Friday, 28 June 2013

Caroline Ncube

ATRIP Congress Day 3 & Treaty concluded at Marrakesh

The first plenary session of the third day of the 32nd ATRIP Congress  focused on the teaching of IP. One interesting point that was debated was the merits of teaching IP as part of a property law course.  The panelists (Jeremy de Beer, VC Vivekanandan, Dan Burk and Carlotta Graffigna) agreed that IP does not have to be a lex specialis for students encountering it for the first time. The second and final plenary, comprised of reports on IP in Singapore (Burton Ong), the Russian Federation (Ivan Zenin) and Israel (Lior Zemer). Jennifer Davis spoke on the concept of the 'reasonable consumer' in trademark law. Next year's congress will be hosted in France and the following one (2015) will be held in Cape Town, hosted by the association's new president Prof Tana Pistorius, of UNISA.

The ATRIP Congress ended on an unbelievable high as news came in of the conclusion of the Treaty to Improve Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled at Marrakesh.
Years of hard work and advocacy finally paid off when the treaty text was agreed upon. James Love summarises the import of the treaty as follows:

 'The text of this treaty provides a strong legal and political basis for copyright exceptions for persons with disabilities. The treaty will vastly expand access to works, particularly among persons sharing a common language, such as English, Spanish, Arabic and French, or persons who read multiple languages, or persons living in other countries with different languages.' (see full statement here and an archive of relevant documents here).

For its part, South Africa said:
'The name Marrakesh will forever resonate with this landmark treaty that seeks to address the balance between private and public interests in line with the principles of the United Nations Convention on the Rights of Persons with Disabilities and the Universal Declaration of Human Rights. Persons with disabilities across the world in both developed and developing worlds have fought long and hard to have access to knowledge in accessible formats. This treaty creates an enabling legal framework to do so. It provides an impetus for a rights based approach and the full inclusion of disabled persons in society... South Africa is embarking on the process of reviewing its copyright legislation and will accede to the Treaty when all internal processes are concluded.
In conclusion, South Africa continues to attach great importance to a balanced approach between intellectual property right holders and public interest and it is within this context, that we reaffirm our support and commitment to this treaty.' (see full statement here)

The national copyright law of countries that accede to the treaty will have to be amended to give effect to the Marrakesh Treaty. A development this Leo keenly looks forward to. In the meantime, let's celebrate the treaty. Cookie, anyone?

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Darren Olivier

Unshackling RSA’s TM Registry – some other solutions

Following the previous post about the difficulties experienced by RSA’s TM Registry, which you can read here, Afro-Leo, with the help Katherine Harding, have established that an application was made by the Registry under Section 6 of the Trade Marks Act for additional hearing officers to be appointed, sadly to no avail. So, in an effort to address the ever-increasing backlog new oppositions are now being transferred to the High Court for determination in terms of Section 59(2) of the Act.

Whilst the effort is greatly appreciated by most, it has raised some issues, especially on costs:

1.    There are no specialist IP Judges and the rate at which trade mark judgments are overturned on appeal remains high. Consequently, we could see an increase in appeals and therefore cost.

2.    The additional procedural steps required by the Practice Manual of the North Gauteng High Court (such as the filing of a practice note in the case of opposed matters) may also increase costs and the employment of counsel is now almost obligatory.

Consequently, parties are looking for other solutions such as arbitration, mediation, a mixture of both or the preliminary view.

Arbitration in South Africa is regulated by the Arbitration Act (find it here). Arbitration is entered into by agreement and the parties are empowered to choose their own arbitrator. There are many people to consider as potential arbitrators, such as former Supreme Court Judge Louis Harms, or recently retired Chris Job and Alan Smith, and there may be others  (who are all more than qualified and may even be interested).

