Friday, 27 December 2013


Two recent articles

The January 2014 issue of the European Intellectual Property Review, despite its name, has two pieces of particular interest to the African IP community.

The first is "The Rooibos Rush", the lead opinion by Cobus Jooste (Faculty of Law, Stellenbosch University). According to the abstract
"The wealth of natural and indigenous resources in South Africa presents a challenge to intellectual property law, particularly when trade mark protection for terms that denote the origin of uniquely South African goods is sought abroad. Recent developments in the use of the Merchandise Marks Act, as the basis for protection of ROOIBOS as a geographical indication in terms of the TRIPS Agreement, illustrate the difficulties faced by South African producers".
The second, "Essential Medicines and the Complexity of Implementing Nationally Based Compulsory Licensing: On the Need for a Regional System of Compulsory Licensing in Sub-Saharan Africa", is by Thaddeus Manu (Centre for Commercial Law Studies, Queen Mary, University of London).

The European Intellectual Property Review (EIPR) is published monthly by Sweet & Maxwell.
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Wednesday, 18 December 2013

Caroline Ncube

IP policies in Africa- no. 7 - 11 Cameroon to Comoros

Having spent the last week at the OpenAIR conference and the Global Congress on IP and the Public Interest reported upon by fellow Leos Isaac Rutenberg (hereherehereherehere, here and hereand Aurelia Schultz (here and here) this Leo is back with the IP policy series. This week we visit Cameroon, Cape Verde, Central African Republic, Chad and Comoros.

IP policies were not discussed expressly at the OpenAIR conference and the Global Congress but they were, of course, simmering under the surface of any discussions on appropriate IP laws and practices. This is because these laws and practices are informed by (written and unwritten) national policies. A written policy is first prize because it transparently sets out the national approach to IP and can therefore be consistently applied by the various government departments seized with IP matters. The process of its formulation also ideally involves expert input and public consultation and where this is taken seriously will result in a robust national approach. Where a country does not have a written policy, one can deduce a national stance from laws and practices of government departments. Such stances are likely to be uncertain and lack expert and public interrogation. Therefore many calls for reform often include exhortations to develop explicit national IP policies which would then serve as a foundation for laws and practices. On to this week's countries then ...

Cameroon does not yet have an IP policy nor has it received WIPO technical assistance focussing on IP policy (see WIPO TA Database search results here). Similarly Cape Verde does not also have an IP policy nor does it seem to be working on one (see its WIPOLex entry here and WIPO TA Database search results here). The Central African Republic (WIPOLex entry here) appears to have been working on an IP policy since 2010 when the WIPO TA Database lists a workshop entitled 'Consolidation of Intellectual Property Development Plan of Central African Republic' here. This Leo was unable to find a final version of an IP policy. Chad is also working on an IP Policy as evidenced by a WIPO TA Database record here of a workshop held in September 2013 on the 'Projet de plan de développement de la pI et de l'innovation technologique (PNDPI)'.

Comoros (WIPOLex entry here) attended the African Conference on the Strategic Importance of IP Policies to foster Innovation, Value Creation and Competitiveness and ECOSOC Regional Preparatory Meeting held in Tanzania in early 2013 (see WIPO TA Database entry here) but does not seem to have done any further work.

This post must end with the disclaimer that WIPOLex and  the WIPO TA Database may be incomplete and omit certain documents, hence readers are asked to share any information that they may have via the comments section below. Finally, thanks are due to Hafeni Ashimbonde for his research assistance.

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Tuesday, 17 December 2013

Aurelia J. Schultz

Another Report from the Global Congress

This Little Leo could say that this report is coming several days after the Global Congress ended so that it didn't crowd all the great activity on the blog. But, the truth is she wanted to explore many of the wonderful things Cape Town has to offer, including realizing very late in her stay that she could probably get actual maize meal here – something that is not readily available in the US – and make herself a delicious meal of nsima. (We have corn meal, but it's different and doesn't work well for nsima.) We fed, she's now ready to report on one more important session from the 3rd Annual Global Congress on IP and the Public Interest. (Other reports here, here, here, here, here, here, and here. whew!)

Fellow Leo, Caroline Ncube, led a 2+ hour update on IP happenings from around the world. Over 20 people spoke, and Little Leo was very pleased to see Africa well represented on the podium. Rather than covering all 20 presentations, we'll look at the African updates.

