Browsing by Author "Schonwetter, Tobias"

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    Open Access
    3D-printing : a new challenge for intellectual property?
    (2015) Fuhrmann, Thomas; Schonwetter, Tobias
    The most important rights, which state such a balance between these two parties, are the rights of intellectual property. Thus, an important question is to what extent 3D-printing conflicts with intellectual property rights. In general, intellectual property balances the rights between the owners of genuine products and their use through third parties. On the one hand the intellectual property rights give exclusive rights to the genuine owners, on the other hand they give as well some important exceptions for the use of third parts material. Hence, the purpose of this work is to examine, which intellectual property rights are affected by the production of a 3D-printed object. In each of the following chapters I will look at the different categories of intellectual property rights. I will examine in how far the creators of a CAD, the uploaders who upload a CAD on a website for a free or commercial download, the website owners who facilitate that uploads and the printers, whether private or with a commercial purpose, may be in conflict with any intellectual property rights. The most important intellectual property rights, which could be affected, are copyright, patents, registered designs, trade marks and passing off. For the present investigation it will be necessary to have a closer look at the different steps of the developing process of a 3D-printed product. More precisely, we have to differentiate between the creation of the CAD, the uploading of a CAD and finally the home-printing or the printing on demand through a specialised company. The aim of this work is to show how these single steps conflict with intellectual property rights and how the different actors in this process are liable for any infringing activity and in how far their activity is covered by any exception. Furthermore, we will also examine whether current legislation and jurisdiction appropriately address issues brought about by this new technology. Because of the reason, that the issue of 3D-printing in relation to intellectual property is quite a new one, this work will occasionally have a look abroad to other jurisdiction how they already dealt with similar problems. With this in mind, especially the US, European and German jurisdiction and laws will be regarded.
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    Open Access
    Access to Knowledge in Africa: the role of copyright
    (2010) Armstrong, Chris; de Beer, Jeremy; Kawooya, Dick; Prabhala, Achal; Schonwetter, Tobias
    The emergence of the Internet and the digital world has changed the way people access, produce and share information and knowledge. Yet people in Africa face challenges in accessing scholarly publications, journals and learning materials in general. At the heart of these challenges, and solutions to them, is copyright, the branch of intellectual property rights that covers written and related works. This book will help educators identifying challenges for learning materials access posed by copyright laws in Africa. Some solutions as to how to overcome these challenges are provided.
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    An examination of South Africa’s efforts at patent system reform: trips flexibilities fully appropriated for public health needs?
    (2020) Lakpini, Clarence Sokolambe; Schonwetter, Tobias
    The question that underlies this research is whether and to what extent does South Africa’s moves to amend its Patent Act, as outlined in the country’s new Intellectual Property (IP) Policy take advantage of the flexibilities made available through the Agreement on Trade- Related Aspects of Intellectual Property (TRIPS)? Patents law and access to medicines are two areas which are not new to South African IP law. Since the late 1990s when the Human Immunodeficiency Virus (HIV) was at its peak, there has been a tensed relationship between IP, through patents, and access to medicines. While proponents for pharmaceutical patents have argued that patents are a necessary stimulant for innovation and development of new medicines, those against pharmaceutical patents have vigorously laid blame on the patent system for birthing monopolies which have led to unaffordable prices for many life-saving drugs. This dissertation examines the patent framework of South Africa and juxtaposes it with the TRIPS Agreement to determine if there is a gap with the regards to the flexibilities available under each, and if so, how much of a gap exists between them. Also, the recommendations made in the IP Policy which was released by the Department of Trade and Industry (DTI) in 2018, are evaluated to ascertain how aligned to the TRIPS flexibilities they will be if they are turned into law by the lawmaker. The Indian patent system is also looked at to see how it went about patent reform and what South Africa can learn from it. Finally, conclusions are drawn and recommendations made, regarding model language which reflects the recommendations in the Policy that the lawmaker may refer to in the amendment process. Patent reform is a difficult task, and with lives hanging in the balance, a crucial one. The process in South Africa has lingered for many years without resolution. This dissertation highlights the need for urgency in the process with the hope that these changes catalyse into a more equitable patent system where the IP scale provides a more balanced eco-system in which both pharmaceutical patent owners and the general public who rely on their medicines can thrive. Although, a daunting task, a bold and proactive approach must be taken to ensure that the balance is reached timeously and efficiently.
