All IPStell

Awakening the Lion in the Jungle

Posted by on May 31, 2019 in Copyright, IPStell | 0 comments

Awakening the Lion in the Jungle

“Your mandate is to find a way, and to do everything possible, to enable the children of Solomon Linda, the composer of a song called MBUBE, which later evolved into the international hit song THE LION SLEEPS TONIGHT, to derive some financial benefit from the considerable revenues generated by the popularity of THE LION SLEEPS TONIGHT. You should recommend any reasonable course of action which you can conceive and we are willing to finance it even if it means conducting litigation abroad.” This instruction came from representatives...

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Intellectual Property Law and How it Applies to Sport Events

Posted by on Apr 9, 2019 in Ambush Marketing, Copyright, Design, IPStell, Merchandise Marks, Trade Marks | Comments Off on Intellectual Property Law and How it Applies to Sport Events

Intellectual Property Law and How it Applies to Sport Events

In this special World IP Day article, Prof Owen Dean revisits the theme of IP rights protection for sporting events in South African law, with a focus on the developments and the Cricket World Cup 2019 as an example.    Introduction Major sports are big business and vast sums of money are involved in staging sport events. This global trend was brought into sharp focus in South Africa during the 2010 FIFA World Cup. The 2010 FIFA World Cup provided an excellent example of the role that branding plays in major sports, and how it can...

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World IP Day 2019: Reach for Gold

Posted by on Mar 27, 2019 in Events, IPStell | Comments Off on World IP Day 2019: Reach for Gold

World IP Day 2019: Reach for Gold

On 25 April 2019 the Chair of IP Law, in cooperation with Innovus, will celebrate World IP Day with a public seminar on the theme Reach for Gold: IP and Sport. The seminar will include discussions on the sports nutrition, cutting-edge technologies in sports, high performance technology support, sport concussion diagnosis and the rise of e-sports. The event will allow attendees to encounter a variety of groundbreaking innovations and is followed by a cocktail reception. The event is sponsored by IP law firms Spoor & Fisher and Von...

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Great Listening: Discourse on the Copyright Amendment Bill

Posted by on Jan 30, 2019 in Copyright, IPStell, Publications | Comments Off on Great Listening: Discourse on the Copyright Amendment Bill

Great Listening: Discourse on the Copyright Amendment Bill

Prof Sadulla Karjiker, the incumbent Chair of IP Law, joined Hugh Melamdowitz, partner at Spoor & Fisher, and Wiseman Ngubo, head of legal and business Affairs for CAPASSO (Composers, Authors and Publishers Association) on Classic FM 1027’s Classic Business to discuss the diversity of views on the latest draft of the Copyright Amendment Bill. Listen to the podcast below or click here to visit the website. Follow Share on...

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IP Rights perspective: Ubuntu Baba v Woolworths

Posted by on Jan 10, 2019 in Copyright, IPStell, Patents | Comments Off on IP Rights perspective: Ubuntu Baba v Woolworths

IP Rights perspective: Ubuntu Baba v Woolworths

Prof Owen Dean discussed the recent controversy about the Ubuntu Baba baby carrier and a similar Woolworths product with Azania Mosaka on 702 Radio to explain how IP rights may find application in similar circumstances. You can read extracts of the interview, or listen to the full interview below, or visit the 702 page.     Follow Share on...

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Copyleft Amendments to Copyright

Posted by on Nov 26, 2018 in Copyright, IPStell | Comments Off on Copyleft Amendments to Copyright

Copyleft Amendments to Copyright

So called “state capture” is a concept which currently dominates current public discourse. It represents the usurpation and domination of the powers of the state by the Zuma/Gupta alliance. State capture, albeit in a different form, has occurred in the Department of Trade and Industry (DTI) in regard to its custodianship of intellectual property. Beginning in the late nineteen nineties, with the advent to power in Trade and Industry of Minster Alex Erwin, a “third force” has assumed control of this important area of the law with...