North Africa

Riyadh Al Balushi from the Ministry of Legal Affairs in Oman covered copyright exceptions and limitations in the Arab world, which included several countries from North Africa. The North African countries seem to be a hotbed of unique exceptions. Of the 22 countries in the Arab world, two do not have copyright laws and those two are both in Africa, Somalia and Mauritania. Of the remaining African-Arab countries, only Tunisia does not have an exception allowing the media to reproduce public and political speeches without the author's permission. Most countries also allow the media to reproduce articles of political, religious or economic discussions in full as long the author did not explicitly say that article could not be copied for those purposes.

Algeria is one of a small number that allow publicly displayed art to be photographed without limiting parameters like incidental use. Riyadh pointed out that allow only a few countries have this exception, everyone takes pictures of public art anyway. Tunisia and Algeria are the only two countries to have an actual exception for parody, despite parody's popularity across the Arab region. Sudan is the only country that allows copying a photo of a famous person or politician without permission.


Moving to Sub-Saharan Africa, Adebambo Adewapo, former Director General of the Nigerian Copyright Commission and currently at the Nigerian Institute of Advanced Legal Studies, gave an update on user rights in Nigeria. This Little Leo was fascinated with his updated because she is very used to hearing “user rights” talked about in the sense of strictly “end users.” Adebambo however, discussed broadcasters, media houses and other users who need access to copyrighted material. Nigeria has specific copyright exceptions outlined in its Copyright Act, similar to fair dealing in the UK. There's not a lot of case law on this topic, though. The real debate in current Nigerian copyright law is in the area of recasting former obligations as rights. The users about which Adebambo was speaking are arguing that they have a right to negotiations with the copyright owners for use of material.


Agatha Kabugu, librarian at University of Nairobi, gave a wonderful update on library's role in creating access to resources. The university library drafted an open access policy in 2011, which was adopted in December of 2012. The university Intellectual Property Policy was revised this year to match the Open Access Policy and the university started a tech and innovation support center to help researchers access information.

The new Open Access Policy specifies that publishing in open access journals does not hinder a person's promotion or tenure prospects. The university has a digital repository with CC-licensed works where staff members retain their copyright when they contribute to the repository; contribution is optional. Since its creation earlier this year, the repository has seen 3 million searches and 4 million item views. The university is now reaching out to alumni with the opportunity to add their works to the repository. The project has been great for the university and library because it increased the impact and visibility of research at the university and is facilitating global research collaboration. There are a few issues still being worked out, such as technical glitches, but the repository is off to a great start.

Another speaker from Kenya – Little Leo apologizes for not getting their name – discussed copyright exceptions and limitations in Kenya. There's a discontinuity within the Kenyan Constitution of 2010 which grants property rights and freedom of expression rights but without any sort of link between them. In general, Kenya has fair dealing, but its not fully defined. A recent case found a plagiarized university paper to be infringing. Another case found a book reviewing another book with a cover the same color as the original book to be a triable issue but didn't explain what copyright issue was involved.


Charles Batambuze of National Book Trust of Uganda discussed the Ugandan campaign for copyright reform. Although the Ugandan Copyright Act is fairly new, dating from 2006, discussion during the drafting of an anti-counterfeiting bill altered people to some problems with the copyright act. Campaign for reform started in earnest in 2012. Issues up for debate include the ability of libraries to format shift or circumvent technical protection measures, parallel imports, compulsory licensing provisions that would be logistically enforceable and prohibiting copyright exceptions and limitations from being overridden by private contracts. Journals are working to educate people about how copyright law affects average Ugandans and discussions are happening with people in government and vice chancellors at the universities. Charles also announced that the Ugandan Creative Commons licenses launched this year and rights holders are starting to use the licenses.

South Africa

Trudi van Wyk of the South African department of higher education and training discussed the importance of open educational content in South Africa. The important part when dealing with open educational content is not rights, but responsibilities. The South African government has decided to go the open route and now needs to insure that the materials used are of proper quality.

Open educational resources are not about cost-free resources, but about resources that are cost-free to the end-users. Therefore, creative business models are needed. Currently, schools in South Africa can choose whether to use the open resources or the proprietary ones. Open books are about $5, proprietary are about $25.

