Tuesday 22 October 2013

Darren Olivier

RSA's draft National IP Policy - Gilfillan's and SACCI's notes

Graeme Gilfillan of NISA has filed his response to the draft national IP Policy which can be located here. Nisa is an organisation devoted to the local entertainment industry and Graeme's comments are based on his wealth of experience negotiating royalty and distribution agreements for local talent based, primarily on copyrights and performing rights. He is also a forensic investigator in this field.

"There is a dire and overdue need for an IP policy for South Africa, as there is for a co-ordinated 
approach. However to be effective South Africa needs to drop the ‘one size fits all’ approach to IP. The requirements and challenges for copyright are not the requirements for patents, trademarks and 
designs. Whilst a lenient approach to limitations and exceptions with generic medicines may be 
appropriate as policy, the same applied to copyright has disastrous outcomes."

Meanwhile, in a press release yesterday, the focus of The South African Chamber of Commerce and Industry (SACCI) is quite different. Graeme's concern is primarily local creatives whereas SACCI's focus in on the effect of the draft policy as an incentive for foreign investment.

"SACCI welcomes the policy document in principle, as it is necessary to have a discussion on the long-term plans for IP. However, it is also necessary to keep in mind the highly sensitive nature of IP and its potential effect on investor confidence and innovation across business sectors. The single most important consideration in IP law is the impact any amendments might have on investor confidence. This is because IP is by its very nature forward-looking and needs to continue to consider future scenarios. So whereas it may seem tempting to impose restrictions on IP rights due to "public interest" considerations, any such intrusion is likely to significantly damage the origination of future IP in South Africa. In turn, this will mean that South Africa loses out on investments, job creation, technologies and business opportunities associated with the life cycle of IP creation. The ultimate end-point of such a situation is that South Africa will not only lose essential opportunities, but also be cut off from end-user technological opportunities."

The two, at times, contrasting standpoints illustrate just how difficult a co-ordinated policy is to achieve. At the very least DTI should be congratulated on attempting to do so. It has galvanised thought on the topic as these comments and other listed below explain.

Additional commentary:

Darren Olivier

Darren Olivier

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