Tuesday, 26 November 2013

Aurelia J. Schultz

Zambia’s CD and DVD Holograms Criticized

A few months ago, Zambia officially began requiring authenticating holograms on physical media like DVDs and CDs.  The program appears to be similar to the Nigerian Hologram Scheme put in effect about 6 or 7 years ago.  The idea is that the government will affix legal copies of media with a special hologram sticker that allows everyone to see that the product is not a pirated copy.  The Zambian program is only a few months old but has already dealt with its share of criticism.

The Zambian government began promoting and educating about the hologram program many months before introduction of the actual holograms on discs.  President of the Zambia Association of Music criticized the program as “archaic” because it addresses only physical copies of media and does nothing to address sharing digital files.  Traders who sell music and movies it the markets criticized the program for not allowing enough time for them to sell off their old products.  Traders who only learned about the program when government officials visited were concerned the government has not done enough to educate the population about the holograms.  Others are concerned that the requirement to obtain holograms from the government will harmfully delay the release of new products.  Despite the criticisms, the Zambian government says the hologram program is helping to curb piracy.

Afro Leo is a bit stunned by these developments.  On the one hand, a hologram program does seem a rather old-fashioned way to address piracy.  Even in 2008, the Nigerian program seemed a little outdated.  On the other hand, legitimate music purchasing options are important, and it isn’t always easy for a consumer to know what’s pirated or not in a market stall.  This little Leo was surprised to learn that Mondo Music, the label she most frequently purchased when living in Zambia, had gone out of business due to piracy.  10 years ago, Mondo Music had most of the biggest artists in the country and legitimate copies of their albums were available at major retailers in shopping centers across the country.

Perhaps Zambia shouldn’t give up on the hologram scheme yet.  It is very new and the holograms themselves did cost the country quite a bit – One billion kwacha.  But Mr. Zulu of the Zambia Association of Music is correct that addressing only physical infringing copies is not enough to ensure a thriving music industry.

Hat tip to Lusaka Times for information in several articles, starting with the most recent government support of the hologram program: http://www.lusakatimes.com/2013/11/22/hologram-project-flop-police-confiscating-pirated-dvds-cds-kapeya/

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Monday, 25 November 2013


CLIPDC and Global Entrepreneurship from (American) experts

Perhaps the most exciting session of the CLIPDC conference (which is now finished) in Durban, SA, was titled “Global entrepreneurs” and featured Prof. Robert (Bob) Langer from the Massachusetts Institute of Technology (MIT), Alex Klibanov (also from MIT), and Dennis Liotta (from Emory University in Alabama). For the non-scientist readers, Bob Langer is equivalent to Beyonce in music or Steve Jobs in business – a true rock star. Alex and Dennis are also quite famous in the science circles. [Sadly, Bob and Alex could only join by video link, so this once-scientist-Leo didn’t have the privilege of meeting them in person.]
Great Dome at MIT -
watch out for firetrucks and police cars on top

Bob is an inventor on over 800 patents (yes, that’s 800 patents), and has well over 1,000 publications to his name, so he knows something about innovation and intellectual property (i.e., patent) systems. Bob’s recommendation to Developing Countries is to start building the IPR ecosystem, while planning for the future. Implement a good patent system, which will be attractive to investors, will lure Venture Capitalists, and which will reward innovation. Bob used the oft-cited example of Silicon Valley, which, he noted, has been developing over 70-80 years.

Similarly, Alex suggested a multi-step process for encouraging innovation via IPR. First, identify unmet needs that are specific to the Developing Country. This will reduce the likelihood that the innovators are competing with large multinational corporations with nearly unlimited resources. Second, apply technology to the need, whether it is your own technology or that of others. [This Leo finds that innovators are frequently surprised to learn that patents from Developed Countries are available online for free, and that they are supposed to thoroughly describe the state of the art at the time of publication.]    Third, businesses/innovators should have an exit strategy. Finally, work hard and keep pushing, and good things will happen. Sounds great, and works well in America.