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Monday, 16 December 2013

Kingsley Egbuonu

Growing interest in the legal services sector across Africa: The 6 Curiosities

This Leo has had one of those moments when topical issues, in his mind, have been languishing in the draft section of Blogger for over a week or so due to common occurrence. [Ardent bloggers will relate to this. At least, it's all well and good as fellow Leos have been reporting (e.g. see here) on matters far more important]. He then asked himself: since readers would easily get the gist, why not just click the 'Publish' button? 

A while back, this Leo shared two events which, in his view, demonstrate a growing and determined interest in Africa's legal services sector. This trend is worth discussing as the mergers or alliances keep on coming (Afro Leo notes the recent report that Hogan Lovells will merge with South Africa's Routledge Modise and another merger involving Eversheds). The essence of this swift commentary is to engender readers (some of whom may well have on the ground knowledge of its true scale) anonymously or otherwise for comments and better enlightenment. Although this trend involve U.S. law firms with presence in the UK, this Leo is looking at this with just the UK, South Africa, Nigeria, Ghana at the back of his mind.

The thoughts here originates from last month's post which highlighted the activities of the LSID. Launched in 2007, the LSID helps its members develop their international business and build global relationships and profile. The LSID operates across the globe including Africa but currently lists presence in Ghana, Nigeria and South Africa. (Afro Leo is not surprised but notes that other African countries are also of interest). The other entity referenced in that post is the Nigerian Bar Association (NBA) Section on Business Law - a specialist division of the NBA. 

Any benefits?
Despite being obvious that LSID seeks to unlock (what some might consider) far flung promising markets for its members, this Leo assumes that, surely, something is given in return. One aspect that warrants attention is the point that legal and judicial capacity building remains an issue across many, if not all, parts of Africa. (Afro Leo reminds this Leo that this is similar in other jurisdictions too. Even the UK appears to conduct health checks on its civil justice system every decade or there about - often with costs in mind) The interest which the LSID has shown in Africa as well as the complementing activities of entities such as ILFAAJFA4ID, (all UK-based) may well help the cause. (In the area of IP, one may consider  Light Years IP and PIIPA in the same bracket). In particular, the work of the ILFA catches this Leo's eyes - although some may also see it as relationship-building strategy. 
Curiosity 1: Would African jurisdictions stand to gain something tangible and beneficial in terms of legal/judicial capacity building?

Encouraging, but which way?
It is indeed refreshing to see the LSID reaching out and encouraging its members to tap into the business opportunities in the African jurisdiction (That is the benefit of membership fees, says Afro Leo). Legal practice regulation permitting, (and as this Leo understands) foreign law firms typically gain access by setting up within a local law firm (as already stated above, the number of international law firms with an Africa practice is increasing) or working under a referral/network scheme. The business model would, undoubtedly, differ from country to country and available expertise.
Curiosity 2: Which model is best suited or would be most beneficial for African law firms?

What's in it for IP?
Focusing on Nigeria, Afro-IP is gladly aware that the NBA (Section on Business Law) is interested in IP [see here (no.1), here (no.2), here (no.3) and here (no.4) as reported by fellow blogger, Chijioke Ifeoma Okorie]. (This Leo notes the argument in post no.4 that local law firms do not actually do the heavy lifting when it comes to certain IP work - a subject for another post or discussion) Readers will also remember this piece on African patent firms - in which this Leo briefly commented on the activities of well-known international law firms across Africa in the area of IP law and practice. That piece may go to demonstrate that there is potential in the African market for IP work (albeit currently very little).
Curiosity 3: Do international law firms see a more likely than not potential for huge IP work across Africa in the next decade?

Like in almost everything, there will be concerns. This Leo had the opportunity to speak to a few law firms from 2 African countries who say they would rather stay independent than end  up being controlled by a foreign law firm. (This Leo is guessing that the international firms also have their concerns - not least, on issues surrounding quality assurance and loyalty). In a globalised economy, some choose to liberalise their legal sector (e.g. see the UK here and here); whereas others, including Nigeria, currently prefer otherwise. Everyone wants prosperity and each country (and its stakeholders) will have legitimate reasons (e.g. protecting local market) for choosing a course of action.
Curiosity 4: What issues are of most concern to African law firms in mergers or alliances? 

This Leo feels that UK law firms are better placed to benefit the most, in an efficient manner, than their U.S. counterparts . The legal system in some African countries are closely aligned with the UK and the travel distance is shorter (between the UK and some African countries, e.g. Nigeria and Ghana) than the U.S.

