South African Intellectual Property Law Journal

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
2521-2591

Description:

The South African Intellectual Property Law Journal (IPLJ) strives to be the journal of choice for academics, practitioners and students of intellectual property law. It focuses on intellectual property law and policy. Its primary scope of coverage is South Africa. However, it publishes papers on intellectual property law and policy from other jurisdictions, especially in Africa, with relevance to the South African context.

Issue Number

Latest documents

  • The Regulation of Copyright in Digital Trade: A Case for the Southern African Development Community

    The protection of intellectual property rights, particularly copyright in digital trade, has raised concerns about the applicability of existing frameworks to the digital paradigm, especially considering that these frameworks were not negotiated in anticipation of intangible assets and content as central components of commercial transactions. Although digital trade presents an opportunity, particularly for small to medium enterprises in the Southern African Development Community to access new trading platforms and new business opportunities, it has also led to a surge of unlawfully distributed copyrightprotected music, films, art, photos, scripts, books and software over the internet thereby causing serious losses for copyright holders. Enforcing copyright in digital trade is difficult as the infringer may be based in a different jurisdiction, often hiding under the veil of anonymity. It is in this context that this article examines the regulation of copyright in the Southern African Development Community and questions whether the existing framework effectively harmonises copyright law in a way that accommodates the technological developments in international trade. The article argues that the regulation of copyright in the Southern African Development Community is fragmented and, in many instances, outdated in dealing with the emerging digital paradigm. To this end, the article recommends the development of a regional framework on copyright. It submits that a regional framework that supports the creation, protection, administration and enforcement of copyright in digital trade can promote innovation and enhance competition thereby enabling Southern African Development Community countries to effectively participate in the digital trade.

  • Innovations in Climate Adaptation: Lessons From Uganda's National Agricultural Research Organization (NARO)

    New weather phenomena are raising concerns across the globe. Similarly, changing weather patterns are negatively impacting food security due to their effects on the agricultural sector. These effects include early or late maturity of crops which has poorly affected cultivation, the emergence or spread of pest diseases, and harsh weather conditions, such as flooding or drought, that hinder crop production. Consequently, countries like Uganda are taking drastic action to address these challenges before it is too late.Climate adaptation is, therefore, a key strategic measure being employed in Uganda to address the current and future impacts of climate change. A key government agency driving innovations in the agricultural sector related to climate adaptation is the National Agricultural Research Organisation (NARO).This study focuses on the work of NARO and its efforts in generating various innovations that contribute to climate adaptation. These efforts include establishing partnerships with private agencies, conducting training sessions for farming communities, and more. The study underscores the importance of monitoring intellectual property rights (IPR), particularly in scenarios where NARO's work is disseminated across the country. It also highlights that these innovations are supported by an Intellectual Property (IP) legal framework, which facilitates their administration and protection. However, the study identifies factors that undermine the effectiveness of the legal framework, emphasising the need to strengthen the IP legislative structure. Strengthening this framework would enable countries like Uganda to better manage the utilisation and enforcement of their IPRs while addressing climate adaptation. The study argues that a robust IP legal framework is a critical enabler for the effective use of innovations in climate adaptation, ultimately leading to improved management of climate change.

  • Governing Climate Adaptation Innovation in Africa: A South African Case Study

    Despite contributing little to global warming, Africa continues to be adversely impacted by climate change in multifaceted ways including in agriculture and food systems, human health, water and ocean systems, transportation, energy and industrialisation. Global efforts to mitigate the climate crisis are woefully inadequate and Africa-driven initiatives to tackle these challenges are increasingly focussed on regional and national climate adaptation strategies aimed at reducing climate risk, helping society adjust and building resilience to the present and future impact of climate change. These strategies include developing innovation and technology systems especially for climate adaptation in Africa. To be effective, such strategies must be guided by evidence of the innovation capabilities and require appropriate governance systems at the regional and national levels in Africa. Conducted by way of desk research, as part of a broader research project involving two other African countries, this case study focuses on South Africa and examines the climate adaptation innovation of LiquidGold Africa (Pty) Ltd to demonstrate Africa's capacity to innovate climate adaptation solutions. The research also examines the potential of the innovation governance systems in South Africa, such as intellectual property (IP) regimes, to harness existing climate adaptation innovation for substantial impact. In this regard, the paper briefly sets out some broad background issues relating to IP, technology transfer and access to adaptation innovation from the perspective of international climate change negotiations. It then undertakes a survey of South African climate change challenges, the legal, policy and institutional frameworks on climate adaptation, and the climate adaptation innovation governance landscape before focusing specifically on the work of LiquidGold.

