Tuesday 19 July 2016

Afro Leo

What's happening with Quentin?

Thanks you for all your responses to this post after a street sleeper wore the placard below. This is a short update on what's happening..

His name is Quinton, not Quentin. Quinton comes from the Cape and is in his late 20s. He has been on the streets since 2009. His credit record is clear and he has no convictions but he is scared of sleeping rough and it is very cold this time of year. The response to help him has been remarkable, and Quinton has responded well too. I have read this update to him and have his permission to send this update. In fact he is very grateful to all those who have assisted him.
 
Through Ali Gregg at The CEO SleepOut he was introduced to Lucky (an ex street sleeper who now runs Homeless Talk) and has become one of their vendors. Lucky describes Quinton as "respectful" and gave him the thumbs up to take him on with the first 10 newspapers "mahala" (free). They are worth R7 each and new copies cost R3 each.
 
Quinton was involved in a road accident a few years ago. His attorney who works on contingency before the road accident fund also vouched for him.  
 
Shelters are extremely difficult to get into, especially if you are above 20 and male. At this time of year they are overcrowded and would not take him. Quentin had a list of over 30 names given to him by The Salvation Army and Girls & Boys Town but they were all full at the time. Eventually, he went from shelter to shelter and finally got into one in Hillbrow late Friday a week ago, and then only for several nights. He then slept rough again and this afternoon secured shelter, after an interview, for three months. Shelters costs between R10- R15 per day.
 
In yesterday's Hope Talk drive he was given newspapers to sell to raise money. Hope Talk is a special edition Homeless Talk activated as a result of The CEO SleepOut event by Caxton Publishers, and where he is able to sell papers and retain all the proceeds. They are R10 each. Some are also being sold for him in the reception at Adams & Adams to assist him.
 
Quinton is also helping to wash cars as part of Abreal's enterprise development program after an interview. He will get training and earn something from that. Enough to put a roof over his head and get a blanket in addition to some daily needs. The receptionist at the local gym took pity on him and allowed him to have a shower. He said it was great "to feel like a man". The Steve Biko Foundation have also offered to assist mentor him.
 
Angela Meuwsen who assists with the creatives on both The CEO SleepOut and Empathy book projects has spent some time with him on his designs especially after the initial quote for 100 long sleeve T shirts came back too expensive. He is adjusting them to reduce the cost of printing which should help him sell them at a more affordable price. He has entered the Adams & Adams pro bono program for clearance searches and a trade mark.
 
Ultimately he wants to become sustainable through his own creativity.
 
This is the story of Quinton over the last two weeks. There is still a long way to go but there has been a tremendous outreach to assist him. Ultimately though it will be up to him. He knows that.
 
Thanks for all the responses.
 
Darren
 
 
 
 
 





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Friday 8 July 2016

Afro Ng'ombe

Mozambique's New Industrial Property Code Adjusts Important Deadlines



Thirty courtesy of Markussipiske, Pixabay
Mozambique’s new Industrial Property Code came into force on March 31.   Afro-Leo was busy hunting to hibernate for the winter; oh wait, that's bears... Anyway, Afro-Leo is sometimes a little behind, but that doesn't change a thing about the new IP Code for Mozambique.  This law replaces both the Industrial Property Code of 2006 and Decree no. 47/2015 on Appellations of Origin and Geographical Indications.
Unfortunately, the law is currently only available in Portuguese, which is not one of the languages in this dilettante's collection.  With the help of Google Translate and a few write-ups on the law, Little Leo was able to work out that many of the changes are procedure and deadline changes. 
General observation: when in doubt, assume the deadline is 30 days.  The time period for submitting outstanding information on an application was increased to 30 days from 15 days.  (Article 11.)  The time for the new ability to appeal provisional refusals is 30 days.  (Article 18.) -- It is now possible to receive a provisional refusal and provide additional documentation to address the grounds for refusal for patents, utility models, industrial designs and trademarks.  (Articles 104, 70, 115 and 132, respectively.)  
The trademark opposition period has been lowered to 30 days.  (Articles 130, 159 and 197.)  There is a new opposition period for industrial designs, which gives 30 days in which to file an opposition(Article 113.)  The timeframe for filing patent oppositions, however, is still 60 days from publication in the Bulletin of Industrial Property.  (Article 68.) 
There is also a new appeal process, with a 30-day deadline for filing, beyond the Industrial Property Institute itself; rejections may be contested to the Minister of Industry and Commerce and from there to the Administrative Tribunal.  (Articles 19 and 20).  The IP Bulletin will now be published monthly, which is nearly every 30 days, so it sticks with the pattern.  (Article 239) 
 
