Browsing by Author "Ncube, Caroline"

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    A dissection of the Protection, Promotion, Development and Management of indigenous Knowledge Systems Act 6 of 2019: substantive issues and foreseeable consequences for creative industries in South Africa
    (2021) Zondi, Nokwanda Bathabile; Ncube, Caroline; Okorie, Chijioke
    Indigenous knowledge is a broad term that is used to describe various knowledge systems that are intimately linked with traditional communities.1 It is communicated orally and stored in the memories of people belonging to traditional communities; it is also expressed through the art of traditional communities, their practices, community laws, cultural values, folklore, proverbs and activities. 2 The World Intellectual Property Organization (WIPO), defines ‘indigenous knowledge' as a living body of knowledge - know-how, skills and practices that are formed, sustained and passed on through generations of a traditional community, often forming part of its cultural or spiritual identity.3 There is no internationally accepted definition of indigenous knowledge as the protection of indigenous knowledge is a recent discourse amongst relevant global institutions and countries protecting intellectual property. The term ‘traditional knowledge' is sometimes used in place of ‘indigenous knowledge' and this may create confusion. Therefore, for the purposes of this dissertation, it must be noted that these terms are used interchangeably. Furthermore, it must be expressly established that indigenous knowledge is the property of indigenous communities. Indigenous communities, in their interaction with the environments in which they have resided, have developed a body of knowledge, skills and creative expressions over the centuries and this knowledge has formed an integral part of their cultural heritage.4 Such knowledge is now termed indigenous or traditional knowledge and as the true and original creators of such knowledge, indigenous communities are the rightful owners of it. Such ownership is recognized in Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples which states that indigenous peoples have the right to maintain, protect and develop their own cultural heritage, traditional knowledge, and cultural expressions. 5 All claims on the infringement of the ownership right on indigenous knowledge, which shall follow, are based on this recognition of ownership rights held by indigenous communities in their indigenous knowledge.
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    Abezimu/Badimo (ancestors) and copyright law: from the Decolonial Turn to the pluriversal author
    (2024) Sindane, Ntando; Ncube, Caroline
    "A spectre is haunting Europe – the spectre of Communism” is the sentence that opens Karl Marx's and Friedrich Engels' iconic text, The Communist Manifesto. Marx and Engels set out what was to become the primary program of action for all communist parties in Europe. The Communist Manifesto's cardinal observation was that Communism was an epochal inevitability, and that it was the task of all revolutionaries to ensure that conditions are befitting for a Communist reality. Although in a completely different context, this thesis accepts that the spectre that is currently haunting Africa and the Global South is that of Decoloniality and Decolonisation. This thesis studiedly perceives the #MustFall moment as one that presented South Africa with a Decolonial Turn – this is an epochal inevitability that seeks to complete the incomplete task of decolonising society. To respond to the Decolonial Turn, this thesis methodologically employs decolonial theory, Black consciousness philosophy and Black Marxism to study the essence of copyright law's authorship from the perspective of people on the other side of Western modernity. The basic contention of this thesis, and its original contribution to the corpus of literature as regards authorship in copyright, is that the logical aftermath of the Decolonial Turn leads to a “pluriversal author” – this is a type of author that is reflective of the pluriversal epistemic and ontological patterns of a decolonised world. This is a world where many worlds exist. One of those worlds is inhabited by people whose epistemic traditions suggest that an author in copyright is inclusive of “Abezimu/Badimo”, that is the non-human author who is represented in an onto-triadic edifice of Being; the living, the dead and the yet-to-be-born. The thesis that is defended in this doctoral project is that Abezimu/Badimo are an author in copyright, and that this ought to be accepted, embraced, and reflected in prevailing copyright law legislative frameworks.
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    ACTA & Access to Learning Materials in Morocco: An Examination of How ACTA Impacts the Creation of a Moroccan Orphan Works Regime’
    (2012) Ncube, Caroline
    This paper briefly examines the current regime of copyright law in Morocco and seeks to examine the status of orphan works in Morocco, in lieu its membership as the sole African country in the recently signed AntiCounterfeiting Trade Agreement (ACTA). The paper concludes that Morocco can, and ought to, enact exceptions and limitations that facilitate meaningful access to orphan works in both analogue and digital formats.