As economies (including middle-class consumers) continue to grow across Africa, more business opportunities will open up for lawyers in different areas of practice - not just in the typical banking, natural resources or infrastructure. For IP practitioners, the work may arise from the creative, fast-moving consumer goods and pharmaceutical industries. Like the saying often goes in service-based industries: 'We go where our clients go'. For example, well-known global advertising agencies are spreading across Africa. Global law firms are following suit and South Africa leads in terms of first entry in Africa's legal services sector.  It seems that some of the global firms still see South Africa as a hub to access other lucrative parts of the continent.

Cautiously and finally, this Leo does not believe that there is a first-mover advantage to be had in the legal services sector - especially on the continent. Rather, there may well be an advantage to be the third or even fourth-mover (if such principle exists anyway). We all know that business is all about accepting risks. 

This Little Leo would like to hear from the horse's mouth.

Other curiosities:

(5) Is this indirect market entry strategy of going into South Africa still relevant today? (Especially, when some South African law firms are equally interested in expanding into other African countries)

(6) Are other entities representing lawyers across the African jurisdictions proactive like the NBA or are they sceptical of the merger/alliance trend?

Further reading:
The Law Society and NBA sign a Memorandum of Understanding, see here
U.S. law firms look to Africa for business, see here
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Saturday, 14 December 2013


Saturday randomness

First, a call for help from fellow African IP enthusiasts. Over on the IPKat blog, here, the wonderful and highly respected (by this Leo, at least) Kat Darren stated that "when you come to look for the evidence that is put forward in support of [the] proposition [that biopiracy/bioprospecting exists and occurs to a non-negligible degree], it all looks rather thin." Can readers please chime in with documented examples of biopiracy (i.e., in the words of the Kat, where companies "go off to developing countries that are rich in natural resources, extract from them samples, take those samples in order to develop valuable medicines and other products, without compensating the countries from which the samples came.")? They need not even be African examples - any country will do.

Second, a point to demonstrate that IP infringement has no "awesome cause" exception. Again from the IPKat, here, the GoldiBlox toy company saga illustrates that good/innocent/worthwhile intentions are no excuse when copyright and a dead person's wishes are at issue. In a nutshell, GoldiBlox sells toys that are designed to encourage young girls to become engineers, or at least  to use their brains during playtime. GoldiBlox took the Beastie Boys' song "Girls" (not quite as bad as Alan Thicke lately, but a decidedly sexist song nonetheless) and revised the lyrics to support the same cause of encouraging the engineering skills in girls. The resulting song and accompanying video was used to market GoldiBlox toys. This Leo (who fancies himself a feminist, to the extent that a feminist can be a man) found himself cheering with admiration upon watching the video.

The problem is that the will of Adam Yauch (presumably a/the copyright holder of the Beastie Boys song) requested that his work never be used in advertising. Beastie Boys sued, and maintains the suit even after GoldiBlox has apologized and removed the song from the advert. GoldiBlox figured their advert was a parody, and therefore not a copyright infringement, but given that the entirety of the original song (not just a small portion) was used in the GoldiBlox work, and given the commercial nature of the use of the GoldiBlox work, it is not at all certain that a court will find this a case of parody. So, sadly for GoldiBlox, the issue is not yet resolved.

Finally, a great big Happy Birthday to Kenya! Two days ago (Kenyans tend to spend a week celebrating birthdays, so this isn't belated) Kenya turned 50 years old. Congrats!

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Thursday, 12 December 2013


Day 4 of the Global Congress on IP for the Public Interest

The Global Congress is well underway today (posts from previous days here, here, here, here, here, and here), and has split into five tracks: User Rights; Openness; Enforcement; Traditional Knowledge (TK); and Access to Medicines (A2M).

The A2M track began with a review of developments in patent laws and policies of developing countries. Julie Hill, a representative from Doctors Without Borders (MSF), debunked several myths and arguments made by pharmaceutical companies regarding access to medicines and the patent system. She cited the lack of a patent examination system in SA as the reason that over 2400 pharmaceutical patents were granted in SA in 2008 (compare with Brazil, which granted only one-tenth as many in the five year period 2003-2008). Furthermore, as Ms. Hill stated, the oft-cited figure of 1 Billion USD as the amount required to bring a drug to market is misleading or flatly contradicted by pharma’s own statements, and in any case R&D accounts for less than 16% of spending by pharma companies. [This Leo notes that most initial-stage R&D is no longer done by Big Pharma, but rather is done by small start-ups, which are then bought by Big Pharma when they find a good candidate drug.]

