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PER: Potchefstroomse Elektroniese Regsblad

On-line version ISSN 1727-3781

PER vol.16 n.4 Potchefstroom Apr. 2013

 

NOTES

 

Harnessing Intellectual Property for development: Some thoughts on an appropriate theoretical framework

 

 

CB Ncube

LLB (Zimbabwe) LLM (Cantab) PhD (Cape Town). Associate Professor, Department of Commercial Law, Unversity of Cape Town. Email: caroline.ncube@uct.ac.za

 

 


SUMMARY

This paper considers how an appropriate theoretical framework for Intellectual Property may be constructed. Such a framework would be the lens through which contested IP issues may be resolved and upon which national IP policy and legislation might be based. The paper begins by highlighting the inherent tensions in IP, which are caused by the various stakeholder interests that this body of law seeks to balance, and by the cross-cutting nature of IP. It contends that in order to more equitably balance the contesting rights of the creators and users, IP rights should be formulated and enforced so as to meet societal goals or serve public interest, be responsive to the economic environment, and take cognisance of the human rights claims of both creators and users.
National socio-economic goals should inform such a framework in a way that ensures that IP is used as a means to achieve these goals and is not perceived as an end. This will require nuances in policy and legislation that meet the country's needs. In particular, as a developing country South Africa would do well to exploit available flexibilities in the various international IP agreements by which it is bound.
Due regard also ought to be had to the users' need for affordable access to IP-protected goods in order that they may exercise the right to work and access to knowledge, as provided for by ss 22 and 16 of the Constitution respectively. Similarly, creators ought to be given due recognition, together with reasonable reward and remuneration for their efforts. This will be achieved through the creation of an IP system that provides protection that is compatible with the nature of the good being protected and the manner in which the creative process unfolds. Such protection should rely on registration systems are efficient, simplified and affordable. The accompanying enforcement system should be equally accessible, although the costs of enforcement would depend on the forum used to secure redress. Finally, the resulting IP regulatory framework should be both certain and clear.

Keywords: Intellectual property, equity, stakeholder interests, right to work, access to knowledge.


 

 

1 Introduction

Intellectual Property (IP) law is expected to provide equitable protection for eligible kinds of works in virtually all industries; to achieve fair treatment of creator, user and societal interests; and to contribute to a country's efforts to achieve economic development. This is a tall order and debates pertaining to IP law tend to be heated and heavily contested due to the tensions caused by these high expectations. In an effort to move such debates forward, this paper advances a nuanced framework through which contested IP issues may be resolved and upon which national IP policy and legislation may be based.

This is a timely discussion as South Africa is engaged in national IP Policy formulation and public consultation is in progress.1 There are also current continental and international IP debates in which the country has a stake. Continentally, the establishment of a Pan-African Intellectual Property Organisation under the auspices of the African Union is on the agenda.2 Internationally, a treaty on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities was adopted at a diplomatic conference on 28 June 2013.3

IP law is fraught with tension for three main reasons. First, its cross-cutting nature and diverse scope of coverage generates numerous issues in need of resolution across a range of different industries. These range from the appropriate protection of computer programs4 to the manner in which copyright law facilitates meaningful access to knowledge for learners and the visually impaired.5 Another topical IP issue is the protection of traditional knowledge (TK).6 The core of the debate is whether IP protection is suitable, whether a sui generis system should be crafted, or if a combination of the two approaches should be adopted. A policy7 and various iterations of a Bill providing for IP protection have been published by the Department of Trade and Industry (DTI) as has a privately drafted alternative version of the Bill.8 In 2012 the Intellectual Property Laws Amendment Bill No 8B of 2010 was passed by both the National Assembly and the National Council of Provinces but was denied Presidential assent9 and returned to the National Assembly. Presidential assent was withheld because the Bill had not been dealt with as required by s 76 of the Constitution of South Africa, 1996 and it had not been referred to the National House of Traditional Leaders as required by s 18 of the Traditional Leadership and Governance Framework Act 41 of 2003. This paper will not rehash the discussion of the appropriateness of IP protection for TK that has already been held in many forums. It only seeks to highlight the main point of contestation in this discussion, which is whether or not IP law is suited to the peculiarities of TK, which include communal creation and ownership and the fact that TK often does not meet the eligibility criteria of IP protection such as novelty (for patent protection) or material fixation (for copyright protection). Perhaps, informed by these concerns, the Department of Science and Technology (DST) is creating sui generis protection for TK10 to complement the DTI's approach. These two different departmental approaches show that this issue is so complex that even government departments are in favour of different approaches.

