Monday 30 March 2015

IPcommentator

Nigeria: 'Copyright piracy is a cyber security matter,' says President Goodluck Jonathan

When you want to win an election (especially in Nigeria where unfortunately Boko Haram should be at the top of your agenda) the last thing you’d expect from the aspirant is a chat about IP and the creative industries. [Afro Leo says he has never heard the UK Prime Minster, David Cameron, mention IP - not even during his first pre-election TV debate]

Thanks to the youthful MTV Base, this Leo was delighted to watch President Jonathan demonstrating that he knows a thing or two about the purpose of IP and the bane of every entertainment industry, piracy. [For this you may just watch from 2:00 to 4:30]


President Jonathan was asked about the government’s plans to curb piracy and address the issue of royalties. In his response, the President first displayed an understanding of the economic rights aspect of copyright and appreciated the importance of Nigeria's entertainment industry. He then rightly acknowledged that piracy can only be minimised (not eradicated), and said his administration had just launched three security strategy documents, one of which considers piracy a security matter. [Afro Leo says President Jonathan has his vote, just for this. He hopes that the NSA will eventually post these documents online, somewhere, so IP/IT folk can have a look]

It isn't surprised that the President focused on (or, to be frank, could only refer to) the film industry. Why? Well, most importantly: (a) It helped catapult Nigeria’s GDP overnight under his administration; and (b) It has received the most attention and support (albeit with criticism) under his administration. In terms of solutions, the President also emphasised the need for more cinemas to help the industry move away from the direct-to-video model (see previous Afro-IP musings here and here).

However, this Leo didn't see the piracy vis-à-vis cyber crime angle coming. He thought it was for economies with better internet infrastructure and 'larger intangible assets to protect' such as the US (also here, here and here) or emerging software hotspots like India. In any case, Afro Leo is certain that the software industry will be very pleased with Nigeria’s foresight/preparedness considering its digital ambitions.

Are other African countries taking similar policy steps, particularly South Africa (see Afro-IP’s copyright piracy case in RSA)?

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Extra reading
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Curbing software piracy in Nigeria: Problems and solutions are here
Mcafee counting the global cost of cyber crime including piracy can be found here and here
Cyber crimes against property (Cyber squatting & Software piracy): An Indian perspective is here
The Philippines’ new cyber crime law, covering IP infringement penalties, is here






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Wednesday 25 March 2015

Caroline B Ncube

South Africa: Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014

The Minister of Science and Technology has published the long-awaited Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014 for public comment.  The bill covers quite a lot of ground and just a snippet of its coverage is given here.

Protection of the knowledge of indigenous communities from illicit use and misappropriation.
The bill [clause 10] provides protection to
(a) Indigenous knowledge;
(b) Indigenous cultural expressions; and
(c) Indigenous knowledge associated with natural resources.

Clause 11 of the bill set outs out the eligibility criteria for protection. To acquire protection, the indigenous knowledge or expressions must be:
(a) passed on from generation to generation and between generations in indigenous
communities;
(b) the result of the creative intellectual activity of indigenous communities;
(c) associated with the cultural and social identity of indigenous communities; and
(d) maintained, used or developed as part of the cultural or social identity of indigenous
communities.

Clause 12 of the bill grants holders of protected knowledge  and expressions exclusive rights to-
(a) enjoy, control, utilise, maintain, develop, preserve and protect their indigenous
knowledge, indigenous cultural expressions and indigenous knowledge associated
with natural resources;
(b) authorise or deny access to and use of their indigenous knowledge, indigenous
cultural expressions and indigenous knowledge associated with natural resources;
(c) receive a fair and equitable share of benefits arising from the commercial use of
indigenous knowledge, indigenous cultural expressions and indigenous knowledge
associated with natural resources based on mutually agreed upon terms;
(d) prevent misappropriation and misuse, including any acquisition, appropriation,
utilisation or practice of their indigenous knowledge, indigenous cultural expressions
and indigenous knowledge associated with natural resources without their prior
informed consent and the establishment of mutually agreed tenns;
(e) prevent the use of indigenous knowledge, indigenous cultural expressions and
indigenous knowledge associated with natural resources without acknowledgement
and attribution of the source and origin of the knowledge and its holders where
known; and
(f) ensure that the use of indigenous knowledge, indigenous cultural expressions and
indigenous knowledge associated with natural resources respects the cultural norms
and practices of the holders.