One complication is that global IP systems have been undergoing rapid evolution as pro-protection and pro-open movements clash and (sometimes) try to find common ground. It’s difficult to plan for the future when one cannot guess what global IPR regimes will look like in 20-30 years. Historically, such discussions have been spearheaded by developed countries (even today this is true, given the recent revelations about the TPP negotiations). The rise of BRICS countries has altered this somewhat; Indian court decisions about pharmaceuticals and Brazilian policies regarding genetic resources are two examples of BRICS beginning to redefine the conversation.

There are two ways to interpret Bob and Alex’s suggestions: (1) “start now to lay the foundation for a strong IPR regime, like the one in the US and Europe which has worked so well”; or (2) “start now to determine what sort of IPR regime would function best in Africa, providing suitable incentive for innovation yet accounting for local needs and situations.”

One fascinating topic raised by the three scientists relates to creating incentives for entrepreneurship and innovation within universities. Apparently, MIT owns all of the IP generated by professors, but gives the professors 28% of all royalties generated by the IP.  Also, if professors wish to create a spin-off company from their inventions, MIT licenses those inventions to the spin-off at zero initial cost. Instead of charging a royalty, MIT takes an equity stake in the company.

Even more interesting is that all professors at MIT are allowed and encouraged to devote one day per week to “extracurricular activities,” which may be of a public service nature or of a private industry nature.  Clearly MIT makes great effort to encourage creativity, entrepreneurship, and diversity among faculty.

Are there any African universities that go to such lengths in encouraging innovation? Readers are encouraged to chime in…
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Kingsley Egbuonu

Regulation of IP practitioners in Nigeria? IPLAN v. IP Registry & another: The Verdict

Back in July 2012, this Leo was delighted to learn about the milestone reached by Nigeria's Trademarks, Patents and Designs Registry (IP Registry) in its quest to embrace the digital life - like others. As usual, this Leo had a thing or two (or more) to say about this development. In particular, he was curious as to the legality of the accreditation process initiated by the Registry. Fast-forward to May 2013, we heard about the legal action (Suit No. FHC/ABJ/CS/579/2012) against the Registry by the Intellectual Property Lawyers Association of Nigeria (IPLAN) as reported by Chijioke Ifeoma Okorie.  

So, did this case survive it in Court? Surprisingly, yes it did. But did the Claimant win on all its points? What powers do the Registry and/or the responsible Ministry have over IP law and practice in Nigeria? Below is a case summary by Mr. Folarin Aluko, Counsel for the Claimant - in his own words. (A copy of the judgment can be found here)

The Nigerian Trademarks, Patents and Designs Registry announced in June 2012, the launch of its online filing and registration platform effective on the 16th of July, 2012. The Registry also announced the discontinuance of manual filing at the Registry. Whilst the introduction of the online filing was acknowledged as a positive development, a peculiar feature of the Registry’s proposed online filing system was that it was introduced alongside an ‘accreditation’ scheme which was to serve as a means of restricting and regulating access to Industrial Property Registries. This accreditation scheme was considered controversial and irregular by a significant number of Intellectual Property Practitioners. Another irregularity that accompanied the online filing portal was an additional surcharge of 4-figure “transaction” fees payable per application filed.

The Intellectual Property Lawyers Association Nigeria ("the Plaintiff"), represented by Mr. Folarin Aluko, filed an Originating Summons at the Federal High Court, Abuja challenging the purported accreditation scheme and the additional surcharge on the Registry’s online services. The Plainitiff asked the Court to interpret the relevant provisions of the Trademarks Act ("TMA"), the Patents and Designs Act, the Legal Practitioners Act and the Regulations made pursuant to these laws viz the 2 irregular aspects of the Registry’s online filing platform.

