Browsing by Author "Tong, Lee-Ann"

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    Alternative dispute resolution in Intellectual Property Law: a growing need for a viable alternative to court litigation
    (2013) Richardson, Robin Kieron; Tong, Lee-Ann
    The need for a viable alternative to court litigation of intellectual property disputes is much needed in modern legal systems. IP court litigation has become expensive, time consuming, and poor decision making has led to unpredictable and inconsistent results. This paper explores the possibility of using alternative methods, such as mediation and arbitration, to resolve complex IP disputes. The paper critiques modern judicial systems and analyses how alternative methods may be better suited to the resolution of IP disputes. Particular attention is paid to the issues present in the South African legal system and what steps are needed to implement a workable and regulated alternative to the High Court system. The paper concludes that alternative dispute mechanisms are well suited to the resolution of IP disputes but that South Africa needs to take progressive steps towards the realisation of such a system.
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    Application program interfaces and the law of copyright in South Africa: a proposal for an optimal approach
    (2018) Futshane, Azola Siphe; Tong, Lee-Ann
    Application Program Interfaces are simple computer programs that enable other pieces of software to call on each other so as to operate in tandem. They are solely designed to perform this singular function, yet they have a significant impact on computer software development. The benefits of Application Program Interfaces include the increased speed and efficiency of computer program development. In essence, Application Program Interfaces enable interoperability between different computer programs that may otherwise have been unable to operate with each other. Developers are saved from the onerous task of having to develop new programs that will be able to work with their own, because the Application Program Interface acts as a catalyst between the different programs, as it were. Due to the function they perform, Application Program Interfaces are essential to computer software development, and are of high economic value. As Application Program Interfaces are computer programs, they are protected under the law of Copyright. This means that developers of Application Program Interfaces are able to exercise exclusive rights in copyright over these pieces of technology. This is problematic in the programming community, where there is a rapidly growing trend towards using and producing open source software. As such, there is a friction created between programmers who seek to use Application Program Interfaces freely, and the copyright owners who seek to derive an economic benefit. There is no controversy as to whether the literal elements of an Application Program Interface may be eligible for copyright or not. There is debate, however, as to whether, and to what extent, the non-literal elements of an Application Program Interface may be eligible for copyright. This debate brings to the fore the age-old idea-expression dichotomy, and the question of what elements constitute an idea or an expression. This paper will investigate the approach to Application Program Interfaces and copyrightability in South Africa, and make proposals as to the approach that ought to be taken. Guidance will be taken from the precedent and legal debates ongoing in other jurisdictions.
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    Commercialisation of traditional knowledge in South Africa : whether the existing intellectual property framework encourages commercialisation
    (2013) Agan, William; Tong, Lee-Ann
    The current available modes for protecting Intellectual Property (IP) in the Republic of South Africa (RSA) are Patents, Trade Secrets, Copyrights, Trademarks and Industrial Design. Common law remedies are also available to parties whose rights have been infringed. The legislations governing these Intellectual Property (IP) regimes were passed at different periods, some before South Africa became a republic in 1963 and others thereafter, while others were passed after the abolition of apartheid in 1990. For those legislations passed before the Trade Related Aspects of Intellectual Property Rights (TRIPs) in 1994, the RSA had to amend or repeal and enact laws which are TRIPs compatible. However, an area of IP for Indigenous people, also known as Traditional Knowledge (TK), has not been adequately protected due to complexities which cannot be accommodated by an international IP regime. This has led to poor or inadequate commercialisation of TK. TK is also not provided for by TRIPs, thus relegating it further. The scope of this paper is limited to commercialisation of TK. However, it must be appreciated that commercialisation cannot take place in a vacuum. Thus protection of TK is a prerequisite to its commercialisation.
