Intellectual Property as a Constitutional Property Right: The South African Approach

• Jurisdiction: South Africa
• Pages: 177-193
• Date: 25 May 2019
• Published date: 25 May 2019
• Author: Mikhalien du Bois
• Citation: (2012) 24 SA Merc LJ 177

Intellectual Property as a Constitutional Property

Right: The South African Approach

MIKHALIEN DU BOIS*

University of South Africa

1 Introduction

Laugh It Off v South African Breweries,

1

an important South African

Constitutional Court case, implicitly raised the question whether intellectual

property could be recognised and protected as constitutional property under

s 25 of the Constitution of the Republic of South Africa, 1996. South African

Breweries (SAB) brought a case of trade-mark infringement against Laugh It

Off, a company that sells T-shirts which make fun of existing trade marks.

SAB had a registered trade mark for the words ‘Carling Black Label’ and for a

representation of the label of its product. Laugh It Off sold T-shirts with the

slogan ‘Black Labour, White Guilt’. SAB argued that this negative

connotation for their product caused damage to their property and business

reputation. Laugh It Off, on the other hand, argued that they were allowed to

parody a trade mark in terms of the right to freedom of expression. In South

African law, this is the most important example of a conf‌lict between an

intellectual property right (in this case, a trade mark) and another fundamental

right (freedom of expression).

The case provides some clarity on whether intellectual property could be

recognised and protected as constitutional property. If intellectual property

is recognised as constitutional property, it could be protected, but also limited

by the property guarantee, just like tangible property such as land.

2

The state

is permitted to interfere with property rights in terms of the provisions in

s 25(1) to (3) for deprivation and expropriation. Intellectual property rights

may furthermore be limited by public interests such as the public domain and

private interests such as the right to freedom of expression. In other words, the

property clause cannot serve to insulate intellectual property rights

completely. Like all rights, property rights may also be limited by s 36 of the

Bill of Rights.

3

* LLB LLD (University of Stellenbosch). Senior lecturer, Department of Mercantile Law,School of

Law, University of South Africa. This is the f‌irst of two articles based on a presentation at the 3rd

Meeting of the Association for Law, Property and Society in March 2012: M du Bois ‘Intellectual

Property as a Constiutional Right? A ComparativeApproach’. I wish to thank Prof AJ van der Walt, Dr

S Maass and Prof CJ Visser for valuable comments.

1

SAB International t/a Sabmark International v Laugh It Off Promotions [2003] 2 All SA 454 (C);

Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark

International 2005 (2) SA 46 (SCA); Laugh it Off Promotions CC v South African Breweries

International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus

Curiae) 2006 (1) SA 144 (CC).

2

See AJ van der WaltConstitutional Property Law 3 ed (2011) at 143–50.

3

Constitution of the Republic of South Africa, 1996.

177

(2012) 24 SA Merc LJ 177

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It is also important to note that the recognition and protection of intellectual

property rights in private law differs from that in constitutional law. In private

law, the purpose is to obtain strong property rule-type protection for private

rights against competing private parties.

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In constitutional law, recognition

and protection provide a Bill of Rights-type protection for private interests

against the state or competing constitutional and other rights of other private

parties. This is done by weighing up the competing rights. South African

intellectual property law already protects intellectual property rights

reasonably strongly by way of legislation. The important question is whether

these rights could enjoy constitutional protection in addition to their private-

law or statutory protection, because the private-law or statutory protection

does not extend to the purposes of constitutional threats and conf‌licts.

Characteristics that may aid in determining whether constitutional

protection is suitable for a particular property interest are the following:

property interests have inherent or accrued economic value for the holder

of the interest; labour and resources were invested in the creation of the

interest; the interest has vested; and there is no other constitutional clause that

could possibly provide protection to the specif‌ic category of property

interests. If the property interest conforms to these characteristics, this is a

good indication that it may qualify as constitutional property. Applied to

intellectual property, the reasoning would run as follows: an intellectual

property right has economic value; creating intellectual property rights is

often a lengthy and expensive process; an intellectual property right would be

deemed vested once it meets the requirements of the statute or common-law

rules that provide for its private-law protection; and there is no separate

constitutional clause providing for intellectual property rights, and so only

the constitutional property clause could provide recognition and protection.

2 Constitutional Recognition and Protection of Intellectual

Property in South African Law

2.1 The First Certification Case

In the First Certification case,

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the Constitutional Court had to decide on

the validity of the Constitution. There was an objection that the Constitution

did not provide for the protection of intellectual property or mineral rights.

The Court decided that it was not a universally accepted norm to include a

specif‌ic right to intellectual property in a separate constitutional clause. The

Court concluded that the term ‘property’ is wide enough, when used in a

generic property clause, to include rights and interests that require protection

according to international human rights standards. Thus there is no need for a

4

G Calabresi & AD Melamed ‘Property Rules, Liability Rules, and Inalienability: One View of the

Cathedral’ (1972) 85 Harvard LR 1089;Van der Walt op cit (2011) note 2 at 169–72.

5

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of

the Republic of South Africa, 1996 1996 (4) SA 744 (CC) in par 75.

(2012) 24 SA Merc LJ178

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