Friend or Foe? – Publicly Funded IP
The introduction of the new IPR from Publicly Funded Research and Development Act is a significant milestone in empowering local universities in their negotiations with industry partners around research funding and managing the results flowing out of such research. The importance and value of intellectual property, which until recently was a vague term in the language of most academics, was highlighted and prominence was given to it at all levels of the University. The Technology Transfer Office (TTO) made use of the opportunity to educate...
read moreMedals, Models & Moguls – The Fashion News Roundup
In this special report, the VineOracle (IPStell’s personal pundit on all things IP) brings news (and her own brand of predictions) for the aesthetically minded visitor. And it is a star-studded cast of high-flyers (and fast swimmers) from Paris and New York representing some of the most exclusive brands. But do not be fooled by the A-list members on call, from what the VineOracle hears, these celebrities are prone to IP rights violations aplenty. Read on: Michael Phelps caught double dipping on the IOC’s bill The greatest Olympian...
read morePatently Wrong – The jury’s verdict in Apple v Samsung
All is fair in love and (patent) war, but apparently not when it comes to awarding damages in patent litigation. After nearly 18 months of protracted trench-warfare between Apple and Samsung’s formidable IP legal teams in the Northern District Court of California, Judge Lucy Koh surrendered the matter to a panel of 9 laymen (and women). A mere 22 hours later the (well rested and fed) jury had finished studying Judge Koh’s 109 page instructions and 26 pages of the parties’ juror forms, answered all 56 factual and legal questions and...
read moreForm Over Function – ECJ Rules On Software Copyright
Seldom does a fact bear repeating as frequently as the maxim, “There is no copyright in ideas”. And despite the regularity with which this fundamental principle of copyright law is cited, its application remains a bone of contention. Since the Statute of Anne (1710), the common antecedent of modern copyright law, this creature of statute exists exclusively for the protection of the material expression of ideas, and not the underlying ideas, facts or discoveries contained in the work. For this reason, copyright protection vests at the...
read moreAssignments of IP to non-residents: the amended Exchange Control Regulations
The Exchange Control Regulations (the “Regulations”) have been amended with effect from 8 June 2012 (Government Gazette No. 35430) to provide that transfers of ownership of intellectual property from a South African resident to a non-resident now require prior Treasury approval. While this amendment to the Regulations has drawn comments or criticisms from commentators, these have principally related to, inter alia, the apparent reversal of the stated policy of relaxing exchange controls or the alleged invalidity of the amendment. In...
read moreFrom the horse’s MOUTH? – Government’s views on the National Anthem
Government, and more particularly the Departments of Trade and Industry and Arts and Culture, entered into the current controversy around the ownership of the copyright in the National Anthem by issuing a media release on 18 June 2012. With respect, its contribution to the debate evidences the same lack of knowledge and insight into Copyright Law that is apparent in its ill-conceived and executed Intellectual Property Laws Amendment Bill (the infamous so-called “Traditional Knowledge Bill”) In regard to the ownership and duration of...
read moreAn Anthem To Ignorance – The Case Of Nkosi Sikelel’ iAfrika
Articles dealing with Nkosi Sikelel’ iAfrika and claims by various parties that they hold copyright in it and are entitled to claim, and have claimed, royalties for its use and public performance appeared over the weekend of 17 June 2012 in City Press and Rapport, and possibly other newspapers. These articles claimed that, unlike enterprising third parties, the South African Government has missed out on vast sums of money by way of royalties for use of the song such as at major international sports events. With respect, these articles are...
read moreThe Pot Of Gold At The Beginning Of The Rainbow
The Iziko South African Art Gallery is currently featuring an expedition entitled “A Centenary Celebration of the life and work of Barbara Tyrrell”. Barbara Tyrrell is a South African artist and author and the exhibition comprises a selection of over 150 of her highly decorative and accurate visual reproductions of Southern African tradition costumes and tribal dress, as well as items of adornment. The various subject matters comprise traditional South African art works and are themselves copyright artistic works. During the 1950’s...
read moreGOLDEN OLDIES? – Gallo Music v Sting Music
Gallo Music and Sting Music have locked horns in the South Gauteng Division of the High Court over copyright in certain songs named Thula Baba, Unomathemba and Siliwelile. Gallo claims that it owns the copyright in these songs and that Sting therefore required their authority to include them in the stage musical Umoja and that it is entitled to claim royalties arising out of the inclusion of these songs in the musical. Sting, on the other hand, claims that the songs are traditional and therefore in the public domain with the result that...
read morePopularisation of Intellectual Property
INTRODUCTION 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...
read moreThe Numbers Game – Trade Marks and Domain Names
On the Internet there is only one thing that really matters – prominence. It is the nexus of all factors that drive the ever-expanding cyberspace. In this world, the attention span of every visitor is measured in seconds, and the amount of traffic to a specific website measured with scientific precision. It is, therefore, not surprising (and a cause for concern) that trade marks are set to become a casualty in the battle for online supremacy. The fact that trade mark infringement on the Internet is a present danger is not new. However, few...
read moreQuo Vadis Copyright?