A topic not mentioned in the MSF presentation, although it is frequently mentioned by A2M advocates, is one of Evergreening (i.e., extending the effective patent term of drugs by filing new patent applications toward minor changes to formulations or drug identity). Nothing makes Evergreening more difficult than a strict enforcement of patentability requirements (particularly the requirement of non-obviousness). Thus, the lack of an examination system would seem to make Evergreening incredibly simple and a highly likely phenomenon. Do readers know of Evergreening examples in SA, particularly examples that would likely not have occurred had there been an examination process in place? Surely some of those 2400 SA patents from 2008 were for drugs that were previously protected by other patents…

An afternoon session led by Prof. Hafiz Aziz ur Rehman of the International Islamic University, Islamabad, Pakistan, discussed the patent status of various new drugs that are considered essential to diseases of the developing world (HIV, Tuberculosis, Hepatitis-C, cancer, etc.). Encouragingly, the A2M movement is using existing channels for challenging patent validity where such channels exist. The various patents were described as “very good” or “weaker”, with such characterizations being based on the uniqueness of the drug chemical structures (and therefore, presumably, the likelihood of finding invalidating prior art). This Leo wonders, is the A2M movement conducting pro-active invalidity searches of the prior art? Or does the movement rely on other players such as would-be generic manufacturers to do such work? A thorough prior art search can run tens-of-thousands of dollars, but compared with other activities that might be quite a bargain (particularly because a successful search can completely invalidate a patent years ahead of the expiry date). [An interesting website/concept on this is MSF's Patent Opposition Database]
Hard at work making new drugs
Alfred Bader, A Chemist's Laboratory, 1827

Another speaker in the same session, Jamie Love (Director, Knowledge Ecology International), criticized (and presented data showing) that only a few hundred patients are used, on average, in the trials to assess efficacy of various cancer drugs, and that the treatment regimens for the resulting drugs usually costs over $100,000 per year (while the drugs are on-patent).

And finally, from Jamie Love, a terrible statistic. In SA, the percentage of breast cancer diagnoses that are made at the early stage (i.e., the more treatable stage where the cancer is isolated rather than metastasized) is 30% for White women and only 5% for Black women.

There is a notable difficultly that is inherent in the arguments made here. The A2M movement wants readily available drugs for a wider variety of diseases, and drugs that have been tested on a large number of patients during trials so they are shown to be safe and effective, and drugs that are provided at low cost. More drugs, more testing, less cost. Can you have all of these things together? Is it reasonable to expect that all diseases will be treated at low cost by a single industry that, at the end of the day, is in business to make money?

Knowing that this is a terribly hot-button issue, this Leo will still ask: what do readers think?
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Aurelia J. Schultz

Users' Rights Over All?

With the shift from the Open Air conference to the Global Congress on IP and the Public Interest, the Leos have separated from the pride and are out exploring different tracks of the program. This Little Leo ventured into the combined User Rights/Openness/Enforcement tracks session on Conceptualising Users' Rights: Copyright, Open Access and Enforcement in Dialogue. She felt like she wandered into a wolf pack, knowing there were similarities between her fellow lions and these wolves but wondering “what the heck is going on here.” Her take away from this session was that the copyright of the future is going to come from Africa, not from Western ideologists.

The session was introduced by Afro-Leo Caroline Ncube who gave an overview of the Open Air project and things from the past two days for the benefit of those who [foolishly in this Little Leo's opinion] skipped the Open Air part of the conference. She also gave reports from the field on IP reform on the continent. Both Uganda and Botswana have people engaged in advocacy work, but there is no reform on the table yet. In South Africa, copyright exceptions and limitations as a concept is seen as a given and the only issue is working out the details.

From there, the other speakers took over: Niva Elikin-Koren spoke about fundamental freedoms as a force pushing against strong intellectual property rights. Peter Jaszi talked of getting ordinary people in the United States to understand the threat posed to them personally by strong IP rights. Lawrence Liang of India discussed the legitimacy of IP rights. Alek Tarkowski talked about the new definition of “Open” and the growth and change of open models in Poland. And lastly, Delia Browne discussed Australia's Smart Copyright Agenda, which attempts to balance copyright compliance with cost management in the Australian school system.