The second reason for the inherent tensions in IP law is that it seeks to simultaneously address the position of three distinct constituencies: including the creators or owners, the producers, and the users of IP11 - or society in general. The creators of IP can generally be said to desire full control of their IP and therefore seek to obtain strong IP protection. Their main needs are for "recognition, respect and remuneration".12 The producers of IP, who commercialise creators' works, seek enforceable protection for IP and competitive markets that will enable them to recoup their investments.13 Like creators, producers favour strong protection. On the other hand, the main needs of the users of IP are "access to and affordability of scientific and cultural technology."14 Consequently, they seek to avoid undue restrictions on their usage of the IP concerned and generally prefer minimalistic IP protection. In other words they prefer little or no protection at all. IP policy and law need to balance these competing stakeholder interests. Such a balancing act needs to be achieved within an equitable, constitutionally sound and economically viable policy scaffold. Section 3 below outlines such a model of equitable IP.

Thirdly, the relationship between IP law and economic development and the role IP can play as a means of achieving economic development has been misunderstood. Previously it was thought that having an IP system akin to developed countries' current systems would guarantee economic growth.15 It was believed that a strong IP system was the key to economic growth. Recent scholarship has challenged this notion and shown that law, including IP law, is an important component and driver of economic growth.16

It has also been shown that developed countries began with minimal IP protection to encourage innovation and economic growth.17 These systems were incrementally strengthened in tandem with economic growth.18 This same approach is being used by today's fastest growing economies. Brazil, Russia, India and China's IP systems are not as strong as those of developed nations, leading to some conflict as they are pressurised by developed nations to strengthen their IP systems.19 As a result of the manner in which their IP systems have been calibrated, Brazil, 20 Russia, India and China's21 economies are thriving. South Africa's experience substantiates this argument, because there have been minimal FDI inflows into the country22 although it has a relatively strong IP system,23 as is proven by its consistently high IP system rankings.24 In contrast, Brazil, Russia, India and China have weaker IP systems than South Africa,25 but have received substantially higher FDI inflows than South Africa.26 Therefore South Africa would do well to learn from her fellow BRICS and adopt a conservative IP regime which favours minimalism, within the bounds of her international obligations, until national socio-economic goals have been achieved.27

This paper engages in a broad discussion of IP and does not focus in depth on any particular type of IP protection. However, it is important at the outset to note that the theoretical framework outlined in the paper ought to be followed by more robust consideration of each type of IP in any future policy formulation. To illustrate how this may be done, the paper uses examples relating to patent and copyright protection for computer programs and educational materials respectively. It also considers the protection of traditional knowledge, as this is a topical matter.

 

2 Overview of IP and the protection of TK

This section gives a very broad overview of IP law. It merely defines IP and introduces the various types of IP protection and does not engage in a detailed discussion of each type. IP law seeks to protect IP rights (IPRs) which are "legal and institutional devices that protect creations of the mind such as inventions, works of art and literature, and designs".28 IPRs may be divided into the two main categories of (1) industrial property and (2) copyright and related rights. Industrial property entails the protection provided by patents, trademarks, industrial designs, plant breeders' rights and geographical indications. It also includes the protection of utility models, trade dress and layout designs or topographies of integrated circuits, and protects against unfair competition, including the protection of trade secrets.29 Copyright protects the original expression of ideas, the expression having been reduced to fixed form, provided the creator of the work is qualified or eligible for protection in that jurisdiction. Related rights relate to performance and similar depictions of work.

 

3 In search of equitable IP

This section does not purport to provide a comprehensive theory of IP because this is a nearly insurmountable task that is both inappropriate and unnecessary for present purposes. Not even a leading text on the theory and philosophy of IP30 attempts to do this. The section merely constructs a nuanced framework31 to be used to evaluate the appropriateness of IP protection in South Africa. This framework is based on three principles, namely instrumentalism, the interests of the public, and the balancing of the constitutional rights of the creator and the user.