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    A case for the establishment of a legal framework within the Zimbabwean mining sector to effectively regulate the corporate and social responsibilistie of multinational social responsibilities of multinational corporations by Michelle Rufaro Maziwisa
    (2011) Maziwisa, Michelle Rufaro; Ncube, Caroline
    The thesis makes a case for the creation of a legally binding instrument to regulate the conduct of multinational corporations operating in the Zimbabwean mining sector. The aim of this thesis is to explore the concept of Corporate Social Responsibility (CSR) and its application (or lack thereof) in the Zimbabwean mining sector with a focus on multinational corporations.
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    Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis
    (2017) Kritzinger, Julian; Rycroft, Alan; Ncube, Caroline
    Online Arbitration is an online alternative dispute resolution (OADR) process that resolves disputes without litigation outside national courts. Due to globalisation and increased e-commerce, international commercial online arbitration has become more important and it is therefore essential to look at the legal and technical requirements for a more effective international online arbitration regime or lex electronica arbitralis, specifically focused on disputes that arise from cross-border, low value e-commerce transactions for both goods and services, and especially between online businesses and consumers (B2C), but also between online businesses (B2B). The lex electronica arbitralis should lead to swift outcomes that will be able to be enforced efficiently anywhere in the world, without impairing the requirements of accountability, due process, efficiency, impartiality, independence, fairness, transparency, etc. The 'UNCITRAL Technical Notes on ODR of 2016' follows a non-binding guideline format, so there is currently no legal outline that exclusively regulates online arbitration. Due to this lacuna, the guidelines of the 'Technical Notes' and rules of traditional international commercial arbitration will have to be used as far as they accommodate online arbitration. Due to its unique features, online arbitration however needs an exclusive set of rules that will deal with its legal and technical requirements. The most comprehensive manner to have realised an online arbitration regime or lex electronica arbitralis would have been by the proposed 'UNCITRAL Draft Procedural Rules (DPR) on OADR for Cross-Border E-Commerce Transactions'. Unfortunately, since Working Group III (WG.III), who was mandated by UNCITRAL to compile the 'DPR', could not manage to reach consensus on many aspects, the 'Technical Notes' was adopted instead. The thesis will review WG.III's progress to complete the 'DPR' and how it eventually led to the adoption of the 'Technical Notes'. The 'Technical Notes' still leaves many questions and uncertainties on many of online arbitration's legal and technical requirements that will be pointed out. The thesis will indicate that these legal and technical requirements do not compose insurmountable challenges, but that UNCITRAL will have to address them when they decide to revise the 'Technical Notes' in the future or when they decide to compile a set of legal standards exclusively for online arbitration in the future. The focus will also be directed to the future of international arbitration legislation in a developing country such as SA, while a plea is made to SA lawmakers to make provision for online arbitration.
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    Computer related crimes: a comparative analysis of Tanzanian and South African frameworks
    (2014) Zomba, Lincoln Benn; Ncube, Caroline
    'Unknown to most of us, we are living inside and alongside a revolution of stupendous power and energy. It is not a communist, socialist, capitalist or even a religious revolution. It is the ICT revolution, the revolution of information communication technologies that is changing the nature and patterns of our social, commercial and political interactions. Like most revolutions, its true scope cannot yet be grasped nor can all the issues it raises be clearly understood even by those at its cutting edges". The Internet and other new technologies play an important role in today's global information society, are now essential in every sector of human life and can be used for the preparation and commission of serious and transnational crimes.
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    Copyright Enforcement: The Graduated Response Takes Centre Stage
    (Juta, 2012) Ncube, Caroline
    A significant portion of copyright infringement in the digital environment is carried out through file sharing.1 Litigation by copyright-holders against individuals and the providers of online file sharing or peer-to-peer (P2P) platforms has failed to stem the tide of large-scale infringement.2 The pursuit of individuals has been nothing short of a ‘public relations disaster’ because of the disproportionate remedies sought.3 For example, in the United States, Jamie Thomas-Rasset’s case, based on her sharing of 24 songs, resulted in a fine of US$1.92 million in 2009, which was reduced to US$54 000 in January 2010 and then fixed at US$1.5 million by a third jury trial in November 2010.4 Thereafter it was reduced to US $54 000 in July 2011.5 An appeal was filed against that reduction in August 2011, oral arguments were heard on 12 June 20126 and judgment is still pending as at 10 July 2012.