There are a number of considerations which make arbitration and mediation an attractive option. Firstly, it is completely up to the parties to agree the terms. The fees of the arbitrator/mediator can be fixed by agreement between him/her and the parties. This means that costs can managed and also the quality of the award (if arbitration) is going to be high but even if you are unsatisfied, that award may be taken on appeal if provision has been made for such an appeal in the arbitration agreement. For mediation, the results could be similar and one can use a mixture of both.

For example, you could agree that the person reads the papers, asks questions and makes an award as an arbitrator but keeps it secret. He then switches to mediator, the parties agree a time limit and if they cannot settle wit the help of the mediator, the award is disclosed. Alternatively, the person simply reads the papers and gives a preliminary view and the parties then attempt to settle while they wait for the matter to be heard by the Registry or in Court.

There are of course, the usual difficulties with ADR because the Registry is not bound by any award and we lose out on the value of any precedent. However, in most cases difficulties can be overcome with the help of the parties themselves eg formally withdrawing or amending an opposed application following an award and a pragmatic approach by the Registry.

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Africa and Climate Change Technologies

An interesting 3-day conference just concluded at Strathmore University in Nairobi, Kenya.  Simply titled “Conference on Climate Change and Innovation in Africa”, the host was the Kenya Climate Innovation Center (KCIC).
The Portrait of Dr. Simarro at the Microscope
Joaquín Sorolla y Batisda, 1897

According to their website, “The Kenya CIC is an initiative supported by the World Bank’sinfoDev and is the first in a global network of CICs being launched by infoDev’s Climate Technology Program (CTP). “  The KCIC mission is “to provide an integrated set of services, activities and programmes that empowers Kenyan entrepreneurs to deliver innovative climate technology solutions” (emphasis mine). The World Bank and the UK and Danish governments (via the funding agencies UKaid and Danida, respectively) are major sponsors of KCIC.

It is appropriate that KCIC is housed at Strathmore University, because Strathmore has been recognized for producing the first three green (LEED certified) buildings in Africa. Other green buildings have followed, including the United Nations Environmental Programme (UNEP) building and a private bank building, both in Nairobi. Indeed the UNEP building is said to have Africa’s largest on-roof solar installation.

Does such activity suggest that technology transfer is alive and well in the construction and green technology industries in Kenya?  To some degree, probably so, but at least the Strathmore buildings were designed by a local architect, and there is little evidence (from this blogger’s observations) that advanced or new green technologies were employed. Most buildings in Nairobi use very little energy because the mild climate makes heating and air conditioning unnecessary. Extensive natural lighting (the entire roof is glass) further reduces energy use but is hardly an advanced technology.  Water reclamation, too, is nothing new.

Indeed, the EPO and UNEP recently published an extensive report on Clean Energy Technlogies (CET), patents, and tech transfer. Says the report “The results show that less than 1 % of all patent applications relating to CET have been filed in Africa.” Such little patenting activity suggests that tech transfer of CET to Africa (when it occurs) is likely in the form of aid or as a donation from the inventor/patentee, as opposed to licensing or collaborative agreements with African companies and governments.  

Getting back to the conference, WIPO was a major sponsor and provided a practical seminar for licensing out technologies. This follows the KCIC mission of empowering Kenyans to “deliver” technology solutions. I love this mission, because it shifts the conversation from traditional aid to support of home-grown technology solutions.

The KCIC is very new (less than 1 year old), so it will be interesting to watch and see whether the initiative actually promotes delivery of local climate change technologies.  At least this blogger wishes the KCIC the best of luck in achieving their mission!
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Thursday, 27 June 2013


Madagascar fees rise next week

Afro Leo, who is prudent with his pennies, has just learned that Madagascar is hiking its official intellectual property fees as of next Monday, 1 July. This rise is in accordance with Ministerial Decree No. 12285/2013 of 1 June 2013. Fees are rising for all registered rights so, if you were thinking of filing there, or indeed asking the office to perform any other official action, try to get your application or request in by tomorrow.