The first principle of the framework is its underlying instrumentalist worldview, which rejects the elevation of property rights above all other rights and advocates for property rights that serve moral values and seek the "improvement of human conditions and experience".32 Instrumentalism is in stark contrast to proprietarianism and universalism, which prioritise the property rights held by creators or owners over the rights held by users or society generally, on the national and international sphere respectively.33 Building on the basis of instrumentalism, this paper contends that in order to more equitably balance the contesting rights of the creators and users, IPRs should be formulated and enforced so as to meet societal goals34 or the public interest, to be responsive to the economic environment, and to take cognisance of the human rights claims of both creators and users. Each of these strands is discussed in turn below.

3.1 Public interest and the economic environment

The public interest approach to IP seeks to equitably balance the interests of creators and users in a manner that is beneficial to society generally. This approach is promoted by developmental agencies35 and is evident in their strategic decisions36 and in the international agreements they administer. For example, the Agreement on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods (TRIPS)37 article 7 provides:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. (My emphasis)

This provision takes clear cognisance of the competing interests of producers and users of technological knowledge and calls for an equitable balancing of these interests. This position is reinforced by article 8(1) which in part provides:

Members may, in formulating or amending their laws and regulations, adopt measures necessary ... to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. (My emphasis)

This provision complements article 7 but differs from it because it expressly refers to the advancement of the public interest in certain sectors. It is particularly significant because it acknowledges that IP laws ought to be formulated so as to promote socio-economic goals. It is therefore inappropriate to take a one-size fits all approach to IP laws, as each jurisdictions socio-economic status and developmental goals have to be taken into account.

To create a sound framework, it is necessary to anticipate criticisms of the public interest approach and to take them into account in the construction of an equitable IP model. A criticism that has been levelled against the public interest approach is that it is unclear which social ends are to be met by IP laws.38 In those instances where theorists venture to recommend the social ends to be met by IP laws, they are accused of being paternalistic because they seek to prescribe what would be good for people.39 Such accusations are countered by the fact that the selection of societal ends is essentially a democratic issue, and that IP laws should serve the goals a country has set itself through its legislative and executive processes.40 Accordingly, this paper looks to South Africa's government policies to ascertain the "good" to be attained. One of South Africa's key strategies is the encouragement of economic development through commercial enterprise by the provision of an enabling legal environment.41 Special cognisance has been taken of the contribution of SMEs to economic development and the government has committed itself to promoting local SMEs.42

How IP ought to be used to serve the public interest can be argued from a creator or user perspective, raising the question of which interests are paramount. It is thus necessary to devise means by which these contesting claims can be balanced. This paper proposes the use of the twin pillars of human rights and socio-economic conditions to attempt to break the deadlock between creator and user interests. The use of these pillars finds support in articles 7 and 8 of TRIPS for two reasons. First, these two articles have been interpreted as establishing "a human rights mandate" for TRIPS member states because of their close alignment with international human rights legislation.43 Secondly, the text of the articles makes express reference to economic welfare and development. Each pillar is discussed below.

3.2 Using human rights to balance stakeholder interests

The public interest approach is considerably strengthened by the incorporation of a human rights perspective, which can break the deadlock between contesting visions for IP protection if it is properly deployed. Care needs to be taken with the use of human rights narratives because they can be used both in favour of expanding IP rights (in the interests of creators of IP) and against such expansion (in the interests of users).44 The proper deployment of this narrative is to use it as a bottom-line or "baseline" for human rights goals, then work backwards to establish how IP law can be used to achieve those goals.45 It is thus necessary to find this baseline by looking to South Africa's Constitution46 and to the international obligations by which the country is bound.

3.2.1 The right to IP

The South African Constitution does not provide for the right to IP as a human right because the Constitutional Court held that the right to have IP protection is not a fundamental right.47 Dean48 argues that the court should have found that IP had the status of a fundamental right following article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).49 Although South Africa has ratified the ICESCR, the country has not incorporated ICESR provisions into domestic legislation.50 The South African position is in marked contrast to the United States' position where article 1(8) of the United States Constitution expressly provides for IP protection. Scholars have thus been able to debate the constitutionality of various types of IP protection on the basis of whether or not that protection promotes the progress of science and the arts.51

In addition to constitutional clauses that protect IP specifically, as outlined above, there are also clauses that recognise the right of traditional communities to IP. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)52 provides for traditional communities' rights to "maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions".53 The South African Constitution predates UNDRIP by almost a decade and therefore does not contain any equivalent provisions for traditional communities to protect their IP.

