Friday, 31 May 2013

Ugandans Fight for More Time

75954_01 Several organizations in Uganda have joined with Haiti in pressuring the WTO to extend the deadline for Least Developed Countries (LDCs) to comply with TRIPs.  The desired extension time: indefinitely.

Haiti submitted the Request for an Extension of the Transitional Period Under Article 66.1 of the TRIPS Agreement on behalf the WTO LDC Group in November of last year.  According to news(1) reports(2), several Developed Countries are pressuring the TRIPS Council to deny or limit Haiti’s request.  TRIPS-structured talks between LDCs and Developed Countries have put on the table a limited extension of 5 to 7.5 years and a “no rollback” provision that would prevent LDCs from removing TRIPS compliant provisions from their laws.

Ugandan organizations* are working to build pressure in the opposite direction.  The organizations have submitted a letter to the WTO Council Chair in support of Haiti’s request.  They have petitioned the East African Legislative Assembly to apply pressure in support of the request.  They have also written to several developed country-Ambassadors to Uganda, outlining the consequences for Uganda of not receiving an extension or introducing the suggested no-rollback provision.  A media campaign is underway to inform people of the LDCs’ concerns.  Organization representatives quoted in The Observer stressed the importance of ensuring Ugandans’ access to HIV medications and the country’s need to develop a competitive technological base, sentiments that echo Haiti’s concerns. 

Article 66.1 of TRIPS states:

In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period. (emphasis added.)

The TRIPS agreement was signed in 1994.  Everyone was granted an initial grace period of one year and LDCs were granted an additional 10 years.  The LDC exemptions were set to expire at the end of 2005.  Zambia made a request in 2005 for an extension as outlined in Article 66.1 on behalf of the LDC members.  The TRIPS Council granted that extension, moving the compliance deadline to 1 July 2013.

Haiti’s request differs substantially from Zambia’s request in that it asks for LDCs to be exempt from full compliance as long as they remain LDCs.  While the TRIPS provision mentions “10 years,” for the original exemption time period, it mentions nothing about time limits for extensions.  In this respect, Haiti’s request is within the bounds of the agreement.  However, Afro Leo wonders if it’s a good idea.

Least Developed Countries are designated by the United Nations, unlike Developing Countries which can designate themselves into that category.  33 of the 48 Least Developed Countries** are in Africa.  (See UN Factsheet.)  There is no set number of countries that must be LDCs, for example, LDCs are not the bottom 5% of countries.  Rather, LDC status is determined by 3 factors: per capita income, human assets and economic vulnerability.  Since the LDC status was introduced, three countries have improved enough to graduate off the list.  Two of these, Botswana and Cape Verde, are African.  This shows that a change in status is possible.  (Full LDC Report.)

Would an indefinite exemption for most TRIPS provisions provide reverse incentives to remain on the LDC list?  Once a country graduates from LDC status, it can still designate itself a Developing Country for WTO purposes.  TRIPS does provide extended deadlines for Developing Country compliance, but these deadlines have all passed by now.  The only remaining benefit to being a Developing Country under TRIPS is the technical cooperation from developed countries granted under Article 67.  Therefore, in order to not be in immediate violation of TRIPS, current LDC members need to be in full compliance with TRIPS before graduating from LDC status.

While purposeful holding back on development could be a risk of granting the indefinite extension, this Little Leo thinks it too risky to LDCs for any country to purposely pursue.  (But she has been told she gives too much benefit of the doubt in general.)   More likely is that a permanent extension would allow LDCs to focus on elements of development in the orders that best suit their individual country circumstances.  As LDCs focus on development and continue to engage in the international discussions on IP, they will begin implementing laws and regulations that comply with TRIPS provisions.  Not all at once, but piecemeal.  This Little Leo predicts there will also be some tradeoffs where certain implementations are required by the international community in exchange for progression in the areas of Traditional Knowledge, Expressions of Folklore and Genetic Resources, areas being championed by Devolving Countries.

Afro-Leo is interested to hear others’ thoughts on the extension request.

Hat tip to Primah Kwagala of CEHURD for links to several articles on this topic.