Clause 13 provides that the knowledge or protection is afforded this protection for as long as it meets the eligibility criteria.

The following remedies are provided for by clause 25:
(2) Indigenous communities possessing collective knowledge may bring infringement actions
against any persons who violate their rights as contemplated in subsection (1.
(3) An infringement action can also be instituted by indigenous communities possessing
knowledge where there is an imminent danger of the violation of their rights.
(4) An indigenous or local community may file a complaint with the Court to revoke a
registration over intellectual property right on indigenous resources that had been registered
unfairly or contrary to the provisions of this Act.
Further, it will be an offence to infringe indigenous' communities' rights [clause 25(1)] for which clause 26 prescribes the following penalties:
(a) Written warning by NIKSO as advised by the mediation committee.
(b) A fine as determined by a court.
(c) Seizure of all products and suspension of the sale derived from the indigenous
resource as determined by a court.
(d) Embargo of the activity as determined by a court.
(e) Loss or reduction of funding incentives and benefits granted by the government.
(f) Loss or suspension of the right to receive financing from an official funding
institution.
(g) Prohibition from entering into contracts with the government departments up to five
years.

Many Afro-IP readers will have views on these and other provisions of the Bill. Please use the comment box to share these and send in any formal comments to the DST. 
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SA's National Recordal System explained
National Indigenous Knowledge Management System (NIKMAS) website 
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Tuesday 24 March 2015

Afro Leo

SONY case: Kenya Court of Appeal decision clarifies discretion of Registry

One of the latest developments in Kenya is news of a really strange case to have made its all the way to the Court of Appeal in Nairobi. Attracting the attention of a three judge bench to appeal against a High Court review of a Registry decision to allow an extension of time in an opposition, local company Sony Holdings sought to avoid an opposition against their trade mark applications including the word SONY by arguing the Registry acted ultra vires (outside its powers) in granting an extension of time to the opponent. Meanwhile, patiently waiting for their chance to argue the merits of the opposition is, you guessed it, Sony Corporation, owners of the reputable SONY mark.

Despite the oddity of pursuing a technicality under circumstances which seem impossible to have succeeded, the decision has brought some welcome insight into the degree of thoroughness of the Court of Appeal as well as providing clarity on the discretion of the Registry and extension of time proceedings in Kenya. You can read the full decision here.

The High Court had dismissed the review on the basis that:

1.      The allegation of excess jurisdiction could only be challenged by review proceedings;
2.      There was no legitimate expectation of a mark proceeding to registration once it had been advertised, more so if there has been notification of a third party owning similar marks;
3.      That the Registrar has wide powers to extend time periods under the Trade Marks Act and can provide as many as they like, provided they do not exceed 90 days at a time; and
4.      The Registry had exercised their discretion within the bounds of the law in allowing the extension of time.

The appeal was lodged on 14 different grounds argued in 3 clusters that:

1.      The Registry has now power to grant extensions of time following the lapse of 60 days after the period for commencing opposition proceedings;
2.      The Registry violated the Applicant’s right to a fair administrative action and legitimate expectation; and
3.      The Registry violated the Applicant’s right to a fair administrative action and freedom from discrimination.

The appeal court concluded that the single broad issue was whether the Registry had the discretion to extend time periods under Section 21(2) the Trade Marks Act read with Rules 46 and 102 of the Trade Marks Rules.

It is settled law in Kenya that a higher court can only interfere with the discretion exercised by a lower court if the decision maker misdirected his interpretation of the law, misapprehended the facts, took into account matters which he should not have, and ignored relevant ones as a result of which an incorrect decision was made. In other words that one of the 3”I”s was present - illegality, irrationality or impropriety.  The court then dissected the relevant Section and Rules within the context of interpretation jurisprudence (local and from Australia) in coming to the conclusion that:

  1. Notices of opposition should be lodged within 60 days of the date of advertisement;
  2. The Registry has unfettered powers to extend the period beyond that, even beyond 90 days, for good reason.
The Judges then considered the purpose of trade mark law which is to “avoid unfair competition”, the public interest and the nature of the case, that the delay was not prejudicial and not necessarily, unreasonable. Also, that the appellant could not have suffered an adverse expectation because they were at all times aware that extensions were being granted. They also considered the law of review as it is applied in Kenya and concluded that like the High Court, the Registry had acted judicially and fairly.


Hence the appeal had no merit and was dismissed with costs.