3.2.2 The right to work

Section 22 of the South African Constitution provides for the right to choose a trade, occupation or profession (the "right to work".)54 The Constitutional Court has held that the meaning of this right is not found in the semantics of defining a "trade, occupation or profession" but in identifying the purpose of such activities, namely, that every citizen has the right to choose and practice an economic "activity to pursue a livelihood".55 The courts have emphasised that this right is a "sacrosanct"56 aspect of South Africa's constitutional democracy which places a premium on human dignity.57 This right has both horizontal and vertical application and binds the state and natural and artificial persons.58 This means that in creating policies and enacting legislation the state is enjoined to respect this right. South Africa's IP laws must therefore not prejudice this right.

The right to work has been judicially considered in a number of cases relating to restraint of trade agreements and the regulation or prohibition of trade, where the courts have shown their commitment to ensuring its enforcement.59 However, it is yet to be considered in the context I am contemplating here, which is explained by the following two examples in relation to the protection of computer programs and TK.

If a person (A) chooses to be self-employed and to run an SME which employs a computer program to implement its business methods, it is conceivable that A could argue that the IP protection, arising for example by the patenting of one of these methods by another person (B), prevents him (A) from freely practising his chosen trade or occupation and that this is not justifiable in a democratic society. It is possible to patent computer programs and business methods because their exclusion from patentability in section 25(2) of the Patents Act is qualified by the "as such" limitation provided for in section 25(3). Therefore a business method or computer program that has a technical effect is not a business method or computer program 'as such' and is patentable. A's argument could succeed if:

1. A's business, or an aspect of it, can only be practised by using that particular business method,

2. a licensing agreement cannot be concluded between A and B,60 and

3. the IP protection excludes A or other creators from developing functionally equivalent methods.

A's argument is buttressed by the fact that the South African Constitution does not contain a right to IP, and B would therefore be unable to mount an argument in which he pits his own human rights against A's. A's argument could thus be successful.

However, B could contest A's claim that there is only one way in which to practise that element of A's business. B could therefore argue that as there are numerous permutations of the method in issue, and that A is not being prevented from exercising his right to a trade or occupation of his choice because he could use another equivalent method. However, A could counter B's argument by contending that the need to find alternative methods, the threat of infringement actions and the need to negotiate licensing with patent holders pose significant barriers (patent thickets) which he cannot overcome. Therefore A is effectively prevented from practising his chosen trade or occupation. This argument is likely to succeed because research has shown that these barriers are quite significant.61

However, this constitutional protection of the right to work does not entitle users to gratis or unrestricted use of IP-protected computer-implemented business methods. The argument made above is in relation to access to such technology, but it does not extend to making a case for gratis access. IPR- holders have legally enforceable rights to charge market-related royalties for the licensed use of their protected methods, and to pursue infringers. On the other hand, the exercise of these licensing rights ought to take cognisance of the fact that South Africa is an emerging economy that seeks to promote the growth of small- and medium-sized enterprises (SMEs). This paper therefore is not making a case for free user access to business methods that flout the legitimate rights of IPR holders. Rather, it seeks to make a case for an equitable balancing of creator and user rights.

A second example, in the TK context, is that for a traditional community the right to work may entail trading in cultural artifacts or charging for cultural performances which would be adversely affected by the privatization of TK by community outsiders. On the other hand, it could also be argued that traditional communities require IP protection of their TK in order to enable them to exercise their right to work. However, as shown above at section 3.2.1, there is no general constitutional right to IP protection; nor is there a provision mandating the IP protection of TK.