Source: NJQ & Associates email alert (
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Wednesday, 26 June 2013

Chijioke Ifeoma Okorie

Tackling the Comprador Complex: Towards Repositioning Indigenous and Traditional Intellectual Property in Modern Market-Places: A Conference Report on all things IP-related (4)

Also at the Travel & Tourism Law Committee (7th Annual Business Law Conference of the Section on Business Law ), Professor Ikechi Mgbeoji argued that the “Comprador Complex” is the bane of Nigeria and Africa’s IP administration.

He gave examples of the operation of the “Comprador Complex” viz: the continued retention of colonial structures of IPRs laws and administration in Africa, the application of Western IPRs to African bio-cultural knowledge, Nigerian universities treating IPRs as an appendage to other law disciplines etc.
Professor Ikechi Mgbeoji

Professor Mgbeoji also stated that beyond statutory provisions, the administrative machineries for IP protection in Nigeria are grossly inadequate. According to him, lawyers involved in IPRs practice in Nigeria cannot favourably compete or compare with their foreign counterparts nor are Nigerian IPR disputes important or seminal enough to command the scholarly attention or judicial notice of foreign courts.

Professor Mgbeoji further observed that the absence of substantive examination in the processes leading to the grant of patents in Nigeria is quite disturbing. He suggested that Nigeria’s Patent laws should provide for domestic examination of patents and more importantly establish institutions where patent agents can be trained in the techniques of claims drafting unlike the current situation where all qualified Nigerian lawyers are patent agents.

Some of Professor Mgbeoji’s own words:
“Most of the prestigious law firms with “reputation” in IPRs practice in Nigeria are largely engaged in the submission of ready-made applications, especially on patents, on behalf of the major law firms of Europe and North America.”

“The administration of medicines and drugs laws in African States should be orientated towards safety rather than an inquisitorial approach towards African bio-cultural medicinal products”.

“Copyright laws in Africa can be geared towards greater open access to copyright works”.

“It is impossible to have a responsible and responsive IPRs regime without a credible Industrial Policy”.

In conclusion, it was stated that, to tackle the “Comprador Complex”, Nigeria needs a clear industrial policy which will identify the roles that Nigeria’s bio-cultural wealth can play in various industrial sectors.

The resonating issues at both the IP and the Travel & Tourism Law Committees are the need for an IP policy document, need to adapt national IP regimes to suit developmental needs of each country and the need for coalitions with emerging economies that have achieved success in building a formidable and development-oriented IP regime.

For this Leo, it would have been interesting to get the reaction of members of the IP Committee (and indeed, Nigeria’s IP-focused Law Firms) to Professor Mgbeoji's paper.

Would that this Leo had the opportunity to ask all (Nigeria-based) IP practitioners, “Wherefrom doth your claim to "IP expertise" flow”? 
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Chijioke Ifeoma Okorie

Indigenous Art/Culture, Tourism and the Law – Global Trends, Options and Challenges: A Conference Report on all things IP-related (3)

At the Travel & Tourism Law Committee (7th Annual Business Law Conference of the Section on Business Law ), Professor Uche Ewelukwa
Professor Uche Ewelukwa
stated that tourism, whilst offering several advantages, posed serious threat to cultural property. She cited the cases of Indiana Jones and the Kingdom of the Crystal Skull, Tribal-inspired Prints, Hoodia and Southern Africa, Swartzier Madagascariensis – Zimbabwe, Nok Terracotta pieces etc. as examples of the misappropriation of traditional knowledge and other forms of cultural property by the tourism industry.

As options for the protection of cultural property, Professor Ewelukwa makes the following suggestions: use of current intellectual property framework; use of customary law frameworks; implementation of sui generis legislation or an “authentication model” (similar to the system of collective marks and certification marks); use of private law solutions (e.g.  contracts, knowledge databases and registries); use of complementary laws (e.g. moral rights and unfair competition law) etc.

