Browsing by Subject "Intellectual Property Law"
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- ItemOpen AccessA 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, ChijiokeIndigenous 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.
- ItemOpen AccessAn examination of South Africa’s efforts at patent system reform: trips flexibilities fully appropriated for public health needs?(2020) Lakpini, Clarence Sokolambe; Schonwetter, TobiasThe 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.
- ItemOpen AccessAn analysis of the registration of traditional product names, terms, symbols and other cultural expressions as trademarks in Namibia(2014) Nghihalwa, Saima Litauleni; Nkomo, MarumoProtection of traditional knowledge and traditional cultural expressions of indigenous communities is one of the most contentious and complicated issues on both international and national agendas. The historical development of the protection of intellectual property in the wake of the industrial revolution and its subsequent jurisprudential justification, based on private property rights, pushed TK and the practice based on it, outside the purview of the formal intellectual protection regime. There is substantial evidence that TK has in past decades been used in a range of industries and has accordingly led to new products as well as the development of existing products. Evidence of this can be found in the areas of special foods and beverages, the cosmetic sector, personal care, agriculture, horticulture and pharmaceuticals. Industries sometimes make use of this knowledge to formulate new products, which they do in a slightly different manner so as to market the products as their own. Currently, there are certain products in Namibia that use the traditional terms of products as trademarks. Despite the fact that some of these terms are not registered with the Ministry of Trade and Industries, these owners enjoy common law protection under trademark law. This is especially so for well-known products such as Omaere milk, which is a product of the Namibia Dairies (Pty) Ltd. The term Omaere is used by the OvaHerero and OvaHimba speaking communities of Namibia and Botswana to refer to traditionally processed curdled milk. The Namibian Dairies (Pty) Ltd has been making use of this name for one of their curdled milk products for more than 15 years. During this period the company has done such excessive marketing of the product that this name has come to be regarded as their trademark. Reviewing it from this perspective, one can conclude that no-one else could use this name to refer to their milk products, as it has come to be considered as a product of the Namibia Dairies.
- ItemOpen AccessThe battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations(2008) Barratt, Amanda; Kinderlerer, JulianThe patent system exists to encourage the development of new products from which society will benefit. The strength of protection awarded to patented products is a policy decision, allowing states to balance the monopoly rights of patent-owners against the inherent social costs of monopoly protection. The effective policy space within which states may establish domestic patent policy is increasingly circumscribed by international rules prescribing minimum protection levels regardless of local circumstances or consequences. In international negotiations, developing states have attempted to resist policy space curtailment using arguments that rely on foundational principles of the intellectual property system: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; its opponents counterargue that stronger patent protection achieves the same ends. This dissertation examines the resulting circular discussions at the 2001-2003 Doha negotiations and the WIPO Development Agenda talks since 2004. I argue that the impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Economists have been unable to resolve this tension by identifying optimal protection levels. Furthermore, intellectual property theory is unable to provide a bottom line at which the short-term social costs of patent monopolies must be deemed unacceptable, regardless of anticipated longerterm benefits. The developing states' negotiating stance will be strengthened if a bottom line can be identified. I argue that the International Covenant on Economic Social and Cultural Rights provides benchmarks to fulfil this function. ICESCR obligations are specific, objective, and measurable; they have international legitimacy; and they bind almost all states. I examine the Article 12 right to health to show that states violate the ICESCR if they ratify other treaties which reduce policy space and make it more difficult for states to adopt policies to meet their domestic or extraterritorial obligations. I also examine Article 15, concluding that it is insufficiently developed to offer firm guidelines. I use insights from international relations theory to examine the practical possibilities of adopting a human rights-based approach, and argue that the strategy will become progressively more effective as human rights norms are internalized through the negotiating process and by other means.
- ItemOpen AccessComparative 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-AnnThe 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.
- ItemOpen AccessCompulsory 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-AnnThis 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.
- ItemOpen AccessThe copyright protection of online user-generated content(2014) Mudau, Sipho; Schönwetter, TobiasOnline social networking sites such as Facebook and YouTube allow creative works to be more easily copied and distributed. This type of content is generally referred to as user-generated content and its creation has become a major component of our daily routine. As a result, user-generated content has the potential to influence not just the nature of social interactions but methods of doing business. The advent of user-generated content poses new challenges to copyright law, the conventional medium of protecting these creative works. The global reach of the internet and the increasing ease of access thereto make infringement of original material more likely and more frequent. User-generated content is also surrounded by legal uncertainty in the areas of defamation and privacy. It is beyond the scope of this paper to deal in any depth with these issues. This dissertation will focus on the implications of user-generated content within the realm of copyright. Specifically, this paper examines whether South African copyright law, in its present state, adequately protect the rights and interests of content creators on one end and website owners and proprietors on the other. This assessment will be guided, in part, by judicial precedent and legislative policies adopted in other jurisdictions.
