Is Compliance Enough: Can the Goals of Intellectual Property Rights be Achieved in South Africa?

• Citation: (2013) IPLJ 111
• Published date: 16 August 2019
• Author: Bernard Maister
• Date: 16 August 2019
• Pages: 111-142

111

IS COMPLIANCE ENOUGH: CAN

THE GOALS OF INTELLECTUAL

PROPERTY RIGHTS BE ACHIEVED IN

SOUTH AFRICA?*

BernarD MaIste r

Senior research er, IP Unit, University of Cape Town

casPar van wOensel

Research Fellow at Leiden Univ ersity

1. IntrODuctIOn

Intellectual prope rty right s (IPRs) are the legal mechanisms whereby t he

products of creative thought are prot ected and innovation encou raged.1 The

modern inter national system of IPRs emerged from the need of indust rialised

nations, prima rily the United States a nd certain Eu ropean countr ies, to

protect their intellect ual propert y. To achieve the goal of strengthening their

intellectual prope rty (IP) protect ion worldwide, IPRs were linked to tr ade.2

While this appears to have satised the needs of the developed nations,

the quest ion is whether IPRs designed as they a re – for t he benet of these

developed nations – can achieve the same goals in c ountries that a re less

developed or shaped by different tra ditions.

This paper considers t his question by reviewing the i nternational I PR

system, that of South Afr ica and the perspect ive of one of its important

European Union tra ding partners, the Netherlands.

* This paper is b ased in part on t heir study B Mais ter & C van Woensel ‘Trade vs develop ment. The

internat ional intellectual pro perty rights regim e and the UN Millenniu m Development Goals’,

in W van Genugt en et al., Harnessing int ellectual propert y rights for development object ives –

The double role of IPRs in t he context of facilitati ng MDGs Nos 1 and 6 (funded by the Dut ch

Ministr y of Foreign Affairs and Dutc h science organisation NWO-WOTRO) (2011) 1-107. The

authors have also bu ilt on B Maister & C va n Woensel ‘The push to p rosper – the im pact of

the inter national IPR sys tem on developing cou ntries’ Berichten Industriële Eigendom (2012)

150- 162.

1 X Li & Carlos Correa (eds) How developing c ountries can manage in tellectual property r ights

to maximise a ccess to kno wledge (2009). Available at http://www.southcentre.org/index.

php?option=com_content&task=view&id=1023&Itemid=184). In TRIPS , the term ‘int ellectual

propert y’ refers to all categories of i ntellectual proper ty that are the subje ct of ss 1 through 7 of

Part II (ie copy right and related rig hts, trademar ks, geographical i ndications, indust rial designs,

patents, layout de signs of integr ated circu its, and prote ction of undisclos ed informa tion). See

http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm.

2 The term ‘int ellectua l propert y’ (IP) as used in t his paper gene rally refers to t he field of

intellectu al proper ty includin g its rationale s, core philosop hy, and origins, whe reas IPRs ar e

the specif ic ‘rights’ which are av ailable as a resu lt of or stemming f rom intellectual prope rty

law – examples being t hose laws relating to pat ents, tradema rks, copyright, t rade secrets etc.

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(2013) IPLJ 111

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South Africa has be en a member of the World Trade Organisation since 1995.

As such South Africa has, at least in terms of the necessary legislation, fullled

the requirements of the Ag reement on Trade-Related Aspects of International

Property R ights (TRI PS).3 South Africa has made some ad ditional efforts in

terms of its intellect ual propert y legislation: in 2008, South Af rica adopted

legislation dealing with ‘intellect ual property emanat ing from publicly funded

research and development’4 and in 2011 further legislation provided ‘for the

recognition and protect ion of certain man ifestation of indigenous knowledge

as a species of intellectual p roperty’.5

Given its active legislative program, the govern ment proudly claims that –

South Afric a has a world-class, prog ressive legal fra mework. [Its] laws relating t o competition

policy, copyright, p atents, tra demarks an d disputes con form to inter national nor ms and

conventions.6

Yet the question remains: is the IPR system that high ly economically developed

nations have required of count ries such as South Afr ica, appropriate for all

developing nations – a ‘one-size-ts-all’ approach? After all, the inter national

IPR system was conceived by industr ialised countr ies in the ‘North’ in

response to their own u nique trade need s. Can a system with such or igins

be effective in stimulati ng innovation and encour aging development, the

stated underlying goal of intelle ctual property rights , for countries in the less-

developed ‘South?’7

South Africa’s own government body, the Companies and Intellect ual

Property Com mission, has expresse d concerns about the st ate of innovation

in South Africa:8

An indicator of the level of inn ovation in any country is the nu mber of patents led by

universities a nd institu tions that rec eive public fundi ng. In South Af rica this num ber is

relatively low.9

Intellectual prope rty is centr al to incentives to in novate, such incentives in

turn cont ributing to growth of the economy as a whole.10

3 Leg islation dire cted at impleme nting TRI PS’ requireme nts included th e Intellect ual Proper ty

Laws Amendme nt Act 38 of 1997, which amended the South Afr ican Patents Act 57 of 1978.