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The technical function exclusion in design law

Posted by on Nov 9, 2018 in Design, IPStell | Comments Off on The technical function exclusion in design law

The technical function exclusion in design law

The DOCERAM/CeramTec-case (C-395/16) is the first case dealing with the meaning of the “technical function” exclusion in relation to Community designs. The CJEU’s judgment provides an interpretation of Article 8(1) of Council Regulation (EC) No. 6/2002 on Community designs (the “Regulation”) – and hence, indirectly, also of Article 7(1) of Directive 98/71/EC on the legal protection of designs – which provides that “a design right shall not subsist in features of appearance of a product which are solely...

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Is Plagiarism Unlawful?

Posted by on Oct 16, 2018 in Copyright, IPStell | Comments Off on Is Plagiarism Unlawful?

Is Plagiarism Unlawful?

INTRODUCTION “Plagiarism” is a much misunderstood and misused term in common parlance. In layman’s terms it is generally used to convey the notion of copying or reproducing the work of another in a clandestine manner. Although it is not specifically mentioned or perhaps even considered as an element, by implication it entails such misuse being without permission. It is often used as a synonym for, or in lieu of, “copyright infringement” and it is generally thought to amount to the same thing. Supposedly, being copyright infringement...

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Commissioned works – with special reference to literary works

Posted by on Sep 11, 2018 in Copyright, IPStell | Comments Off on Commissioned works – with special reference to literary works

Commissioned works – with special reference to literary works

There is a common misconception concerning copyright works, namely, that the person who has commissioned the creation of a copyright work also owns the copyright in such a work.  This article will illustrate that, in the absence of an express contractual arrangement, it is only in a limited number of situations that the commissioner of a copyright work will also be the copyright owner of such a work. Copyright protection is provided for by the Copyright Act 98 of 1978 (“the Act”).  The Act determines what types of works are protected,...

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The Plagiarist on Trial – a legal perspective on plagiarism

Posted by on Aug 2, 2018 in Copyright, IPStell | Comments Off on The Plagiarist on Trial – a legal perspective on plagiarism

The Plagiarist on Trial – a legal perspective on plagiarism

In an attempt to circumscribe the range of “nefarious conduct”[1] that may amount to plagiarism, many resort to a discourse on ethical standards,[2] literary technique,[3] institutional values, citation methodology, copyright infringement[4] or theft.[5] Although these discussions, at least in part, approach a grasp on what plagiarism means, none are acceptable from a legal perspective. Moreover, while reliance is placed on moral considerations instead of the law, the intolerable risk remains that cases of plagiarism will be adulterated by...

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Full comments: Copyright Amendment Bill 2018

Posted by on Jul 22, 2018 in Copyright, IPStell | Comments Off on Full comments: Copyright Amendment Bill 2018

Full comments: Copyright Amendment Bill 2018

Following its comprehensive review and comments submitted on the 2015 and 2017 versions of the Copyright Amendment Bill, the Chair of IP law has again submitted comments on the 2018 version. The full text of the Chair’s comments, authored by Proff Sadulla Karjiker and Owen Dean, is available for download here. Download comments   Follow Share on...

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MaXhosa v Zara

Posted by on May 2, 2018 in Copyright, Design, IPStell, Trade Marks | Comments Off on MaXhosa v Zara

MaXhosa v Zara

Prof Owen Dean recently discussed the likelihood of legal action by Laduma Ngxokolo against fashion house Zara for infringement of the MaXhosa by Laduma designs. The interview with Prof Dean was broadcast on 702 radio as part of the Night Talk programme hosted by Gugulethu Mhlungu. You can listen to the interview here.   Featured image source: http://www.maxhosa.co.za/about Follow Share on...

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Full Stop Ahead: Public interest in blocking digital content

Posted by on Feb 1, 2018 in Copyright, IPStell, Trade Marks | Comments Off on Full Stop Ahead: Public interest in blocking digital content

Full Stop Ahead: Public interest in blocking digital content

It makes for the perfect ideological storm when IP law and ICT law meet and the right to freedom of expression stands in the way. Capitalist and socialist, activist and pacifist, pragmatist and idealist: differing legal experts abound in the battle for, or against, IP rights in the digital environment. Two recent developments which illustrate this tension, might serve South Africans well, if observed with care. First, the recent ruling of the General Court of the European Union in Constantin Film Produktion GmbH v EUIPO[i] made it clear that...

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BEPS and Intangibles: How does it impact IP tax structures?

