Friday 20 September 2013

Darren Olivier

South Africa's Draft IP Policy - Harms' notes

Yesterday Afro Leo was pleased to receive former Supreme Court of Appeal Judge Harms' 19 page commentary on the draft IP policy lodged recently at the Department of Trade and Industry (see other policy notes published on Afro-IP here and here).

As one might expect it is an enlightening read. Harms' imagination leaves little to the imagination:

Candy/Fairy Floss or Cotton Candy
"... one cannot escape the conclusion that as policy it promises candy-floss: it is very sweet but it becomes sticky if you touch it and it disintegrates on eating, leaving no aftertaste."

It makes for good bedtime reading but it is not a bedtime story. Some of the problems are dire. Citing the disparity in the relative rates of growth of patent applications and per capita income across several developing countries (including China, Korea, Australia, Ghana, RSA and Kenya) he notes that:

"... a fair conclusion to be drawn from these figures is that there has been no growth in innovation in the RSA or, for that matter, in Africa [over several decades]."

That said, he is not critical for the sake of it:

"To prevent any misunderstanding about my approach to IPL I wish to state at the outset that I have always maintained that IPL tends to be greedy and that some aspects or manifestations do not necessarily serve the interests of a developing country. There is not a single model that fits all."

Sections A, B, C and D of the commentary all help to provide further context and perspective.

But he is critical.

"In short, the policy document fails in the same respect about which it complains. It did not co-ordinate with other departments or with the DTI or the Commission."

"While on the topic of neglected subjects there is the issue concerning the visually impaired and other people with disabilities....Government has often been approached to do something by creating a fair use exception for them. In spite of government’s general concern for the wellbeing of the disabled this request has not been processed."  (Andrew Rens makes a similar comment. See also Afro-IP background here.)

"Embarrassingly, the policy document shows some lack of appreciation of South African IP law."

"What can one say: an official document on IP that does not recognise the difference between the Berne and Paris Conventions?"

"Neither “health” nor the police have anything to do with patent enforcement."

"The document suggests the RSA does not have the capacity to manufacture drugs (p 23)."

"It would also have been useful to have statistics about applications under sec 56 of the Patents Act for compulsory licences for drugs and, if there are not any, an attempt to find a reason should have been made."

"The problem, which is universal and not appreciated in the document, is that generics are sometimes sold under counterfeit trade marks."

"The information is out-of-date."

Hi criticism is not beyond reproach - some would say, for example, that copyright does foster innovation (see his comments to the contrary in para 78).

Louis Harms currently sits as the Professor: Adams & Adams Chair of Intellectual Property, University of Pretoria. However, this commentary is in his personal capacity and his stated interest is purely academic. It would be a shame if it is not taken seriously by the DTI. As Appeal Court Judge Nugent (who penned the landmark BMW v Grandmark IP judgment earlier this week) expressed:

"Louis is internationally renowned in his field.....Lamentable is the conspicuous absence of his own country from that list [of international bodies that have sought his expertise to help formulate policy].

Let's hope his notes foster further constructive debate in RSA.

Darren Olivier

Darren Olivier

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