with a copy of the TRIPS Agreement-PLUS and other IP brochures and manuals for the latter to swear by. 

As this Leo knows little to nothing about FTAs, he would be grateful for further insights from other readers on this topic. So please do share any thoughts in general, or on the following:

(1) What do you think of the concern that "....most FTA have a non-derogation clause – hence it is not clear if this clause would override a specific obligation to relinquish flexibilities under TRIPS"? 

(2) Should there be a "treaty" governing FTAs?

(3) Do FTAs derogate from specific obligations under TRIPS, in particular, Article 67?

(4) Is it better for African countries to negotiate and enter into FTAs as a bloc or bilaterally?

(5) Are African countries not yet well-represented or getting better at negotiating and entering into these IP-related agreements?

(6) Is this the sort of area where PAIPO (see here, here and here) becomes a welcomed development in terms of negotiating IP-related agreements on behalf of African countries?

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A short summary on the potential impact of FTAs on public health, see here
The failed US-SACU FTA in hindsight, see here
The potential impact of TRIPS-plus in the US-SACU FTA could have been, see here

CIPC database update

Afro Leo has learnt from South Africa's Companies and Intellectual Property Commission that they are updating their subscriber database and require your details. If you wish to add your name to the communications received from this Office please declare your interest by sending an email to Shanee at this address for more information.

Whilst browsing through the CIPC's online list of trade mark decisions, an attempt to register the name MRS PLES as a trade mark caught my attention. To the uninitiated MRS PLES is the name of a skull of a national heroine who died many years ago. Her death has always been a mystery but her remains form the basis of a hotly contested debate that humankind evolved from Africa. However, securing her name in history was, it seems, considerably easier than persuading the Registry (correctly me thinks) that she deserved a place on the trade mark register. You see, even 2.05 million years of  'use' may not be enough to secure a secondary meaning - CIPC's standards are high!

Thursday, 13 December 2012

New developments in Namibian competition law

An email news bulletin from South African law firm ENS reports that the publication of the Namibian Government Gazette Nos 288 and 289 of 2012 last Friday has given rise to two new developments in Namibian competition law.

First, the Namibian competition authorities have finally published monetary merger notification thresholds, a decade after the coming into force of the relevant provisions of competition law.  These thresholds should be borne in mind by any IP-owning business which seeks to absorb a competitor, and presumably by any joint venture vehicle to which the commercial operations of two or more enterprises are assigned.

Secondly,  criteria have been set out for determining a dominant position in the market: this is a precondition for establishing whether an abuse of dominant position has taken place.  Given the ease with which the exercise of an intellectual property monopoly in a small economy where there are few or no competitors can be characterised as an abuse, IP proprietors and exclusive licensees should take care to check the new criteria out.

Wednesday, 12 December 2012

TRIPPING on IP Technical Assistance: Part II

In part I of this two-part piece, this Leo picked excerpts  from Article 67 of TRIPS and then set out a series of questions scrutinising the effectiveness of the provision in ensuring holistic IP technical assistance from developed-country WTO Members (DCs) to developing and least-developed country WTO Members (D/LDCs). This investigation continues here in part II where we consider phrase (B) - which this Leo has split into two strands:  
  • ...as well as on the prevention of their abuse,..... 
  • and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters].
The first strand - including its foregoing in bold red - tells this Leo that DCs are not just required to assist D/LDCs become TRIPS-compliant, but shall also support them utilise the flexibilities within TRIPS. In particular, it states that DCs ought to assist D/LDCs in framing IP laws and policies which will withstand or deter potential abuse of IPRs. This Leo further reads the second strand as placing a duty on DCs to play a role in the establishment and/or the sustainability of domestic IP offices and agencies in D/LDCs. So, the curiosity is as follows:

    (1)  Why would any IP enthusiast easily believe that a DC, such as the USA, would want to assist D/LDCs get around their TRIPS commitment or ensure they fully apply its flexibilities? (Afro Leo is thinking that the opposite is the case - a DC is more likely to push for TRIPS-plus);

