Intellectual property is commonly regarded as an esoteric branch of the law. It is characterised by being complex and until recently it has been a little understood and somewhat discrete area of the law. Its complexity stems from the fact that it has as its subject matter intangible items such as marks, ideas, concepts, goodwill, cultural expressions and the like. This must be contrasted with tangible goods like vehicles, ships, equipment, household goods, and immovable items such as portions of land, all of which have a physical existence. The application of the law to tangible, physical items is in principle less complicated than when the law is applied to intangible, immaterial items cast in the form of property.
The age of knowledge, information and technology has catapulted intellectual property into greater prominence in the world at large. There is now a far greater emphasis on the value and importance of items of intellectual property in all fields of society, but especially in commerce, industry and in the socio-economic sphere. Trade marks are recognised and acknowledged as being major, if the pre-eminent, assets of a business. Copyright in computer programs and in the entertainment industry has become a major economic factor. This in turn is bringing, or has the potential to bring, intellectual property law out of the shadows and into the limelight. Its esoteric nature is changing and it needs to become a widely disseminated and understood area of the law in order to keep pace with its ever evolving role in economics, both national and international.
Many of the problems which currently beset the implementation and enforcement of intellectual property law stem from the fact that in general knowledge of the law has not kept pace with the evolving economic importance of intellectual property law. While intellectual property as an economic factor has emerged from the shadows and into the limelight, intellectual property law has lagged behind and has manifested a measure of reticence to come out into the open. It behoves the custodians of intellectual property law to promote the popularisation of intellectual property law so as to bring it into harmony with its economic role in the modern world. In this way, intellectual property can assume its rightfull place in the modern economic world. This is a universal situation.
IP IN SOUTH AFRICA
South Africa is a unique blend of a first world and a third world society. It has many of the advantages of a first world country, but at the same time suffers many of the disadvantages of a third world country. It is indeed probably a microcosm of the world as a whole, which consists to a large measure of first world societies living side by side with third world societies with a concomitant yawning gap between the “have” and the “have nots” in an economic context. Accordingly, some of the problems which face intellectual property law internationally can be approached by viewing them in a South African context.
There is a perception that intellectual property exists only for the benefit of the wealthy and indeed that it stands in the way of economic opportunities for a broader section of society.
South Africa has highly developed and sophisticated intellectual property laws which by and large compare favourably with intellectual property regimes anywhere in the world. Likewise, in principle it has a well developed and effective legal system with a legal structure which is conducive to effective and efficient enforcement of laws. The legal profession, and in particular the intellectual property legal profession, is well schooled and qualified and it has all the expertise that is necessary to promote the efficient and effective enforcement of law. This is all consistent with a first world society. However, when the third world characteristics of South African society are brought into the equation, one finds that there is a paucity of financial resources and a lack of administrative skills and expertise, indeed of appropriate machinery, to make the system work as it should do. This is coupled together with widespread poverty amongst large sections of the population with the result that many cannot afford to utilise the systems which the law has put in place for the benefit of the individual, and in particular for intellectual property owners. The result is that there is a perception that intellectual property exists only for the benefit of the wealthy and indeed that it stands in the way of economic opportunities for a broader section of society, and in particular for the underprivileged and for those that have been previously disadvantaged. The economically underprivileged, who seek to provide an existence for themselves through informal trading, find themselves in conflict with the wealthy who seek to enforce intellectual property rights by means of a legal system which, by virtue of its cost implications, appears to be biased towards the wealthy and privileged members of society.
A CLOSED CIRCLE
The challenge of the legal system and more especially the intellectual property regime is to change this perception both in appearance and in substance.
In South Africa at the present time professional practitioners of intellectual property law are highly qualified. For instance, a patent attorney is in essence required to obtain an engineering or other technical degree, which involves studying at a university, usually on a full time basis, for three or four years. Thereafter the aspirant patent attorney is required to obtain a post-graduate law degree which requires a further three years study, making a total of at least six years in all. Having obtained the necessary academic qualifications, the aspirant patent attorney is required to join a law firm practising patent law and to serve a period of two years of articles of clerkship, at the same time studying for, and passing, bar examinations, to become qualified as an attorney. Over and above that, in order to obtain the qualification of a patent attorney, the individual is required to complete a rigorous four year course the culmination of which confers upon him the appropriate qualification and licence to practise. As a result, the individual can spend upwards of 12 years of intensive study and practical training in order to qualify to practise as a patent attorney. Acquiring these qualifications requires dedication and sufficient financial resources. As a consequence the process does not deliver large quantities of patent attorneys. Furthermore, the individual who invests this amount of time and resources in acquiring his qualification is inclined, and perhaps even entitled, to place a high price on the use of his services. This process results in there being a relatively small group of practising qualified patent attorneys which, by virtue of the economic laws of supply and demand, also promotes there being a high price for intellectual property legal services. The same considerations, albeit to a milder degree, apply to specialist trade mark attorneys. This situation is exacerbated by the fact that putting in place the infrastructure to practise intellectual property law in the modern age is an expensive process.
This area of the law is generally not widely offered or promoted by South African universities and this limited circle of knowledge is carried through into the judiciary.
The practice of intellectual property law in South Africa is characterised by a relatively small circle of practitioners whose services are expensive. This is conducive to making the practice of intellectual property law something of a closed shop. The economically underprivileged have difficulty in accessing intellectual property legal services. Knowledge of intellectual property law is also not disseminated widely. Since the legal education system is not geared to producing large quantities of graduates with knowledge of intellectual property law, this area of the law is generally not widely offered or promoted by South African universities. This further tends to narrow the ambit of knowledge of intellectual property law.