Copyright law had its origins in the 18th Century when the need was felt to protect the investment of printers in carrying out the new-fangled process of mass production of books. Its ambit was extended over the years to cover additional forms of works such as musical and artistic works and then in the 20th Century a major quantum leap was made and work such as sound recordings, published editions, television broadcasts and others were brought within its ambit. Throughout the ages, copyright has shown an ability and a willingness to adapt to...
read moreTrade Marks Going Up In Smoke
The age old proverb says “there is no smoke without fire”. The legislatures of several countries are about to turn this proverb on its head. The anti-smoking lobby has gained such strength in these countries that the fire brands of the anti-smoking lobby with their fiery rhetoric have moved governments to do their utmost to achieve the demise of smoking as a social practise. These campaigns have resulted in fire generating no smoking. It is not the objective of the Vine Oracle to debate the merits or demerits of such a policy. The...
read morePublic Outcry Against US Bills Felt Across The Globe
Two related United States Bills were recently the topics of much controversy. Public outcries and widespread online protests were followed by an unprecedented Internet blackout on 18 January 2012. The Internet blackout was supported by the likes of Google, Facebook, Reddit and Wikipedia to name but a few. The blackout was not only supported by the Internet high-and-mighties, but also thousands of lesser known sites rallying their users’ support against the Bills. Such was the nature of the blackout that Wikipedia, for example, took...
read moreTo publish or not to publish, that is the question
We are all familiar with the old academic adage, “publish or perish”, but when commercialisable research outputs have associated potential intellectual property, any published or presented outputs from the research prior to filing patent applications can result in a minefield for the patent applicant. There are two important intrinsic requirements for obtaining a patent for an invention in most countries in the world, the first is that the invention must be new and the second is that the invention must be inventive or non-obvious. In...
read moreRecipe Patents
Can Food Recipes be Patented in South Africa? Cookery has become one of the most popular past times of the last few years. This is illustrated by the enormous popularity of TV shows such as “Masterchef” and “Come Dine with Me”; and cookbooks by celebrity chefs such as Jamie Oliver and Nigella Lawson. This leads to an interesting question – Can food recipes be patented in South Africa? To answer this it is necessary, as with any invention, to look into the statutory requirements for patentability. No matter how delicious the...
read moreAdvertising Slogans – Woolworths v Frankies
The Advertising Standards Authority (“ASA”) has ruled that retailer Woolworths must stop using the phrase GOOD OLD FASHIONED as it imitates beverage manufacturer’s “GOOD OLD FASHIONED SOFT DRINKS” advertising slogan. In 2006, beverage manufacturer Frankie’s Olde Soft Drinks (“Frankies”) launched its FRANKIES range of drinks. The range was based on “vintage” flavouring, which was emphasised in all promotional material through the use of the slogan “GOOD OLD FASHIONED”. The slogan appeared on all point of sale and...
read moreNEW Traditional Knowledge Bill – Sui Generis Protection for TK
If you cannot beat them, join them. For that reason this Chair of IP has decided to announce a NEW sui generis Protection of Traditional Knowledge Bill in the hope that something may yet be done to save us all. Government’s current attempt at protecting traditional knowledge by amending current IP statutes remains an unmitigated disaster, the scope of which is yet to be fully realised. This Chair, among many others, has expressed its distress at the current Traditional Knowledge Bill (likely to be the Protection of Traditional Knowledge...
read moreThe press(ing) matter – plagiarism and copyright infringement
A journalist who cannot define plagiarism is nearly as useful as a bucket without a bottom. Similarly, while the nation is expected to rise in defence of the independence of the press (and rightly so), one might be excused for thinking that all members of the media are capable of independent thought. Unfortunately, judging by recent commentary on the SA Press Code, the captains of our printed media understand as little about plagiarism as the ruling party does about intellectual property law. While addressing a hearing of the Press Freedom...
read moreHow Intellectual Property Law Applies To Sport
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, which provided an excellent example of the role that branding plays in major sports, both generally and more especially in South Africa., explains how best the law can be applied to benefit everyone involved. A long established organisation, the Federation Internationale de Football Association (FIFA) has developed a very clear policy for protection of brands...
read moreThe Great Pharmaceutical Patent Debate
In recent news, the TAC (Treatment Action Campaign) has called on government to revise the Patents Act to reduce the patent protection available to pharmaceutical inventions, which the organisation believes is responsible for the high cost of medicines and a delay in the availability of generic medicines. The organisation refers to the Doha Declaration, which has been signed by South Africa as a member of the World Trade Organisation, to support its call. “Government has not yet been proactive in utilising these mechanisms” There is no...