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    Comparative advertising between the conflicting priorities of fair competition, trademark holder's rights and consumer information under South African law compared to the European and German approach on this issue
    (2016) Jungmann, Nina; Tong, Lee-Ann
    The dissertation addresses the legal conflict which is related to the legitimacy of comparative advertising. The national legal system has the task to balance antagonistic interests of trademark proprietors, advertisers, consumers and the public at large. The thesis examines the South African, the European and the German legal system implemented a legal balance and presents consequences, commonalities and differences. After starting with an historical overview on comparative advertising in South Africa and the Advertising Standards Authorities' self-regulating system, the Common law of Unlawful Competition will be addressed with regard to its influences on comparative advertising. Further, the thesis deals with the South African Trade Mark Act and its interpretation of infringement in terms of comparative advertising. Also considering European jurisdiction will be considered. The European approach on trade marks and comparative advertising will be presented as it leads to the German approach on comparative advertising and served as inspiration for the South African Trade Marks Act. The manner of implementation of European Directives influencing comparative advertising in German national law will be examined. Hereby, the distinctive characteristics which are required for comparative advertising as well as the special statutory mentioned cases in which it is unlawful will be presented. The high level of legal differentiation shall be emphasized since this may lead to differences compared to the South African law. Finally, I will compare how South African law and German law approach the subject comparative advertising. Especially the influences of Common law and statutory law on unlawful competition will be compared and evaluated. It shall be presented which consequences can arise out of different systematic approaches in this field of law. Additionally, the differences in the legal approaches on trade mark infringement will be highlighted in respect of presenting whether they cause actual consequences for the final legal valuation of comparative advertising. Furthermore, the commonalities concerning the purpose of encouraging comparative advertising will be addressed.
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    Compulsory licensure as a cost-containment measure for essential medicines: a comparative study of South Africa, the Russian Federation and the People's Republic of China
    (2020) Mabote, Keneilwe Lynette; Tong, Lee-Ann
    This minor dissertation investigates alternative compulsory licencing (CL) policy approaches for the South African context. The purpose is to support the country's aspirations to reform certain components of its intellectual property (IP) regime, ensuring alignment with the country's development prerogatives. Homing in on technical barriers with the operationalisation of the existing CL mechanism; this paper investigates remedial recommendations to support South Africa's reform efforts. The paper also hopes to gauge whether it is feasible to leverage compulsory licensure as a cost-containment tool to circumvent price dominance in the sale of essential pharmaceutical commodities. The South African Patents Law provides for CL under three grounds. These are dealt with in chapter 2. The abuse of patents rights as a result of excessive pricing is one of these grounds. Yet, attempting to use this provision abuse of patents rights is procedurally and administratively cumbersome. This is notwithstanding the litigation costs. The 2018 national IP Policy aspires to reform the CL policy to ensure that it is a 'workable mechanism'. A comparative analysis of the CL policy landscapes in the People's Republic of China (PRC) and the Russian Federation will be taken to inform South Africa's discourse. These two countries are strategic because they have either reformed and/ or in the process of renovating their intellectual property rights (IPR) landscapes and both have interesting approaches to the way in which they have reformed their CL mechanisms. The findings of this paper reveal that Russia and China have undertaken extensive IPR reforms over the last three decades. They have both taken different policy approaches in adapting their CL instruments. Russia's CL reform proposals are underway and aim to advance a CL mechanism that can effectively regulate the abuse of patents, especially for essential pharmaceutical commodities. China has installed specific Implementing Measures which offer policy guidance on the applicability CLs. In the case study of China, the Measures imposed are not necessarily advanced as cost-containment tools. Rather they support the country's pharmaceutical agenda. The recommendations in this paper offer interesting insights to the feasibility exercises that will be advanced in South Africa's IPR reform process.