* Ugandan organizations involved in the appeals:
1. The Center for Health, Human Rights and Development (CEHURD)
2. The Aids Support Organisation (TASO)
3. Uganda Network on Law, Ethics and HIV/AIDS (UGANET)
4. Coalition for Health Promotion and Social Development (HEPS -Uganda)
5. The HIV/AIDS Alliance
6. Health GAP
7. The National Community of Women Living with AIDS (NACWOLA)
8. The Mariam Foundation
9. Health Advocates Network(HAN)
10. Community Health and Information Network (CHAIN)
11. Office of the High Commissioner for Human Rights –Uganda Country Office (OHCHR)
12. SALT –Uganda
13. Uganda Youth Against AIDS foundation (UYAF)
14. The Action Group for Health, Human Rights and HIV/AIDS (AGHA)
15. Southern and Eastern African Trade Information & Negotiations Institute Uganda

** LDCs: Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of the Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Lao People’s Democratic Republic, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Myanmar, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Sudan, Timor-Leste, Togo, Tuvalu, Uganda, United Republic of Tanzania, Vanuatu, Yemen and Zambia.

Thursday, 30 May 2013

Registration of Trade Marks in Nigeria – Extra-statutory requirements?

Here's a guest post by Chijioke Ifeoma Okorie, who is currently reading for an LLM in Internet Law and Policy at the University of Strathclyde, Glasgow:
In July 2012 the Nigerian Registry of Trademarks, Patents and Designs announced here that it will only accept electronic applications for registration of trade marks, patents and designs filed by accredited agents. The Registry also commenced a compulsory accreditation exercise whereby “law firms, stakeholders and potential registrants” who wish to apply for registration or act as agents are accredited by the Registry upon payment of an annual accreditation fee (N23,500 for firms and N13,500 for individuals), completion of the requisite form and provision of supporting documents such as bio-data and passport photograph of principal partner, company information etc. 
Upon completing the Accreditation Form, submitting the requisite documents and paying the accreditation fee, a firm is provided with log-in details with which future transactions with the Registry can be done.  A list of accredited agents can be found here
However, some law firms under the auspices of Intellectual Property Lawyers Association of Nigeria (IPLAN) took umbrage at the accreditation exercise and by an Originating Summons in Suit No. FHC/ABJ/CS/579/2012 sued the Registrar of Trademarks as first defendant and the Minister for Trade and Investments as second defendant. 
Here are some of the issues raised by IPLAN: 
§  That the mandatory accreditation imposed by the Registrar on Agents and Legal Practitioners is a violation of the Trade Act and Legal Practitioners Act; 
§  That neither the Registrar nor the Minister can validly increase or prescribe additional fees under the Trade Marks Act and the Patent and Designs Act without their prior publication in the Federal Gazette, by virtue of the provisions of Section 45 of the Trade Marks Act. 
IPLAN is asking the Court to declare the mandatory accreditation exercise a nullity, to set aside the Registrar’s directive in that regard and to compel the defendants to cease the purported accreditation and the collection of additional fees other than the application fees prescribed by law. The defendants have joined issue with the plaintiff and have applied to withdraw the processes earlier filed and file fresh processes. 
No interlocutory injunction was sought so the Registry has continued with the accreditation exercise and electronic filing of applications. In fact, the first edition of the Online Trade Mark Journal containing list of marks sought to be registered, was released on 25 March 2013 and is being sold for N12,000. 
In my view, rather than increase the cost of filing applications through the requirement of payment of annual accreditation fees (likely to increase with the “cost of inflation”) and over-burdening the otherwise easy process of electronic filing by the same accreditation exercise, would the country and indeed, foreign investors not be better served by reduced filing fees for electronic filings? That is the case with countries such as the United States, the UK etc. including filings with WIPO
Given that the Trade Marks Act does not demand that an applicant for registration should be a legal practitioner, should the Registry be concerned with who an agent is? Why should separate accreditation fees be paid to both the Registry and the Corporate Affairs Commission (CAC) when the both belong to the same supervisory body - the Ministry of Trade and Investment ? In fact, South Africa has both functions (company registration and IP registration) in the same entity – the Companies and Intellectual Property Commission
Other issues that piqued my interest (and not necessarily raised in IPLAN’s suit) include: Is the accreditation an appropriate proof of expertise in trade mark matters, given that the requirements for accreditation are minimal and not even verified? What will be the position if a prospective applicant obtains accreditation and has no further marks to register? Will a legal practitioner who has obtained accreditation through his employers require fresh accreditation should he become a sole practitioner? Can his erstwhile employers substitute his name with another employee given that the erstwhile employee has the requisite password to practice with his former employer’s accreditation status? 
What will the Court decide, given that electronic filing is ongoing and it is possible that the joys and ease of electronic filing will drown the “unsavoury” accreditation fees. Indeed, I have always wondered about a similar exercise which is compulsory for persons and firms wishing to deal with the CAC. 
Again, is IPLAN the proper party to challenge the accreditation exercise given that, by its name alone, it creates a separate class of legal practitioners whom the public may regard as IP experts. Put differently, does IPLAN registration and membership requirements not have the same effect as the Registry’s accreditation exercise? Even if on a smaller scale? 
What do readers think?