The Plaintiff argued that neither the Registrar of Trademarks, Patents and Designs (1st Defendant) nor the Minister for Trade and Investment (2nd Defendant) could introduce a mandatory accreditation scheme, as such would be ultra vires the powers granted to the Minister by the Trademarks Act. The Plaintiff argued that the Registrar is bound to recognize an Agent appointed by an applicant subject only to the provisions of Regulation 66 of the Trademark Regulations. The Plaintiff further argued that a literal interpretation of the section 45 (1) of the TMA which gives the 1st and 2nd Defendants the powers to regulate the “practice under the TMA” cannot be interpreted to grant a power to regulate Practitioners and/or Agents at the Registry. 

On the issue of additional fees, the Plaintiff argued that pursuant to S 45 (2) of the Trademarks Act, the introduction of additional fees would be null and void and of no effect unless and until such fees are first included in Regulations which are published in a Federal Gazette. In reply, the Registrar of Trademarks, represented by Mr. Edet Otu argued that the introduction of the online filing platform was made pursuant to Section 45 (1) of the TMA which gives the Minister the power to make regulations for the practice under the TMA. The Registrar also argued that the decision to discontinue manual filing had been reversed, following the institution of the Plaintiff’s suit, and that it had removed all restrictions to both manual and online filing platforms. The Registrar thereafter concluded it's argument by contending that the additional fees charged for online filing were paid for voluntarily by applicants who wished to take advantage of the online filing system and it therefore urged the court to uphold the additional charges for online filing.

Delivering His judgment, Justice A.F.A Ademola adopted the Plaintiff’s issues for determination:
1. Whether having regard to the separate and combined provisions of Section 45 & Section 66 of the Trademarks Act; Section 2 (1) of the Legal Practitioners Act; Regulations 2 (1) and 16 (1), (2) and (3) of the Trademarks Regulations; the 1st and/or 2nd Defendant may validly necessitate and compel the mandatory accreditation of Agents and Legal Practitioners as a condition for Recognition by the 1st Defendant?
2. Whether the mandatory accreditation of Agents and Legal Practitioners by the 1st Defendant commencing on the 16th of July 2012 at the Trademarks, Patents and Designs Registry is ultra vires, null and void?
3. In view of Section 45 (1) (e) and 45 (2) of the Trademarks Act, whether the 1st and/or 2nd Defendants may impose additional administrative fees on applications brought under the Trademarks Act and the Patents and Designs Act without first publishing same in a Federal Gazette?
4. Whether the additional fees imposed by the 1st and/or 2nd Defendants from the 16th of July, 2012 on applications brought under the provisions of the Trademarks Act and the Patents and Designs Act is irregular, ultra vires, null and void?

The Plaintiff asked the Court for the following reliefs:
1. A DECLARATION that the mandatory accreditation imposed by the 1st Defendant on Agents and Legal Practitioners is in violation of the Trademarks Act and the Legal Practitioners Act and Regulation and therefore ultra vires, void and of no effect whatsoever.
2. AN ORDER setting aside the 1st Defendant’s directive mandating the accreditation of Agents and Legal Practitioners.
3. AN ORDER of injunction directing and compelling the 1st and 2nd Defendants to cease and desist from continuing the purported accreditation.
4. A DECLARATION that by virtue of the provisions of Section 45 the Trademarks Act, neither the 1st nor 2nd Defendant can validly increase or prescribe additional fees under the Trademarks Act and the Patents and Designs Act without the prior publication of same in a Federal Gazette.
5. A DECLARATION that the additional fees imposed by the 1st and/or 2nd Defendants on applications filed at the Trademark, Patents and Designs Registry are in violation of the provisions of the Trademarks Act, the Patents and Designs Act and the Trademark Regulations and therefore Ultra Vires, illegal, void and of no effect whatsoever.
6. AN ORDER of injunction restraining the 1st and 2nd Defendants from collecting additional fees other than the application fees prescribed by Law. 