    (2)   If the mandate in Article 67 is for the advancement of domestic IP offices in D/LDCs, why is there also the increasing links and support through regional organisations such as ARIPO and potentially coming soon, to the much criticised over-arching PAIPO? (Digressing, Afro Leo does not even feel that the regional organisations (ARIPO and OAPI)  are supported well enough. If you consider their status in Africa and compare that to their websites,  one would expect their websites to look like either of these: OHIM, BOIP or EPO);

     (3)   Is it fair and reasonable (cheeky, says Afro Leo) to interpret “reinforcement of domestic IP offices” as not just meaning, 'the training of personnel and the like', but to also include equipping the IP offices across Africa for 21st century IP administration and practice? (Afro Leo notes that there are countries in Africa (e.g. here and here) whose houses are in order in this regard - as things appear online); and

(4) Which sort of "agencies relevant.." are we referring to here? (To Afro Leo, "agencies" resonates as 'IP enforcement').

Conclusion

Taking parts I and II together, it seems to me that a proper debate is due on the effectiveness and benefits of Article 67 as this specific area receives little or no attention in the midst of the often heated arguments on the form and/or existence of IP laws in D/LDCs.

Before drawing my conclusions, it is worth pointing out that the level of economic development, resources and IP activities across Africa varies and hence the need for a tailored approach in any technical assistance rendered. Furthermore, and although not the focus here, this Leo does not lose sight of the various IP technical assistance projects undertaken by WIPO including the IP information service in collaboration with some DCs. (Afro Leo says, the expectation that in a 21st century, all IP registries across Africa should have an online presence is a plausible one. He feels that the same effort put in by DCs to assist African countries draft and/or enforce the sort of IP laws and policies, by will or pressure, on a par with theirs should also be put towards making sure that the IP offices in these countries operate online for benefit of interested parties within or outside a given country.)

Perhaps, it would be too costly for a DC to provide the IP office of an African country (or even ARIPO or OAPI) with a fully functioning database-integrated website. As this Leo found out, in 2008, the UK Intellectual Property Office (UK IPO) rebuilt its website at a cost of £362,000, and currently maintains it at an annual cost of £258,000. Although one would not expect those two figures to be the same in a D/LDC, in some way, it paints a picture as to why most African countries – especially, the less well-off ones - would be reluctant to commit sparse funds to a website slightly comparable to that of the UK IPO. (Afro Leo knows that some African countries are resource-rich and may well afford it, but wonders whether the income they generate are actually used  to solve their critical problems. He also feels that IP is, probably, at the bottom of the list of priorities for most African countries though some are beginning to take serious notice of it recently)

The only thing that is clear to this Leo about Article 67 is that IP technical assistance to D/LDCs is not exclusive to multi-lateral institutions such as the World Intellectual Property Organisation (WIPO).  Having broken Article 67 into bite-sizes, he remains sceptical - hypothetically speaking - because it feels as if DCs are comfortable and busy performing well on those excerpts highlighted in bold red in part I (e.g. training D/LDCs to enact and enforce IP laws and policies - sometimes strict ones); while there appears to be little appetite to seriously work on phrase (B) above - a part which may well be more advantageous to D/LDCs. This doubt is further exacerbated because there are no clear repercussions if  DCs fail to act in accordance with the spirit and letter of Article 67.

Therefore, this Leo is left to conclude that Article 67 is not an obligation in its strict sense; rather, a gratuitous interest-driven and one-sided commitment to get everyone fully on-board (Just because a great majority of African IP offices lack an online presence does not mean Article 67 is not fit for purpose or does not work, Afro Leo warns. But he also holds similar views that Article 67 is based on a DC's own terms). The hope is that one day, readers would be able to visit the website of any IP office in Africa to conduct searches for prior art or earlier registered trade marks as well as get relevant IP news update. DCs can make this day come sooner rather than much later.


Maybe, the problem does not lie within Article 67 after all; what do readers think.

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To search the records of technical assistance by developed countries, see here (This year alone, developed-country WTO members such as European Union (including its individual Member States), Canada, United States, Australia, Norway, Switzerland, Japan and New Zealand have all offered assistance and cooperation to D/LDCs. Most of these were in the form of training, workshops and seminars geared towards enforcement of IPRs)

For a factsheet on WTO’s trade-related technical assistance, see here