Against arguments that the extension of IP to traditional knowledge/cultural property will lead to shameless commercialization, move cultural property from the public domain to the private domain, and ultimately stifle creativity and improvement of the said property since the public will be denied access, Professor Ewelukwa opines that indigenous groups have successfully brought copyright infringement action against those who sought to make and/or sell products that incorporated aboriginal designs as exemplified in the case of The Navajo Nation v. Urban Outfitters Inc. et al (Case number 1:12-cv-00195).

Professor Ewelukwa concluded by stating that there are several questions which Africans and Nigerians must ask viz: What are the IP needs and expectations of holders of traditional knowledge/cultural property? Is the current intellectual property system adequate to protect the existing cultural property? Are there any other regimes of protection outside the current IP regime? Are we using the flexibilities in TRIPS to protect TKs? What about regional norms? Why is it that only a handful of African countries have ratified the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore?
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Chijioke Ifeoma Okorie

The Legal Profession in an Emerging Economy: A Conference Report on all things IP-related (2)

Also at the IP Committee (7th Annual Business Law Conference of the Section on Business Law (SBL), Mrs Nima Salman Mann (Director, Commercial Law Department of the Trademarks, Patent and Designs Registry) spoke on the Administration of Industrial Property and related matters in Nigeria.

Before-and-after pictures of the trademark filing room were shown as evidence of the strides which Mrs Mann and her team have taken since she assumed her position as Director of the Registry.

Mrs Mann was asked the following questions:   
What needs to be done to upgrade the TM Registry to the status of a full commission?
Mrs Mann: There are presently 4 Bills before the National Assembly in that regard. These bills are from different interest groups and there is no harmony. In any event, the Executive Council is currently looking at a recommendation.
Mrs Araba circulated (for viewing only) newspaper clips where it was reported that the Trademark and Patent Registry and the Nigerian Copyright Commission have been merged to form a new commission (Nigerian Intellectual Property Commission) which would now be under the supervision of the Ministry of Justice.

Could you provide us with email addresses and telephone numbers to which we may direct our enquiries to?
Mrs Mann: The Registry currently has no telephone number that can work at all times. Please send your emails to (This Leo wonders why the Registry is still using a yahoo account in this century)

Several initiatives exist for an IP Policy: Have you seen this policy and are you able to continue them?
Mrs Mann: WIPO is sending a consultant to look at remodelling the Registry and merging the work flow. The consultant will come up with a harmonised IP policy document.

Why not get students and corp members to assist in getting the filing room in shape? This has worked in South Africa.
Mrs Mann: We have tried this in the past but we discovered that these students, apart from lacking experience, are also being manipulated to remove documents from files. WIPO has just shared a filing format which we are implementing. (This Leo asks, “What ever happened to using CCTV cameras?” “Were the students left with no supervision?” “Do Registry employees work without supervision too?”)

There were also comments and suggestions about having IPR holders provide funds to the Registry to enable it conduct raids on counterfeiters, developing a proper national IP Policy document and encouraging development of local content.

On Commercialisation of IP in an emerging economy, Mrs Araba spoke on the need to review and adjust legislative framework to facilitate e-commerce and develop capacity-building programs. She wondered if Nigeria has the capacity to pool patents or own a patent which might be worth cross-licensing.

Mr Adeogun (one of the Discussants) emphasized the need for locally-owned patents. According to him, products developed from such patents will be better matched to the country’s needs. He cited the example of the development and sale of insecticide-treated mosquito nets which are to be used on beds. How many Africans sleep on beds, he wondered?

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Darren Olivier

After G8, dot GA

Over on the Afro-IP LinkedIN Group, Daniel Greenberg of Lexsynergy fame has alerted us to the relaunch of Gabon's country code top level domain.

According to our friends at wikipedia, low population density, abundant petroleum and  foreign private investment have helped make Gabon one of the most prosperous countries in Sub Saharan Africa with the third highest GDP per capita in the region.

If you are gaga about Gabon, you can checkout the rules for the sunrise, landrush and general availability stages on Lexsynergy's sexy launch guide here.