Wednesday, 29 May 2013

RSA: National Recordal System for Indigenous Knowledge launched

The Department of Science & Technology (DST) launched the National Recordal System (NRS) for indigenous knowledge (IK) on Friday 24 May. According to the DST's press release dated 27 May 2013 (available here) the NRS will include audio and video recordings of IK, which will be linked to
   "·       A semantic digital repository with custom-developed metadata schemata.
·      A geographic positioning system (to document the locations of IK holders, communities and plants).
·      A sophisticated security model to preserve and protect IK.
·      An advanced semantic search engine to aid intelligent searching across a number of possibly related IK entries.
      ·      An IK holder cataloguing facility."
Currently, it is envisaged that the NRS will only include information on traditional medicines and foods. Coverage of other aspects of IKS will be added on in the future. IKS documentation centres are currently located at the University of KwaZulu-Natal, Vuwani Science Centre in Limpopo, Tsengiwe in the Eastern Cape, Thaba Nchu in the Free State, and Tshwane in Gauteng. Centres will be set up in all nine provinces within the next two years.

This development raises interesting questions. For example - 
1. Will the NRS be used by the Companies and Intellectual Property Commission to verify or confirm disclosures made under s30(3A) of the Patents Act? 
[Note: this section requires that "every applicant who lodges an application for a patent accompanied by a complete specification shall, before acceptance of the application, lodge with the registrar a statement in the prescribed manner stating whether or not the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use".]

2. How , if at all, does the NRS fit into the IP protection of TK scheme provided for in the  IP Laws Amendment Bill No.8 of 2010? In particular  how will it interface with the proposed National Database of IP protected TK? 

3. Will the NRS be shared with foreign patent offices to prevent misappropriation of South Africa's TK? India's Traditional Knowledge Digital Library (TKDL), upon which the NRS appears to be loosely modelled, is shared with the EPO. This has reportedly resulted in the rejection of some patent applications (per WIPO Magazine ).

4. Will the NRS be accessible to the public? 
  


Monday, 27 May 2013

Rwanda opts for Madrid Protocol

Good news for anyone who is filing trade marks into Rwanda -- and also for any enterprising Rwandans who are planning to spread the influence and the protection of their brands.  With effect from 17 August, Rwanda will be a Madrid Protocol country. The full text of the WIPO notification, here, appears below. Of neighbouring countries with which Rwanda currently has a good deal to do economically and commercially, only Kenya is already a Madrid Protocol country.

Madrid (Marks) Notification No. 200
Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks

Accession by the Republic of Rwanda

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments and has the honor to notify the deposit by the Government of the Republic of Rwanda, on May 17, 2013, of its instrument of accession to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989 ("Madrid Protocol (1989)"), as amended on October 3, 2006, and on November 12, 2007. 
The Madrid Protocol (1989) will enter into force, with respect to the Republic of Rwanda, on August 17, 2013.

A review of African official IP websites: no.46: South Sudan

Last year, we trekked into Africa's newest country in search of an intellectual property (IP) office without confidence that we could even find any - not to mention a website. Surprisingly, we came across one even though it belongs to the Ministry of Justice. (Afro Leo is pleased that we found something considering that WIPO is yet to list South Sudan under its directory of IP offices.) Nothing has changed since then and, again, we are not surprised. Hopefully and when the country is ready, WIPO et al (including country allies) may well support it with technical assistance in the area of IP.

Wednesday, 22 May 2013

Observations of a Patent Lawyer in Kenya 6: Science Week


From 13-17 May the National Council of Science and Technology (NCST) held the second annual National Science, Technology, and Innovation Week in Nairobi. The theme was ‘Science, Technology and Innovation for the Realization of Kenya Vision 2030 and Beyond’.
The Thinker by Gibran Khalil Gibran


What a roller coaster of emotions/thoughts for a patent lawyer this event turned out to be!