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    Copyright and Accessibility in South African Research Archives
    (2023) Walker, Andrea; Tong, Lee-Ann
    Research archives aim to achieve a balance between preservation and access. Copyright law aims to achieve a balance between the interests of rightsholders and users. These aims sound broadly similar at first, but there are areas where the intersection can be problematic. This dissertation examines the problem of archival accessibility through three lenses: copyright duration, preservation, and third-party and orphan works. Copyright assumes an author intends to exploit their work through some form of publication. Most of the works within a research archives are unpublished. One of the ways archives seek to make works more accessible to more people, is by placing them online. Unless the copyright has expired or been assigned to the archives, this requires permission from the rightsholder(s). In South Africa, many unpublished works have perpetual copyright. Determining when the copyright expires—if it expires—is complicated by more than publication status. Certain works require reference to otherwise repealed laws due to the transitional provisions that continue to apply to archival works long after the transition has taken place. The question of internet ‘publishing' also needs to be considered. In order to make works accessible in perpetuity, the works need to be preserved so that they continue to exist. To preserve works, archives need to reproduce them. The Copyright Regulations allow the creation of facsimile copies for preservation purposes without requiring the permission of the rightsholder(s). If the reproduction is not in facsimile form, then it is infringement without the rightsholder(s) permission. It is not clear if the format shifting that audiovisual and digital content requires is allowed when creating a facsimile. This material becomes inaccessible and is lost very quickly as format shifting is needed in order to keep the content accessible, as well as to preserve it for the long-term. Copyright and Accessibility in South African Research Archives | Andrea Walker | ii Many archival works, such as letters, are authored by third-parties—that is, someone other than the person or corporate body who created the bulk of the collection. Many of these become orphan works as identifying and locating the rightsholder(s) with limited information is very difficult. Works with perpetual copyright frequently become orphaned as tracing the author's descendants and their subsequent heirs and any licences or assignments is a lengthy and difficult process. The inability to identify and locate rightsholders does not only impact on accessibility, but also preservation. There are some simple solutions to these problems, but while suggestions for improvements are offered, most of these are not issues that can easily be dealt with.
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    Copyright and film: the impact of style
    (2022) Joubert, Josua; Tong, Lee-Ann
    The modern landscape of the film industry has facilitated an erosion of originality, in respect of both content and style. With significantly greater emphasis placed on the profitability of blockbuster cinema, the underlying creative process is now characterised largely by a crosspollination of ideas and appropriation of specific stylistic choices. Logically, the first line of defence for the protection of one's ideas will be found in intellectual property law, and when considering the regulation of artistic and literary works, one specifically looks to copyright law. As it currently stands, however, the concept of film ‘style' does not at all factor into the operation of copyright law in South Africa nor does it play a significant role in other jurisdictions – the reason for which will be investigated. It is the goal of this dissertation to illustrate why the lack of attention given to concept of style by intellectual property law results in a failure to address the appropriation of style that occurs in modern filmmaking. Practically speaking, it is currently possible for a film to copy the established style of another director and profit from it without even needing to offer credit to the original creator of that style. This dissertation submits that, where the original film in question is proven to rely on the originality of its style – both critically and monetarily – then the appropriation of this style can lead to an unjust copying of one's work, and that protecting such work through consideration of its style, does not create an undue disturbance in the balance between stifling and promoting creativity. Therefore, there is potentially a gap in the law which can be filled by a suggested guideline, and this guideline may aid courts in incorporating film style into the consideration of a copyright infringement claim.
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    A critical examination of copyright limitations and exceptions for the visually impaired pertaining to literary works in South Africa in the local and global context
    (2014) Kouletakis, Jade Katherine; Tong, Lee-Ann
    The aim of the paper will be to demonstrate that South African law, as it stands in terms of the Copyright Act, fails to provide equal access to literary works for the visually impaired community compared to the able bodied community. In failing to provide equal access, the South African government has failed to realise the theoretical justifications underpinning the law of copyright, as well as its obligations on both a national (in terms of the constitution, legislation and case law) and international level. It will then be asked what South Africa ought to do so as to better this situation by examining what the international community is doing in order to better establish an environment of equal access to literary works, specifically in terms of the recent Marrakesh Treaty, and what implications this may have for South Africa in its quest to better balance the interests of copyright users and owners in such a way that equal access is achieved.
