South African Intellectual Property Law Journal

Juta Journals
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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.

Latest documents

  • 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.

  • One (innovation) flew over the law’s head: The intersection of artificial intelligence and copyright

    This article analyses South African copyright laws, with reference to artificial intelligence (AI). It deals specifically with the authorship of copyrightable works as contained in the Copyright Act 98 of 1978. The Act provides that authorship vests differently, depending on the type of work in question ie a work recognised by s 2 of the Act. The article seeks to provide insight into the existing jurisprudence surrounding AI and copyright in the South African context. Moreover, it relies on prevailing local jurisprudence to show that South Africa may lack an adequate legal structure to tackle the future implications of conferring authorship on non-human entities. The article also briefly explores resolutions in other regions such as China and draws on Ginsburg's legal tests for authorship. The article's focus is primarily on South African law in its current state, with reference to other legal jurisdictions and the future.

  • Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

    Materials under copyright, such as books and other literary works, are essential for human development and well-being. Accessing the information contained in these materials is relatively straightforward for sighted individuals, but for persons with print and visual disabilities, access is a challenge and often costly. The barrier to accessing information threatens various constitutional rights of persons with print and visual disabilities. The threatened rights include the right of access to information, the right to education, the right to equality and the right to human dignity. South Africa has been undergoing a process of copyright reform for over 15 years to remedy the violation of these rights. However, pending the finalisation of this process, the threat to these rights persists, and the matter thus warranted the intervention of the apex court in Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33. This note first considers the regulation of copyright in South Africa to provide context. The note then analyses the Constitutional Court's decision and considers the decision of the court a quo to provide some background on the matter. The note ends with an analysis of the implications of the judgment for persons with print and visual disabilities and a discussion of issues that the court did not consider.

  • The quest to use CRISPR technology in tackling the South African tuberculosis epidemic: Examining how the CRISPR patent and licensing regime may impact access to CRISPR-related tuberculosis therapies

    Tuberculosis (TB) continues to be the top killer disease in South Africa; there is little hope of a very efficient treatment in the near future. It is therefore becoming increasingly clear that the long-term solution to TB requires more than simply adding to the current arsenal of TB drugs. A treatment that provides quicker and long-lasting results is needed. Public health innovations such as genome editing present a promising therapeutic paradigm shift in terms of TB immunisation or treatment. The diversity of the Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR)-Cas9 genome-editing technology holds promise in its ability to alter the genome and to control gene expression. While the promotion of CRISPR research is a crucial public health intervention, the realm of patent laws clashes with promoting public health needs, which may delay the speedy use of this technology for disease treatment. For that reason, in this article, I discuss the South African CRISPR patent landscape and its impact on the proposed applications of genome editing technology in public health. I explore the complexities raised by the CRISPR patent landscape and how that may lead to high prices for these CRISPR therapies – thereby limiting patients' access. I conclude by proposing recommendations on how we can efficiently bridge the disconnect between the existing CRISPR patents and access to CRISPR therapeutics as a public health benefit.

  • Deficiencies in the tests for distinctiveness and reputation: A discussion of passing off in light of Koni Multinational Brands (Pty) Ltd v Beiersdorf Ag

    The delict of passing off has evolved and expanded incrementally over time and remains a powerful means of protecting unique aspects of one's products. While passing off seeks to prevent unlawful competition, courts are tasked with balancing which interests ought to be protected by passing off claims against the need to allow market forces and not to unduly constrain competition. The test for passing off has consisted of proof of reputation, misrepresentation and damage. A fundamental component of establishing reputation has been the need to demonstrate its distinctiveness. Notwithstanding this, the law on passing off has also developed to exclude 'legitimate copying' – especially where a particularly successful get-up transforms into a market standard. The Supreme Court of Appeal's decision in Koni Multinational Brands (Pty) Ltd v Beiersdorf AG is an opportunity to consider how these concepts operate in a market where many products share similar features, and where the claimant controls a significant proportion of the market share. While Koni offers much food for thought, this article seeks to explore its treatment of distinctiveness in the context of proving reputation and to offer a pathway to develop this test in a manner that better promotes consumer interests and preserves fair competition.

  • Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals

    Although the COVID-19 pandemic has receded from daily news coverage, it still continues. Despite states committing to a human rights approach to ending the pandemic, and bearing human rights obligations to that effect, they have under-realised these obligations during this crisis. This article identifies the institutional design of the international trade regime as one of the key reasons for this failure. The article analyses the COVID-19 TRIPS waiver proposals and the Geneva package outcome emerging from the World Trade Organisation (WTO). It focuses on one aspect of both waiver proposals that is absent from the Geneva package outcome: states' commitment to refrain from approaching the WTO Dispute Settlement System (DSS). The article argues that state parties to international human rights treaties and the WTO-covered agreements bear concurrent trade, intellectual property and human rights obligations. While international law requires states to harmoniously interpret these obligations to give effect to all of them, states have failed to do so. Instead, states' trade and intellectual property obligations have become hegemonic, leading to the prioritisation of the market at the cost of human lives during one of the biggest humanitarian crises in recent memory, and necessitating the waiver proposals. The article concludes that, in the short term, waivers of intellectual property obligations as well as commitments not to bring actions at the WTO DSS are crucial to ensure that states can fulfil their human rights obligations during pandemics. In the longer term, this state of affairs highlights the need for rethinking existing international legal structures and the values that they promote.

  • Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction

    This article surveys the patent opposition legal landscape in the SADC region and justifies the importance of patent opposition for access to essential medicines by SADC citizens. The article uses Thailand as a comparative jurisdiction and, after taking a closer look at the patent opposition provisions of the laws of Botswana, Malawi, Zambia and Zimbabwe, the article advances the view that the SADC patent law reform agenda can learn a lot from its Thai counterpart on pharmaceutical patent opposition. Most SADC members with patent opposition provisions in their laws provide for pre-grant rather than post-grant opposition. Generally, pre-grant and post-grant patent opposition procedures ensure that only deserving patents may be successfully applied for and granted. The article concludes that the Thai pre-grant opposition procedures are an example of progressive law, which the SADC region should consider emulating to improve access to affordable essential medicines. The Thai experience may provide helpful and practical pointers for some SADC members when their patent opposition procedures are eventually tested before the courts and intellectual property tribunal.

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