First came a realization: the vast majority of the innovations at the show will likely never be patented. A variety of reasons explain this, but here is one example. Many of the inventors went to KIPI and filed an application, but most of the applications were likely written by the inventors due to the lack of patent drafting professionals in Kenya. KIPI will likely find many of the applications as lacking in one of the criteria for a patent (novelty, inventive step, written description, enablement, etc.). Indeed, KIPI issues only a dozen or so patents per year from locally filed applications.

Next came introspection: does it matter?  In other words, would patents be of any help to these innovators? Some of the patents would be simply too difficult to enforce because the likely infringers are not big companies but rather many small-scale “jua kali” (artisans working often without an official business, storefront, etc.). Some of the inventors have no intention of selling the same product for more than 18 months, which is the time it takes KIPI to publish a patent application and for provisional rights to attach (see my earlier post). For a handful of the inventions, patent protection made a lot of sense, but for many others, I found myself unsure of the value a patent would provide.

Finally came admiration: despite the above, Kenya clearly is not lacking in innovative people and ideas. I was thrilled by the novelty of some of the inventions (public phone with swap-able SIM slot), the creative of others (water hyacinth-based paper), and even the audacity of a few (transgenic fungal biopesticides, anybody?).

And now a word of caution!!  I met one inventor who filed a provisional application in KIPI in 2011. He didn’t realize that the application is now (in 2013) abandoned, and that he had no protection whatsoever. So by displaying his invention at the Science show, he had lost his rights in most countries to file a regular patent application! At least in Kenya there is a 1-year grace period so he can still file for local protection…

Monday, 20 May 2013

RSA: Appeal decision on the Swartkops v Cerebos passing off matter

Jeremy Speres has pointed out that the appeal decision on the matter between Swartkops and Cerebos was handed down on 10 May 2013.

Swartkops unsuccessfully sued Cerebos for passing off claiming that the get up of Cerebos' Buffalo braai salt was confusingly similar to its Marina braai salt (read the judgement here). As predicted by Afro-Leo in a post on the first ruling in this matter here, Swartkops took the matter on appeal.


Swartkops' appeal succeeded (read the judgement here). Commenting on the appeal decision, Jeremy writes that its most striking aspect  'is the full bench's criticism of the court a quo for undertaking a detailed comparison of the get-up of the products in question, rather than relying on the first and general impression of the products alone.  The court a quo justified its approach in para 26 by stating:
"In my view, in order for a Court to make an appropriate and correct finding, it must undertake such an exercise keeping in mind, of course, the relevant importance of the first and general impression. If a Court does not undertake that exercise and relies solely on a first and general impression, it runs the risk of failing to distinguish between unlawful passing off and lawful competition."

The court a quo relied on the approach of Harms JA in the Reckitt & Colman case, where Judge Harms said the following at pg 317:
"In assessing whether there is a likelihood of deception or confusion it is necessary to consider the whole get-up of the appellant and the whole get-up of the respondent…but it is difficult to do this exercise without having regard to its individual parts."

The full bench seems to have over-emphasised the requirement to consider get-ups as wholes and simply identified certain broad elements that appeared on both products, i.e. the similarities – see para 17. It’s refusal to consider the individual elements of each get-up, as per the court a quo, led to a failure to consider the significant dissimilarities and therefore to a conclusion that confusion was likely.  I’m not sure the court gave consumers enough credit here - I’d like to think I’m sufficiently conscious to distinguish between these two!'

Which of the two decisions do Afro-IP readers agree with?




A review of African official IP websites: no.45: South Africa

Today, we find ourselves in South Africa (SA) in search of any development since our visit back in April 2012. This Leo is pleased to report that SA's intellectual property (IP) office, CIPC, still lives online albeit experiencing difficulties with its billing system. On the face of it, the upside in this is the customer-focused manner in which CIPC has dealt with the problem i.e. by putting out an apologetic message on its website. 