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    The development of a South African legal framework relating to patentable inventions made by employees
    (2016) Tong, Lee-Ann; Le Roux, Rochelle; Visser, Coenraad
    This thesis answers the question of how South Africa ought to regulate ownership of patentable employee-inventions within the prevailing patent system. It is concerned with developing a South African legal regulatory framework for an optimal default allocation of ownership in patentable inventions made by employee-inventors in the private sector. It approaches this concern from the perspective that the law relating to ownership of employee-inventions should align with the purpose of patents as tools for encouraging private sector investment in technological innovation. This perspective is informed by a theoretical framework based on assumptions about, amongst other things, the role of patents as individual incentives, the nature of inventorship, and the likely incentive effect of a grant of a patent on employers' and employee-inventors' contributions to inventive activity. The core of the thesis is an analysis of the South African law relating to the allocation of ownership of patentable inventions between employers and employees to determine whether and how it supports the incentive function of the patent system. This includes a consideration of the ownership of intellectual property which may arise as a consequence of the inventive activity and which attract statutory protection in the form of copyright, industrial design rights, and plant breeders' rights. In the absence of international guidance and a dearth of sources about the South African approach, an examination of the British and American approaches provides insight into divergent legal regulatory responses to the same issue. A key conclusion is that the prevailing South African law does not provide for an efficient legal framework for the allocation of patent rights between employers and employees when reviewed against the purpose of the patent system in the innovation context. Based on this and other conclusions about the factors which ought to inform the regulation of the allocation, recommendations for a new legislative framework which is responsive to the purpose of patents as individual incentives, but which is also cognisant of the dynamics of the employment relationship, are made.
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    Enforceability of digital copyright on the darknet?
    (2018) Mathini, Moses Wanjukia; Tong, Lee-Ann
    This dissertation seeks to comparatively analyse different emerging jurisprudence of pioneering jurisdictions on the operability of enforcing digital copyright in light of the growing use of the Darknet. It addresses the legal lacuna in the existing copyright laws with regards to enforcement against the illegal distribution of infringing copies of online digital content. It also seeks to illustrate how the concept of digital copyright protection has been compromised by the inoperability of enforcement laws on illegal distribution via the Darknet. It thereby advocates for a 'digital use' exemption and or free access as a recommendation. Although the advancement of technology created new and advanced forms of distribution or availing copyrighted works to the public, these new advanced channels of distribution have been compromised by rogue online clandestine file sharing networks. Digital copyright protection laws have been advanced so as to respond to illegal online file sharing, however, they have had limited impact due to the vast, flexible and unregulated nature of the internet which transcends the territorial nature of any single state's copyright laws. Currently, online file sharing is effected through peer to peer networks due to their operational convenience. This dissertation suggests that the need to control distribution, legally or technological, is driven by the urge to enable digital copyright owners to benefit financially from their works and get a return on their investment. Technologically, this has been effected through the adoption of Digital Rights Management (DRMs) measures that control access to these works through the use of paywalls on commercial websites that require online consumers to pay/ subscribe first before they gain access to the copyrighted works. (eg Netflix, Showmax, itunes e.t.c) However, since absolute control over one's digital works, online, is impossible, the success of these access-control mechanisms remains debatable and remain vulnerable to technologically sophisticated users who could easily circumvent them and make the protected works available to millions of other users in Darknets. This, in effect, creates a parallel and free market for digital content. Darknets have grown as the new preferred channel of distribution due to their unique features which have rendered any judicial or legislative threat of sanctions, merely academic and detached from practical application. The Darknet essentially provides for user privacy, in anonymity, and security from monitoring and detection. These two primary features have exacerbated online piracy as various Darknets ISPs have now developed more user-friendly Darknet versions for the average mainstream user. This dissertation will highlight how the digital creative industry faces an existential threat with the growing use of Darknets. Darknets have created a virtual environment where illegal digital content distribution continues with impunity, since the burden of the enforceability of copyright rests squarely on the individual copyright holder and the pursuit of liability only begins upon detection of any such infringement of copyright. In effect, copyright owners, most often than not, lack the technological expertise to monitor and detect and thereby cannot enforce their copyright. As such, this dissertation postulates that the legal/ technological effort to maintain any form of monopoly over digital content online is an unattainable objective. As a solution, to end both online piracy and safeguarding the financial interests of copyright owners, a change in the approach to digital copyright is needed. This will be achieved through creating a 'digital use' exemption and or free access. Rather than copyright owners trying to control access, they should provide free access and profit on alternative revenue business models. Free access to digital content will do away with the need of online users to pirate and also save copyright owners the effort and resource to keep monitoring the virtual world for infringement. It will also counter-react to the Darknet's parallel market since users will have free access to digital content from the official distribution websites. This dissertation will interrogate the viability of this option.