South Africa has the dual bar system of legal practitioners with the result that, generally speaking, trade mark and patent attorneys must brief advocates or barristers to appear before the courts in intellectual property matters. It is the exception rather than the rule that a young barrister commences practicing at the bar with any knowledge of intellectual property law. It is thus left largely to trade mark and patent attorneys to educate and train advocates in the enforcement of intellectual property law. This requires considerable effort and time on the part of the attorneys and there is a tendency for them to concentrate their efforts on a small group of individuals who have the attributes to master the subject matter. This leads to the creation of a small pool of advocates on which the attorneys draw in order to pursue litigation before the courts. In practice trade mark and patent attorneys have chosen those advocates who are of the highest quality to become trained as intellectual property law experts. Once again the economic rule of supply and demand comes into play and a combination of having a small pool of advocates to choose from, together with these individuals being in popular demand in other areas of the law by virtue of their superior skills and expertise, leads to the chosen advocates placing a high price on their services, thus increasing the overall costs of intellectual property litigation.
A further consequence of the closed circle of intellectual property legal experts is that the limited circle of knowledge is carried through into the judiciary. For the major part, particularly in the past, judges in South Africa are appointed from the ranks of advocates, and to a lesser extent, attorneys. The system described produces very few judges who have any experience of the practice of intellectual property law at the time when they are appointed to the bench. In the end result, the whole system from practitioners through to the judiciary is characterised by a severe limitation of bearers of the requisite knowledge rather than that the knowledge is widely disseminated.
It is necessary that intellectual property law should be popularised, i.e. brought to the people to a far greater extent. Popularising intellectual property law in South Africa is going to require the mould to be broken and the whole trend to be changed. The process is going to have to deliver a far wider circle of individuals who have a working knowledge of intellectual property law. Ways are going to have to be found to enable economically disadvantaged people to have access to intellectual property legal services and alternative, less complicated and less expensive, means of adjudicating intellectual property disputes are going to have to be found. If necessary, measures must be taken to enable the indigent to use intellectual property legal services which they are not in a position to afford in normal circumstances. At the same time, the credibility of the intellectual property legal system must not be impaired and indeed its effectiveness must be enhanced in order to enable it to better achieve its objective of providing compressive protection for intellectual property on an affordable and practicable basis.
EDUCATION AND TRAINING
The starting point for popularising intellectual property law commences with education and training. It is essential that instruction in intellectual property law should have a far broader base and the subject should become a standard component of general legal education. An intellectual property course at a reasonably advanced level should become a compulsory component of any law degree or diploma in the same way as areas such as the Law of Things, the Law of Property and Contract Law. If all law students are introduced to intellectual property law as part of their basic training, this will go a long way towards making knowledge of intellectual property law more widespread. By introducing students to it at an early stage, a major stride will be taken in demystifying and popularising intellectual property law. In order to achieve the objective of incorporating intellectual property law into basic legal training, it may be necessary for legislation to be passed to this end, or universities and other training colleges must be incentivised or persuaded to make intellectual property law an essential component of legal courses.
Induce bar councils to require a reasonable degree of proficiency in intellectual property law as a basic qualification for a licence to practise.
One of the ways of incentivising universities and other training institutions to give due recognition to intellectual property law would be to induce bar councils that regulate the practise of law to require a reasonable degree of proficiency in intellectual property law as a basic qualification for a licence to practise. If this could be achieved, it would follow that the universities and other educational institutions would be under a measure of compulsion to include intellectual property law as a basic component of legal curricula.
As far as the existing legal fraternity is concerned, it would be desirable for all legal practitioners as well as members of the judiciary, criminal law enforcement agencies and the like to undergo training or instruction in intellectual property law. In the modern world there is a strong emphasis on continuing legal education in order to ensure that the legal fraternity stays up to date with developments in the law. Intellectual property should become a standing item in continuing legal education.
In South Africa there has been a significant step in this suggested direction in that seminars and workshops dealing with intellectual property law have been held for law enforcement officers and even for magistrates, who are the first tier of the judiciary. This process should be continued and expanded so as to include higher level members of the judiciary, such as high court judges.
It would assist with the education and training of lawyers in regard to intellectual property law if the laws themselves could be simplified and be made less technical. One of the impediments to a more broadly based understanding and knowledge of intellectual property law in the past has been the perhaps excessively technical nature of the law which has made it conducive to a high degree of specialisation. Popularisation of intellectual property law necessarily entails the law becoming more user-friendly and thus more easily understood and more widely practised.
ANTON MOSTERT CHAIR OF IP LAW
The abovementioned considerations underscore the creation and operation of the Anton Mostert Chair of Intellectual Property Law at Stellenbosch University. The Mission of the Chair encompasses, as it were, preaching and spreading the “gospel” of Intellectual Property Law and making it known and available to the world at large. To this end, the Chair has fostered the creation of a Postgraduate Diploma in Intellectual Property Law and a LLM Degree in Intellectual Property at the University. It will also be conducting a certified Introductory Course in Intellectual Property Law aimed at giving basic tuition in this branch of the law to non-lawyers. The Chair also operates its IPSTELL blog on which it gives meaningful comment on topical IP issues, as well as a website on which general information on IP and the works of the Chair can be obtained.
The Chair sees itself as a custodian of IP and in this context will do its utmost to influence the proper development of IP law in a sound direction. It offers its services to the Government and any entities working for the good of IP law in this regard. It calls on others to pursue a like quest and is willing to co-operate with them to achieve the common goal.
Prof O. H. Dean
30 April 2012.