3.2.3 User access rights

Section 16(1) of the Constitution protects freedom of expression, which includes "freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research". This section clearly supportsusers' rights to access.62 Davis points out that it includes "the right to research, publish and assimilate learning without any interference from the government".63 He notes that it has been suggested that this right may be extended to impose a duty on the state to adequately fund research.64 However, Davis is of the view that such an extension would pass muster as the basis of the constitutional provision is an attempt to prevent state "interference with the autonomy of tertiary institutions".65

Section 16 is particularly relevant in the context of access to knowledge or, more specifically, access to learning materials. In this context, this right is easily linked to the socio-economic right to education.66 Section 29 of the Constitution provides for a right to basic education and a qualified right to further education, coupled with the right to receive education in the language of one's choice.67 In this context the argument is that access to certain ideas, information and materials is necessary to facilitate education and is critical for learners. Jonker notes that "access to learning materials means that learning materials must be affordable, available, relevant, available in an inclusive range of languages, and available in formats suitable for use by the print disabled".68 IP policies, laws and practices have a significant impact on the availability of learning materials and thus it is imperative to bear this constitutional imperative in mind in IP policy formulation. The IP system has to balance creator rights against user rights in a way that ensures adequate access to scientific and cultural technology in accordance with section 16 of the Constitution and the right to education in accordance with section 29 of the Constitution.

 

4 Conclusion

An equitable IP model that is informed by the considerations outlined in section 3 above can be used as an evaluative tool in both policy and legislative drafting contexts. In order to guarantee the enjoyment of relevant user and creator constitutional rights, policy makers have to engage in stakeholder analysis and balance competing interests.

The users of IP-protected works need affordable access to these works for various reasons. These reasons include facilitating the exercise of the right to work and access to knowledge as provided for by sections 22 and 16 of the Constitution respectively. However, this is not to say that creators are to be denied due recognition plus reasonable reward and remuneration for their efforts, as this would ultimately be to the detriment of users. Creators' needs therefore need to be taken into account. One of creators'' foremost needs is for IP protection that is compatible with the nature of the good being protected and the manner in which the creative process unfolds. The ease and affordability of the acquisition of IP protection is also of paramount importance to creators. The cost of enforcement, which is generally high, is similarly important. Creators benefit from a vibrant commons from which to draw the building blocks for their creations. Finally, both users and creators require legal clarity and certainty so as to be able to protect their rights. An equitable regulatory scheme will therefore meet these user and creator needs.

 

Bibliography

Barrat Battle for Policy Space. Barrat A The Battle for Policy Space: Strategic Advantages of a Human Rights Approach in International Intellectual Property Negotiations (PhD-thesis UCT 2008)        [ Links ]

Bessen and Meurer Patent Failure. Bessen J and Meurer MJ Patent Failure: How Judges, Bureaucrats and Lawyers put Innovators at Risk (Princeton University Press Princeton, NJ 2008)        [ Links ]

Bird 2006 ABLJ. Bird RC "Defending intellectual property rights in the BRIC economies" 2006 ABLJ 317-363        [ Links ]

Bird "Impact of Coercion". Bird RC "The Impact of Coercion on Protecting US Intellectual Property Rights in the BRIC Economies" in Jain SC (ed) Emerging Economies and the Transformation of International Business: Brazil, Russia, India and China (BRICs) (Edward Elgar Cheltenham 2006) 431-451        [ Links ]

Bird and Cahoy 2007 NJTIP. Bird RC and Cahoy DR "The emerging BRIC economies: lessons from intellectual property negotiation and enforcement" 2007 NJTIP 400-425        [ Links ]

Chander and Sunder 2007 UC Davis L Rev. Chander A and Sunder M "Is Nozick kicking Rawl's ass? Intellectual Property and Social Justice" 2007 UC Davis Law Review 563-579        [ Links ]

Chang 2001 Journal of Human Development. Chang H-J "Intellectual property rights and economic development: historical lessons and emerging issues" 2001 Journal of Human Development 287-309        [ Links ]

Chapman 2002 Journal of International Economic Law. Chapman AR "The human rights implications of intellectual property protection" 2002 Journal of International Economic Law 861-882        [ Links ]

Cross 2010 PELJ. Cross JT "Property Rights and Traditional Knowledge" 2010 PELJ 12-47        [ Links ]

Davis "Economic Activity". Davis DM "Economic Activity" in Woolman S, Roux T and Bishop M Constitutional Law of South Africa 2nd ed (Butterworths Durban 1996 revision 1998) 29-15-29-19        [ Links ]

Davis "Education". Davis DM "Education" in Cheadle MH, Davis DM and Haysom NRL (eds) South African Constitutional Law: The Bill of Rights (LexisNexis Butterworths Durban 2002 revision April 2012) 24-1-24-6        [ Links ]