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    Open Access
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    Creative Commons South Africa: Licensor Guidelines
    (2014-09) Schonwetter, Tobias
    This guide is intended as an introduction to the Creative Commons licenses and their practical application. It provides a brief background to the organisation and its history, a brief synopsis of the different licenses, and a detailed walk-through of how to apply one to copyright material. There is also a section dealing with third-party copyright, an FAQ on licensing, and guidelines on how to attach a license to specific types of materials.
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    Open Access
    Embedding open data practice: Developing indicators on the institutionalisation of open data practice in two African governments
    (2015-06) van Schalkwyk, Francois; Willmers, Michelle; Schonwetter, Tobias
    Final research report of the “Embedding open data practice: Developing indicators on the institutionalisation of open data practice in two African governments” project, which formed part of the World Wide Web Foundation’s "Emerging Impacts of Open Data in Developing Countries" Phase 2 initiative. In order to address the principle question of whether open data practice is being embedded, the project undertook a comparison of government open data in South Africa and Kenya, with a particular focus on open licensing as a key indicator of openness.
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    Open Access
    The implications of digitizing and the Internet for "fair use" in South Africa
    (2014-07-30) Schonwetter, Tobias
    This thesis is going to examine the scope of fair use / fair dealing in South Africa, especially within an academic context. It proceeds in 5 parts. Part I will deal with the question of whether an international standard for fair use exists from which any clarification regarding the scope of the fair use doctrine can be deduced. In part II, the legal situation in other countries and regions, namely South Africa's major trading partners U.S.A., Europe (EC/Germany/UK) and Australia will be described and compared. This is done in order to analyse whether or not their approaches can either be adopted by South Africa or, at least, serve as a model. In part III, the impacts of digitizing and the Internet for the fair use doctrine will be examined, and part IV will, in some detail, explore the rights and obligations of libraries in an increasingly digitised world. After summarizing parts II-IV, part V will draw a conclusion and seek possible solutions for South Africa.
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    Open Access
    Innovation & intellectual property: collaborative dynamics in Africa
    (UCT Press, 2014) De Beer, Jeremy; Oguamanam, Chidi; Schonwetter, Tobias; Sowa, Izabella; Holman, Kristen; Kawooya, Dick; Dagne, Teshager; Adewopo, Adebambo; Chuma-Okoro, Helen; Oyewunmi, Adejoke; Ouma, Marisella; Cocchiaro, Gino; Lorenzen, Johan; Maister, Bernard; Rutert, Britta; Rizk, Nagla; Sihanya, Ben; Mgbeoji, Ikechi; Dos Santos, Fernando; Pelembe, Simão; Awad, Bassem; Abou Zeid, Perihan; Ncube, Caroline; Abrahams, Luci; Akinsanmi, Titi; Belete, Wondwossen; Ama, Njoku; Armstrong, Chris; De Beer, Jeremy; Armstrong, Chris; Oguamanam, Chidi; Schonwetter, Tobias
    In the global knowledge economy, intellectual property (IP) rights – and the innovations they are meant to spur – are important determinants of progress. But what does this mean for the nations of Africa? One view is that strong IP protection can facilitate innovation in African settings. Others say that existing IP systems are simply not suited to the realities of African innovators. This book, based on case studies and evidence collected through research across nine countries in Africa, sheds new light on the complex relationships between innovation and intellectual property. It covers findings from Egypt, Nigeria, Ghana, Ethiopia, Uganda, Kenya, Mozambique, Botswana and South Africa, across many sites of innovation and creativity including music, leather goods, textiles, cocoa, coffee, auto parts, traditional medicine, book publishing, biofuels and university research. Various forms of intellectual property protection are explored: copyrights, patents, trademarks, geographical indications and trade secrets, as well as traditional and informal mechanisms of knowledge governance. The picture emerging from the empirical research presented in this volume is one in which innovators in diverse African settings share a common appreciation for collaboration and openness. And thus, when African innovators seek to collaborate, they are likely to be best-served by IP approaches that balance protection of creative, innovative ideas with information-sharing and open access to knowledge. The authors, who come from a range of disciplines, are all experts in their fields, working together through the Open African Innovation Research and Training (Open A.I.R.) network.