  • Governing Climate Adaptation Innovation In Africa: A Case Study of Nigeria

    As part of a project on Governing Climate Innovation in Africa, this paper examines Nigeria's climate adaptation innovation architecture. Through comprehensive doctrinal and desk research, it explores the key laws, policies, institutions and initiatives shaping the country's adaptation responses to climate change. The paper underscores the intersections of climate adaptation innovation and intellectual property rights in the context of Nigerian realities and presents notable case studies from the food and agricultural sectors: Rotimi Williams (Kereksuk Rice Farm and Resolute 4.0) and Babajide Oluwase (Ecotutu). The paper is structured around three primary objectives. First, it maps the legal and policy frameworks governing climate change in Nigeria, addressing international commitments alongside regional and national instruments. Second, it analyses the selected climate adaptation innovations, unpacking their contributions and interrogating the role that intellectual property rights currently play or could potentially play in enhancing these innovations. Third, it offers strategic recommendations to strengthen climate adaptation in Nigeria, including adopting a joined-up approach to ensure coherence across laws and policies, as well as introducing supportive legal and non-legal measures to build a resilient and sustainable climate innovation ecosystem in Nigeria.

  • The 'Tax Cost' of Cross-Border Use of Intellectual Property: A South African Perspective on Transfer Pricing

    IT 14302, a decision of the Tax Court, is the first South African judgment dealing with the substantive application of the transfer pricing provisions in the Income Tax Act. The decision addresses the application of the transfer pricing provisions to cross-border payments for the use of intellectual property, specifically from foreign subsidiaries to a South African company. The article considers the use of terminology such as brand, goodwill and intellectual property by the parties and the court in determining the tax liability of the taxpayer and second, the application of the transfer pricing methodologies to determine the arm's length price for the 'good' licensed by the South African taxpayer company to its associated foreign subsidiaries.

  • The Copyright Amendment Bill and the Right To Property in Section 25 of the Constitution: A Discussion in Support of Expansive Copyright Exceptions and Limitations for Educational Purposes

    The relationship between copyright law and the right to education has been a prominent topic for several decades. Attainment of the right to education is inextricably linked to copyright and the materials under it. Therefore, the proper construction of copyright rules is essential. The current copyright regime has been criticised for being out of touch with the educational needs of learners and students in South Africa. The South African government has been engaged in copyright reform to remedy this issue and other issues raised against the current regime. This reform process resulted in the Copyright Amendment Bill B13F of 2017. In June 2020, the President addressed a letter to Parliament and expressed concern that various copyright exceptions in the Bill, including ss 12A, 12B and 12D through which the attainment of the right to education is promoted, run the risk of violating the property rights of copyright holders under s 25(1) of the Constitution. This paper evaluates this claim. As part of this evaluation, this paper also considers whether intellectual property constitutes property under s 25 of the Constitution. The latter question is important because the current jurisprudence of the Constitutional Court on s 25 relates to the validity of the state's regulation of corporeal property. The claim has been evaluated by copyright scholars before.This paper builds on the work of other scholars by considering the nature of intellectual property and its theoretical underpinnings. The consequence of recognising intellectual property as property for constitutional purposes is that it will be protected against arbitrary state interference and unlawful expropriation under s 25 of the Constitution. To contextualise this, it should be reiterated that references to intellectual property in this paper include copyrights, patents, trademarks, designs and other traditional forms of intellectual property. This paper will demonstrate that an inquiry into the constitutionality of copyright exceptions and limitations in the Copyright Amendment Bill is unlikely to result in a finding of constitutional invalidity under s 25(1) of the Constitution.

