The Importance of the Commons in the Context of Intellectual Property

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 31-54
• Author: AJ van der Walt

31

THE IMPORTANCE OF THE COMMONS IN THE

CONTEXT OF INTELLECTUAL PROPERTY

AJ van der Walt

B Iur et Art Honns (BA) LLB LLM LLD

Professor of Law and South African Research Chair in Property Law, Stellenbosch

University*

M du Bois

LLB LLD

Senior Lecturer in Intellectual Property Law, Department of Mercantile Law, UNISA

1 Introduction

An import ant part of intellect ual propert y scholarship involves discussion

about the interaction of intellec tual property law with the notion of the public

domain or intellectu al commons. This i mportant debate ha s been driven by

concerns that i ntellectual property law (pa rticularly in American law) may be

extending its reach to i nclude new types of intellect ual activity as well as by

extending existing intellectual property rights.1 This art icle does not purport

to question the legitimacy of the i ntellectual proper ty system as a whole, but

merely to note some aspects of the common s which have to be considered

while revising or developing any areas of South Af rican intellectual propert y

la w.2 Th ree importa nt questions need to be add ressed in this rega rd. Firstly,

* The South Af rican Research Cha ir in Property L aw is hosted by Stellenbosc h University, funded by th e

Depart ment of Science and Technology a nd administe red by the National Rese arch Foundation

1 F Macmilla n “Altering the Conto urs of the Public Do main” in C Waelde & H MacQu een (eds) Intellectual

Property: T he Many Faces of the Pu blic Domain (2007) 98 98-99 Also see Eldred v Ashcro ft 123 S

Ct 769 (2003) (United Stat es of America ca se upholding th e constitut ional validit y of the copyr ight

term exten sion); PH Haggerty “ Comment: Th e Constitut ionality of the S onny Bono Copy right Term

Extension Act of 1998” (200 2) 70 U Cin L Rev 651; B Depoorter “The Sever al Lives of Mickey Mouse:

The Expandi ng Boundaries of Intel lectual Propert y Law” (2004) 9 V JL & Tech 4 Also see the recent

United State s Court of Appe als case which allowed a patent over cer tain DNA molecules that do not

exist in nat ure: Association for Mole cular Pathology v United S tates PTO 2011 US App LEXIS 15649;

99 USPQ2D (BNA) 1398 Comparative law i s becoming increa singly important a nd it would be natural

for South Afr ican courts and le gislators to look to A merican law for guid ance on developing intel lectual

propert y law, sinc e America is viewed as a leader i n the field of intellectua l property For this reason

it is also necess ary to consider the unde sirable developments in order t o avoid the same pitfalls while

developing South A frican intelle ctual proper ty law

2 Intellect ual propert y law may be classifie d into broad categor ies, notably copy right, patents , trademark s,

industr ial designs an d trade sec rets In South Africa n law, they receive sui generis protectio n in the

form of proper ty rule-ty pe protection Private law hono urs this positio n and as such intellec tual proper ty

rights are co nsidered property r ights in private law, even though t he rights and remedies a re provided

for in specif ic legislation W Cornish & D Llewelyn Intelle ctual Prope rty: Patents, Co pyright, Trade

Marks and Allie d Rights 6 ed (2007) 6 state that “[i]nt ellectual propert y protects applications of id eas

and inform ation that are of commerci al value … One character istic shared by all ty pes of [intellectual

propert y rights] is that they are e ssentially negative: t hey are rights to stop ot hers doing cert ain things –

rights, in ot her words, to stop pir ates, counterfeit ers, imitators a nd even in some cases th ird parties who

have independ ently reached the s ame ideas, from ex ploiting them with out the license of the r ight-owner”

They also explai n that while creator s do not need an intellec tual propert y right to exploit the creat ion, it

is also tru e that an intellect ual propert y right does not ent itle the right-owne r to ignore the righ ts of other

individua ls or public liabilitie s

(2013) 24 Stell LR 31

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where did the notion of a commons origi nate and how is it applicable to

intellectual produc ts? Secondly, what exactly is the commons (or the public

domain, as it is more often ter med when referri ng to intellectual p roducts)?