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    Copyright in the music industry: the protection of artists' rights against exploitation in South Africa
    (2022) Mayeza, Mzimasi; Ncube, Caroline; Okorie, Chijioke
    Over the years, artists who were once the biggest selling artists in the South African music industry have been witnessed to have no financial or other resources upon their death; or when they left the record labels they were signed to, their careers faded and they had nothing to their name. There have been numerous allegations from artists about the treatment they have received from their record labels, particularly with regard to being inadequately compensated for their work and record labels not honouring the agreements they had with them. This dissertation examines how copyright law, as applied to the music industry, solves or tries to solve the problem of artists who die or live as paupers, after having been among the biggest selling artists in the country. It evaluates whether copyright law provides any mechanism to deal with the alleged exploitation that has existed for a very long time in the music industry. Understanding that the purpose of copyright protection is to incentivise authors and motivate them to create more works, the dissertation evaluates whether copyright law has any specific provisions to safeguard this purpose. The dissertation further considers the principles of contract law as a tool used to create binding agreements between artists and record labels. The dissertation argues that the contracts that artists and record labels enter into are unfair, which is as a result, amongst other things, of the imbalance of the negotiating power of the two parties.
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    The development of intellectual property policies in Africa : some key considerations and a research agenda
    (Intel Prop Rights, 2013-04-27) Ncube, Caroline
    This paper considers factors that are relevant to recent efforts to formulate Intellectual Property Policies in Africa following the adoption of the Development Agenda by the World Intellectual Property Organisation (WIPO). It highlights the need to develop policies tailored for each country’s socio-economic status and the need to use evidence to ensure a rigorous policy approach. It also considers WIPO’s technical assistance may be more effectively used by African states in their policy processes and concludes with a research agenda intended to stimulate critical engagement with these key issues.
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    Does the growth of ICT in Zimbabwe present an opportunity for effective use of intellectual property rights?
    (2015) Musiza, Charlene Tsitsi; Ncube, Caroline
    In 2005 the Government of Zimbabwe adopted a National Information and Communications Technology (ICT) Policy to spur growth in the ICT sector. The idea was to transform Zimbabwe into a knowledge - based economy by 2020. This saw some synergies between stakeholders in improving ICT infrastructure. In the last decade Zimbabwe has seen growth in ICT albeit with numerous challenges. There have been innovation s in ICT which raise possible intellectual property issues. The thesis seeks to assess whether there is scope for the utilisation of intellectual property rights in some of the innovations. An exploration of the various policies that have a bearing on ICT will inform the discussion on ICT growth. The thesis will also lay out the intellectual property framework and identify rights which can be appropriated to innovations. It will identify some areas where tailoring is required to suit the system to the development needs of the country and the innovation environment. Some recommendations will be made derived from the experiences of other countries and from the survey conducted as part of the research.
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    E-health, social media and the law in South Africa can ethical concerns in e-health practice be addressed through regulation?
    (2013) Townsend, Beverley Alice; Ncube, Caroline
    This dissertation explores the various legal and ethical difficulties faced by health practitioners and patients alike in the application and practice of ehealth. These include informed consent, the relationship between the doctor and patient, accuracy of online content, confidentiality, privacy, data security and licensure. The existing and proposed legislation in place in South Africa and internationally to potentially address these issues is discussed. The broader question that is posed is whether greater e-health regulation is required in a developing country such as South Africa and if so what the regulations should address.
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    Effects of the South African IP Regime on Generating Value from Publicly Funded Research: An Exploratory Study of Two Universities
    (Juta, 2014) Ncube, Caroline; Abrahams, Lucienne; Akinsanmi, Titiyo; De Beer, J; Armstrong, C; Oguamanam, C; Schonwetter, T
    This study analyses evidence from two South African universities of how innovation activity and research dissemination are being influenced by a new intellectual property (IP) commercialisation law for publicly funded research outputs. The study sought to understand the ways in which the Intellectual Property Rights from Publicly Financed Research and Development (IPR-PFRD) Act of 2008 and its Regulations influence the generation of value from research. The study was positioned within a theoretical frame which holds that maximalist approaches to IP protection tend to be sub-optimal for certain long-term socio-economic objectives inherent in research funding. The research found evidence of adaptation by both of the universities studied (UCT and Wits University) to the requirements of the Act, and evidence that the Act can have a positive influence on South Africa’s innovation nexus provided that the Act’s patenting orientation continues to be complemented by openness-oriented research dissemination and collaboration practices, including open access (OA) scholarly publishing.