Davis "Freedom of Expression". Davis DM "Freedom of Expression" in Cheadle MH, Davis DM and Haysom NRL (eds) South African Constitutional Law: The Bill of Rights (LexisNexis Butterworths Durban 2002 revision April 2012) 11-1-11-11        [ Links ]

De Beer "Defining WIPO's Development Agenda". De Beer J "Defining WIPO's Development Agenda" in De Beer J (ed) Implementing the World Intelectual Property Organisations Development Agenda(International Development Research Centre and Wilfrid Laurier University Press Ottawa 2009) 1-23        [ Links ]

De Villiers 2006 SALJ. De Villiers R "Computer programs and copyright: The South African perspective" 2006 SALJ 315-337        [ Links ]

Dean 2012 Without Prejudice. Dean O "A new tradition in legislation" 2012 12(10) Without Prejudice 41-42        [ Links ]

Dean Handbook of South African Copyright Law. Dean OH Handbook of South African Copyright Law (Butterworths Durban 1987 revision 2006)        [ Links ]

Drahos "Death of a Patent System". Drahos P "Death of a Patent System - Introduction" in Drahos P (ed) Death of Patents (Lawtext London 2005) 1-11        [ Links ]

Drahos Philosophy of Intellectual Property. Drahos P A Philosophy of intellectual property (Dartmouth Aldershot 1999)        [ Links ]

Dutfield Intellectual Property Rights. Dutfield G Intellectual Property Rights and the Life Science Industries: A Twentieth Century History (Ashgate Aldershot 2003)        [ Links ]

Dutfield and Suthersanen Global Intellectual Property Law. Dutfield G and Suthersanen U Global Intellectual Property Law (Edward Elgar Cheltenham 2008)        [ Links ]

Elkin-Koren and Salzberger Law, Economics and Cyberspace. Elkin-Koren N and Salzberger EM Law, Economics and Cyberspace: The Effects of Cyberspace on the Economic Analysis of Law (Edward Elgar Cheltenham 2004)        [ Links ]

Evenson 2001 Case W Res J Int'L L. Evenson RE "Comment: Intellectual Property Rights and Economic Development" 2001 Case W Res J nt'L L 187-190        [ Links ]

Fisher "Theories of IP". Fisher W "Theories of IP" in Munzer S (ed) New Essays in the Legal and Political Theory of Property (Cambridge University Press Cambridge 2001) 168-199        [ Links ]

Gibbons 2011 SMU L Rev. Gibbons LJ "Do as I Say (Not as I Did): Putative Intellectual Property Lessons for Emerging Economies from the Not So Long Past of the Developed Nations" 2011 SMU L Rev 923-974        [ Links ]

Helfer 2007 UC Davis LR. Helfer LR "Towards a human rights framework for intellectual property" 2007 UC Davis LR 971-1020        [ Links ]

Idris Intelectual Property. Idris K Intellectual Property - A Power Tool for Economic Growth (WIPO Geneva 2003)        [ Links ]

Jonker "Access to Learning Materials". Jonker J "Access to Learning Materials in South Africa: The Convergence of Developmental and Rights-based Arguments for Access to Knowledge" in Rens A and Khan R Access to Knowledge in South Africa (ISP Yale & IPU UCT Cape Town 2009) 113-146        [ Links ]

Kaplan "Intellectual Property Rights". Kaplan D "Intellectual Property Rights and Innovation in South Africa: A Framework" in WIPO The Economics of Intellectual Property in South Africa (WIPO Geneva 2009) 1-17        [ Links ]

Krause 2000 Seattle UL Rev. Krause W "Sweeping the e-commerce patent minefield: the need for a workable business method exception" 2000 Seattle UL Rev79-106        [ Links ]

Le Roux 2003 SALJ. Le Roux W "Sex work, the right to occupational freedom and the constitutional politics of recognition" 2003 SALJ 452-465        [ Links ]

MacQueen et al Contemporary Intellectual Property. MacQueen HL et al Contemporary Intellectual Property: Law and Policy (Oxford University Press Oxford 2007)        [ Links ]

Masango 2010 SAJLIS. Masango CA "Indigenous traditional knowledge protection: prospects in South Africa's intellectual property framework?" 2010 SAJLIS 74-80        [ Links ]