Deciding the 1st and 2nd questions on the power to accredit, the Court agreed with the arguments of the Plaintiff's counsel by holding that neither the 1st nor the 2nd Defendant has the power to introduce a mandatory accreditation or introduce additional criteria to regulate Practitioners and Agents. The Court however declined to grant an injunction restraining the 1st and 2nd Defendants from introducing an accreditation scheme based on the 1st Defendant’s statement on oath that it was neither preventing nor restricting access to the Registry. The Court also held that by introducing the online filing system, the Minister acted pursuant to the powers conferred by S 45(1) of the Trademarks Act.

In deciding the 3rd and 4th questions which addressed the additional fees charged by the Registry for online filing, the Court held that upon a careful perusal of the evidence and the relevant laws, it is obvious that neither the Registrar nor the Minister may charge additional fees for either manual or online filing without first complying with the requirements of the law.

The learned trial Judge also held that all additional fees charged for the Registry’s online filing are ultra vires, irregular, null and void and of no effect. His Lordship, Justice Ademola, consequently granted an injunction restraining the Registrar and the Minister of Trade and Investment from charging additional fees for its services (manual or online) other than the fees currently prescribed by law.

In summary, this judgment is significant to the practice and development of Intellectual Property Law in Nigeria because the Federal High Court has helped to define and limit the powers of both the Minister of Trade and Investment and the Registrar of Trademarks, Patents and Designs with regards to the accreditation of Practitioners and Agents. The Federal High Court has given life to the letter of the law by insisting on due process and supremacy of the law. We are confident that this judgment marks the beginning of an era of the long-awaited IP reform in Nigeria.

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Wednesday, 20 November 2013


CLIPDC: A Conference of Contradictions

From Monday to Wednesday of this week, this Leo has been at the Creating and Leveraging IP in Developing Countries (CLIPDC) conference in Durban, SA. This post will provide some general observations of the conference. Future posts will focus more on conference content.
Durban: a beach and
a World Cup football stadium

Why this conference, in this place, at this time? The major organizers are the Department of Science and Technology (DST), the Companies and IP Commission (CIPC, which is part of the Department of Trade and Industry), and the National IP Management Office (NIPMO), all SA Government organizations. It seems no small coincidence that the SA "Draft National Policy on IP, 2013" was launched only two months ago, and indeed the Draft Policy is a major topic at CLIPDC. Also, CLIPDC is being used as a forum to launch an "IP Trade Portal", which functions as a sort of matchmaking service for technologists and investors. It is not exactly clear why CLIPDC is in Durban specifically, although certainly the views of the ocean are worth the journey...

Who's here? The list of speakers is impressive. Nevertheless, quite honestly, most of the speakers are American or European. South Africa is represented to some degree, but the non-South African voice is all but absent. Frustratingly (at least to this Leo), a representative from ARIPO was scheduled to be present and speaking, but was reportedly unable to attend on account of issues with immigration and obtaining a visa. Consider also that SA seems to have little interest in joining ARIPO (see here, which reports that SA "is counted as a potential member in the near future" but closer look shows that this page was last updated in 2004...). And how many national or regional African patent offices outside SA are represented at the conference? Zero. Even the audience contains only a few non-South Africans from the Continent. It's hard not to reach the conclusion that CLIPDC is not actually interested in listening to perspectives from developing countries in Africa.

On the other hand BRICS countries are well represented. An impressive video-linked session provided presentations from representatives of all of the BRICS patent offices.

What are we talking about? The topics over these three days have been heavily [nay, almost exclusively] related to patents. Other forms of IP are mentioned in passing or in the questions raised from the audience, but are quickly discussed before returning to patents and innovation. The focus on patents can be understood, perhaps, when one considers the non-government sponsors, which include Big Pharma (Pfizer), Health and Personal Products (Philips), the American IP Law Association (AIPLA), an American consulting firm (Knowles IP Strategies), and a local law firm (Hahn & Hahn).