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    Open Access
    Intellectual property and consumer 3D printing
    (2019) Van, Wiele Bram; Schonwetter, Tobias
    Disruptive technologies influence the application and development of intellectual property. Additive manufacturing, colloquially known as 3D printing, is one such technology that has a profound impact on how goods are created, disseminated and consumed. This technology enables, in an unprecedented matter, the decentralised manufacturing of goods, supplemented by user-based creation and instantaneous dissemination of the underlying digital models. From the perspective of intellectual property law, the focus of this thesis is on analysing of how consumer 3D printing creates legal ambiguity and enforcement issues that affect a multitude of actors, in interrelated, conflicting and potentially overlapping capacities. It focusses on the intellectual property regimes that are at the forefront of 3D printing, including the laws of trade marks, copyright, patents and designs. Emphasis of this thesis is on the law of South Africa; however, in the absence of judicial guidance, an examination of the laws of the United Kingdom and the European Union provides additional insights and guidance. The development of arguments in this work is grounded in technological and social premises, determined by the characteristics of the consumer 3D printing ecosystem and the additive manufacturing process, including design creation, dissemination and production. The underlying research question of this thesis is how the intellectual property framework can be used and further optimised to promote consumer 3D printing. In this context, it investigates how the interests of the following key actors can be balanced: (i) rights holders that typically wish to control design dissemination; (ii) design sharing platforms that seek to facilitate design creation and dissemination; and (iii) consumers who require access to digital designs. This thesis submits that a balance can indeed be struck, subject to complementary actorand situation specific responses. In addition to these responses, this thesis proposes minor amendments to the current South African intellectual property framework, supplemented by the clarification concerning the application of intellectual property rights, and the implementation of non-restrictive digital rights management systems.
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    Intellectual property law and development in Namibia: harnessing the law on geographical indications in the realization of vision 2030
    (2023) Ihuhua, Lineekela; Schonwetter, Tobias
    Intellectual property involves the creation of the mind with commercial and/or moral value. Geographical Indications (GI) are a species of intellectual property. A GI is a sign used to identify a product's origin. Furthermore, it indicates the product's quality, characteristics, and reputation associated with that territory or origin. GI rights themselves also have the potential to drive economic development. The thesis considers the absence of a sui generis system for the protection of GIs in Namibia, thereby entreating a discourse on whether there is a need for a stand-alone GI framework. The thesis also sets out the national and international framework for trademark protection as this is one of the vehicles some countries, including Namibia, have opted to use to protect GIs. Additionally, a comparative examination of the approaches of South Africa and India in the protection of GIs is undertaken to provide the various available, as well as potential, regimes for GI protection in Namibia. The thesis correspondingly sets out the role that GI protection can play in advancing Namibia's developmental objectives. It is postulated that GIs are a tool that can be used to advance the developmental objectives of Namibia as set out in the Vision 2030 and Harambee Prosperity Plans. The thesis establishes that GIs in Namibia find protection through the application of trademark laws; however, there is limited specific reference and consideration paid to GI promotion in the formulated developmental objectives of Namibia. The findings in the thesis, therefore, call for a need to incorporate GI protection and promotion in the country's developmental policy objectives. This alignment of law and objectives will enable the full realisation of the developmental potential of GIs in Namibia.
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    Open Access
    International Law on Women's Human Rights on the concerns triggered by the introduction of sex robots into society
    (2021) Kehlet, Isabella; Schonwetter, Tobias
    In a human-like form and programmed with artificial intelligence, sex robots are becoming increasingly prevalent, also as a result of the restrictions on social interactions caused by the COVID-19 pandemic. Because of their programming, sex robots offer both a physical and psychological dimension for users, thereby raising concerns not usually linked to sex toys. The purpose of this dissertation is to examine whether the international human rights instruments on women's human rights relates to concerns raised by sex robots. The focus is mainly on whether sex robots exacerbate harmful gender stereotypes or can be considered discriminatory against women. Furthermore, it is examined whether a State is obligated to respond to the manufacture, distribution and use of sex robots, even though these activities are carried out by private citizens and entities. By applying a dynamic and teleological approach combined with the Vienna Convention on the Law of Treaties' provisions on treaty interpretation, the relevant treaties, treaty body decisions and soft law are examined to determine whether sex robots are harmful to women and what obligations states have in that regard as a result of private actor activities. Sex robots in their current form portray women in a hypersexualised manner, both with appearance and behaviour. While it is not yet clear whether such portrayal will cause a surge in sexual violence against women, sex robots undoubtedly represent a stereotypical and degrading depiction of women, resulting in adverse effects on women's mental health. According to the Convention on the Elimination of All Forms of Discrimination Against Women and other key human rights treaties, member states have an obligation to modify harmful gender stereotypes and eliminate gender stereotyping and other discriminatory practices towards women. Thus, in relation to sex robots, member states must take appropriate measures, like introducing legislation or policies on sex robots' manufacture, distribution and use. Since restrictive legislation on the use of sex robots may interfere with other fundamental human rights - including the user's right to privacy and health - it is recommended that the measures introduced by states focus on the production of sex robots.
