Ownership of intellectual property rights: Did Vodacom ‘sell’ its rights in Makate v Vodacom?

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

Ownership of intellectual property rights: Did Vodacom ‘sell’ its rights in Makate v Vodacom?

Author Malebakeng Agnes Forere

ISSN: 2521-2591
Affiliations: Associate Professor in Law, University of the Witwatersrand
Source: South African Intellectual Property Law Journal, 2021, p. 18 – 34
https://doi.org/10.47348/SAIPL/v9/a2

Abstract

The case between Mr Makate and Vodacom, which was decided by the highest court in the land — the Constitutional Court, raises interesting intellectual property questions; yet it was argued and decided on as a purely contractual matter. Specifically, Vodacom was found to have been in breach of an agreement to reward a former employee who conceived an idea that led to the development of a product known as ‘Please Call Me’ while still employed by Vodacom. In the main, the dispute is now about fair compensation payable to Mr Makate. It is argued herein that the determination of fair compensation is predicated on the determination of ownership of the ‘Please Call Me’ product. This paper finds that ownership of the product in question vests in Vodacom in accordance with the Copyright Act and the Patents Act, even though the product was never patented, which, in turn, makes compensation to Mr Makate even less determinable. Accordingly, it is argued herein that any determination of compensation must be based on how the industry, in general, and Vodacom, in particular, has rewarded its employees who have conceived workable ideas in the past. Thus, compensation cannot be based on market value.

A right to read object code – software copyright law and the development of a decompilation exception in South Africa

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

A right to read object code – software copyright law and the development of a decompilation exception in South Africa

Author Cobus Jooste

ISSN: 2521-2591
Affiliations: Consolidoc Postdoctoral Fellow in Law, Department of Mercantile Law, Faculty of Law, University of Stellenbosch
Source: South African Intellectual Property Law Journal, 2021, p. 35 – 66
https://doi.org/10.47348/SAIPL/v9/a3

Abstract

The opportunity to read and extract knowledge from a lawfully obtained copy of any published work is a cornerstone of copyright law, except in the case of computer programs. This article examines the development of an exception to copyright protection that will permit decompilation of object code as a means to access its underlying ideas. It illustrates that the persistent link between software and literary works leads to an unduly narrow view of decompilation. This contention is supported by a basic technical illustration of the decompilation process to support the submission that reading object code should not amount to copyright infringement in any way. Thereafter, the proposed decompilation exception in South African copyright law is critically analysed in light of the developmental objectives expressed in national policy, to formulate an alternative approach based on the inherent flexibilities in international law and local conditions.

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

Author Thato M Moloto

ISSN: 2521-2591
Affiliations: Consultant, World Intellectual Property Organization (Copyright Management Division), Geneva
Source: South African Intellectual Property Law Journal, 2021, p. 67 – 86
https://doi.org/10.47348/SAIPL/v9/a4

Abstract

This contribution examines the basis for and implications of the strictly territorial approach of South African courts in cross-border copyright infringement cases, requiring litigants to bring separate infringement suits in every country where infringement is alleged. This position by the courts loosely hinges on principles of effectiveness, locality and comity, as well as the classification of all intellectual property — copyright in this case — as immovable incorporeal property. In this belated case note, the Roman-Dutch law origins from which this classification is inferred to be derived from the English common law precedent with which it is paralleled and private international law principles applicable are briefly interrogated in light of prevailing constitutional prescripts. This complete bar on the authority of local courts on what is a ubiquitous concern for rights holders is a matter with far-reaching consequences.

DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question

Author: Desmond Osaretin Oriakhogba

ISSN: 2521-2591
Affiliations: Senior Lecturer, Department of Mercantile and Private Law, University of Venda
Source: South African Intellectual Property Law Journal, 2021, p. 87 – 108
https://doi.org/10.47348/SAIPL/v9/a5

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Oriakhogba, DO
DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question
Senior Lecturer, Department of Mercantile and Private Law, University of Venda
https://doi.org/10.47348/SAIPL/v9/a5

Abstract

This paper draws from and builds upon DO Oriakhogba ‘What If DABUS Came to Africa? Visiting AI Inventorship and Ownership of Patent from the Nigerian Perspective’ (2021) 42(2) Business Law Review 89. It reviews the recent granting of a patent by the Companies and Intellectual Property Commission (CIPC) to Dr Stephen Thaler in respect of the DABUS-generated invention in South Africa and the judgment of the Australian Federal Court (FCA) upholding AI-inventorship. The review, which is based on desk research, is conducted against a backdrop of statutory provisions and case law from both countries, the provisions of the Patent Cooperation Treaty (PCT) and relevant literature dealing with the inventorship question. The paper determines whether, without reform of the extant patent law and policy, recognition of artificial intelligence (AI) as an inventor does not undermine the foundational concept of human inventorship, and the central focus on human creation and agency for intellectual property protection in South Africa and Australia. In connection with this, the paper asks and examines the question of whether the CIPC patent grant and the FCA judgment can stand judicial scrutiny under the extant patent regimes in South Africa and Australia.

A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018

Authors: Delani Milton Mahhumane and Rehana Cassim

ISSN: 1996-2185
Affiliations: Former Postgraduate Assistant, Department of Mercantile Law, University of South Africa; Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 153 – 175
https://doi.org/10.47348/SAMLJ/v33/i2a1

Abstract

The Companies Amendment Bill, 2018 proposes certain changes to the social and ethics committee established in terms of s 72(4) of the Companies Act 71 of 2008 and reg 43 of the Companies Regulations, 2011. These new provisions are critically discussed in this article. Although some of these provisions are commendable, others give rise to certain concerns examined here: the lack of clarity in the functions of the social and ethics committee, the proposed amendments regarding its appointment and composition, and the ambiguity in the exemptions from the requirement to appoint this committee. This article also suggests further amendments to the current legislative provisions regarding this committee.