The patent-heavy and pro-protection side of the conversations have been somewhat balanced by the presence of representatives from MSF (Doctors Without Borders), University of Cape Town, WIPO, and even the DST itself. Refreshingly, these speakers and delegates have mentioned access to medicines, open access to copyrighted works, protection from biopiracy, and the like.

The SA government has clearly put a lot of resources into this event and into IP generally. The Ministers from the Ministry of Science and Technology and the Ministry of Trade and Industry attended and spoke at CLIPDC on Monday [there seems to be some tension between these Ministries, but politics and social issues in SA are too complicated for this Leo to comprehend]. It's nice to see so much discussion about IP in SA, although it is also clear that the rest of Africa is being left out of the discussion.

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Monday, 18 November 2013

Caroline Ncube

RSA: Draft National IP Policy conference to be held in November & SA supports PAIPO

According to a media statement by the Minister of Trade and Industry dated 5 November, posted on the Department of Trade and Industry's website (here) the ministry is planning a conference to discuss the draft national IP policy. This would be a welcome move and it is hoped that logistical details will be announced well in advance to enable interested parties to attend and to participate.

After months of silence on the topic, both within South Africa and beyond, this Leo's ears perked up at the mention of PAIPO in the media statement. The Minister had this to say about the subject:

'Harmonisation of Laws should take place in Africa. The Proposed Pan African Intellectual Property Office (PAIPO) is fully supported by South Africa as it will lead to IP being dealt with uniformly. We are hoping that the areas of disagreement will be ironed out soon. [I'd love to know what these areas are and the stances which countries have adopted on these issues. Pray tell.]  South Africa is seeking to use the patent related flexibilities as set out in the TRIPS agreement of WTO [does this sentence have anything to do with the previous sentences on PAIPO? If so, are there some countries that are not keen on using flexibilities?That would be a shocker].'
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Saturday, 16 November 2013

Kingsley Egbuonu

Upcoming Africa-related events supported by the Law Society (England and Wales)

Booting up to come out of hibernation mode, this Leo starts with this month's international update from the Law Society of England and Wales (E&W) which - to a great extent - demonstrates the ever-growing interests in the legal services industry across Africa. Below are two events that you may be interested in.

(1) The Law Society (E&W) CPD accredited International Lawyers' Training Programme. This seminar will take place in Lagos, Nigeria on 25th  and 26th of November 2013 and is supported by the Nigerian Bar Association (NBA) Section on Business Law  The two one-day training sessions will cover on day 1: Financial management for law firms; and on day 2: Law firm business development. For more information and how to book your place, click here

(2) The 2013 International Lawyers for Africa (ILFA) fundraising gala dinner on 28th November at Chancery Lane, London. This event promises entertainment of all sorts and will host stakeholders of all sizes. Tickets are priced at £200 per person or alternatively guests pay £3,000 for a table of ten. For more information and how to purchase a ticket, click here.

This Leo's next post will be a general commentary on this growing interest in Africa's legal services industry.
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Thursday, 14 November 2013


Algeria commits at last to WIPO copyright and performance/phonograms pacts

The World Intellectual Property Organization (WIPO) has now issued media releases, here and here, to the effect that Algeria has deposited its instruments of accession to both the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

The two treaties take effect for Algeria on 31 January 2014.
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Tuesday, 5 November 2013

Caroline Ncube

IP policies in Africa: No 6 - Burundi

After a brief hiatus, occasioned by this Leo's globetrotting, the A-Z IP policies in Africa series returns with a visit to Burundi.  

An IP Policy is not listed on the country's WIPOLex entry (here) but according to WIPO's technical assistance database, an 'Expert Mission to review the Draft National Intellectual Property Policy, + Stakeholders Workshop to Validate the Draft National Intellectual Property Policy of Burundi' were hosted in Bujumbura on 29/11/2012 - 28/02/2013 (see the entry here). Presumably, a draft has been formulated but has not yet been finalised and adopted (see a WTO overview of IP policies in LDCs here. This report was prepared by SAANA Consulting. For background on the preparation of the report, see the consultancy's website here). 