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    Investigating musical copyright infringement: Examining International Understandings of Musical Copyright Infringement for Potential Adaptation into South African Copyright Law
    (2019) Marais, Richard; Schonwetter, Tobias
    This thesis examines international approaches to musical work copyright infringement law for the purpose of establishing an approach that can be utilised effectively under the South African copyright infringement framework. In doing so, the importance of the various interactive elements of musical works is investigated as well as the modes of assessment in infringement scenarios. The findings are used to create a robust middle-ground approach to be adapted into the South African copyright infringement framework. Further considerations that impact infringement outcomes are addressed to the extent that they are contextually relevant. These include a discussion of research undertaken on the continent regarding the relationship between creators and the music-related copyright regime as well as the role that exceptions and limitations play in infringement outcomes.
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    Restricted
    Licensing Open Data in developing countries: the case of the Kenyan and City of Cape Town Open Data initiatives
    (The African Journal of Information and Communication, 2015-12-01) Willmers, Michele; van Schalkwyk, Francois; Schonwetter, Tobias
    Open data practice is gaining momentum in the public sector and civil society as an important mechanism for sharing information, aiding transparency, and promoting socio-economic development. Within this context, licensing is a key legal mechanism that enables re-use without sanction. However, there is evidence of a “licensing deficit” and this raises questions regarding best practice and sustainability in emerging African open data initiatives, particularly in the context of intermediaries being encouraged to exploit shared data for economic and social benefit. This article asks two main questions: (1) What is the current state of open licensing in two African open data initiatives; and (2) to what degree is it appropriate to focus on licensing as a key indicator of openness? Utilising a case study approach, the research explored licensing dynamics in the Kenya Open Data and the City of Cape Town Open Data initiatives, examining the contexts in which these initiatives were established and their resulting licensing frameworks. The cases reveal evidence of strategic engagement with content licensing, driven largely by the need for legal protection, adherence to international best practice and attraction of the user base required in order to ensure sustainability. The application of licensing systems in both contexts does, however, suggest an emerging system in which data providers are “learning by doing” and evolving their licensing practice as portals and their associated policy frameworks mature. The paper discusses the value of open data licensing as an indicator of organisational change and concomitant importance of taking into consideration the institutional dynamics when evaluating the organisational licensing frameworks of city, national and other governments.
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    ‘New hope for Africa? Copyright and Access to Knowledge in the Digital Age’
    (Emerald Insight, 2011) Schonwetter, Tobias; Ncube, Caroline
    Purpose – This paper's main purpose is to deepen the general understanding regarding copyright exceptions and limitations as an important balancing tool of copyright law, particularly for developing countries in Africa. It seeks to address the problematic interplay between copyright exceptions and limitations on the one hand and technological protection measures (TPMs) on the other. It then aims to offer a solution for mitigating the potentially detrimental impact of TPMs on otherwise‐permitted uses of copyright‐protected knowledge materials. Design/methodology/approach – The paper's approach is legal doctrinal research that relies exclusively on written texts. Findings – The paper finds that copyright exceptions and limitations are currently in tension with the legal regulation of TPMs and their circumvention. The two do not seem to be optimally balanced, with some African countries having adopted an unduly restrictive legal approach. The paper therefore suggests a more balanced model that is in keeping with developmental ends and human rights concerns. Originality/value – The paper makes a meaningful contribution by locating the discussion in Africa and providing a suggested equitable legal approach.
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    Open Access
    Open Access Week 2014: Open access and copyright seminar
    (2014-10-30) Schonwetter, Tobias
    In this seminar during UCT Open Access Week 2014, Dr Tobias Schonwetter discusses Open Access publication from a legal standpoint, focusing on issues of copyright and intellectual property as they pertain to academics working in South Africa in general and UCT more specifically. Topics covered in this lecture include the history and definition of copyright; copyright law and case law in South Africa; fair dealing (fair use) and other forms of copyright exemption; and open licensing. This video resource is valuable for academics working within South Africa who wish to publish Open Access materials and create Open Educational Resources.