Much of the discourse was esoteric and idealistic, coming from a mindset that does not allow for competing views of society, whether societal structure or societal purpose. However, as one attendee from Kenya pointed out after the program, it helps to know what other people are thinking.  Indeed, there are some useful tidbits for the practical application-focused Africa.

Ms Elikin-Koren's focus on fundamental rights is an idea already adopted in Africa, particularly in the patent arena where access to medicines and public health are seen as interests that must be balanced with IP rights – at least in the discussions happening among those attempting to reform policy if not within the existing policies themselves. Ms Elikin-Koren stressed the importance of access to knowledge in the ability of citizens to participate in democracy, requiring information to vote (or at least to make an informed vote). Again, this concept seems to already be incorporated as one of the balancing factors in African IP discussions.

Mr. Tarkowski's and Ms Browne's experiences in their respective countries demonstrate effective balancing of interests. Poland's open movement started with grassroots activity and as their practices became more accepted, the movement switched to policy work and top-down integration. At the same time, as the open movement's ideas spread, they morphed a bit from the pure “Open” of legal openness to a more encompassing circle where open began to mean access whether legal ease of access, cost east of access or technological ease of access. Sometimes these are all combined, and sometimes they are not, but even individually, they represent an increase in access to knowledge. Australia's changes have had a similar result as the copyright reform has focused on easier and flexible access to works.

The main similarity between these two experiences and what this Little Leo sees happening in Africa is a natural flow to balance. As one participant said after the presentation, “but what about the creator's rights? We need to protect those, too.” The African policy makers and influencers are not working on “copyright reform” like the Western world with its long entrenched ideals. Africa is building its own system. Within this conversation, there are voices pushing for the new system to look just like the old system, but there is also an innate understanding of the balance needed for a system to work. And this is where Africa is way ahead of the rest of the world.
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Wednesday, 11 December 2013


Day 3 (or is it Day 1?) of the Global Congress for IP in the Public Interest

Today is Day 3 of the Global Congress and OpenAIR conference in Cape Town, SA. It also marks the shift of focus from OpenAIR to the Global Congress per se.

The day began with, among other things, a summary of activist activities in Canada against oppressive copyright legislation. It seems that Canadians are relatively [at least relative to Kenyans, grumbles this Leo] easy to mobilize on this topic. When the Canadian government began discussing DMCA-type legislation, 30,000(!) physical letters [who writes physical letters these days?] flooded the government from citizens concerned about the way that the proposed legislation would restrict freedom in copyrighted works. 

Prof. Ben Sihanya, a copyright expert at the University of Nairobi, pointed out that there is a ceasefire between the pro-copyright camp and the no-copyright camp, and the ceasefire is brought about by the Creative Commons. He stated that we should seriously explore the Creative Commons option to opening information within the context of a protection regime.  This position is very consistent with Tobias Schonwetter (Director of the IP Unit at Cape Town University), who opened the Global Congress by urging attendees to look for common ground between pro- and anti-protectionism.

Prof. Sihanya also cited the effort underway in Kenya to combine all IP authorities within one government ministry as an example of an attack on copyright and, particularly, on open access. The logic is that governments usually focus more resources on patents at the exclusion of copyrights, and by combining the two offices into one authority, copyright will further suffer.  At this moment, it seems likely that the effort will sail through government with little/no opposition. [As noted above, activism in copyright issues is difficult to mobilize in Kenya.] This Leo is very curious whether readers feel that it is good to combine all IP offices (as is done in the UK, for instance) or whether it is better to keep the offices separate (as is done in the US, for instance). Please do share in the comments.

The order of the day (thankfully!) seemed to be in presenting IP activism activities with humor.