read moreThe Mad Hatter in Wonderland
So, the Department of Trade and Industry (“DTI”) has finally gone ahead and done it. It has caused the Government to pass the Intellectual Property Laws Amendment Bill (the so-called “Traditional Knowledge Bill”) despite vociferous objections from all quarters. It has rushed headlong into terrain where no angel would venture through acute trepidation. It has entered Wonderland and assumed the role of the Mad Hatter. ”rushed headlong into terrain where no angel would venture through acute trepidation” The Vine Oracle (that...
read moreCopyright: The Photographers Plight
The Vine Oracle recently chatted to a professional photographer and had occasion to reflect on the treatment meted out to this group by our Copyright law. Apparently freelance photography in South Africa is not the lucrative business it appears to be– quite the contrary. Copyright is supposed to allow creators of original works to make money by commercialising their works. Copyright is failing freelance photographers on this count. Why you ask? Remember that copyright comes into being automatically (provided of course the other requirements...
read moreACTA – a sting in the tail for IP rights enforcement
Surreptitious negotiations, covert drafts, leaked documents and swift announcements at the eleventh-hour – such is the stranger-than-fiction story of the ‘Piracy Treaty’ signed by several world powers in the past week. Amid controversy about the autocratic role of the USA in the drafting process, and the not-so-voluntary gist of the treaty, most of the Allied Powers have signed the treaty, including Australia, New Zealand and Canada. The other signatories are Japan, South Korea, Morocco and Singapore, while the EU, Mexico and Switzerland...
read more“COME ON BABY LIGHT MY FIRE”
Amidst the vineyards in Stellenbosch there is an oracle. This oracle, the Vine Oracle, holds forth on matters pertaining to intellectual property (IP). As may be expected, the Oracle communicates with those wishing to consult its wisdom through the grapevine. The rustling of the vine leaves in the summer breezes and the birds and the bees going about their business fill the vineyards with music. Music evokes love, passion, reverie, thoughts and creativity. The Vine Oracle is inspired by music. Songs flow when desired from a Nickelodeon...
read moreStar Wars: The Foreign Copyright Battle
Lucasfilm Limited v Ainsworth [2011] UKSC 39. The facts: Andrew Ainsworth was a prop-designer engaged to produce the iconic Imperial Stormtrooper costumes for the first Star Wars movie in 1977. More recently in 2004, Mr Ainsworth (domiciled in the UK) started making replicas of the Stormtrooper helmet (using his original tools) which he proceeded to sell worldwide over the internet. To cut a long story short – Lucasfilm sued Ainsworth and the battle ultimately ended up before the English Supreme Court. It was accepted that Ainsworth had...
read moreTRADITIONAL KNOWLEDGE – Legislation in the NEW tradition
“Ex Africa semper aliquid novi”, which can be freely translated from Latin to mean “there is always something new coming out of Africa”, said Pliny, the ancient Roman writer and scholar. Presumably then, as is the case now, the concept of “new” included an expression of sarcasm and deprecation as in “absurd, nonsensical and ridiculous”. Well, Pliny has been proved right once again. The Government is on the threshold of passing legislation to grant protection of, and the facility to derive revenue from the use of, so-called...
read moreAmerican Universities sued over “abduction” of “orphaned” books
Authors and authors’ groups from Australia, Canada, Britain and the US have filed a copyright infringement suit against the HathiTrust (a consortium of universities) and five US universities – the Universities of Michigan, California and Wisconsin, Cornell University and Indiana University. According to one of the plaintiffs – The Authors Guild – the universities obtained unauthorized scans of an estimated 7 million copyright-protected books (the rights to which are held by authors in dozens of countries) from internet...
read moreEU Extension of Copyright Protection for Sound Recordings: a Blessing or Blunder?
This week the EU extended copyright protection for performers and record producers from 50 to 70 years. The EU Council’s justification for the extension – performers often start their careers young, and the current 50-year term means that many are not protected for their entire lifetimes and may be cut off from sources of income at the stage they need it the most. Not everybody is jumping for joy. Intellectual Property Watch reports that eight EU member states (notably Belgium, Czech Republic, Luxembourg, Netherlands, Romania, Slovakia, Slovenia and Sweden) voted against the extension. The Open Rights Group (ORG) do not mince words and label the extension “a cultural disaster”.
read moreChange on The Horizon for IP Law
Neither the rain nor cold could dampen the spirit at the International Intellectual Property Law Conference recently hosted by Stellenbosch University (SU) to inaugurate the Anton Mostert Chair of Intellectual Property established at SU under the patronage of Dr Johann Rupert. The Conference was addressed by an impressive panel of local and international intellectual property (IP) experts on interesting topics ranging from Confucius philosophy to the protection of handbags, but the message was loud and clear – IP faces many challenges and the time for change is now. Professor Owen Dean, the first incumbent of the Chair, is an outspoken proponent of the view held by many experts, that South African IP law has not kept pace with modern developments and essential amendments are urgently needed. Professor Dean’s vision for the Chair is to become a custodian of IP law and to actively assist in restoring IP law to its former glory.
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