But, CIPC is not yet on Twitter or facebook and one wonders why, in 2013, an office with one of the best (if not the best) IP office websites seen in the A-Z series is not yet using social media. (Afro Leo tells me that the responsible government department, the DTI, can be found on Twitter under @the_dti)

Another interesting finding is the National Intellectual Property Management Office (NIPMO). NIPMO's role - like seen in other countries e.g. here and here - is to ensure that those in receipt of public funds for research and development (R&D) protect and enable knowledge transfer for the benefit of the public in SA. ("About time", says this Leo)

Around the web for Africa IP-related news

Logo European Patent OfficeNew EPO-UNEP patents study reveals huge potential for Clean Energy Technologies (CETs) in Africa: Among others, this report notes the low patent application numbers in the field of CETs despite an increase in inventive activity within this area between 1980 and 2009. (This Leo is one of those who believe that African countries are better off with the likes of wind, solar and hydro-power than nuclear. As for the EPO, it seems that the office is taking a keen interest in the African market considering that he recently saw a targeted advert during a commercial break on CNN's Inside Africa programme). 

Anyway, he has picked out this paragraph from the EPO's press release on the report: "....patents can not be considered as a barrier to the access to CETs in Africa. On the contrary, the lack of these patents to protect their products also means that source companies may be reluctant to offer up their know-how to promote technology transfer." (Afro Leo welcomes readers' comments on this point

South Africa seeks to close drug patent loophole: Reuters reports that the SA government is planning to make life difficult for big pharmaceutical companies following the footstep of India. MacDonald Netshitenzhe, head of policy at the Department of Trade and Industry is reported to have said this: "We have a policy position that says 'Let us have a strong system that will not grant easy patents. Because if you grant easy patents, a weak patent, there will be people that take it a little bit forward and claim an extension on the original patent." (Again, comments welcomed)

--------------------------------------------------------------------
The DTI, apparently, reneges on its IP policy commitment, see here
For some research papers on climate change, IP rights and technology transfer, see here and here
For compulsory licensing under TRIPS, see here and for its incovenient truth, view here
Big pharmas cut price for emerging countries here and here but that would probably not be enough, see here
To see GSK's position on evergreening, click here
To debunk the myths of evergreening, try here
A view on Novartis' patent ruling in India, consult here 


Thursday, 16 May 2013

Observations of a Patent Lawyer in Kenya 5: Frustrating Law


When an inventor comes to CIPIT seeking patent help, there is one part of the conversation that I always dread: section 55.
Sisyphus, Titian, 1549


Section 55 of the Industrial Property Act (i.e., the Kenyan patent law) deals with enforcement of rights, and states that the owner of a patent [i.e., an issued patent] has the right to enforce by means of injunctions and collecting damages. Section 55(c)(i) provides for provisional rights that can be enforced against someone infringing a claim of a published application, provided that the infringer has “actual knowledge that the invention that he was using was the subject matter of a published application” (emphasis mine).

Separately, section 42 states that publication of an application will occur after 18 months from the filing (or priority) date.

The effect of these two provisions is that a patent applicant has no legal right that s/he can enforce for 18 months after the filing date. So when I help the inventor file an application, s/he must wait 18 months before s/he can legally do anything in terms of enforcement.

In America it is possible to request for early publication, but there is no such provision in Kenya. This is an instance where the patent law does little to nothing to help an inventor, and several of my advisees have decided not to bother with a patent application because of this issue.

The best advice I can think of is that, sometimes, just being able to say “I have a patent application pending” is enough for an inventor to scare away some of the would-be copycats, or maybe force a competitor into licensing negotiations. But this is far from an ideal situation and is frustrating to inventors.

Any thoughts from our readers?

IP Policy in Africa: COMESA leads


The Africa IP Forum held in February this year put IP Policy firmly on the agenda for Africa (view the presentations here). Since then, IP Policy has been discussed in Tanzania at the African Conference on the Strategic Importance of IP Policies to Foster Innovation, Value Creation and Competitiveness. Two weeks ago, IP Watch reported that the Common Market for Eastern and Southern Africa (COMESA) had gone beyond discussing policy imperatives to preparing an IP Policy (read the full article here). 

The COMESA member states are Burundi, Comoros, DR Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Seychelles, Swaziland, Madagascar, Malawi, Mauritius, Rwanda, Sudan, Uganda, Zambia and Zimbabwe. This is a significant grouping of African states and any IP initiatives originating from COMESA are noteworthy. Moreso because all the COMESA member states, except Libya, are members of the African Union (AU) where IP has come to the fore in the context of efforts to establish PAIPO. Therefore COMESA's IP Policy is probably a good indicator of what a PAIPO IP Policy might look like. It is also a foretaste of what the COMESA member states' national IP Policies might look like. 