For Kingsley's posts highlighting online Gabon, click here.
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Caroline Ncube

ATRIP Congress Day 2

Today's deliberations started at 7.30 am  with breakfast roundtable panels on consumer law and competition law (see programme here). This Leo attended the consumer law panel where interesting questions were posed about how consumer protection legislation may protect consumers of copyright works. Rebecca Giblin (author of Code Wars: 10 years of P2P software litigation)  spoke on the merits of the Australian Law Review Commission's proposal (17-1) that contracting out of some exceptions and limitations ought to be prohibited.

A lovely day at Pembroke, picture by Rebecca Giblin
The fifth plenary on IP and international law included a presentation on the Principles for IP provisions in bilateral and regional agreements by Henning Grosse Ruse-Khan (see post on ipkat). This was followed by commentary by Jeremy de Beer who illustrated the principles' relevance to the Anti-Counterfeiting Trade Agreement (ACTA) and PAIPO (read Jeremy's summary of his remarks here).

The sixth plenary focused on IP and competition, with insightful presentations by Timo Minssen, Matthias Lamping, Kung-Chung Liu and Denis Barbosa on patents, compulsory licensing and sham patent litigation. The seventh plenary on remedies continued the excellent tenor of discussions. Uma Suthersanen,  Orit Fischman Afori, Anna Tischner and Lionel Bentley shared their views on ISP liability and flexible remedies, among other things. The final plenary of the day considered constitutional issues. Christophe Gieger argued for the revision of art 17(2) of the Lisbon Treaty; Gustavo Ghidini proposed a dual test for identifying IP as a lex specialis; Abbe Brown and Charlotte Waelde gave a brilliant piece on disability, copyright and human rights in the context of dance (see here for their research questions) and Enyinna Nwauche closed the session with his views on Kenyan constitutional protection of culture and IP.

To cap it all Lord Justice Mummery addressed the congress at the formal conference dinner, held at Pembroke College Hall. He had us all in stitches as he told glorious tales of the cases he litigated as a barrister and the cases he presided over as a judge. The refrain of his speech, inspired by Joseph Conrad, was that to make good decisions about copyright in the present (either as a court, a legislature, or in constructing scholarly arguments) one needs to think about the effect of that decision on the future and have serious regard for the lessons and experiences of the past.

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Tuesday, 25 June 2013

Darren Olivier

Namibia: A Talisman for Passing Off Actions?

The Namibia High Court, Main Division, has handed down a judgment this month following an application for urgent interim relief in a passing off action.

The suit was brought by Mega Power Centre CC t/a Talisman Plant and Tool Hire against Talisman Franchise Operations (Pty) Limited, a South African based company, and its new Namibian based franchisee Talisman Hire.

The RSA based franchisor advertised its new business (see here, for example) which irked Mega Power who had been using the mark Talisman to promote a part of his tool and machinery hire business, namely hiring of operator intensive machinery. Incidentally, the other part of the business was promoted under the name Coastal Hire which was licensed to Mega Power by Talisman's competitor in South Africa.

The allegations concern passing off by the new business based solely on the name Talisman which was being used by both parties in the business for plant and tool hire, generally.

The application was dismissed because Mega Power had failed to show how they might suffer damage. The case is interesting for the following reasons:

1. It sets out the Court's approach to urgency (see paras 21 and 25)

The judge was reluctant to relax the rules of Court but could not elicit any cogent argument from the Respondent on why he should not grant urgency.  He also emphasised the importance of prompt action by a party seeking urgency.

2. It explains how the Court interprets the law of passing off (see paras 39-42);

In short, the approach draws much from the laws in neighbouring RSA which are, themselves, based on similar laws in the UK. The case cites its own Supreme Court case, reported here by Afro-IP in 2008.