Sunil Abraham provided a hilarious talk on The Freedom Continuum. An example: “Freedom is like the Kama Sutra – there are many positions one can take.” Mr. Abraham also brilliantly suggested a method for plausible deniability in the world of biometric identification and oppressive government oversight. By posting all of my biometric information (fingerprints, eye scans, etc.) on the internet, I can plausibly deny any crimes or contracts or tracking by the government because, well, it’s all online so it couldn’t have been me, right? So we should (paradoxically) fight incursion into data privacy simply by releasing all biometric data about ourselves.
Cats have been chasing mice for a long, long time.
A cat with a mouse in its mouth Unknown artist, c. 1480

Also quite amusing was the comparison of the IP debate to Tom and Jerry, that iconic Cat (Kat?) and Mouse duo who are perpetually chasing one another. Tom the Cat represents Big Business, corporate interests, the USTR, etc. Tom is chasing (but can never quite catch) Jerry the Mouse, who represents civil society, human rights activists, the open source movement, etc. An audience member pointedly observed that Jerry typically runs around for a bit and then disappears into a hole in the wall, where he stays for some time before emerging to torture Tom again. The obvious point is that activists (i.e., the audience at the Global Congress) will never make substantial progress until they stop disappearing for long periods of time and start acting more like a cat (or even, perhaps, like a dog).

This Leo finds it curious to be a Katfriend and yet to sympathize and identify largely with mice.
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Caroline Ncube

South Africa: IP protection of traditional knowledge: Act gazetted

The Intellectual Property Laws Amendment Act, 28 of 2013 was gazetted on 10 December 2013 (Government Gazette 37148). It amends various pieces of IP legislation to cater for the protection of traditional knowledge. It has come under severe criticism by many, including Prof Owen Dean, and has been countered by the introduction of a Private Member's Bill by the Democratic Alliance's Dr WIlmot James (the Protection of Traditional Knowledge Bill). What has become of this bill and its future prospects will be the subject of another post, in the near future. 
The IP Laws Amendment Act will come into force at a date to be promulgated. 

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Tuesday, 10 December 2013


The Global Congress on IP and the Public Interest, Day 2

Today the Global Congress largely focused on the OpenAIR Project, and specifically on three “Scenarios” launched today by OpenAIR (available for free download here).  The Scenarios are studies that explore, based on a number of base assumptions, the state of Africa and African IP as it may exist in the year 2035.
Three flavours of Africa -
which do you prefer?

Each Scenario was “launched” with a short, sometimes amusing, and sometimes depressing dramatization. The actors portrayed young Africans without access to jobs, government workers unhappy with government behaviour, and entrepreneurs with a super-upbeat view on business in Africa, among others. (This was easily the most engaging book-launch this Leo can remember.)

The Scenarios themselves cover a wide range. One Scenario suggests that “wireless connectivity” will become the most important factor in economic development, and will enable those with access (a majority, presumably) to hold leaders accountable for their governing. A second Scenario suggests that the “informal economy is the new norm,” and that the informal economy (i.e., the economy where IPR is largely irrelevant) will increase in importance and will support the majority of the population. The third Scenario suggests that a “sincerely African” economy will develop in response to external pressures [such as global warming, or terrorism perhaps?], and will draw on traditional knowledge and traditional cultural norms to address societal issues.

OpenAIR continuously stresses that these Scenarios are not supposed to be “the good, the bad, and the ugly”. Each Scenario has good aspects, and each has bad aspects. True enough, but this is largely dependent on your point of view. If you are a fan of (or if you view more favorably) development based on high technology, then the “wireless connectivity” Scenario would be “the good”, and the “sincerely African” Scenario with its emphasis on traditional solutions and knowledge would be “the bad”. If you believe that government is the answer to all of society’s ills, then the “informal economy” Scenario sounds quite bad. The point is that it’s impossible to ignore perspective and background when someone is reading the Scenarios.

OpenAIR also stresses that the Scenarios are not “predictive” in that they don’t say that any specific outcomes will happen. Rather, the Scenarios are supposed to be tools for understanding activities and events, and are supposed to explain possible outcomes if certain events occur. To this Leo, it’s a distinction without much of a difference.

One thing is sure: these Scenarios are a treasure trove for academics and even for multinational businesses. In fact the Scenario-building exercise was developed from a previous experience developed by/for Royal Dutch Shell. Many on the Continent will be skeptical of anything done by Shell (see controversies here). Nevertheless, a quick glance through the Scenarios (check them out!) confirms that they will be a very interesting read and a useful tool.

The day ended with a lecture from Peter Drahos (you know someone is important when they have a Wikipedia page).  Prof. Drahos spoke about energy, finance, enforcement, strategic disengagement by developing countries (as applied to financial architecture), and the power and importance of the BRICS countries in pushing the agenda of developing countries. “If [they] don’t, you will be subject to hegemony.” Here, here! This message was surely well received by the audience of the Global Congress...

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