The COMESA IP Policy  (available in full here) is presented in two parts. Part A is entitled ‘COMESA Policy on Intellectual Property Rights’. It emphasizes the link between IP and economic development particularly in relation to promoting innovation in developing countries. It also considers the relationships between IP and trade, the cultural industries, TK, expressions of folklore and ICTs. Such broad coverage is indicative of the appreciation of the cross-cutting nature of IP. What is missing is an express statement of the need to calibrate IP policy and law to the current socio-economic status of COMESA member states. Part B is entitled ‘The COMESA Policy on copyright and copyright related industries’ and focuses on the need ‘to encourage and promote copyright protection for socio-economic development’. Its stated objectives include increasing capacity to commercialise copyright works; creating ‘public awareness on the importance of copyright protection’ and encouraging research on copyright and socio-economic development.  The need to curb piracy and copyright infringement is rightfully mentioned but is not tempered by the mention of the imperative to promote a balanced copyright system that facilitates access to knowledge and learning materials. Such access is essential to the provision of education, which, in turn, contributes significantly to the quality of people’s lives. However, the promotion of research is laudable as the resultant research outputs will provide evidence which can be used in iterative policy and legislative processes. It is heartening to see such concrete attempts to formulate IP Policy in Africa and I hope that Afro-IP readers will read the COMESA policy and comment on it below. 


Tuesday, 14 May 2013

When Freedom of Expression and Copyright Meet

Last month, the organization Article 19 released a report called The Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age. (Available here in multiple languages.)  It took this Little Leo awhile to get through the 28-page document because, despite her experiences in copy-left circles, she found some of it a bit hard to swallow.

The report discusses a number of issues relevant to Africa and developing countries in general.  It’s main focus is the importance of freedom of expression and how intellectual property law interacts with this freedom and it lists 15 principles related to this.  The report does a great job of looking at some side-effects of international standards and intellectual property laws and pulling together connections that are often talked about but not explored.  Little Leo was most impressed with the reports use of very US and UK-centric language and ideas to make points very much opposite of what these countries (or at least the US) usually propose.

Concerns

The report also makes some great leaps and claims in its underlying premises. It begins with a reinforcement of the importance of “the right of freedom of expression,” which is supports with references to unspecified UN and regional human rights instruments.  The report then goes on to describe freedom of expression in a very broad way, including the “the right not only to impart but also to seek and receive information.” (Principle 1, emphasis added.)  This definition bring freedom of expression from beyond a freedom to express to a freedom to consume.  This definition has great implications for how copyright interacts with the freedom of expression.

Half the basis for Copyright

As it explores the interaction of freedom of expression and copyright, the report frequently looks at how copyright laws fit balance freedom of expression and the goal of copyright.  This type of comparison is very reminiscent of US Supreme Court jurisprudence, especially when it uses language like, “least restrictive means available” and “chilling effect.”  While Little Leo likes the idea of balancing competing human needs or desires, this approach felt very disingenuous here because the report uses the US Constitution purpose for copyright as the underlying goal of all copyright law - “promote the progress of science and the arts.”  That approach is very different than Continental Europe’s traditional copyright reasoning and ignores all Author’s Rights aspects.  It focuses solely on the benefits to society.  As a continent with countries encompassing both UK and Continental approaches, this assumption of purpose could alienate a good portion of the countries in Africa.

Ranking of Rights

Also having a great effect on how freedom of expression and copyright interact is the value placed on the right to freedom of expression as one of the most important rights humans have, placing freedom of expression above the right of property.  (Principle 3.)  The report claims that freedom of expression can only be restricted on “grounds specified by international law,” and more forcefully, “No restriction on freedom of expression on the ground of protection of the rights of others, including copyright, may be imposed…”  (Principle 1.)  There is an unless, the balancing test with the definition of copyright mentioned above.  The Principle also suggests that states are responsible not only for refraining from interfering with freedom of expression themselves, but that they also must prevent others from interfering.

Little Leo found these claims a bit concerning.  Property rights are also important and are often focused on by human rights organizations as an important path to development and the ability to obtain a certain standard of living.  The lack of property rights is often cited as an impediment to development in many African communities.  To say that one right is more important than the other as a matter of fact seems very presumptuous and quite possibly erroneous.  In addition, the assertion of such a multitude of “rights,” such as the “right to personal enjoyment of cultural goods” and “the personal right to read, listen to, view and browse cultural goods without copyright restrictions” (Principle 7) starts to undermine the concept and value of “rights” like the boy who cried wolf’s repeated cries undermined the value of the content of such cries.

Is the Burden really balanced?