 
 
 
 
 
 
 
 
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Monday 4 July 2016

Afro Leo

Guest Post: AFRICA – A land of opportunity to brand holders and counterfeiters alike

In this guest post, Vanessa Ferguson unpacks some of the key considerations and strategies for dealing with counterfeits on the African continent: 

Africa has seen a vast increase in investment and growth over the past 50 years and many companies have already mobilized to capture this emerging demand. 

With the growing investment, Africa is being increasingly targeted as a market for counterfeit goods and merchandise as a result of the escalating urban populations’ growing demand for many goods not widely available, as well as the lack of means to buy them. 

Whilst the demand is growing for branded goods, and the instances of infringing and counterfeit goods are on the increase, the various Intellectual Property Rights protection measures available to brand holders differ from country to country and remain largely inadequate in most African countries and vary from region to region.  As a result, a “one size fits all” anti-counterfeiting strategy cannot be easily applied or adopted in covering the key regions and territories in Africa. 

Furthermore, the market structure in Africa differs substantially from first world markets, such as Europe and America, and, as such, the best practices developed and applied in these territories cannot necessarily be adopted and applied in Africa with the same results and consequences. 

A key understanding of Africa and its nuances is important in establishing an effective anti-counterfeiting strategy .  Although modern trade is growing, this is still small and under developed outside of South Africa.  The most common and popular trading channels in Africa are the simple table top or small “spaza” shops, which are individually owned and managed by local entrepreneurs, set up on the side of the road or in local markets in order to capture the passing trade.  These businesses are supported and supplied by an equally efficient network and well-developed informal distribution structure.   Furthermore, informal cross-border trade is important to Africa and more than 43% of Africans are involved in informal cross-border trade, which contributes a large portion of the economic growth, job creation and job security.  

As a result, counterfeit goods are increasingly being sold, transported and distributed across African borders using these well-developed and largely uncontrolled informal trade routes. 
 
An effective African anti-counterfeiting strategy should therefore not only be focused on the countries of relevance to the brand holders, but also the neighbouring territories, taking into account the retail structure, main trade channels and distribution routes in Africa. 

As an initial step, brand holders should ensure that their primary trade marks are registered - not only in the main countries in which their goods or services are provided -but also in neighbouring territories.  Without the existence of a registered trade mark, it is almost impossible to act against counterfeiters in Africa, especially in those territories where common law rights or protection of well-known trade marks is not recognised.  Copycat infringement is on the increase, where infringers will adopt a label that is a colourable imitation of the original label.  As such, consideration should be given to the registration of the labels for the primary products to provide statutory protection against the use of a similar label or get-up. 

Although Customs remains an important and critical element to an effective anti-counterfeiting strategy, the relevance and success of actions by customs differs from region to region in Africa.  Unfortunately not all territories have established Customs practices focused on the registration of brands and detention of suspect counterfeit goods and it is only possible to record brands with Customs in a handful of countries.  Where formal customs recordal procedures are available, such as in South Africa, Mauritius, Ethiopia, Morocco, Tunisia & Egypt, brand holders should record their brands.   In other territories, an informal strategy can be adopted for the identification and to support the notification of suspect counterfeit goods.  This has been proven to be effective in key African territories including Namibia, Zambia, Mozambique, Kenya, Tanzania, Uganda, Rwanda, Ghana and Nigeria. 