  • Shifting digital media ecologies and how copyright law should adjust and adapt to journalism

    Digital Age misappropriation and plagiarism of published online news content by some South African media proprietors are negatively affecting professionalism and integrity in journalism. Such infringements invariably lead to great tension, harmful competition patterns and dwindling revenues. Frequently, digital news misappropriation creates factual distortions, impairing the democratic functions of journalism and healthy national discourse motivated by legitimate public interest considerations. A 2019 Reuters Institute Digital News Report revealed that, globally, South Africans spend the greatest number of hours browsing online, with 36% of the population enjoying sharing news content, while 40% enjoy commenting on news via social media or news websites. While the Digital Age has generated many forms of active players in journalism, this paper is limited to digital infringement conflicts and contestations between accountable and established media proprietors or competitors. This qualitative contribution proposes that media proprietors collectively seek an alternative dispute resolution approach to copyright infringements through a comprehensive 'Media Arbitration Copyright Infringements Code' with incorporated 'Hot News Misappropriation Doctrine' provisions to regulate the conduct of the media and to address proliferating digital infringements. The Media Code should also guide the proposed 'Media Copyright Tribunal' operating within a commercial arbitration framework in dispute adjudication and resolution. This paper argues that the Media Code with the Misappropriation Doctrine is a more viable approach for addressing media copyright disputes because it largely protects facts contained in published news content. Furthermore, a Media Code that is drafted addressing media copyright digital infractions using the ethical benchmarks set by the 'Press Code of Ethics and Conduct for South African Print and Online Media' editorial guidelines interpreted through a flexible informal commercial arbitration framework that expedites dispute resolution is desirable. This paper is largely concerned with the court's findings in Moneyweb (Pty) Limited v Media 4 Limited and Another, and the fact that it took about three years for the dispute to be resolved. Moreover, this paper argues that the current Copyright Act 98 of 1978 is less effective in dealing with the ethical quandary faced by journalism in the Digital Age.

  • Opinion: Artificial intelligence facial recognition surveillance and the breach of privacy rights: The ‘Clearview AI’ and ‘Rite Aid’ case studies
  • The inadequacy of copyright-related provisions in economic partnership agreements between the European Union and the African, Caribbean and Pacific regional groups from an educational perspective

    In 2000, the European Union (EU) undertook to enter into economic partnership agreements (EPAs) with the African, Caribbean and Pacific (ACP) regional groups with the intention of promoting development by implementing tariff-free trade structures with ACP states. A number of these agreements, once entered into, contained provisions regarding intellectual property rights and technology transfer. However, the provisions in these agreements regarding intellectual property protection and enforcement appeared to oblige contracting states to follow the directives as espoused in pre-existing intellectual property agreements. This contribution argues that those agreements do not adequately address educational concerns in developing ACP states, and that, if the EU is concerned about the long-term development of ACP states and regional groups, it should take adequate steps to facilitate knowledge transfer on an equitable basis through copyright mechanisms.

  • Navigating the complexities of the adaptation right in copyright law: Addressing ambiguities, gaps and the need for reforms in South Africa

    As a pervasive feature of modern society, the adaptation right in the context of infringement and fair dealing has frequently been a subject of heated debate for several years. However, the current Copyright Act 98 of 1978 does not adequately address either aspect. The power disparity between copyright owners and users makes it difficult for the user to determine when it is appropriate to pay for permission and when to use the work without permission, resulting in numerous legal debates over what is considered lawful or permissible use. Moreover, the complexities of copyright law and its application in the context of the various forms of adaptation set out in the Copyright Act (ie arrangement, transcription, translation and transformation) remain largely undefined, leaving those attempting to create a work of adaptation or resolve a dispute over one in a state of considerable uncertainty. Consequently, there are numerous gaps in South Africa's legal system concerning adaptations and their role in legal proceedings. This is exacerbated by the absence of case law meant to provide clarification. Additionally, the exceptions and restrictions associated with the adaptation right are extremely limited. Blind SA v Minister of Trade, Industry, and Competition and the almost decade-long debate about the Copyright Amendment Bill indicate a need for reform in South Africa's legal system concerning adaptations and their role in legal proceedings.

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