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    Employee rights over inventions and innovations in employment in Kenya
    (2016) Ndungu, Martha Wanjiru; Ncube, Caroline
    We live in an economy where intangible assets have become valuable commodities. These intangible assets are created by individuals, or groups who apply their creativity and ingenuity appropriately. The result of such ingenuity and creativity is product that is deemed to be so important that it qualifies for legal protection. Such assets will benefit any individual, business, company or enterprise that has the ownership right or title and the ability to commercially exploit the asset. Therefore, there is an interest in the ownership and control of the assets as well as the manner in which legal entitlement is devised by the law. Where, the asset is an invention that is patentable the law has granted the employer ownership. This thesis considers how the law balances the right it gives to the employer and the compensation it grants the inventive employee. The thesis seeks to ensure that an employee-inventor has been adequately compensated for his ingenuity and for producing the fruits of his creativity.
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    Enforcing patent rights against goods in transit:A new threat to transborder trade in generic medicines
    (Juta Law, 2009) Ncube, Caroline
    Intellectual property (IP) protection has critical consequences for transnational trade in generic medicines, one of South Africa's most important imports. The free transit of generic medicines, unhindered by patent claims, is essential for their importation into South Africa where they will be deployed to prolong or save lives. This article will discuss the import of using Council Regulation (EC) No 1383/2003 to halt the transit of generic medicines en route to developing countries. Dutch customs authorities have done this on several occasions, eg, in February 2009. Such action forces importing and exporting states to find alternative routes that may be more expensive and take longer than a route that traverses Dutch ports. Such a situation would obviously be contrary to the freedom of transit provided for by art 5 of the General Agreement on Tariffs and Trade (GATT). Secondly, when consignments of medication do not reach their destinations, lives may be lost. This reverses the gains of the major battles won in South Africa and other developing countries to improve access to generic medicines. Thirdly, using patents to block, or delay, the provision of generic medication to ill people is unacceptable, because it violates the very foundations of, or justifications for, patent law. As shown by the quotation above, patents are intended to secure the public good, by enabling the production of, and trade in, useful goods.
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    ‘Equitable Intellectual Property Protection of Computer Programs in South Africa: Some Proposals for Reform’
    (Juta, 2012) Ncube, Caroline
    This paper provides a brief overview of the copyright, patent and trade secret protection of computer programs in South Africa and then sets out suggestions for how this protection could be altered or better implemented to create a more equitable balance between creators’ and users’ rights. The overview of intellectual property (“IP”) protection of computer programs is brief as there is already a substantive body of South African specific literature that discusses it extensively. This paper’s main focus is the evaluation of the equity of the protection and making reform proposals. A computer program is a series of instructions which enable a computer to perform a task or achieve a result.3 Computer programs are created in human-readable source code which is then compiled or translated into machine-readable object code. In copyright parlance, object code is “merely an adaptation of source code”.