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Friday 13 March 2015

Afro Leo

Blurred lines unblurring the issue of copyright infringement...

Sinal Govender
This is a guest post by Sinal Govender (Adams & Adams) referencing two copyright cases that have been in the headlines this week both illustrating the fine line between what is legal and what is not, when it comes to works that may have been inspired by others.  

Blurred lines unblurring the issue of copyright infringement...

"The chart topping song "Blurred Lines" by Robin Thicke feat. Pharrell Williams has been engulfed in a hurricane of controversy since it first hit the airwaves in 2013.  While the lyrics of the song have received most of the criticism, many music loving folk couldn't help but notice the marked resemblance to Marvin Gaye's 1977 hit "Got to Give It Up".

An LA jury has now put the issue to bed, for now, in a verdict that has ordered Thicke and Williams to collectively pay a whopping 7.4 million dollars to Gaye's family for infringing the copyright in Gaye's song, more specifically the copyright in the sheet music of the song. It remains to be seen whether or not the decision will go on appeal, as Thicke and Williams seem to maintain that their song was created independently.  Watch this space.

This decision comes hot on the heels of an allegation earlier this year that Sam Smith's grammy winning "Stay with Me" copied aspects from Tom Petty's "I Won’t Back Down".  Although Smith claimed that the similarity was a complete musical coincidence, Petty and co-writer Jeff Lynne were subsequently given partial credit for Smith's song in a settlement agreement that escaped the courts, but not the media.

So what does this mean in a South African context?  One of the other Leos previously reported on something similar when Gavin Rajah was accused of copying a design by Zunaid Murad last year (read her take on it here). Indeed, these accusations appear to follow Rajah who just this week has also borne the brunt of similar criticism.  

Essentially, our courts have held that copyright infringement involves a two stage inquiry: not only must there be an objective measure of similarity between the works, but a causal connection between the two needs to be established as well.

In everyday speak, two works, even strikingly similar, could still enjoy copyright protection without necessarily infringing on the other.  What sets Smith apart from Thicke and Williams may be that Smith claimed never to have heard of Petty's song before creating his own, and this was never questioned.  (Although it's easier not to question things while being comforted by the royalties that resulted from the agreement). On the other hand, while Thicke and Williams claim to have created their work independently, evidence emerged during their trial that saw both of them admitting to drawing inspiration from Gaye.  Sinking nails into his proverbial coffin, Thicke was even quoted as admitting that Gaye's song was one of his favourites and that he and Williams "should write a song with the same groove".

Naturally, the more two works have in common, the less likely a court, or anyone else, is going to believe that they were created completely independently of each other.  An exception to this may be the age old example of photographers taking photos of iconic locations, which are available to all, such as THE mountain in the fair Cape.

Copyright is a fundamental tool to any creative mind, especially those in the fashion and entertainment industries: it does not require any formal registration before it can be enforced, and it can therefore be a vital tool in protecting your IP if you know how to handle it correctly.  A simple, but effective, piece of advice is to keep as clear of a record of your creative process as possible and to obtain permission from anyone inspiring that process, if at all in doubt.

This writer is grateful not to be in a position to ultimately decide on whether any foul play has taken place in the contexts set out above.  Musos will always have muses, but they should be careful not to tread on any copyright protected toes. After all, there are certainly better things on which to spend 7.4 million dollars."

Incidentally, the fine line between illegal copying and inspirational works will be the basis for discussion tonight on CNBCAfrica at 18h30 where this Afro Leo will be joining a panel including  Kyle Boshoff of African Fashion International.

If you would like to submit a guest post to Afro-IP or be considered as a guest blogger, please contact us here.

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Thursday 12 March 2015

Caroline B Ncube

IP policies in Africa no.54: Zimbabwe

After a long trek through the continent, this Leo is happy to find herself at the last post, Zimbabwe. The country's Inter-Ministerial Committee on Intellectual Property has led the formulation of a draft IP policy that has not yet been made publicly available. Commentary on the policy will be posted on Afro-IP after it is published for comment and the national consultation process is commenced.