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    Patent system and its role in the conservation of South African biodiversity
    (2017) Sadaf, Naeema; Schonwetter, Tobias
    South Africa is a biologically diverse but technologically less advanced economy. Like many other developing countries in the world, its biodiversity is exposed to danger due to certain human activities. Among these, patents are charged as the easiest routing for misappropriation of indigenous biological resources and traditional knowledge associated therewith. Being member of the United Nations Convention on Biodiversity, South Africa is under obligation to ensure that its patent system supports the Convention's objectives including biodiversity conservation and sustainable use rather than its destruction and decline. The purpose of this dissertation is not only to dilute this misconception about South African patent system but to prove that with an access and benefit sharing mechanism it is an effective tool for biodiversity conservation, capacity-building and industrial development in the country. To make the system more protective of the rights of the indigenous communities, various modifications have also been proposed in the existing stature of the Act.
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    The ratification and implementation of the Marrakesh Treaty: a look at the future of South African Copyright Law
    (2014) Van Wiele, Bram; Schonwetter, Tobias
    This dissertation will analyse South African copyright law and its ability to facilitate blind, visually impaired, or otherwise print disabled people. The Marrakesh Treaty intends to promote the making and distribution of copies of, among others, books in formats accessible to visually impaired persons. South Africa did not sign this Treaty yet, intends to sign and ratify this Treaty in the future. This dissertation will analyse the current South African copyright law and policy related to visually impaired persons. To gain insight, this work will also analyse international framework, and foreign copyright law. The aim of this analysis will be to find ways of how the future of South African copyright law should look like, according to the Marrakesh Treaty, to be able to facilitate VIPs. This research also intends to expose the possible law and policy related barriers for non-ratification of the Marrakesh Treaty. Furthermore, this dissertation will analyse what the possible legal implications thereof will be. The main goal of this dissertation will be to formulate a proposal on how the Marrakesh Treaty should me implemented in South African copyright law. This proposal will take into account possible barriers or policy related issues that arise from prior research.
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    The relation between intellectual property law and competition law using the example of standard essential patents
    (2014) Bornhäusser, Matthias; Tong, Lee-Ann; Schonwetter, Tobias
    The aim of this thesis is to take a closer look at the interesting relationship between patent rights and competition law. The focus will be set on European and German law. The reason for it is that the European courts already started to deal with the relation between intellectual property and competition law decades ago and have assumed a leading role in handling the anticompetitive exercise of intellectual property rights. Apart of the European focus the legal situation in South Africa will be elicited as well and, as far as possible, analysed against the background of the European situation.
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    Safeguarding a fair copyright balance - contemporary challenges in a changing world : lessons to be learnt from a developing country perspective
    (2009) Schonwetter, Tobias; Hofman, Julien
    This thesis looks at how to achieve a fair copyright balance from the perspective of developing countries. The thesis examines the international legal framework which developing countries such as South Africa have to respect. It analyses the flexibilities in this framework and, in particular, copyright exceptions and limitations. These flexibilities are important because they allow domestic lawmakers to develop countryspecific domestic copyright legislation. The thesis then goes on to discuss why getting the right balance between protecting copyright and giving adequate access to knowledge material is of particular concern for developing countries. As part of this discussion, the thesis looks at the impact of digital technologies on copyright law in general and for the copyright balance in particular.
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    South Africa
    (Juta, 2010) Schonwetter, Tobias; Ncube, Caroline; Chetty, Pria; De Beer, J; Armstrong, C; Oguamanam, C; Schonwetter, T
    South Africa is the world’s 25th-largest country by surface area, and 24th-largest by population. It is located at the southernmost region of Africa and divided into nine provinces: Limpopo, North West, Gauteng, Mpumalanga, KwaZulu-Natal, Free State, Northern Cape, Western Cape and Eastern Cape. South Africa’s colonial past dates to the 16th century. Slavery was widespread by the 17th century and was not abolished until the mid-19th century. Racial discrimination was rampant during the apartheid era between 1948-94, when South Africa was governed by the National Party. After protracted negotiations, the first democratic elections were held under an Interim Constitution in 1994. This negotiated transition from apartheid to democracy has been hailed as both ‘one of the most astonishing political achievements of our time’ and ‘a miracle’. Since 1994 the government has been led by the African National Congress (ANC), which won democratic elections in 1999, 2004 and 2009. Since 1994 the government has pursued democratisation, socioeconomic change and reconciliation.