- ItemOpen AccessA critical analysis of the protection of traditional knowledge within the Namibian legal system(2014) Vilho, Aina N; Nkomo, MarumoNamibia is well known for its unique climate and ecological profile hence its biodiversity, which comprises wild and cultivated species and varieties. The country’s relative isolation has contributed to the maintenance of a unique genetic resource base. There are many naturally occurring plants and animals that have been used since time immemorial by local people as a source of food security, primary health and for their general livelihood, which could be exploited for commercial purposes. There is a growing international interest in bio trade with, and bio prospecting in, Namibia. This paper examines Traditional Knowledge (TK) and Intellectual Property Rights (IPR’s)6within the Namibian context. It further examines whether the protection under the current Namibian intellectual property (IP) framework sufficiently protects all types of indigenous TK against exploitation. The rationale for the examination stems from a draft policy on ‘Access to Genetic Resources and the Protection of Associated Traditional Knowledge’. There is little knowledge about the genetic resources that have left Namibia, those that are still here, and their biological and conservation status. The associated problems, concerns and threats underscore the need for policies and legislation to regulate access to genetic resources, to protect TK and practices, and to facilitate the equitable sharing of benefits from the use of genetic resources.
- ItemOpen AccessDoes the growth of ICT in Zimbabwe present an opportunity for effective use of intellectual property rights?(2015) Musiza, Charlene Tsitsi; Ncube, CarolineIn 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.
- ItemOpen AccessEmployee rights over inventions and innovations in employment in Kenya(2016) Ndungu, Martha Wanjiru; Ncube, CarolineWe 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.
- ItemOpen AccessEnforceability of digital copyright on the darknet?(2018) Mathini, Moses Wanjukia; Tong, Lee-AnnThis 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.
- ItemOpen AccessEvaluating the current copyright provisions for the reproduction and dissemination of electronic educational material in distance learning(2015) Lamont, Kim Tracy; Tong, Lee-AnnThere 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.
- ItemOpen AccessIntellectual property business protection during a company survival stage : an inside-out approach(2016) Vergara Sandoval, Matias; Schönwetter, TobiasLawyers and businessmen work closely together every day. Despite the increasing value of patents and trademarks for companies, it is important to keep in mind that Intellectual Property law and contractual law provide for much more types of protection than statutory rights (patents, trademarks, copyright). Business and company developments are no longer linear. Flexibility plays a key role in the journey a company has to travel to reach success, especially in the case of entrepreneurs and sole proprietorship companies. New businesses going through the "death valley"1 will need to be as flexible as possible to succeed. It is only fair for their attorneys to meet such flexibility standard. For these purposes, understanding different industries, stages of business developments, and Intellectual Property contractual and statutory rights becomes an essential matter to properly asses which kind of protection should and can be used for a particular scenario, on a specific time and on a limited budget. In general terms, Intellectual Property literature presents different types of Intellectual Property management schemes making use of patents, trademarks, design models, copyright, etc. individually considered and mainly referring to statutory or agency granted rights. These mainly and usually refer to case law and /or jurisprudence (as applicable) and international conventions. However, despite the ever increasing number of articles addressing each of these rights, little reference is made to their strategic use within the context of a specific company's business development stage or business needs they are aiming to protect. When reflecting on success cases, not many details are published regarding the "partnership agreements", "employment contracts", "services agreement" entered into by a company, or the Intellectual Property policies implemented by it while developing its business. On the other hand, when addressing the Intellectual Property portfolio, authors seem to refer to patents, trademarks and copyright as the big (or even core) concerns. Consequently, what matters should an entrepreneur identify and address from an Intellectual Property standpoint when starting a business? The most common answer has been: I am just starting and not anywhere near to a patent, so that is not for me. Each Intellectual Property statutory right functions independently, notwithstanding the possibility of using a combination of them. However, these rights can be used for more than one purpose. This dissertation describes the legally granted privileges (focused on patents, trademarks, copyright) and the role these play, just as one of the tools entrepreneurs have to protect their Intellectual Property business. It describes and explains other available contracting tools as part of a comprehensive Intellectual Property protection and business development strategy.