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    Evaluating the current copyright provisions for the reproduction and dissemination of electronic educational material in distance learning
    (2015) Lamont, Kim Tracy; Tong, Lee-Ann
    There is a marked increase in distance learning courses. According to the literature, online courses have penetrated 78.09% of undergraduate level programmes and 64.3% of doctoral research institutions. The amplified trend towards online learning courses raises questions pertaining to access to educational material online. Digitisation has enabled the rapid copying of content and dissemination thereof to better enable access to learning for all through such digital availability of educational material. However, whether there are sufficient exceptions within copyright law to better facilitate the magnanimous growth of distance learners is debatable. The aim of this minor dissertation is to determine whether there are international instruments such as the Berne Convention, the Trade Related Intellectual Property Agreement (TRIPs), and the WIPO Copyright Treaty (WCT) that better enable the electronic reproduction and distribution of work for distance learners. To understand the fair dealing and fair use provision specifically for distance learning in specific countries, which include South Africa, United Kingdom and United States Methodology: A large literature search was undertaken, which included legislation, published journal articles, websites and magazines to characterise the current state of access to educational material for distance learners in SA, UK and USA. The findings show that there is not sufficient room for access to educational material for distance learners in a fair dealing model. This can be demonstrated in the enumerated list that must be adhered to for fair dealing to subsist. This is demonstrated in section 12 of the South African Copyright Act as well as section 32-36 in United Kingdom's Copyright Designs and Patents Act. However, in the United States there has been development within the codification of fair use terms in section 107 of the United States Copyright Act that have provided provisions for multiple copies as long as the four criteria for fair use are fulfilled. Furthermore, the Digital Millennium Copyright Act was implemented which has therein specified provisions for the digitisation of a work for distance learners. There are not sufficient exceptions within copyright law for access to digitised educational material for distance learners in South Africa and the United Kingdom. The current exceptions are narrow and limited. Therefore, a recommendation would be to broaden the scope of the provisions to increase the flexibility and better to accommodate access to educational material for distance learners in this information age where digital networks and access are growing exponentially. Some countries such as the Unites States have come to this realisation early and have started to accommodate digitisation of works and distance learning models through the Digital Millennium Copyright Act and the codification of the fair use model in section 107 of the United States Copyright Act.
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    Patents of traditional medicine inventions and their relationship with traditional knowledge associated with genetic resources in Namibia: proposals for legal reform
    (2017) Jacobs, Cislé Stella; Tong, Lee-Ann
    The study recognises the significant biotechnical role of the pharmaceutical industry in developing and processing traditional medicine into safe and efficacious drugs and vaccines and how patent law assist this achieving this end. The study argues that patenting of traditional medicine inventions is possible without encroaching on the protection accorded to TK associated with GRs. It further argues that through the implementation of a disclosure requirement for all patent applications of inventions which are based on or derived from TK associated with GRs, misappropriation of TK and GRs can be prevented in Namibia. To this end, the study identifies key concepts and legal instruments both internationally and regionally i.e. the Convention on Biological Diversity, 1993, the TRIPS Agreement, 1994 and the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, 2010; which provides for TK, GRs and patent laws. The study further analysed how Namibia translated international obligations to its legal framework. A comparative analysis is produced between Namibia and South Africa to determine which system is most suitable for Namibia.
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    "Piracy" in regard to ITV, IPTV and Mobile-Television
    (2016) Hellemeier, Gisa; Tong, Lee-Ann
    My minor dissertation in Intellectual Property Law is about Copyright Law and infringement in relation to mobile television, Internet Protocol Television and Internet Television as well as the online services of downloading and streaming. The thesis will contain of five chapters. The first chapter will give an overview of the nature of the problem, the structure and methodology as well as the named media and their technological background. The second chapter will then introduce the relevant technologies, institutions in charge and the general legislation and will serve as background information for the main issues of copyright. Further I will discuss operational licenses, which have to be distinguished from content licenses in the copyright correlation. Chapter three will be the focus of my thesis and will deal with copyright in connection with ITV, IPTV and mobile-TV. It will inter alia portray the issues of infringement, liability, exceptions and limitations in the named context as well as the proposed Copyright Amendment Bill 2015. The fourth chapter will then commence by discussing the German copyright in the relevant aspects of the topic. It will pay special attention to the legal dichotomy of online-streaming. Chapter five will summarise and conclude the relevant findings of the copyright issues. It will further give prospect to the legal dichotomy in South Africa and how to handle it, since there is no applicable local jurisdiction yet. Hence it will go beyond the comparisons by looking ahead for the developing online media and the necessity of law to properly adapt to it.