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    Examining copyright infringement and liability in Generative Artificial Intelligence training and use: a legal perspective in South Africa and beyond
    (2025) Mikioni, Tendai; Ncube, Caroline
    Once again, humanity has welcomed technological advancement, this time around artificial intelligence, with mixed reactions. The creative industry is no exception to this rapidly evolving technology, with generative AI (genAI) deepening its claws in the creative industry. What lies within the fabric of genAI is a primary concern. In order to be trained (taught), genAI ingests enormous amounts of data, which is harvested indiscriminately. This is a cause for concern for those whose work is harvested and utilised without compensation, credit and consent. In addition, when genAI is deployed, the user's input prompts it to create works of their desires, ranging from images to musical lyrics. To that end, it remains to be answered whether the use of works for the purpose of training genAI and the generation of works by genAI trained using copyrighted works amount to copyright infringement. It is the duty of this dissertation to examine whether the South African copyright regime would deem it an infringement to make use of copyrighted works for training genAI. In addition, this dissertation goes further to examine whether there is a possibility of copyright infringement materialising when a user generates works through genAI. In this dissertation, the training of genAI will be referred to as the “input phase”, while the use of genAI by a user will be referred to as the “output phase.” In addition, the issue of who is liable when copyright infringement materialises will be analysed. In the end, the author submits recommendations for South Africa to address copyright infringement liability. Leading jurisdiction in copyright and AI regulations will be infused to enrich the discussion
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    Examining the role of intellectual property law in Kenya's oil and gas sector
    (2019) Mwaura, Caroline Wambui; Ncube, Caroline
    This thesis analyses how Kenya should apply intellectual property (IP) law in the country’s oil and gas sector to foster innovation and support economic growth within the context of the country’s development plan, Kenya Vision 2030. Specifically, the thesis considers the possible influence of IP law on innovation, investment and economic growth in the oil and gas sector in Kenya. Using doctrinal methodology, the thesis examines legislation and case law from Kenya, South Africa and the United Kingdom relating to competition and protection of patents, copyright, trade marks, trade secrets and industrial designs. This examination is based on a public interest approach to IP law and competition law and seeks to determine the possible effect of Kenya’s IP laws on investment and innovation in the sector. The study finds that IP law and competition law reflect an attempt to accommodate public interest and the interests of investors. It argues that regulation of Kenya’s oil and gas sector using IP law is likely to enhance innovation and support economic growth if relevant IP laws provide for protection of IP whilst safeguarding public interest. The thesis also finds that protection of traditional knowledge (TK) is likely to be relevant to the upstream oil and gas sector in Kenya for environmental resource management. It argues that optimal management of TK is likely to entail collaborative work between indigenous communities, public institutions and private enterprises, as provided for in Kenya’s Environmental Management and Coordination Act (Number 8 of 1999). The thesis makes proposals for a regulatory environment that is likely to provide a firmer basis for investment in the country’s oil and gas industry, promote competition in markets for IP in Kenya, provide a sustainable IP law framework for the sector for economic growth in Kenya, preserve TK of local communities and enhance equitable sharing of benefits related to TK in the context of the country’s oil and gas industry. The thesis contributes to literature on Kenya’s oil and gas industry by filling the apparent gap in analysing the possible effect of the country’s IP law on investment in the industry and public interest.
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    Fair is as fair does: contractual normative regulation of copyright user contracts in South Africa
    (Edward Elgar, 2015-03-27) Ncube, Caroline; Graeme B Dinwoodie
    This chapter considers the regulation of copyright user contracts by contract and consumer protection law in South Africa. The normative regulation of copyright contracts was identified as a significant research gap by Kretschmer et al., who specifically list the following questions as being worthy of investigation1: •How should ‘fairness’ be defined for the context of copyright contracts? •Are existing contracts really ‘unfair’? •Do alternative contracts, within the current copyright law, exist that can be perceived as being ‘fairer’? If they do exist, do those contracts sacrifice efficiency? •To what extent does any perceived ‘unfairness’ depend upon copyright law? •Can copyright law be altered in order that the balance of bargaining positions be changed and the resulting contracts are ‘fair’? This chapter engages with some of these questions, which will be posed with regard to user contracts for the reprographic reproduction of copyright-protected works concluded between copyright-holders (represented by a reprographic rights organisation) and higher educational institutions. Here, the main concern is whether such blanket or transactional licenses override statutory exceptions and limitations. If so, is this fair? If it is not fair, how may copyright law be amended to ensure fairness?
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    Harnessing intellectual property for development : some thoughts on an appropriate theoretical framework
    (North-West University, 2013) Ncube, Caroline
    Intellectual Property (IP) law is expected to provide equitable protection for eligible kinds of works in virtually all industries; to achieve fair treatment of creator, user and societal interests; and to contribute to a country's efforts to achieve economic development. This is a tall order and debates pertaining to IP law tend to be heated and heavily contested due to the tensions caused by these high expectations. In an effort to move such debates forward, this paper advances a nuanced framework through which contested IP issues may be resolved and upon which national IP policy and legislation may be based.