- ItemOpen AccessIntellectual property rights protection of publicly financed research and development outcomes: lessons Kenya can learn from the United States of America and South Africa(2015) Mwangi, Perpetua Njeri; Ncube, CarolineThis dissertation explores the protection of intellectual property rights (IPRs) as they relate to publicly financed research and development (R&D) outcomes. Kenya has the opportunity to learn from the experience of the United States of America (US) and South Africa (SA). The US enacted the Bayh-Dole Act (BDA) in 1980 while SA enacted the Intellectual Property Rights from Publicly Financed Research and Development Act (IPR-PFRD Act) in 2008. The main research question is whether Kenya ought to enact similar legislation. In addition to the main research question, there are six other secondary questions. The first and second research questions are explored in chapter two which discuss the enactment of the BDA and its impacts in the US. The dissertation uses literature to look at the legislative journey of the BDA which upon its enactment created a uniform approach towards the protection of federally funded R&D outcomes. Literature also points to the fact that years later, the BDA still invokes debates across the US and beyond. There is no consensus on the impact of the BDA. Despite the lack of a clear stand point on its exact effect, several countries have emulated the US and still continue to do so. The third and fourth research questions discussed in chapter three adopts a similar approach but focuses on SA, the first African country to emulate the BDA. The IPR-PFRD Act has been operational since 2010. The limited period of its existence means that the literature available is work in progress. Despite that, SA has had some impacts experienced so far across its leading universities in the form of; realignment of IP policies to comply with the provisions of the IPR-PFRD Act as well as discussions among researchers, innovators and the National Intellectual Property Management Office (NIPMO). There is evidence that Universities, industries and NIPMO are trying to implement the spirit as well as the letter of the IPR-PFRD Act. The fifth and sixth questions discussed in chapter four turn to Kenya. The dissertation tries to establish whether there is a demand in Kenya for legislation that regulates publicly financed R&D outcomes. It proposes that the time is not yet ripe for Kenya to have a BDA model, but that Kenya needs to first develop sustainable capacity and infrastructure to support the protection, management and ownership of IP. Chapter five concludes that Kenya can learn invaluable lessons from the US and SA when it considers regulating publicly-financed R&D outcomes.
- ItemOpen AccessInvestigating musical copyright infringement: Examining International Understandings of Musical Copyright Infringement for Potential Adaptation into South African Copyright Law(2019) Marais, Richard; Schonwetter, TobiasThis 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.
- ItemOpen AccessLeast developed countries and geographical indications: how can Uganda position itself to benefit from geographical indications?(2015) Kisuule, Yvonne Alexandra; Nkomo, MarumoThe primary objective of this thesis is to determine how Uganda can optimally benefit from geographical indications. This objective is achieved by focusing on the current negotiations at the World Trade Organization concerning geographical indications. The main issues in contention are the extension of a higher level of protection to other products, besides wines and spirits, and the establishment of a multilateral register for wines and spirits. In the discussion of these issues, each proposal is examined in light of Uganda's interests. The thesis also focuses on how geographical indications can be turned into development tools at the national level. It considers Uganda's legislation, the Geographical Indications Act 8 of 2013, and highlights the provisions that might deter the establishment of a successful geographical indications system in the country. The thesis then identifies other factors that Uganda must address in order for geographical indications to become development tools. It is concluded that in order to establish a successful geographical indications system, Uganda needs to continue its support for the Modalities Proposal in the international negotiations. Furthermore, at the national level, there are various factors that must be addressed, beyond the law, before geographical indications can become development tools, and these include the formation of producer organisations, marketing strategies and the sensitisation of stakeholders.
- ItemOpen AccessThe legal and political imperatives for proposed amendments of the South African Patents Act to implement TRIPS flexibilities and enhance the framework for access to medicines(2012) Kirk, Katie; Kinderlerer, JulianA multitude of factors affect the ability of South Africans to access the essential medicines, intellectual property (IP) is one of them. This dissertation considers some of opportunities open to South Africa through international IP flexibilities, which are aimed at safeguarding public health rights against the sometimes access-restricting effects of patent right monopolies. Potential pitfalls are also highlighted, noting strategies for South Africa to avoid the worst of them. The paper begins by giving an overview of the way in which patents affect access to medicines, and contending that the time for making the proposed amendments is now.
- ItemOpen AccessLiability for Disseminating in the Digital Age: Copyright Law and Hyperlinking on the World Wide Web(2021) Neerooa, Sheik Issah Shehzaad-E-Ajmal; Ncube, CarolineHyperlinks serve as essential tools to communicate and disseminate information on the World Wide Web. As one commentator stated: ‘without hyperlinks, the web would be like a library without a catalogue: full of information, but with no sure means of finding it'.1 Unfortunately, hyperlinks may also be utilised to enable copyright infringement.2 Copyright protected works may be disseminated on the internet without the authorisation of the copyright owner using hyperlinks. Accordingly, effective legal rules are necessary to not only safeguards the rights of copyright owners but to also preserve the fluid communication and dissemination of information on the internet. The dissertation will have the aim of analysing the approaches taken by the European Union's (EU) courts and the Unites states of America's (US) courts in dealing with hyperlinking to copyright protected works. The terms necessary for the proper understanding of the dissertation will be first outlined. It will then be determined if the EU originally offered a satisfactory solution to the hyperlinking issue. Thereafter, it will be explored if the EU currently effectively addresses the legal treatment of hyperlinking under copyright law. The approach taken by the US will then be critically analysed. Moreover, the dissertation will also have the goal of recommending how these jurisdictions should refine their laws to tackle future hyperlinking cases in an effective manner. Finally, it will be proposed which approach SA should favor when dealing with hyperlinking to copyright protected works.
- ItemOpen AccessPatents 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-AnnThe 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.
- ItemOpen Access"Piracy" in regard to ITV, IPTV and Mobile-Television(2016) Hellemeier, Gisa; Tong, Lee-AnnMy 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.