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see an earlier post here on COMESA's IP policy (Zimbabwe is a COMESA member state)
see Jeremy's post here on Zimbabwe's accession to the Madrid Protocol in December 2014

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Wednesday 11 March 2015

Afro Leo

INTA's Pre-Annual Meeting Roundtable in South Africa

Date Thursday, March 12, 2015

Time 4:00 pm–5:30 pm, followed by a reception

Location
Spoor & Fisher’s offices
Building No. 13
Highgrove Office Park, Oak Avenue
Centurion, Pretoria
South Africa


Hosted by
Spoor & Fisher



Roundtable
“Has Protection of Intellectual Property Rights in Branding Kept Abreast of the Evolution of Branding? – A Branding View”

Guest Speaker

  • Professor Adré Schreuder, Founder & CEO of Consulta Research, and extraordinary Professor of Marketing at the University of Pretoria

Admission
Everyone is welcome. For security reasons, pre-registration is required. Please bring a passport with you or other official identification.

To confirm your attendance, please RSVP. For further details please contact: k.postma@spoor.com.
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Friday 6 March 2015

Caroline B Ncube

Seychelles' Industrial Property Act is now in force (wef 1 March 2015)

Seychelles' new Industrial Property Act which Aurelia blogged about here came into force on 1 March 2015 in accordance with the  Industrial Property Act (Commencement) Notice, 2014 (available here via the Seychelles Legal Information Institute (SeyLII)).
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Thursday 5 March 2015

Afro Leo

ARIPO launches online search system


After 18 months of dedicated assistance from Korea International Cooperation Agency, ARIPO has developed a fully searchable online IP tool.

ARIPO has been a destination of choice for many patent holders to cover a large African region cost effectively. However, for trade marks, the system has always been criticised because the underlying legislation has not been domesticated in most member countries, leaving users unsure of the validity of the registration in all designated states. It is expected that this searchable tool will help persuade countries and users to adopt the system for the protection of their IP.
You can check it out in full here. Their E-filing system comes into operation from 9 March. Thanks @BrendaMatanga for the tweet off about this development.
 

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Caroline B Ncube

IP policies in Africa no.53: Zambia


Zambia adopted a national IP policy in 2010, which, surprisingly, is not publicly available either on WIPOLex or Zambian government websites. However, it should be possible to obtain the policy from the Ministry of Commerce, Trade and Industry.  This Leo got her paws on a copy but she cannot publish it here or distribute further in any other way (read: 'don't ask me for a copy').

You can trust a Leo with a secret
source
The policy contains an overview of then current law, a statement of the country's vision and goals for IP, a synopsis of related national policies, a discussion of guiding principles and a ten-year implementation framework. The policy also discusses country's aspirations with regard to the protection of traditional knowledge and new plant varieties.

In addition, Zambia is a COMESA member state and subscribes to the regional body's IP policy.


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See Zambia's WIPOLex entry here
See a news report about the launch of Zambia's IP policy here
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Caroline B Ncube

South Africa: Report on a DTI consultative meeting on patent examination reform

Yesterday, this Leo reported here that a consultative meeting had been hosted by the DTI on copyright reform on 24 February 2015. Today, she's reporting on an earlier meeting on patent law reform hosted on 9 February 2015 by the DTI  and the Companies and IP Commission (CIPC). The round-table was well attended by both government and stakeholders, including attorneys (see Spoor & Fisher's report here).


The DTI and CIPC informed participants that substantive patent examination would be introduced in the country, perhaps as early as 2017. The idea is to fully examine domestic applications in selected fields and to partially recognise the substantive examination outcomes of other jurisdictions in respect of  foreign applicants (see Esmé du Plessis' detailed overview of the proposed system here). In order to implement this proposal some legislative changes will be required, as will the recruitment and training of, patent examiners.  The legislative process will probably commence soon, hopefully with meaningful scope for stakeholder comments and discussions which many readers of this blog would be keen to participate in. Watch this space for news of developments as they occur.

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see Jeremy's post here on an article by this Leo on some suggested ways to introduce substantive patent reform in South Africa
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Wednesday 4 March 2015

Caroline B Ncube

South Africa:Letter from 50 Legal Scholars to South African Government, re: Flexible Copyright Exceptions


Following a consultative meeting in Pretoria recently, the DTI invited comments and draft legislative provisions to assist it in its quest to reform copyright law. It is to be lauded for its consultative approach. In response to the DTI's invitation, a group of 50 scholars from across the world (disclosure: this Leo is one of them) have penned a letter to the DTI offering both commentary and draft legislative text. Peter Jaszi, Sean Flynn and Michael Carroll of the American University Washington College of Law's Program on Information Justice and IP (PIJIP) organised the preparation and signature of the letter. You can read the letter on the infojustice blog here.




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