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.
South African IP Challenges
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.
“South African IP Law has not kept pace with modern developments”
An equally candid Judge Louis Harms said “I do not wish to suggest that IP law is dead – only that it is not adapting at a rate appropriate for sustainable economic growth”. He elaborated by saying that the inertia in the development of IP law in SA manifested itself in many forms, which included the lack of legislative initiative, limited academic and judicial activism and the failure of practitioners to create new arguable challenges.
Judge Harms expressed his views on the “IP-isation” of indigenous traditional knowledge (TK) and to the delight of the attendees, went so far as to say that the attempt to protect TK through IP would “kill IP law as we know it”.
Professor Dean agreed that TK constitutes a new species of IP and custom-made legislation should be drafted to protect it. If the Intellectual Property Laws Amendment Bill which government is attempting to push through parliament is passed, the fundamental principles of IP will be undermined.
“Traditional knowledge constitutes a new species of IP and custom-made legislation should be drafted to protect it”
Tshepo Shabangu, partner in Spoor & Fisher and President of the South African Institute of Intellectual Property Law (SAIIPL), focussed on three challenges facing SAIIPL, namely (1) insufficient judges with IP expertise in the judiciary; (2) the need to transfer IP skills to others; and (3) impact or influence on the making of legislation.
On the topic of IP legislation Ms Shabangu commented that “there is a feeling that our laws have fallen behind, and there is no doubt in my mind that our members will champion the updating of these laws as in the past”.
Hope remains that these voices will not be silenced, that they will continue to make critical comment and that the regrettably reluctant powers-that-be will accept the assistance of the experts so that South African IP law can again become state of the art legislation.
International Challenges
• Louise van Greunen, director of WIPO’s Building Respect for IP Division, cited their aim to promote technological innovation and the transfer of technology, to the mutual benefit of producers and users of technological knowledge – not only the rich.
“mutual benefit of producers and users of technological knowledge”
She highlighted that counterfeiting affects developed and developing countries and we must create an environment that promotes respect for IP. For further information on WIPO’s activities, visit http://www.wipo.int.
• London based IP practitioner Helen Newman’s discussion of the protection of “iconic” designs and the difficulties of registering shapes such as handbags, where shape is key, was fascinating (yes, even for the guys)
• President of OHIM, António Campinos identified the future challenges facing IP in the EU as (1) multiple institutions (including 24 national offices, fragmented in terms of tools and law); (2) attacks on IP rights by pirates; and (3) lack of accurate information.
• Xuemin Chen of China explained that the Chinese mindset of “I am free to copy everything” was a direct consequence of the Confucius philosophy of “shared knowledge”. His prudent advice – in China, “register IP as soon and as widely as possible” – otherwise the copycat culture will cause you problems.
Video
The opening session of the Conference can be viewed here.
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