Posted by on Feb 1, 2018 in Copyright, Design, IPStell, Patents, Plant Breeders Rights, Trade Marks | Comments Off on BEPS and Intangibles: How does it impact IP tax structures?

BEPS and Intangibles: How does it impact IP tax structures?

Intangible assets constitute a major value-driver for multi-national enterprises (MNEs). This is even more so for companies that rely on valuable intangibles rather than physical assets to generate financial returns. Intangibles such as patents, design, trademarks (or brands) and copyrights are generally easy to identify, value and transfer and as such attractive for multi-national tax planning structures especially as these rights usually does not have a fixed geographical basis and is highly mobile as a result can be relocated without...

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Commentary: Draft Intellectual Property Policy Phase 1 2017

Posted by on Nov 8, 2017 in IPStell, Patents, Publications | Comments Off on Commentary: Draft Intellectual Property Policy Phase 1 2017

Commentary: Draft Intellectual Property Policy Phase 1 2017

Prof Sadulla Karjiker and Dr Madelein Kleyn recently submitted the following comments to the DTI on the Draft IP Policy Phase 1 2017. The full text of the IP Chair’s commentary may be downloaded here.     Introduction The Department of Trade and Industry published the Draft Intellectual Property Policy of the Republic of South Africa Phase I 2017 (the “2017 Draft IP Policy”).[1] The Minister of Trade and Industry, Rob Davies, has invited interested persons to submit written comments on the 2017 Draft IP Policy by 17...

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Copyright in taste? CJEU to decide.

Posted by on Oct 17, 2017 in Copyright, IPStell | Comments Off on Copyright in taste? CJEU to decide.

Copyright in taste? CJEU to decide.

“Whether copyright protection protects tastes has been stirring up emotions in European legal circles for some time. Some say that such protection would be contrary to the idea-expression dichotomy, the notion that ideas and principles underlying any element of a work can never be protected. Others argue protecting taste would negatively affect free competition, among other things. Allowing taste copyright would lead to creative stagnation because when chefs invent new dishes and thus tastes, they always build on already existing...

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Good read: a truly South African novel on copyright law

Posted by on Oct 17, 2017 in Copyright, IPStell, Publications | Comments Off on Good read: a truly South African novel on copyright law

Good read: a truly South African novel on copyright law

It is about time! Great news for those in need of new, good fiction in the courtroom drama sub-genre with a truly South African perspective – the new book The Summit Syndrome has just been published by Authorhouse UK. And the best part – it is set as a copyright infringement case authored by the man who knows how to tell this story very well, Professor Owen Dean. Mixing legal suspense with a character-driven plot “in this dramatic story of treachery, betrayal, love, and an obsession to succeed, a lawyer takes on a complex...

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ANC Legal Research Group on Copyright Amendment Bill

Posted by on Oct 15, 2017 in Copyright, IPStell, Publications | Comments Off on ANC Legal Research Group on Copyright Amendment Bill

ANC Legal Research Group on Copyright Amendment Bill

The legal research group of the African National Congress held a workshop in Sandton on 14 October 2017 to discuss the Copyright Amendment Bill 2017 with input from a panel of experts and questions from the attendees. The panel included the current Chair of Intellectual Property Law at Stellenbosch University, Prof Sadulla Karjiker, and the founding Chair and current Fellow of IP Law at Stellenbosch University, Prof Owen Dean. A detailed, diverse and open discussion followed the panel presentations on inter alia the application of copyright...

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IP: Politics and Beyond

Posted by on Sep 29, 2017 in Copyright, IPStell, Patents, Trade Marks | Comments Off on IP: Politics and Beyond

IP: Politics and Beyond

“Critics of intellectual property law are apt to resort to sweeping generalisations about the unacceptable social costs of intellectual-property protection. First, as is the case with many issues concerning indigenous knowledge, these critics, who seek to undermine the property rights established by intellectual property law, often resort to making rather emotive, and sensational, claims, but find it difficult to substantiate their criticisms with good evidence, other than for anecdotal tales. Second, critics of intellectual property...