Finally, how could the idea of the intellectual commons d evelop fur ther?

The concept of the public domain in int ellect ual space depends profoundly

on Roman law concepts that govern physical space. T hese concepts

acknowledged different non-exclusive, but not necessar ily public, uses of

property. The concepts of res communes3 and re s publicae4 have been used

most often in the debate about i ntellectual proper ty and the public domain .5

The notion of res communes refers to t hings that are by their nature in capable

of being owned, while the notion of res publicae refer s to things that are open

to the public due to the working of a law even though thei r nature allows them

to be appropriated.6 The se Roman law concepts have been tra nslated into the

modern concepts of the com mons and the public domain in the curre nt debate

about intellectual prop erty, but the two origina l concepts are often con fused

or used interchangeably, which has not helped to simplify t he interaction

between intellectu al property law and the notion of intellectual public spa ce.7

Intellectual prope rty law excludes cert ain parts of intellec tual space fr om

being exclusively owned; and in doing so acknowledges the impor tance of

the commons.8 It is not always clear whether these pa rts are excluded because

they are incapable of being owned by vir tue of their legal nature9 or whether

they should be kept in the public domain as a m atter of policy.10 For example,

certain i nnovations are not patentable since t hey are excluded by statute.

Examples would be discoveries and scientic theories.11 Copyr ight12 does

not protect ideas (which should remain in the com mons), but the distinction

3 CM Rose “Romans , Roads and Romant ic Creators: Tradit ions of Public Prope rty in the I nformation Age”

(2003) 66 Law & Contemp Pr obs 89 93-96

4 96-10 0

5 Macmilla n “Altering the Contou rs of the Public Domai n” in Intellectual Property 99-100

6 Macmilla n “Altering the Cont ours of the Pu blic Domain” in Intellectual Propert y 99-100 See Rose

(2003) Law & Contemp Prob s 93-100

7 Macmilla n “Altering the Cont ours of the Pu blic Domain” in Intellectual Propert y 99-100 See Rose

(2003) Law & Contemp Prob s 93-105

8 Macmilla n “Altering the Contou rs of the Public Domai n” in Intellectual Property 100-101

9 This relates t o what Gray would refer t o as legal non-excluda bility: K Gray “P roperty in T hin Air” (1991)

50 Cambridge LJ 252 273-274

10 Gray ter ms this moral non- excludability: Gr ay (1991) Cambridge LJ 280-283

11 Macmill an “Alter ing the Contours of the Publi c Domain” in Intellectual Property 101 S 25(2) of the

Patents Act name s specific exclusions f rom the concept of an invent ion for purposes of pate nts, namely

a discovery; a sc ientific theor y; a mathematical met hod; a literary, dra matic, musical or art istic work or

any other aest hetic work; a scheme, r ule or method for perfo rming a mental ac t, playing a game or doin g

business; a prog ram for a computer; or the pr esentation of infor mation See s 25(2)(a)-(g) of the Patents

Act 57 of 1978 Also see TD Bur rell Burrell’s South Af rican Patent and Des ign Law 3 ed (1999) 1-24; A

van der Merwe “ The Law of Patents” in H B Klopper, T Pisto rius, B Ruther ford, L Tong, P van der Spuy &

A van der Merwe (co- ordinating e d) Law of Intellectual P roperty in Sou th Africa (2011) 271-276 S 25(4)

of the Patents Act na mes furthe r exclusions from paten tability, namely inven tions that promote of fensive

or immoral be haviour; and any variet y of animal or plant, or any es sentially biological proces s for the

production of an imals or plants th at is not a microbiological pr ocess

12 OH Dean Handbo ok of South Afr ican Copyri ght Law (RS 14 2012) 1-1 describes copy right as “t he

exclusive right in rel ation to work embodying i ntellectual cont ent (i e t he product of the intellec t) to do

or authorise ot hers to do cert ain acts in relatio n to that work, which rep resents in the cas e of each type of

work the manne rs in which that work c an be exploited for pers onal gain or profit ” T he essential obje ct of

copyright law i s to grant the esse ntial right to cont rol the use of the work ful ly

32 STELL LR 2013 1

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