As usual, pertinent information from our readers is welcome. Please use the comment box below to share any information on the IP policy of Burundi. 
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Caroline Ncube

RSA: IP Policy Submissions: A reply to Counterfeit drugs illustrates need for tough enforcement - Disagree but don't be dismayed

Now that the deadline for submitting comments on the draft IP policy has come and gone, its time to make sense of them all. AfroLeo's recent post entitled Counterfeit drugs illustrates need for tough enforcement   referred to a joint submissions made by academics from, or affiliated to UCT and UKZN (with his comments in red). The authors of the joint submission wish to respond to some of Afro-Leo's remarks. We are aware that it is up to the DTI to consider the submissions and craft an appropriate policy, but are of the view that there may have been some misunderstanding of our submission and wish to clarify some points. For ease of reference, the entire post will be reproduced here, with our replies in blue

Counterfeit drugs illustrates need for tough enforcement

"Counterfeit drug syndicates are flooding the Zimbabwe market with consignments of fake anti-retroviral drugs (ARVs), expired medicines and sex enhancers, putting the lives of thousands of people at risk" the Zimbabwe Independent reveals throughAllAfrica on 25 October. Some of these drugs are being supplied from South Africa.

The Economist - Poison Pills
The news is horrific but nothing unusual to this blog (see here for example) which regards counterfeiting as Africa's single largest IP problem. The Economist recently highlighted the global problem citing how difficult it is for "poor countries" to take advantage of technologies that help identify and track fake drugs (see article beneath pic alongside). 

Against that backdrop, Afro Leo was dismayed to read some of the comments over the weekend in the "Academics" submissions on RSA's draft IP policy regarding IP enforcement. 

"Special care should be taken to avoid customs/border enforcement of patents and civil trademark violations, especially with respect to medicines." (ed: patent enforcement is of course not part of our anti-counterfeit legislation While enforcement of patents is not currently part of anti-counterfeit legislation the submission was aimed at the policy which is somewhat ambivalent on whether state resources should be devoted to enforce patents. On page 42 the draft policy states: "South Africa should also foster the enforcement of IP in its entirety. As for now, only trademarks and copyright are enforcement is emphasised." but fake (and even generic drugs) frequently infringe registered trade marks which, as illustrated by article require effective customs enforcementHere our key concern is that the distinction between generic and counterfeit drugs be maintained and that border control of IPRs is not used to block the transit of generics in circumstances where this is not justified - See an article on this aspect  by Caroline Ncube entitled 'Enforcing patent rights against goods in transit : a new threat to transborder trade in generic medicines' in the SA Merc LJ (here).  Additionally, the public interest is properly served by removing substandard and harmful substances from the market, an objective best achieved through capacitating the medicines regulator to ensure that only medicines that are safe, efficacious and of assured quality are sold to the public. We also wish to point out that substandard medicines are at least partly a function of access failure  - desperate patients are exploited by charlatans because they have no other way to access affordable medicines.

A subsequent, yet related question is: who should enforce (as in human and financial resources) private IPRs?  We caution that customs enforcement is problematic, particularly in instances where customs is not adequately trained in dealing with IPRs. We note that it is in order to rectify such deficiencies that firms like Adams & Adams are intensively engaged in training customs across AfricaWe are not alone in questioning whether customs officials have the capacity to distinguish whether a particular product infringes a trademark. According to the Afro-IP report of a paper given by Judge Harms (here) the judge intimated that " there is no clarity about the justification for customs action in relation to goods in transit or transshipment" and " in SA at least, the laws are contradictory and do not take into account the ordinary principles of criminal procedure" and "customs are not really equipped to deal with the problems".