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Full Review: Copyright Amendment Bill 2017

Posted by on Jun 14, 2017 in Copyright, IPStell, Publications | Comments Off on Full Review: Copyright Amendment Bill 2017

Full Review: Copyright Amendment Bill 2017

The Chair of IP Law has submitted its commentary on the 2017 Copyright Amendment Bill, version B13-2017, published by the Department of Trade and Industry on 16 May 2017, pursuant to Government Gazette (Notice 799 of 2017 (GG 40121, 5 July 2016). The full text of the Chair’s comments, drafted by Prof Sadulla Karjiker and Mr Cobus Jooste, is available here.   Follow Share on...

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Video: Prof Karjiker on the Copyright Amendment Bill

Posted by on Jun 14, 2017 in IPStell, Publications, Uncategorized | Comments Off on Video: Prof Karjiker on the Copyright Amendment Bill

Video: Prof Karjiker on the Copyright Amendment Bill

The incumbent of the Chair of IP Law, Prof Sadulla Karjiker, recently addressed the Geneva Network/Free Market Foundation Roundtable discussion on South Africa’s journey to a knowledge economy: progress and challenges. His speech dealt with the 2017 Copyright Amendment Bill, and supplements the comments of the Chair of IP Law on the Bill. You can watch a recording of Prof Karjiker’s speech here. You can read more about the 2017 Bill here.     Follow Share on...

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Open Letter to the Minister of Trade and Industry – Copyright Amendment Bill 2017

Posted by on Jun 12, 2017 in Copyright, IPStell | Comments Off on Open Letter to the Minister of Trade and Industry – Copyright Amendment Bill 2017

Open Letter to the Minister of Trade and Industry – Copyright Amendment Bill 2017

The Anton Mostert Chair of Intellectual Property Law at Stellenbosch University (the “Chair”) has addressed an open letter to the Minister of Trade and Industry, Rob Davies, concerning the Copyright Amendment Bill [B13-2017] (the “2017 Bill”), published by the Department of Trade and Industry (“DTI”) on 16 May 2017. In light of the poor drafting of the 2017 Bill, and its far-reaching consequences, the Chair has urged the Minister: to extend the period within which written submissions must be made; and, to ensure that the 2017 Bill,...

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Freedom to innovate – did Government get the message?

Posted by on Apr 16, 2017 in Copyright, IPStell, Patents, Plant Breeders Rights, Trade Marks, Traditional Knowledge | Comments Off on Freedom to innovate – did Government get the message?

Freedom to innovate – did Government get the message?

On 27 April, Freedom Day, we will pause to mark the most significant moment in South African history and commemorate the day when freedom, above all else, became the nation’s guiding principle. The day before, World IP Day, we celebrate the achievements of our brethren that influence our every-day lives and the ability of free human intellectual endeavour to improve our lives. In recent years, Freedom Day celebrations have been reduced to the favourite grandstanding occasion for politicians. While celebrating, many public figures will repeat...

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Performers’ Protection Amendment Bill Commentary

Posted by on Feb 5, 2017 in Copyright, IPStell | Comments Off on Performers’ Protection Amendment Bill Commentary

Performers’ Protection Amendment Bill Commentary

Prof Karjiker’s comments on the draft the Performers’ Protection Amendment Bill [B24-2016] (the “Amendment Bill”), are submitted to the Portfolio Committee on Trade and Industry (the “Portfolio Committee”) pursuant to the invitation of the Portfolio Committee. These comments will focus on the interaction between the Performer’s Protection Act 11 of 1967 (the “Principal Act”) and the Copyright Act 98 of 1978 (the “Copyright Act”). However, the comments also raise matters of concern present in the Amendment...

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No Trade Mark Protection for Rubik’s Cube Puzzle

Posted by on Dec 9, 2016 in IPStell, Trade Marks | Comments Off on No Trade Mark Protection for Rubik’s Cube Puzzle

No Trade Mark Protection for Rubik’s Cube Puzzle

Discussion: Court of Justice of the European Union; November 10, 2016, Case 30/15, Simba/EUIPO (full text here). ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ In this case the CJEU could further clarify how to apply the rule of European trade mark law providing that trade marks that consist exclusively of a shape or other characteristic of a product that is necessary to obtain a technical result cannot be protected. The decision is interesting for South African trade mark law, since section 10(5) of the Trade...