3. It illustrates that the likelihood of damage cannot simply be assumed; and

"I invited Ms. Schimming-Chase,... to indicate how the applicant is likely to suffer damage. The impression I gained is that the argument will have it that the public will be likely to hire the equipment they need, from the second respondent, in the mistaken belief that they are doing business with the applicant."

"Given the distinct, although related difference between what the applicant makes available for hire and what the second respondent makes available for hire, there is no possibility that the applicant will lose customers."

On that basis he dimissed the application.

Perhaps if the Applicant had argued the potential for irreperable damage to the Talisman brand if hire equipment from the Respondent was inferior or the fact that it has no control over the use of the brand by the Respondent or that customers may be confused into believing that hire equipment by one was associated with the other even though there was no loss of customers, may have been sufficient to persuade the Judge that if all the other elements of passing off have been shown that the likelihood damage must be inevitable? Perhaps, if this not been a case for interim relief the situation may have been different?

4. It illustrates the close connection between South Africa law and economy, and that of Namibia and the need to cross register trade marks.

Franchising is an increasing popular method of doing business in Africa. If one considers that in RSA there are two competing tool hire brands (Coastal Hire and Talisman), Mega Power is/was using both brands in Namibia and both companies (Coastal Hire and Talisman) have chosen to expand using the franchise model. This shows the risk of not obtaining trade mark protection in both territories.

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Monday, 24 June 2013

Caroline Ncube

Is Intellectual Property a Lex Specialis? ATRIP Congress Day 1

This Leo is currently attending the 32nd Annual Congress of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) hosted by the Faculty of Law, Oxford University (see conference program here). Speakers and participants at the conference are engaging with the following questions:
Is IP law an exceptional body of law (a lex specialis)? "To what extent do intellectual property laws displace or conflict with generally applicable legal rules, whether of private law, public law or procedural law?  To what extent could (and should) these aspects of intellectual property law simply be handled by general principles of law?  Increasingly, disputes about intellectual property are adjudicated by specialist courts and judges; is this appropriate, and how does it alter the development and interpretation of intellectual property law?" (see the full description here)

The first panel considered these questions from the perspective of property law. The panelists, Robert Burrell, Emily Hudson, Séverine Dussolier, Dev Gangjee and Tanya Aplin,  discussed property law rules such as those relating to the abandonment of property, how to conceptualize the commons, brands as property and the true nature of trade secrets.  The second panel considered the relationship between copyright and contract law. This Leo spoke about fairness as regulated by consumer protection legislation.  Pina D'Agostino shared her thoughts on copyright, creators and the new media (based partly on her book Copyright, Contract, Creators: New Media, New Rules (Cheltenham: Edward Elgar 2010).  Ansgar Ohly and Alain Strowel discussed the exhaustion of rights (in the wake of the UsedSoft decision) and Charles McManis gave an insightful overview of mass licensing in e-commerce and on social networks.

The third panel discussed specialized patent courts and patent adjudication. It comprised of Bing Wang, Robin Jacob, Rochelle Dreyfuss and Cyril Rigamonti. They shared their insights on the experiences of China, the UK, the US and Switzerland respectively.  The fourth panel of the day considered exceptionalism in procedural rules (including conflicts).  Toshi Kono discussed the work of the International Law Association's Committee on IP and international law and Tortsen Larsen spoke on the Unitary Patent Agreement's jurisdiction rules. Then Mireille von Eechoud pondered the significance of art 5(2) of the Berne Convention and Kim Weatherall ended the session on a high note as she discussed lex specialis IP procedural rules on the international and domestic level.

The final session of the day was the presentation of the winner of ATRIP Essay Competition, Begoña Otero, to the Congress. Begona then gave an overview of her winning essay entitled 'Compelling disclosure of software interoperable information: a risk for innovation or a balanced solution'.  All in all, it was a very enjoyable, productive and thought-provoking day. Now ATRIP's IP teachers and researchers hit the town .... The Welcome Dinner will be hosted at the Pitt Rivers Museum where the IP discussions will no doubt continue.

