Levelling the playing field to promote technology transfer and innovation in African least developed countries

Levelling the playing field to promote technology transfer and innovation in African least developed countries

by | Jan 27, 2021 | SAIPLJ, SAIPLJ 2020

Levelling the playing field to promote technology transfer and innovation in African least developed countries

Author Fernando Dos Santos

ISSN: 2521-2591
Affiliations: Laurea (Trento), LLM (London), PhD (Wits)
Source: South African Intellectual Property Law Journal, 2020, p. 35 – 55

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Abstract

Indisputably, technology and innovation play a crucial role in promoting development and the betterment of people’s lives. However, access to technology is often hindered by proprietary claims from private corporations who are its major rights holders. Over the years, the efforts to facilitate access and transfer of technology for the states in need, especially the least developed countries (LDCs), have been frustrated by the lack of adequate international legal frameworks. The provisions of arts 7 and 66.2 of the TRIPS agreement that have attempted to set a basic regime to promote the transfer of technology for the benefit of LDCs has failed to ignite the necessary flows of technology. Accordingly, this paper recommends two approaches to promote technology transfer for the benefit of LDCs, especially in Africa, which are: the improvement of the provisions of the TRIPS agreement related to technology transfer and/or the establishment of a unified legally binding international instrument – the Agreement on Trade Related Issues of Technology Transfer.

Evaluating the copyright protection of databases in South Africa: A comparative analysis with the European Union

by | Jan 27, 2021 | SAIPLJ, SAIPLJ 2020

Evaluating the copyright protection of databases in South Africa: A comparative analysis with the European Union

Author Ndivhuwo Ishmel Moleya

ISSN: 2521-2591
Affiliations: Attorney of the High Court of South Africa
Source: South African Intellectual Property Law Journal, 2020, p. 56 – 79

Abstract

This work offers a comparative evaluation of the South African and European Union (EU) copyright protection of databases. The work also considers how the originality standard in the Copyright Amendment Bill is likely to affect the copyright protection of databases in South Africa. The work also considers the intersection between the protection of databases and competition and the interface between the protection of databases and the exercise of certain constitutional rights in both jurisdictions. The main conclusion of the work is that the South African copyright standard for protecting databases is too low and should be revised to accommodate certain competition law concerns and the exercise of certain constitutional rights.

A commentary on broadcast copyright protection in Kenya and South Africa against the prism of WIPO negotiations on the rights of broadcasters

by | Jan 27, 2021 | SAIPLJ, SAIPLJ 2020

A commentary on broadcast copyright protection in Kenya and South Africa against the prism of WIPO negotiations on the rights of broadcasters

Authors Hezekiel Oira, Lonias Ndlovu, Desan Iyer and Ben Sihanya

ISSN: 2521-2591
Affiliations: Dean, Mount Kenya University School of Law, Nairobi, Kenya; Associate Professor and Dean, School of Law University, of Venda, Thohoyandou, South Africa; Associate Professor of Law and Deputy Dean: Teaching and Learning, Faculty of Commerce, Administration and Law, University of Zululand, KwaDlangezwa, South Africa; Professor of Law, Faculty of Law, University of Nairobi, Nairobi, Kenya
Source: South African Intellectual Property Law Journal, 2020, p. 80 – 108

Abstract

The concept of broadcast copyright is one of the most controversial and non-felicitous subjects at domestic and international levels. Most of the relevant international instruments and domestic copyright laws merely provide that broadcasting organisations shall enjoy protection over their broadcasts and programme-carrying signals. One such international treaty is the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organisations of 1961 (hereinafter called the ‘Rome Convention’). The other treaties that accord protection to broadcasting organisations are the Convention Relating to the Distribution of Programme-carrying Signals Transmitted by Satellite of 1974 (hereinafter called the ‘Satellites Convention’) and the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1994. The copyright protection of broadcasting organisations’ broadcasts in Kenya and South Africa is largely modelled upon the protection granted under international instruments. The uncertainty about the specific object and scope of copyright protection that broadcasters enjoy at the international level is replicated in the copyright laws of Kenya and South Africa.1 This article examines the object of protection in broadcasts and programme-carrying signals in Kenya and South Africa. The article further examines the judicial intervention, if any, in the two jurisdictions to deconstruct the notion of broadcast copyright. In the end, the article wraps up by carrying out a comparative analysis over the matter in the two countries before concluding that the copyright statutes in the two jurisdictions should be modified to reflect the current broadcasting realities and technologies.

