Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

Author Kolapo Omidire

ISSN: 2521-2591
Affiliations: North-West University, Potchefstroom
Source: South African Intellectual Property Law Journal, 2019, p. 143 – 162

Abstract

South Africa is considering plans to develop shale gas by hydraulic fracturing as a source of energy. In countries where hydraulic fracturing is presently undertaken a claim of trade secrets by operators is a common phenomenon. However, while the underlying rationale of safeguarding commercial transactions by means of protecting trade secrets may be reasonable, there is a need for caution as, unfortunately, other interests may be prejudiced. In the case of hydraulic fracturing, the conceptualisation of the right of access to information as a leverage right which makes other rights possible, means it could be applied by people whose rights may be infringed by a claim of trade secrets. Therefore, any restriction of the exercise of that right by a claim of trade secrets has the potential to violate the right of access to information. A claim of trade secrets which ultimately violates the exercise of the right of access to information in relation to hydraulic fracturing also contextualises the problem in relation to similar claims in other developmental processes. Given the need to guarantee the right of access to information as an enabler for the enforcement of other rights that may be adversely impacted by hydraulic fracturing, this article examines potential lessons that can be distilled for South Africa in relation to the regulation of trade secrets under the law of the state of Pennsylvania in the United States of America.

Statutory trade mark infringement and questions about confusion

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Statutory trade mark infringement and questions about confusion

Author Owen Salmon

ISSN: 2521-2591
Affiliations: One of the Senior Counsel for the Republic of South Africa
Source: South African Intellectual Property Law Journal, 2019, p. 163 – 181

Abstract

This article considers the principles advanced by South African courts in trade mark infringement litigation pertaining to confusingly or deceptively similar word marks. Such consideration entails the discussion of case law from other jurisdictions, where it has informed South African case law. It also draws on recent UK and ECJ case law that exemplifies a modern purpose-driven approach to these disputes. The article argues that several of the principles applied by South African courts are outdated, inappropriate and ill-suited to the task. It contends that the courts ought to dispose of or modify such principles in view of current modern contexts, including online environments, in which consumers operate. Accordingly, it puts forward recommendations for statutory reform which would be more appropriate for the contemporary context.

Analysing South Africa’s comlicensing jurisprudence: Is there room for the public interest (PI) in intellectual property (IP)?pulsory

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Analysing South Africa’s compulsory licensing jurisprudence: Is there
room for the public interest (PI) in intellectual property (IP)?

Author Yousuf A Vawda

ISSN: 2521-2591
Affiliations: Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Intellectual Property Law Journal, 2019, p. 182 – 198

Abstract

Despite South Africa having provisions for compulsory licensing on its statute books in over a century of patent legislation, no compulsory licences have been granted on a pharmaceutical-related patent in the country. Given the impact of the high prices of many life-saving patented medicines on affordability and access, it raises the question: why is this the case? This article endeavours to review the case law on applications for compulsory licences on pharmaceutical and related patents under the current legislation, analyse the interpretations placed on the relevant sections, and draw conclusions about judicial reasoning, impediments to the grant of such licences, and generally the courts’ approach to disputes relating to patents. It concludes, among others, that the very architecture of the patent landscape, combined with an overly formalistic approach to judicial interpretation and adjudication, may be responsible for the lack of efficacy of this provision in the law.

The challenges of private law: A research agenda for an autonomy-based private law

by | Apr 1, 2020 | ACTA, ACTA 2019

The challenges of private law: A research agenda for an autonomy-based private law

Authors H Dagan

ISSN: 1996-2088
Affiliations: Stewart and Judy Colton Professor of Legal Theory and Innovation and Director, The Edmond J Safra Center for Ethics, Tel-Aviv University
Source: Acta Juridica, 2019, p. 3 – 33

Abstract

Properly understood, private law establishes ideal frameworks for respectful interactions between self-determining individuals, which are indispensable for a society where all recognise one another as genuinely free and equal agents. Only private law can form and sustain the variety of frameworks necessary for our ability to lead our chosen conception of life. And only private law can cast them as interactions between free and equal individuals who respect one another as the persons they actually are, thus vindicating the demands of relational justice. Hence, the two animating principles of a liberal (that is, autonomy-enhancing) private law – structural pluralism and interpersonal accommodation. Building on this account of private law, this essay offers a preliminary survey of three important challenges to private law in a liberal society. One challenge, prompted by the injunction of structural pluralism, is that of identifying missing frameworks, that is: detecting spheres of life in which private law fails to supply a sufficiently diverse set of alternative property institutions or contract types and is thus insufficiently autonomy-enhancing. Another challenge emerges whenever the constitutive good(s) of the social practice that the parties engage in are in tension with the injunction of interpersonal accommodation. These cases require private law either to allow these goods to override the injunction of interpersonal accommodation or else to discard or reform the pertinent legal (and social) practice. Finally, because the intrinsic value of private law does not require treating private law and public law as mutually exclusive categories, private law can consider utilising public law (vertical) mechanisms to help secure its horizontal mission and must be careful not to undermine the liberal state’s commitments to distributive justice, democratic citizenship and aggregate welfare. I thus conclude with a consideration of the ways in which private law can coordinate with public law, namely: either supplement its doctrinal framework with a regulatory infrastructure or adapt it in order to address pertinent public commitments while still meeting the demands of relational justice.

The idea of a legal obligation

by | Apr 1, 2020 | ACTA, ACTA 2019

The idea of a legal obligation

Authors N Jansen

ISSN: 1996-2088
Affiliations: Professor of Civil Law, Institute of Legal History, University of Münster, Germany
Source: Acta Juridica, 2019, p. 35 – 56

Abstract

Justinian once defined ‘obligation’ as a vinculum iuris, ie a legal bond between the debtor and his creditor. Although this concept is still an aspect of modern legal thinking, it cannot capture all aspects of obligations in modern law. In fact, the traditional Roman concept of obligatio does not appropriately account, inter alia, for the modern principle of freedom of assignments. This essay, therefore, analyses the history of the concept of obligatio, reflecting in particular on the law of assignment, the law of delict and unjustified enrichment. A result of this history is that obligations, as far as the creditor’s position is concerned, are today regarded also as proprietary rights.