4 Act 51 of 2008: Intellectual Pro perty Rights f rom Publicly Financed Re search and Development

Act, 2008.

5 Republic of South Africa , Intellectual P roperty Laws Ame ndment Bill [B 8B-2010] 2011.

6 Source: http://www.southafrica.info/business/investing/open.htm.

7 Even t hough the ‘North–Sout h’ distinct ion has been widely used to descr ibe the situation that

exists betwe en developed and develo ping countr ies, the author s acknowledge t hat the image

attached to it i s imperfect. This d istinction refers to t he rough location on the map of de veloped

countries i n the Northern , and developing countr ies in the Southern h emisphere.

8 See http://www.cipc.co.za /.

9 Comp anies and Int ellectual P ropert y Commission , Annual Re port 2011/2012 12. Available at

http://www.cipc.co.za/Publications_files/AnnualRep orts/CIPC_An nual_Report_2012.pdf.

10 See Green halgh & M Rogers Innovation, Intellectual Property and Economic Growth (2010) xi

and xiii, and el sewhere in the book in g reater detail.

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Statistics suggest that the primary beneciaries of South Africa’s ‘world-

class’ patenting system are not South Af ricans.11 To use 2010 as an example, of

the 5,331 patents granted by t he South African patent ofce in that year only

822, approximately 15%, were to residents.12 Thus, 4,509 non-residents have

chosen to patent their inventions i n South Africa.13 In 2011, World Intellectual

Property O rganisation (W IPO) statistics repor t that in South Afr ica 656

residents submitted patent applications to the South Afr ican patent ofce

compared to 6,589 non-residents.14 The dispar ity between local and foreign

patentees is stri king and persist ent. Another statist ic of importance is t he

number of patents led by un iversities and i nstitutions t hat receive public

funding. Dur ing the period 2002-2011, only 632 patent applications were led

by South African u niversities with only two (Witwatersra nd and Stellenbosch)

ling more than 100 each.15

South Africa has en sured that it is in complia nce with the require ments

of TRIPS. Yet it does not seem, at least judging by the number of patent s

led domestically and inter nationally, to have se en much benet in ter ms

of innovation. Perhaps the problem lies withi n the internat ional IPR system

and how it functions in developing count ries like Sout h Africa? In order to

explore this issue fur ther, this paper will begin by descr ibing the international

intellectual prope rty regime – its origin s and how it has been imposed on much

of the world. This is followed by insights into the South Afr ican IPR system

and the perspect ive of one of its major European Union trading par tners, the

Netherlands.

11 The govern ment department re sponsible for IP management i n South Africa is the ‘Compa nies

and Intellect ual Proper ty Registratio n Office’ (CIPRO) of the Depart ment of Trade and Indus try.

The Annua l Report 2010/2011 notes that in the r eportin g period ther e were 9,353 patent

applications. ( Table 1 at 9.) It does not break th is figure down f urther eg by the n ationality of the

applicant. In t he 2011/2012 Report 9,429 patent appl ications are repor ted. Relevant link s:

http://www.cipc.co.za/Publications_files/AnnualRep orts/Annual_Repor t_2010_11.pdf.

http://www.cipc.co.za/Publications_files/AnnualRep orts/CIPC_An nual_Report_2012.pdf.

12 Informat ion from WTO websit e: http://stat.wto.org/CountryP rofile/WSDBCount ryPFView.

aspx?Language=E&Country=ZA.

13 An ofte n misunders tood aspect of pat ent law is that a pate nt is only enforcea ble within the co untry

in which it was gr anted. For example, a Dutch inventor wh o holds a patent in the Netherland s

will not be prote cted in South A frica un less a South Af rican patent i s granted. C onsequently

those compan ies, the pharmaceut ical industry bei ng a good example, with an int erest in selling

their produc ts in South Af rica, will n eed to seek loca l intellectu al property protection . South

Africa has l ong been recog nised as the mos t prolific site of pa tenting in A frica. In 2 006, for

example, WIPO’s ‘World patent rep ort – a statistical r eview’, Geneva 2008, mentions the f igure

of 5,781 patent filings (PCT n ational phase entries), more th an any other country i n Africa, as

far as the availa ble statistics can tel l (patent admin istration is a problem i n many countries). See

Statistical Tables, Table A2 , at http://www.wipo.int/ipstats/en/statistics/patents/wipo_ pub_931.

html#tables.

14 See http://www.wipo.int/ipstats/en /statistics/countr y_ profile/countrie s/za.html.

15 CIPC Repor t 2011/2012 12 (n 9).

IS COMPLIANCE ENOUGH 113

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