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    Protecting traditional knowledge - does secrecy offer a solution?
    (2010) Tong, Lee-Ann
    The shortcomings of using the intellectual property system to safeguard the interests of traditional knowledge holders have received considerable attention. Laws that guard against the disclosure of secret traditional knowledge to non-community members may offer a low-cost and accessible way for traditional communities to prevent the misappropriation of their traditional knowledge. This paper reviews the concerns that may arise when holders of traditional knowledge attempt to rely on claiming unfair competition and contract laws to protect their traditional knowledge.
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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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    Skin-deep: The copyrightability of tattoos and addressing the ambiguity of South African Copyright Law on tattoos
    (2023) Hassan, Shar?; Tong, Lee-Ann
    “My body is my journal, and my tattoos are my story.” – Johnny Depp Would it ever occur to you that a third party could claim ownership of your skin? That could be the case with art that has been inked into your skin, namely a tattoo. Although copyright law is an established and codified field of law, there are a few novel sub-categories that remain equivocal and unaddressed by South African courts. As a result of an erratic, expeditiously evolving society, new fields emerge and become rampant enough to cause unexpected problems as the law tries to catch up. The application of copyright law to tattoos is a particularly timely example, and the focus of this dissertation. Is a tattoo copyrightable? Who is the owner of the tattoo copyright? What rights does an owner possess? Can an owner enforce copyright, and if so, what is the scope of such enforcement? Infringements occur in what and how many ways? These are not the questions that come to mind when getting a tattoo. Despite the lack of court decisions in this area of the law, this dissertation concludes that tattoos indeed satisfy the requirements of copyrightability in South Africa — originality and reduction to material form. It also discusses the copyrightability of tattoos, the parties with an ownership interest in a tattoo, and potential infringements and remedies. This dissertation concludes by exploring proposed solutions to the ambiguity regarding tattoos within copyright law. While the focus of this thesis is on South African law, due to limited research and a lack of judicial guidance on tattoos in the South African context, South Africa will be compared to the US to provide additional insights into where South Africa falls short and where we may seek guidance from the US approach to fill the lacunae in our law.
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    Skin-deep: The copyrightability of tattoos and addressing the ambiguity of South African Copyright Law on tattoos
    (2023) Hassan, Shar?; Tong, Lee-Ann
    “My body is my journal, and my tattoos are my story.” – Johnny Depp Would it ever occur to you that a third party could claim ownership of your skin? That could be the case with art that has been inked into your skin, namely a tattoo. Although copyright law is an established and codified field of law, there are a few novel sub-categories that remain equivocal and unaddressed by South African courts. As a result of an erratic, expeditiously evolving society, new fields emerge and become rampant enough to cause unexpected problems as the law tries to catch up. The application of copyright law to tattoos is a particularly timely example, and the focus of this dissertation. Is a tattoo copyrightable? Who is the owner of the tattoo copyright? What rights does an owner possess? Can an owner enforce copyright, and if so, what is the scope of such enforcement? Infringements occur in what and how many ways? These are not the questions that come to mind when getting a tattoo. Despite the lack of court decisions in this area of the law, this dissertation concludes that tattoos indeed satisfy the requirements of copyrightability in South Africa — originality and reduction to material form. It also discusses the copyrightability of tattoos, the parties with an ownership interest in a tattoo, and potential infringements and remedies. This dissertation concludes by exploring proposed solutions to the ambiguity regarding tattoos within copyright law. While the focus of this thesis is on South African law, due to limited research and a lack of judicial guidance on tattoos in the South African context, South Africa will be compared to the US to provide additional insights into where South Africa falls short and where we may seek guidance from the US approach to fill the lacunae in our law.