A strategy focused primarily on customs recordals and actions alone is not sufficient or recommended in Africa, particularly due to the inconsistencies in inspections and measures to stop counterfeits at the ports, airports and borders differ from region to region.  In each region it is necessary to assess and work with local police services and regulatory bodies, for example NAFDAC in Nigeria and the Anti-Counterfeiting Agency in Kenya, that have the capacity and infrastructure to tackle counterfeit goods in the region.

Steps should also be taken by brand holders to formalise and strengthen their own distribution channels in the region and across borders.  Based on the demand for products, the informal distribution channels and methods are strong and well-entrenched in Africa, facilitating the trade in counterfeit and parallel goods.  Brand holders should firsthand build up understanding and knowledge of these distribution and retail channels in order to infiltrate and effectively act against key counterfeit role players.  Such investigations and actions, however, take time, money and patience.  A long-term approach, with consistent supported actions against retailers and suppliers alike, should be implemented, with a view to obtaining or extracting information on the source and supply of these goods.

In each territory, brand holders should adopt a zero-tolerance approach to anti-counterfeiting and take action to the full extent of the law in the respective regions.  In such cases, where appropriate and feasible, brand holders should institute criminal or civil proceedings against known and identified offenders, especially in the case of repeat offenders or where other extenuating circumstances justify the spend and time taken in bringing these matters to finality. The continued prosecution of offenders will not only build up a valuable precedent of case law, but will also send a clear message to the market of the severity and consequences of dealing in counterfeit goods.

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Saturday 2 July 2016

Afro Ng'ombe

Big Win for Copyright and Artists in Tanzania

Back in May, a large variety of news outlets announced a major copyright victory for two Tanzanian musicians, rappers AY (Ambwene Yessaya) and MwanaFA (Hamisi Mwinjuma), against telecom operator Tigo (MIC Tanzania Limited).  According to its Wikipedia page [which reads like it was written by Tigo’s PR department], the company is owned by European-based Millicom International Cellular.  The High Court’s decision in an appeal was supposed to be released on June 27, but Little Leo wasn’t able to find much on the High Court of Tanzania website, or elsewhere, in terms of a written decision from either the High Court or District Court.  As also, Afro Leo would love if someone has either decision to share.

Here’s what we know based on what’s been circulating in the news.  Tigo was selling AY and MwanaFA’s music to Tigo customers to use as caller tunes (called ringback tunes in America), the music that can replace the standard telephone ring a caller hears while waiting for the line to be answered.  At least two songs released on the Bongo label were at issue in the case, “Dakika Moja” (“One Minute”) and “Usije Mjini,” which were both written and performed by the duo.  The case was brought before Magistrate Juma Hassan in Ilala District Court (a district in Dar es Salaam) in 2012 and was decided on April 11, 2016.  The court held that Tigo infringed the rights of AY and MwanaFA’s musical works.  Tigo was ordered to pay Tsh 2.16 billion (about 2 to 3 million bottles of Coca Cola) in special damages and costs and another Tsh 5 billion or 25 million, depending on your source, in general damages. 

Tigo’s appeal brought the story back into the news again in May.  Tigo filed for a stay of execution with the High Court, arguing that the actual damage suffered by the artists was not proven and that the court should consider the benefits the artists received because of Tigo’s work to create and offer the caller tones with their songs.  [Presumably that magical “promotional” benefit for which all artists should be happy to work.]  Tigo also is arguing that the artists cannot prove rights to the songs because they do not have registrations from the Copyright Society of Tanzania (Cosota, which is the collecting society authorized by the Copyright Act, Art. 46 and the entity listed with WIPO as being the national copyright office).