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What’s In A Name

Posted by on Aug 30, 2016 in IPStell, Trade Marks | Comments Off on What’s In A Name

What’s In A Name

In his play “Romeo and Juliet” William Shakespeare advanced the proposition through his character Juliet: “What’s in a name? That which we call a rose by any other name would smell as sweet.” What he was saying was that the flower, the rose, had intrinsic value, and, no matter what name it was given, that intrinsic value would be unaffected. The actual name, per se, was thus irrelevant and had little or no value. That proposition may have had some merit in the seventeenth century and in the specific context in which it was advanced,...

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Reviewed: IP Consultative Framework 2016

Posted by on Aug 24, 2016 in Copyright, IPStell, Patents, Trade Marks | Comments Off on Reviewed: IP Consultative Framework 2016

Reviewed: IP Consultative Framework 2016

Summary: While the Department of Trade and Industry’s recently published Intellectual Property Consultative Framework promises that future legislation will be the result of a thorough examination of the matters of concern by experts, and stakeholders, in the field, it should also consider undoing the potential damage which may have already been done to our intellectual property laws as a result of the failure to proceed with such rigour in the recent past. To read the IP Chair’s full review of the IP Consultative Framework click...

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News reports and fair dealing: Moneyweb v Media24

Posted by on May 17, 2016 in Copyright, IPStell | Comments Off on News reports and fair dealing: Moneyweb v Media24

News reports and fair dealing: Moneyweb v Media24

The recent decision involving Moneyweb and Media24 (Moneyweb (Pty) Limited v Media 24 Limited & Another [2016] ZAGPJHC 81) (full text available here) is an important one for copyright lawyers in South Africa because it is the first time that two provisions relating to news reporting of the Copyright Act 1978 (the Act) have been judicially considered, namely, sections 12(1)(c)(i) and 12(8)(a). In fact, it is the first time that the application of the fair-dealing provision, section 12(1), has received any judicial consideration, whether in...

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The Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2016: Has the DST lost its resolve?

Posted by on Apr 18, 2016 in IPStell, Traditional Knowledge | Comments Off on The Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2016: Has the DST lost its resolve?

The Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2016: Has the DST lost its resolve?

1 Introduction Despite there being no internationally-accepted agreement on the mechanism for protecting indigenous (or traditional) knowledge, or indigenous (or traditional) cultural expressions, the South African government appears to be determined to introduce some form of protection in this area. To that end, the Department of Science and Technology (“DST”) published the latest draft of the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill (the “2016 IKS Bill) on 8 April 2016 (GG 39910).[1] This...

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Licencing of Patent Applications – Pre-Grant Royalty Earning

Posted by on Dec 7, 2015 in IPStell, Patents | Comments Off on Licencing of Patent Applications – Pre-Grant Royalty Earning

Licencing of Patent Applications – Pre-Grant Royalty Earning

Research and development is costly. International patent portfolios even more so. The business strategy of most corporations, when filing a patent application, is to seek some return on R&D investment, mostly through self-exploitation of the products of R&D, or through royalty earnings from intellectual Property (IP). The time frame between filing a patent application to grant can take many years. Patent offices’ backlogs often result in a three year (or longer) delay before any office actions are issued or an application is...

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IP Public Lecture 2015 – Downloads Available

Posted by on Nov 18, 2015 in Copyright, Publications | Comments Off on IP Public Lecture 2015 – Downloads Available

IP Public Lecture 2015 – Downloads Available

The annual Intellectual Property Law Public Lecture was presented by Prof Owen Dean on 6 October 2015 on the topic Copyright as an Agent of Social Justice – perspective on the Lion Sleeps Tonight case.  To read more about the lecture click here. If you missed the lecture, you can watch the video podcast of the lecture, with slides included, by downloading one of the files below. Please select the appropriate option by clicking on the download button below. A suitable media player may be downloaded here.   Option 1 IP Public...