Intellectual property protection for software: Global perspective and lessons for development and reform in Nigeria

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Intellectual property protection for software: Global perspective and lessons for development and reform in Nigeria

Author Adebambo Adewopo

ISSN: 2521-2591
Affiliations: Professor, Nigerian Institute of Advanced Legal Studies
Source: South African Intellectual Property Law Journal, 2019, p. 1 – 30

Abstract

The protection of software or computer programs as the case may be is perhaps one of the most intractable intellectual property (IP) matters in the regulation of technological innovation. It has engendered considerable controversy in the normative structure of IP law and in its interaction with the rapid technological advances of the 21st century in the global economy. Significantly, the vastly utilitarian and unique profile of software has inexorably shaped the boundaries of its precise legal protection. From country to country, software’s legal landscape and the contours of IP protection have continued to reflect considerable global disharmony that has given rise to the need for legal clarification. This article discusses the subject from a global and development perspective. It examines the IP standard for software protection under the Nigerian law and compares it with the UK, EU and the US, and proposes reform of the existing regime.

Keeping up with the developments in technology: A look into the music industry and the copyright laws in Southern Africa

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Keeping up with the developments in technology: A look into the music industry and the copyright laws in Southern Africa

Author Malebakeng Agnes Forere

ISSN: 2521-2591
Affiliations: Associate Professor, University of the Witwatersrand
Source: South African Intellectual Property Law Journal, 2019, p. 31 – 52

Abstract

Focusing on South Africa, Botswana and Lesotho, this article examines how the music industry and the copyright laws in Southern Africa address the impact of technological developments on the user and content owners. In the case of the music industry, the article finds that technology has moved away from the CD players to USB ports, yet the music industry has not kept up as music is still sold on CDs. In addition, the article finds that there is a shift away from broadcast to webcast and on-demand platforms, yet there is little southern African content on streaming platforms, which then forces the consumer to resort to international production. Turning to law, the article finds that in order for consumers to continue enjoying music in their vehicles and on laptops, they have to shift formats; consequently, the article considers whether private copy exception or format shifting is allowed, and whether the rights owners are entitled to compensation against private copy exception. The findings indicate that while Botswana has a levy system, South Africa does not, and Lesotho does not create private copy exception at all. Further, the article looks at the interface of private copy exception and technological protection measures (TPMs) and finds that while Botswana does not allow circumvention of TPMs to make a private copy, South Africa does, thereby creating lawlessness. Lesotho does not have provisions on TPMs. Regarding streaming or on-demand platforms, the article finds that online music service providers exercise the ‘making available right’ of content owners and determines whether the laws in the three sampled countries protect the right of making available.

Patents and the traditional bio-innovation predicament: Critical perspectives

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Patents and the traditional bio-innovation predicament: Critical perspectives

Author Tigist D Gebrehiwot

ISSN: 2521-2591
Affiliations: Post-Doctoral Fellow of the South African Research Chair in Law, Society and Technology, College of Law, University of South Africa
Source: South African Intellectual Property Law Journal, 2019, p. 53 – 70

Abstract

The aim of this paper is to analyse the application of intellectual property (IP) law in agricultural innovation. Today, global agriculture and food industries are changing due to new technological development. This study evaluates the complex relationships underlying forces operating between traditional bio-innovations and modern technologies. It is important to note that society is currently faced with both technology and knowledge transfer, while the market-driven intellectual property law operates on an individualistic and permission-based platform aimed at protecting the individual’s right of ownership in his or her knowledge. The application of patent law in agriculture is expanding apace and beyond all expectation. This notwithstanding, or possibly for this very reason, the courts across the world are by and large struggling to establish an appropriate legal framework for agricultural innovation. This is significant because agriculture plays a key role in the economic development of society.