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    The Operation and Regulation of Collective Management Organizations of Music Works in the Digital Era: A Review of Kenya’s Legislative Framework
    (2017) Nyehita, Suzanne Ghati; Tong, Lee-Ann
    The era of digitization has brought about new categories of copyright works and new modes of dissemination of these works. This has affected music works copyright, collective management of these rights and the law of copyright as a whole. Scholars hold different opinions on the effect of technological advancement on collective management. One tier believes that it expands the role of CMOs by providing the most appropriate and convenient way to exercise these new bundles of rights. The other tier believes that CMOs might become irrelevant since new technologies enable copyright holders to maintain a direct relationship with users. Consequently, this dissertation seeks to prove that digitization is complementary to the role of CMOs. It is complementary if and when the legislative structure is reformed to contain technology specific provisions. In turn this would justify the continued existence of CMOs. The research will focus on collective management of music works in Kenya. A majority of Kenyans have access to internet making it easier to use and disseminate musical works in the digital environment. This research questions whether this type of usage is subject to collective management and whether the current copyright laws facilitate collective management in the digital environment. The main hypothesis developed is: effective regulation of copyright offers a better attempt at ensuring efficiency of CMOs in the digital era. Kenya’s copyright laws have been amended severally to reflect changes in copyright law. Constant litigation in the area of copyright seeking to interpret the application of current statutory provisions in the digital era, offers a clear indication that the amendments and application of the current copyright laws is not effective given the technological evolution. African countries like South Africa and Nigeria have started their legislative journey in amending their copyright laws. Kenya needs to appreciate the need to amend the current copyright laws and start its own journey of regulating copyright in the digital era.
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    The protection of traditional cultural expressions ? seeking international consensus for a multilateral solution
    (2023) Harbs, Carolina; Tong, Lee-Ann
    Traditional Cultural Expressions (TCEs) as part of indigenous cultural heritage have been misappropriated and commercially exploited by western culture for centuries. Existing intellectual property laws, the closest conceptually related legal regimes, fail to protect TCEs because they were not developed with indigenous culture in mind. Despite over twenty years of negotiations at the Intergovernmental Committee on Intellectual Property and Genetic Resources (GR), Traditional Knowledge (TK), and Folklore at the World Intellectual Property Organisation (WIPO IGC), a binding agreement on an appropriate protection mechanism has yet to be found. Based on the novel hypothesis that the identification of a lowest common denominator forms the most realistic starting point for an agreement, the research question of this thesis asks where consensus exists between the most conflicting positions at the WIPO IGC and how this common ground can be leveraged to conceptualise a legal framework that will form a realistic base for an international agreement. This original approach focuses exclusively on TCEs and establishes a first-of-its-kind analysis of a multilateral law-making procedure. The methodological approach follows a three-part legal analysis. In the first stage, the current gaps in international law for the protection of TCEs are identified, and the consensus-finding and dispute-resolution mechanisms implemented at the WIPO IGC are evaluated. The second stage contains a legal doctrinal study of domestic approaches of specific parties and selected customary law. The third step contains an analysis and comparison of the different stakeholder positions regarding the draft law currently negotiated at the WIPO IGC. The study focuses on the United States of America, the European Union, South Africa, and the Indigenous Caucus, reflecting the parties whose positions are most at odds. The analyses yield that, should the current conditions persist, the WIPO IGC will not reach a binding agreement amongst all participating parties. Their approaches and positions are, in part, mutually exclusive, and the negotiation procedure at the IGC is no longer suited for parties with such diametrically opposed political and economic interests. To reach an agreement, the author of this thesis recommends specific changes to the wording of the draft law and the negotiation procedure. Procedurally, the tool of majority voting on pressing matters should be reintroduced, and the number of vetoes on matters of text-drafting should be limited. On a national level, governments should simultaneously draft domestic laws to protect TCEs and support indigenous communities through existing IP tools. Keywords: Traditional Cultural Expressions; Intellectual Property Law; Multilateral Dispute Resolution; Consensus-Finding; Traditional Knowledge; Intergovernmental Committee on Traditional Knowledge; Genetic Resources and Folklore; World Intellectual Property Organisation