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Unscrambling the Curate’s Egg – Full Review of the Copyright Amendment Bill

Posted by on Aug 24, 2015 in Copyright, IPStell | Comments Off on Unscrambling the Curate’s Egg – Full Review of the Copyright Amendment Bill

Unscrambling the Curate’s Egg – Full Review of the Copyright Amendment Bill

In an earlier article posted on this blog, the Copyright Amendment Bill published in Government Gazette no. 39028, dated 27 July, 2915, was described as a curate’s egg, i.e something that is fundamentally bad but in principle has some good aspects. The view was expressed that the Bill could not be cured by piecemeal amendments, and that it was necessary to go back to the beginning, decide rationally what is actually wanted and warranted, and then re-draft it afresh. We stand by and reiterate this view. Nevertheless, in the interests of...

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A Diamond in the Rough – Technology and the Copyright Amendment Act

Posted by on Aug 19, 2015 in Copyright, IPStell | Comments Off on A Diamond in the Rough – Technology and the Copyright Amendment Act

A Diamond in the Rough – Technology and the Copyright Amendment Act

The Copyright Amendment Draft Bill (GG No 39028, 27 July 2015) (‘the Bill’) is by all accounts a grave misfortune and a study in amateur law-making. Enough has been said on this point to make it clear that the DTI has tripped at the first hurdle and that a re-evaluation is the only hope of achieving a grade that would admit it to the Introduction to Copyright Law 101 examination. However, it is noteworthy that the Bill contains a set of provisions that is worthy of (limited) praise and deserving of closer analysis. These are, among others,...

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DTI Dishes Up A Hopeless Curate’s Egg

Posted by on Aug 5, 2015 in Copyright, IPStell | 1 comment

DTI Dishes Up A Hopeless Curate’s Egg

The figure of speech used in describing something as a “curate’s egg” derives from a cartoon by G du Maurier published in the British humorous magazine Punch in November 1895. It depicts a meek curate, faced with a bad egg at the Bishop’s breakfast table, commenting that it is partly good. In other words it is something that is thoroughly bad but is discreetly said to be partly good.[1] “The term relies on an objective analysis and intuitive understanding of the depicted scenario: a self-contained egg cannot be both partially spoiled...

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Let’s Pray for Mediocrity: Another Case of Legislative Diarrhoea

Posted by on Aug 3, 2015 in Copyright, IPStell | 1 comment

Let’s Pray for Mediocrity: Another Case of Legislative Diarrhoea

On 27 July 2015 the Department of Trade and Industry (“the DTI”) published the Copyright Amendment Bill 2015 (the “Amendment Bill”) in the Government Gazette, asking for public comment within 30 days from such date. Given the number of issues contained in the Amendment Bill that needs to be addressed, it will be almost impossible for one person to give comprehensive comments within the allotted time, unless that is their only task. It never ceases to amaze me how much time now has to be dedicated, by myself, and other academics and...

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Google’s Silver Bullet for Patent Trolls

Posted by on Aug 3, 2015 in Editorial, IPStell, Patents | Comments Off on Google’s Silver Bullet for Patent Trolls

Google’s Silver Bullet for Patent Trolls

Technology companies take note: Google may have found a way to beat patent trolls, and you are invited to join them. The term “patent troll” refers to an entity which exists for the sole purpose of enforcing or licensing patent rights which were not the result of its own innovation. Although the term “patent assertion entity” is preferred by policy makers and academics, the more colourful and emotive “patent troll” has firmly entered our lexicon and has recently even appeared in a U.S. Supreme Court decision. Google, SAP, Uber and...

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Intellectual Property and the Constitution

Posted by on Jul 14, 2015 in Copyright, IPStell, Patents, Trade Marks | Comments Off on Intellectual Property and the Constitution

Intellectual Property and the Constitution

Section 2 of the Constitution of the Republic of South Africa, 1996, provides that it is the supreme law of the country and that any law inconsistent with it is invalid. This provision creates the necessity to interpret the Copyright Act in a manner consistent with the Constitution at the risk of the Act, or particular provisions of it, being declared to be invalid. On the other hand, section 36 provides that the rights in the Bill of Rights (Chapter 2 of the Constitution, comprising sections 7-38, which detail the fundamental human rights)...