What is unknown is which rights the court held were infringed.  Ringback tunes present interesting issues here that often turn into interesting arguments.  (Citations to articles in The Copyright and Neighbouring Rights Act 1999)  Are the ringback tunes adaptations because they are only a part of the song? (4(1)(f).)  Did (or does when the tune plays) the telecom company reproduce the work? (4(1)(a).)  Is the ringback tune a public performance even though it only plays to one person at a time because it could play to anybody and does play to multiple people over the time it’s in use? (4(1)(g).)  Is the telecom distributing the work by sending the ringback tone to its customer’s phones? (4(1)(b).)  It would be interesting to see how the court sorted these answers under Tanzanian law.  Also, was it only the musical works that were held to be infringed?  What about the phonogram/sound recording rights (32(1).) or performance rights (31(c) and (f).)?  We know that AY and MwanaMF wrote the songs and performed them.  Did they also produce them?  Are producer’s rights held by their label, Bongo Flava [likely], and was the label a plaintiff in the case?

Tigo’s registration issue is also unclear.  There’s no registration requirement in the Tanzanian Copyright Act.  It sounds like (see Mwananchi below) they are arguing that the artists must prove their collecting society membership in order to sue, but it is unclear from the information available whether Cosota was the (or a) plaintiff.  Most of the reports make it sound like the artists themselves won the damages, but one can easily see how the press might confuse a collecting society or label winning on behalf of an artist who was infringed with the artist winning.  [Of course, if it was Cosota or Bongo Flava, one would wonder why only sue for these two songs.  According to The Citizen (see below), most of the caller tones in use in Tanzania belong to Bongo Flava.] 

Lastly, what are those “general damages”?  The reports seem pretty clear that the Tsh 2.6 billion are actual damages for the plaintiffs.  But the reports interchangeably refer to the other amount (the 5 billion or 25 million) as “damages” and “fines.”  Article 36(1)(b) allows the court to award exemplary damages “if the infringement is found to have been prejudicious to the reputation of the person whose rights were infringed.”  Is that what happened here?  The Copyright Act also has a “sanctions” provision for knowingly infringing on a commercial basis, which allows the court to impose a fine up to Tsh 5 million or 3 years imprisonment (42(1)(a).)  This seems like an odd criminal remedy in a civil suit, but perhaps that is what is going on here, though neither proffered amount matches the limit. In any case, is this extra amount a fine that goes to the government or additional damages that go to the plaintiffs?

There’s a lot left to find out, but one thing is very clear—and it’s been said by the plaintiffs—having copyright upheld in court is a big win for young artists in East Africa.

Similar cases have been brought in Kenya--where Safaricom settled with JB Maina for using his works in ringtones without his approval—,and in Nigeria, where MTN is in trouble again.

News sources for the case:
Mwananchi
The Citizen
Daily Nation
Hat tip to African Hip Hop Blog and their Podcast for discussing the story

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Friday 1 July 2016

Afro Leo

Request: Can you help Quentin?

Dear all

This morning I was driving to work and came across a man holding up the request below. I stopped and asked him to get in, parked and took him up to our offices, offered him coffee and consulted with him. His name is Quentin, he is unemployed, a street sleeper with some initiative and a sparkle in his eye. He has sketches for clothing designs in koki pen. He also has a brand name which he wants trade marked. He was also darn hungry and we got more biscuits. That was at 8am.

Quentin has no email or street address (in fact he has many). He has his identification number but no id book. He is armed with his koki pen and his drawings, a brand, his personality and a spark but as far as I am aware those are his only assets. No doubt he has an interesting, perhaps shocking and tragic story too. It is difficult to not want to help him turn his ideas and creativity into sustainable income and help alleviate the conditions he finds himself him. Indeed, I think that you will agree, it is our obligation as people, to try to help him do that.

At 9am, I was in a CEO SleepOut Trust meeting helping to update stakeholders partners ahead of the event on the 28th. The CEO SleepOutTM is of course an initiative aimed at raising awareness for the homeless.  The timing was entirely co-incidental and obviously fortuitous for both Quentin and those at the meeting. With Quentin's permission he was introduced to the meeting and shared his ideas. Unsurprisingly, there was an immediate interest in assisting him and I am now, at 11am, spreading that call for assistance to you, our readers.

Quentin returns to our offices next Wednesday. He doesn't want handouts, he needs people who can help brings his brands, designs and story to market in the clothing sector.  If you feel you can help please email me here.

Thank you

Darren




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