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Kingsley Egbuonu

A review of African official IP websites: no.51: Tunisia

Last year, this Leo was glad to see that Tunisia has its house in order with websites for its intellectual property (IP) offices. On review, this Leo is pleased to see that these websites are still live and functioning. Afro-IP says well done.
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Darren Olivier

East Africa - IP services in demand

The Lawyer - East Africa Special Report
The Lawyer has published a well researched and comprehensive article on the development of legal services in East Africa stating that both local and international firms have much to gain by consolidating in the region.

The article is written off the back of developments in the oil and gas industry and cites numerous voices from law firms that focus on cross border deals in this industry in that region. Some of the firms mentioned have strong or developing IP capabilities that are benefiting from this interest through tie-ups with international or other African based firms and increasingly, in their own right.

With growth in the region quoted by The Lawyer to be based on natural resources and related deal work, Afro Leo notes opportunities for firms that understand how to deal with tech transfer and IP that can be created and protected in these industries. With a growing middle class there also will be increasing work for IP firms dealing in traditional IP registration and enforcement issues - last week's post on look-a-like litigation in Uganda is an example of that. However, East Africa has aspirations beyond an economy based on natural resources and consequently opportunities for firms with full service IP capabilities look particularly rosy.
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Sunday, 23 June 2013

Caroline Ncube

Intellectual property for open innovation

This Leo also attended the Knowledge for Development: Freedoms, Networks and Innovation - Third Annual Workshop of the Access to Knowledge for Development Center (A2K4D) in Cairo attended by fellow blogger Isaac Rutenberg (see his post on Ancient Egypt and IP here  and the workshop agenda here). 

photo by thinkpublic CC BY-ND 2.0

The second day of workshop focused on the The Open African Innovation Research and Training (Open A.I.R.) Project's research (summarised here).  The talk about Open Innovation and IP within the African context by the University of Ottawa's Prof Chidi Oguamanam, raised a series of interesting issues for me (and hopefully, for Afro-IP readers). First, what is innovation and what makes it 'open'? Second, how is it impacted by IP? Third, how, if at all, does geographical context matter to this discussion? 

To my mind, open innovation comprises of creative processes that produce goods or services  in a manner that is characterised by sharing, is collaborative and/or cumulative in nature. IP is relevant to such innovation to the extent that facilitates said sharing and enables creators to reap some benefit from their creativity, either through commercialisation or socialisation. Geographical context matters because the type of innovation is influenced by local socio-economic conditions as creators seek to solve prevailing problems. An example is the 'SavvyLoo' created by Dudley Jackson to provide sanitation facilities in rural areas and informal settlements. This invention was a finalist for the 2013 Innovation Prize for Africa (see announcement of finalists here and of the winners here). The SavvyLoo has been patented and made available for use/licensing via the Innovation Hub's Open Innovation Exchange here. Dr Jackson's innovation fits snugly into the existing IP system hence its protection by a patent followed by attempts to commercialise it. Other African inventors find themselves in a very different position as their innovation falls short of patentability criteria and is consequently not measured by conventional metrics which measure innovation by the number of granted patents. Such innovation is typically incremental, lacks inventive step (is considered obvious) and thus is denied patent protection. This raises the further question of how African IP systems ought to be nuanced in order to measure and enable all types of  innovative processes and resultant innovations to foster creativity and ultimately, socioeconomic development? Whatever the answers are to these vexing questions, it is clear that they have to be localised and informed by prevailing soci-economic conditions.  

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Saturday, 22 June 2013

Tony Kakooza

Copyright protection in Ugandan stand-up comedy: Are laughs for free?