Maskus 2000 Case W Res J Int'L L. Maskus KE "Intellectual property rights and economic development" 2000 Case W Res J Int'L L 471-506        [ Links ]

Maskus "Foreign Direct Investment". Maskus KE "The Role of Intellectual Property Rights in Encouraging Foreign Direct Investment and Technology Transfer" in Fink C and Maskus KE (eds) Intellectual Property and Development: Lessons from Recent Economic Research (World Bank and Oxford University Washington, DC 2005) 41-74        [ Links ]

McIntyre and Mooney "Where Now With Equity? ". McIntyre D and Mooney G "Where Now With Equity?" in McIntyre D and Mooney G (eds) The Economics of Health Equity (Cambridge University Press Cambridge 2007) 249-268        [ Links ]

Ncube 2012 SLR. Ncube CB "Equitable intellectual property protection of computer programs in South Africa: some proposals for reform" 2012 SLR 438-461        [ Links ]

Ncube and Laltaika 2013 JIPLP. Ncube CB and Laltaika E "A new intellectual property organisation for Africa? " 2013 8(2) JIPLP 114-117        [ Links ]

Okediji 2003 SJICL. Okediji, RL "Narratives of developing country participation in the global intellectual property system" 2003 SJICL 315-385        [ Links ]

Ostergard Development Dilemma. Ostergard RL The Development Dilemma: The Political Economy of Intellectual Property Rights in the International System (Law And Society) (LFB Scholarly Publishing New York 2003)        [ Links ]

Pollack 2002 Rutgers Computer & Tech LJ. Pollack M "The multiple unconstitutionality of business method patents: common sense, congressional choice, and constitutional history" 2002 Rutgers Computer & Tech LJ 61-120        [ Links ]

Rautenbach 2005 TSAR. Rautenbach IM "The right to choose and practise a trade, occupation or profession the momentous and meaningless second sentence of section 22 of the Constitution" 2005 TSAR 851-862        [ Links ]

Rens "Introduction". Rens A "Introduction" in Rens A and Khan R Access to Knowledge in South Africa (ISP Yale & IPU UCT Cape Town 2009) 3-9        [ Links ]

Schonwetter, Ncube and Chetty "South Africa". Schonwetter T, Ncube CB and Chetty P "South Africa" in Armstrong C et al (eds) Access to Knowledge in Africa: The Role of Copyright (UCT Press Cape Town 2009) 231-239        [ Links ]

Tong 2009 JWIP. Tong L-A "Copyright protection for computer programs in South Africa: Aspects of sui generis categorisation" 2009 JWIP 266-296        [ Links ]

Tong "Intellectual Property System". Tong L-A "Does the Intellectual Property System Offer Adequate Protection for Traditional Knowledge?" in Klopper H et al (eds) Law of Intellectual Property of South Africa (LexisNexis Durban 2011) 375-381        [ Links ]

Van der Merwe 2010 PELJ. Van der Merwe A "Can traditional knowledge be effectively covered under a single 'umbrella'" 2010 PELJ 2-10        [ Links ]

Vaver Intelectual Property Rights. Vaver D Intelectual Property Rights: Critical Concepts in Law (Routledge London 2006)        [ Links ]

Yu "China Puzzle". Yu PK "Intellectual Property, Economic Development and the China Puzzle" in Geravis D (ed) Intellectual Property, Trade and Development Strategies to Optimise Economic Development in a TRIPS Plus Era (Oxford University Press Oxford 2007) 173-220        [ Links ]

Yu "China Exception". Yu PK "Intellectual Property, Foreign Direct Investment and the China Exception" in Jain SC and Bird RC (eds) The Global Challenge of Intellectual Property Rights (Edward Elgar Cheltenham 2008) 153-176        [ Links ]

Register of legislation

Constitution of the Republic of South Africa, 1996

Intelectual Property Laws Amendment Bill No 8B of 2010

Traditional Leadership and Governance Framework Act 41 of 2003

Register of government publications

Integrated Strategy on the Promotion of Entrepreneurship and Small Enterprises: Unlocking the Potential of South African Entrepreneurs (DTI Pretoria 2005)

Policy Framework for the Protection of Indigenous Traditional Knowledge through the Intellectual Property System and the Intellectual Property Laws Amendment Bill, 2008 (Gen N 552 in GG 31026 of 5 May 2008)