"Improving IP enforcement through, for example, reducing the availability of certain enforcement mechanisms such as interdicts, which may actually benefit the general populace, (ed - certainly not when it comes to counterfeit drugsGreat care must be taken to distinguish between fake medicines i.e. those with no active ingredients or possibly harmful ingredients and generic medicines which are bio-equivalent to brand name medicines. A medicine may be sub-standard without any trademark implications, and whether it should be distributed in South Africa is the province of the Medicines Control Council, whereas whether a medicine infringes a trademark is best decided by a court. The category of counterfeit drugs only confuses these issues and is unhelpful. As reported previously on Afro-IP (here) an anti-counterfeiting law that failed to distinguish between counterfeit and generic medicines was struck down because it was over-broad by the Kenyan High Court

whereas strengthening enforcement will almost always work to the advantage of rights holders, often at considerable cost to the public purse. (ed, we are all rights holders. We agree, we are all rights holders, but we are also all re-users, re-creators and reverse engineers. We used the term 'rights holder' at that point in our submission to identify those who identify themselves as 'rights holders' for rhetorical purposes, thus emphasising their rights while disavowing their reliance on the works of others.
The cost of enforcement can be expensive (often borne by the enforcer because damages are so difficult to prove or recover, and cost awards inadequate) but without it, the potential benefits of IP protection (fostering innovation, wealth and job creation etc) become useless. It may be interesting to note that the cost of enforcement in RSA is significantly cheaper than in other parts of the worldThe role of IP in fostering innovation, creativity and development in a country is at best uncertain: it can be an incentive but at the same time - through creating far reaching monopolies - it can also be a considerable stumbling block for innovative activity. A new book (coming out in December 2013) aims to shed more light on the complex relationship between IP protection on the one hand and innovation and development on the other (De Beer et al., Innovation and Intellectual Property: Collaborative dynamics in Africa UCT Press (2013) see an overview of the research on which this book is based here).

"In our view, the issue of enforcement – while being important – is a subsequent issue to creating topical and progressive IP regimes in our country." (ed - this cannot be. A topical and progressive IP regime is ineffective without proper enforcement - the two are at least equally important. The article illustrates this as much as a death caused by a motorist with fake brake pads.) We are in agreement - our point is that you start with a properly nuanced (read topical and progressive) IP regime then you set up proper enforcement mechanisms. We take issue with the enforcement of an inappropriately balanced IP system, not with enforcement (by right-holders at their own expense) in general. 

"once copyright enforcement begins in earnest, then, without well-developed mechanisms in place to secure non-infringing channels of access to knowledge, many learners will be in a precarious situation." (ed the reality is that copying is endemic to our society and copyright enforcement inadequate. We refer readers to the book Access to Knowledge in Africa: The Role of Copyright  UCT Press (2010) (free full text download) an output of the African Copyright and Access to Knowledge Project which found that due to inadequate provision for exceptions and limitations for educational purposes, “access to learning materials in the study countries is obtained mainly through copyright infringement.” The shortcomings of current South African copyright laws are detailed in this chapter as are recommendations for reform.  
One in every three businesses uses infringing or pirated software or is under licensed because they are using "learner" licenses, specifically available by software providers to facilitate access to knowledge. We are not aware of any rigorous research that supports the narrative of widespread software infringement, but we do know that several years ago the Business Software Alliance admitted to estimating the number alleged infringements in South Africa without doing any survey work in South Africa ( see report here). As scholars we prefer empirically verified research so would be delighted if anyone could point us to any on this subject. We wish to refer Afro-IP readers to research that questions conventional wisdom about piracy and enforcement -  the Social Science Research Council's Media Piracy in Emerging Economies Report which was the outcome of an independent, large-scale study of music, film and software piracy in emerging economies, with a focus on Brazil, India, Russia, South Africa, Mexico and Bolivia.

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