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Needletime Royalties: At last, some case law

Posted by on May 26, 2015 in Copyright, IPStell | Comments Off on Needletime Royalties: At last, some case law

Needletime Royalties: At last, some case law

You wait ages for a reported judgment concerning “needletime” royalties pursuant to section 9A of the Copyright Act, and then two come along at approximately the same time. There were two reported decisions, one, an enquiry by the Copyright Tribunal, and, the other, a judgment by the Supreme Court of Appeal following an appeal from the Copyright Tribunal. Needletime royalties are the amounts charged for copyright licences for the playing of sound recordings which are audible to the members of the public. Besides the courts’ consideration...

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A Better Second Attempt – Protection of Indigenous Knowledge

Posted by on Apr 8, 2015 in IPStell, Traditional Knowledge | Comments Off on A Better Second Attempt – Protection of Indigenous Knowledge

A Better Second Attempt – Protection of Indigenous Knowledge

On 20 March 2015 the Department of Science and Technology published the first draft of the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014 (the “IKS Bill) and called for comments. The Chair of IP Law has responded to this call and delivered extensive representations on the IKS Bill authored by two of its members, Prof Karjiker and Dr Kleyn. The full text of Prof Sadulla Karjiker’s comments is available here.  The full text of Dr Madelein Kleyn’s comments is available here.  Below...

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Criminal Plants – New Plant Breeders’ Rights Bill

Posted by on Feb 18, 2015 in Editorial, IPStell, Plant Breeders Rights | Comments Off on Criminal Plants – New Plant Breeders’ Rights Bill

Criminal Plants – New Plant Breeders’ Rights Bill

Editor: Among the various pillars of the intellectual property law, perhaps the most esoteric is that of plant breeders’ rights. Despite its significant scientific and economic role, this peculiar and highly specialised field is unfamiliar to most outside the field of IP law. It is therefore with pleasure that the Chair of IP Law reproduce here a post on the Plant Breeders Rights Bill of 2015, which first appeared here on the website of Spoor & Fisher. Most appropriately, this insightful review of the Bill is written by...

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Supreme Court of Appeal Losing Its Shape

Posted by on Jan 29, 2015 in IPStell, Trade Marks | Comments Off on Supreme Court of Appeal Losing Its Shape

Supreme Court of Appeal Losing Its Shape

INTRODUCTION The Supreme Court of Appeal has been blessed for the past few decades by having in its ranks judges who have experience and expertise in the field of Intellectual Property Law. One thinks of Judges like Chris Plewman and Louis Harms who had a wealth of experience in handling IP cases while practising as advocates at the bar and in hearing such cases both in Provincial Divisions as well in the Supreme Court of Appeal. This factor contributed substantially to the quality of IP judgments emanating from the Supreme Court of Appeal...

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Opened With Expectation and Closed With Profit

Posted by on Dec 1, 2014 in IPStell | Comments Off on Opened With Expectation and Closed With Profit

Opened With Expectation and Closed With Profit

Speech delivered by Judge Mabel Jansen at the book launch of Dean & Dyer Introduction to Intellectual Property Law “In our court building, when one wanders in the judges’ corridors, the photographs of all judges who served on the Bench, adorn the walls. One looks at the photographs of judges Galgut, Holmes, Hoexter and many others whom one did not even know existed, and it is with sadness that one realises what a font of knowledge died with each of them. What is also striking is how soon most of the judges died after being...

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Keyword Advertising: The Next Instalment in the Interflora v M&S Saga

Posted by on Nov 24, 2014 in IPStell, Trade Marks | Comments Off on Keyword Advertising: The Next Instalment in the Interflora v M&S Saga

Keyword Advertising: The Next Instalment in the Interflora v M&S Saga

A few days after the first South African case to consider the issue of Internet keyword advertising (Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd & Another Case 39605/13, 29 October 2014), we had the next instalment – from the English Court of Appeal – in the dispute between Interflora and Marks & Spencer (Interflora Inc & Another v Marks & Spencer plc [2014] EWCA Civ 1403). Yes, it is, indeed, not just any dispute concerning keyword advertising. It appears that these two litigants have taken it upon...

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A limited victory: IP and exchange control

Posted by on Oct 24, 2014 in Editorial, IPStell | Comments Off on A limited victory: IP and exchange control

A limited victory: IP and exchange control

In the culmination of a widely followed case, on 1 October 2014 the Supreme Court of Appeal ordered the South African Reserve Bank (SARB) to repay Mark Shuttleworth over R250 million plus interest. The money had been levied against Shuttleworth when he applied to transfer his assets out of the country in 2009. He had emigrated from South Africa several years before that, and the prevailing practice at the time was to levy an exit penalty of 10% on any person who emigrated and wished to transfer more than R750,000 from South Africa. This exit...