Although the report stresses balance, there are some places where its principles seem to have missed that mark.  Principle 10 addresses intermediary liability and content removal.  One of the proposals suggests that intermediaries should only remove content when ordered to by a court or tribunal.  This would involve a huge amount of expense and time on behalf of the copyright owner.  For small owners, especially those of works not published through traditional corporate sources such as record labels or publishers, obtaining this sort of order would be very, very difficult.  It’s important to remember that copyright owners are both little guys and big guys and copyright infringers are both big guys and little guys.  For example, if a Nigerian artist had a hit song in Nigeria that was picked up by an American website and distributed without permission, how likely would it be for the Nigerian artist to obtain an order to have the work removed verses how difficult is it to send a notice?

A Better Outlook

Those criticisms being said, the report makes a lot of good points that I hope are acknowledged and addressed in the wider, global copyright discussions.  The report looks at the history of copyright law, especially its recent history and how it has been “increasingly used to discourage creativity,” and compares this to the value and benefits of new works, including new transformations of existing works.

Public Domain Value

The report also has two principles, Principles 4 and 5, that address the importance of the public domain.  The idea that “once information and cultural goods fall into the public domain, they must remain” there seems pretty simple.  Little Leo read this as a bit of an attack on the US law that removed works from the public domain.  However, this Principle also seems to run counter to the idea of protection of traditional knowledge and cultural expressions, which is so important in many developing countries.  Little Leo wonders if that was intentional.  The report recommends in Principle 5 that copyright protection not be allowed to go beyond an author’s death.  That idea seems worth bringing back into the international discussions, though it’s unlikely to get much traction at the moment.

Access and encouragement of creation

Principle 13 is one of the most well-thought-out principles in the document.  It reiterates the importance of freedom of expression that underpins the report but also acknowledges the importance of remuneration for work.  Principle 13 suggests a number of balancing options, such as Creative Commons licenses, special exceptions for libraries and people with disabilities and accessibility of resources in multiple languages especially where countries have minority language groups.  (Although Little Leo is tempted to get nitpicky and point out how these concepts can be taken too far…)

Broad Limitations and Exceptions

The report also mentions fair use and fair dealing, the encouragement of which can be very beneficial to balancing the competing needs of freedom of expression and copyright protection.  The report, in Principle 6, encourages that limitations and exceptions to copyright be interpreted broadly.

Internet loss is unfair Punishment

Even some of the more extreme-sounding propositions are worth a good look.  For example, Principle 8 declares that “Disconnection from access to the Internet on grounds of copyright is always a disproportionate restriction.”  People are beginning to clamor that internet is a vital resource, like water or electricity.  While we might not all agree that these three are vital resources, it is worth recognizing the role internet access plays in some societies and what the true ramifications of losing such access could be.  Principle 8 also offers some rebalancing for countries with take-down and filtering systems, the requirement of penalties for requests to remove or block content to which the requesting party does not actually have rights.

Fighting the US and its Influence?

There’s a number of Principles that seem targeted specifically to US law and exported US law.  For example, caps on statutory damages, penalties for abusive copyright infringement litigation, removal of criminal sanctions for non-commercial infringement and removal of criminal sanctions of circumvention of digital rights management.

 

Little Leo hopes that many Afro-IP readers will also take a look at the full report and share their thoughts on the Principles.

Monday, 13 May 2013

A review of African official IP websites: no.44: Somalia


This week we find ourselves in the Horn of Africa in search of the web presence for the intellectual property (IP) office in Somalia; but we are not surprised to find none. Like last year, the country is still rebuilding itself with the help of the international community and Afro-IP can only wish the Somali Government well. However, readers may wish to consult here and here for some information on IP law and practice in Somalia.


Friday, 10 May 2013

A warm welcome to two new blog team members

Readers may have noticed that a couple of fresh names have appeared beneath recent Afro-IP blogposts, though neither of the persons concerned has yet been properly welcomed.  

Afro Leo is pleased to welcome Caroline Ncube, who teaches and researches IP issues at the University of Cape Town, South Africa, and Isaac Rutenberg, who directs CIPIT in Kenya.  These two bright stars on the IP firmament, both holders of doctorate degrees, both have a great deal to contribute to our understanding of both the theory and the practice of intellectual property law in Africa. 

We wish Caroline and Isaac well in their task of sharing their thoughts with our critical and occasionally contrary readership in the blogosphere.