It is much easier to make babies laugh than it is to bring grown-ups to laughter. It is even much harder to make a living out of stand-up comedy. Nonetheless, the Ugandan audience in particular has a soft spot for entertainment and has so far been faithful to the stand-up comedy branch of entertainment since it became popular only a few years ago. Even from a Law and Economics perspective, the transaction costs are low for the comedians involved so they attain their efficiency moderately quickly.
As we laugh over these jokes, what comes to the mind of an intellectual property advocate is: what does it take to process these jokes? Considering that copyright law protects the expression and not the idea, we would right away be looking at any written scripts of the jokes before they are relayed on stage as well as recordings of the jokes as they are given. This is the material form that necessitates protection.

However, challenges abide when it comes to tracking ownership through expression. The questions posed are: Whose joke was it in the first place? Is Pablo the author of his jokes or does he pick them from some other source? Originality in composition of jokes is not something that comes about easily for many of the artists in this industry and it is noted that many of them repeat the same jokes over and over again with different audiences. If they cannot successfully lay a claim for originality, then it would be harder still to protect their comedy expressions as Intellectual Property. This is where copyright protection in stand-up comedy loses its effectiveness.

It is also harder to protect stand-up comedy where most of the jokes are concentrated on particular themes. For instance, most themes among Ugandan stage comedians focus on sex and ethnicity. The originality loses itself somewhere in the process of the expression making it difficult to rely on copyright protection for the joke.

It would be expected that the U.S has a more efficient copyright protection over stand-up comedy which is a very lucrative business but the same challenges towards such protection are evident in this country. Some comedians rely on taking matters under their own hands rather than rely on legal inefficiencies. Comedian George Lopez once confessed to having grabbed fellow comedian Carlos Mencia at the Laugh Factory comedy club, slammed him against a wall and punched him in retaliation for joke-stealing. But is violence or vigilantism the solution?

The Laughs may not be for free, but Ugandan copyright law has no answers either – at least for now. It would be interesting to know what other copyright lawyers think about legally protecting Stand-up comedies, otherwise – the joke’s on us.

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Ancient Egypt and IP: old meets new

Two of your newest Leos spent last week in hot, hot Cairo, attending a conference of OpenAIR. This post is not about the conference, but rather about my impression of Egypt: old, and impressive.
Battle of Pyramids
Francois L.J. Watteau, 1798

In California, where this Leo likes to say he originates (technically not true), anything over 100 years old is REALLY old.  Houses over 50 years old garner a lot of sympathy, as most people assume the owner is too poor to raze the house and build something modern and hideous.

In Kenya, where this Leo now calls home, anything tangible (i.e., not counting TK or TCEs here) over 100 years old is ANCIENT. Modern Nairobi didn’t exist before 1900. Prehistoric footprints and skeletons abound, but there is precious little in the way of massive free-standing man-made stone structures.

So, as cliché as they are, the pyramids (clocking in at nearly 4000 years old) are really quite impressive and, well, old. What does this have to do with IP? More than you might think.

Perhaps the greatest mystery of all time (other than how many times William Shatner will be able to reinvent his career) is how the ancient Egyptians, without any modern machinery, were able to move 2.3 million blocks of solid rock, each weighing up to 80 tons, into a massive structure that has stood for over four millennia. Did they use ramps? Did they roll the stones over logs?  Alien assistance, perhaps?

Could you ask for a better example supporting the argument that Traditional Knowledge should be categorized and recorded? In view of this tragic loss of information, South Africa’s recent move (Afro IP post here) toward building a database of TK is welcomed.

From a patent perspective (this might be stretching things a bit), I suspect one could still patent the method used for making the pyramids, were it to be determined today. The very public presence of the pyramids would seem to imply inventive step issues, but perhaps not. Secondary considerations, such as “long felt need” or “failure of others”, can be used to overcome an obviousness rejection in the US. Certainly, an enabling disclosure of the method of construction is not known to exist (evidence: thousands of years of speculation, not a single theory is satisfactory or even entirely plausible, etc.).

Finally, perhaps countries should be able to obtain some sort of protection of their national landmarks. Some form of hybrid protection between trademarks and geographic indications would enable Egypt to take action against a certain hotel in Las Vegas, or against Hollywood for countless sci-fi films.
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