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The First Step

Posted by on Oct 10, 2014 in Editorial, IPStell | Comments Off on The First Step

The First Step

This is an editorial article contributed to the 50th year Commemorative Edition of Responsa Meridiana. “A journey of a thousand miles begins with a first step”. So said Lao-tzu, the Chinese philosopher, who lived in the fifth century BC. How true this can be of a legal career and indeed of any on-going venture. When one looks back over a career, one realises just how important the first step embarking on that career was. Often the significance of the step was not realised at the time and perhaps it was not even recognised as a first...

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Open Letter – Plain Packaging Legislation and the Constitution

Posted by on Jul 31, 2014 in IPStell, Publications, Trade Marks | Comments Off on Open Letter – Plain Packaging Legislation and the Constitution

Open Letter – Plain Packaging Legislation and the Constitution

NOTE: The following open letter has been delivered by email to the office of the Minister of Health of the Republic of South Africa on 31 July 2014. The contents of this letter is published here in furtherance of the debate on plain packaging legislation and the potential impact on the Constitutional rights of the proprietor. OPEN LETTER 31 July 2014 The Honourable Minister of Health Dr Pakishe Aaron Motsoaledi Civitas Building Corner of Thabo Sehume and Struben Streets Private Bag X828 PRETORIA 0001   Dear Dr Motsoaledi, RE:...

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Literal Extortion

Posted by on Jul 24, 2014 in Copyright, IPStell | Comments Off on Literal Extortion

Literal Extortion

The verb “extort” means “obtain (money, a promise, a concession, etc.) from a reluctant person by threat, force, importunity, etc.)” The noun form, “extortion”, means “the act or an act of extorting money etc.” (The New Shorter Oxford English Dictionary published by Clarendon Press, 1993). Requiring someone to pay copyright royalties for a manner of use of a literary work, when none is due in law, amounts to literal extortion. It is not a salutary practice. Copyright in a work confers upon the copyright owner the exclusive...

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A Spoon Full of Sugar for Plain Packaging

Posted by on Jun 9, 2014 in IPStell, Patents, Trade Marks | Comments Off on A Spoon Full of Sugar for Plain Packaging

A Spoon Full of Sugar for Plain Packaging

History has taught us that the South African Government, and the Legislature in particular, will not hesitate to make bad law. The volume of carelessly drafted, ill conceived, unconstitutional and overtly political laws that the public has been force-fed in recent years is so great that recourse to the Constitutional Court has become a pedestrian matter. In fact, the alarm felt over perpetual ham-handed law making is only outstripped by Government’s brazen disregard for public cooperation in the democratic process. This even after the...

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Patents and Public Health – The New Frontier

Posted by on Mar 4, 2014 in Editorial, IPStell, Patents | Comments Off on Patents and Public Health – The New Frontier

Patents and Public Health – The New Frontier

The long-awaited South African draft National Policy on Intellectual Property (the draft IP Policy) which was published on 4 September 2013 (read the policy here) has recently led to an unfortunate furore in the press. On 17 January 2014 Money MSN published a report based on a document that was leaked from the Innovative Pharmaceutical Association South Africa (IPASA), an industry lobby group comprising the local subsidiaries of innovator pharmaceutical companies. The document is a plan for a campaign prepared by U.S.-based consultancy Public...

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Unveiling The Wolf

Posted by on Feb 11, 2014 in IPStell, Traditional Knowledge | Comments Off on Unveiling The Wolf

Unveiling The Wolf

The erstwhile Intellectual Property Laws Amendment Bill (“IPLAB”), generally known as the “Traditional Knowledge Bill”, became an Act when it was published in the Government Gazette as having been assented to by President Jacob Zuma on 10 December 2013. This despite vociferous objection from the IP community and other informed sources. (Read more about IPLAB here, here, here and here.) The general consensus was that the Bill was fundamentally flawed and an abominable piece of legislation. Issue was not taken with the notion that...

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