South African Company Law for the 21st Century: Guidelines for Corporate Law Reform (GN 1183 in GG 26493 of 23 June 2004)

White Paper on Small Business: National Strategy for the Development and Promotion of Small Business in South Africa (DTI Pretoria 1995)

Register of international instruments

Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (1994) (TRIPS)

International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR)

UN Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP)

Register of case law

Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529 (CC)

Azapo v The President of the Republic of South Africa 1996 4 SA 671 (CC)

JR 1013 Investments CC v Minister of Safety and Securtty 1997 7 BCLR 925 (E)

In re certification of the Constitution of the RSA 1996 4 SA 744 (CC)

Reddy v Siemens Telecommunications (Pty) Ltd 2007 2 SA 486 (SCA)

Register of internet sources

Dean 2012 blogs.sun.ac.za. Dean O 2012 New Traditional Knowledge Bill - Sui Generis Protection for TK blogs.sun.ac.za/iplaw/2012/02/27/the-new-traditional-knowledge-bill/ [date of use 1 Nov 2012]        [ Links ]

De Villiers and Tshaya 2008 www2.warwick.ac.uk. De Villiers C and Tshaya T "Software and business method patents" 2008(2) JILT www2.warwick.ac.uk/fac/soc/law/elj/jil/2008_2/devilliersandtshaya/ [date of use 2 Mar 2013]        [ Links ]

Henderson and Kane 2001 www2.warwick.ac.uk. Henderson K and Kane H "Internet patents: will they hinder the development of e- commerce?" 2001(1) JILT www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_1/henderson [date of use 2 Mar 2013]        [ Links ]

Lesser 2001 www.wipo.int. Lesser W 2001 The Effects of TRIPS Mandated Intellectual Property Rights on Economic Activities in Developing Countries www.wipo.int/export/sites/www/about-ip/en/studies/pdf/ssa_lesser_trips.pdf [date of use 2 Mar 2013]        [ Links ]

Property Rights Alliance 2008 internationalpropertyrightsindex.org. Property Rights Alliance 2008 International Property Rights Index, 2008 Report internationalpropertyrightsindex.org/index.php?content=home [date of use 2 Mar 2013]        [ Links ]

Property Rights Alliance 2011 internationalpropertyrightsindex.org. Property Rights Alliance 2011 International Property Rights Index, 2011 Report internationalpropertyrightsindex.org/ATR_2011%20INDEX_Web.pdf [date of use 12 Feb 2013]        [ Links ]

Rengecas 2013 afroip.blogspot.com. Rengecas T 2013 Africa IP Forum Reflections afroip.blogspot.com/2013/03/africa-ip-forum-2013-reflections-tracy.html [date of use 1 Mar 2013]        [ Links ]

Royal Society of Arts 2006 www.thersa.org. Royal Society of Arts 2006 Promoting Innovation and Rewarding Creativity: A Balanced Intellectual Property Framework for the Digital Age www.thersa.org/__data/assets/pdf_file/0006/54834/adephi-promoting-innovation-and-rewarding-creativity-january-2007.pdf [date of use 12 Feb 2013]        [ Links ]

SA Government Information 2008 www.info.gov.za. SA Government Information 2008 Apex Priorities www.info.gov.za/otherdocs/2008/apex-priorities0208.pdf [date of use 1 Mar 2013]        [ Links ]

Seleti 2012 www.pmg.org.za. Seleti Y 2012 DST Report on IKS Activities: A Progress Report on Sui Generis Legislation www.pmg.org.za/report/20120613-indigenous-knowledge-systems-iks-activities-sui-genris-legislation-b [date of use 28 Feb 2013]        [ Links ]

Sen 2000 issat.dcaf.ch. Sen A "What is the role of legal and judicial reform in the development process?" in Papers delivered at the Role of Legal and Judicial Reform in Development, World Bank Legal Conference 5-6 June 2000 Washington DC 129 issat.dcaf.ch/index.php/fre/content/download/2331/20258/file/What%20is%20the%20role%20of%20legal%20 and%20judicial%20reform%20in%20the%20development%20process%20Sen%20(2000).pdf [date of use 3 Mar 2013]        [ Links ]

South African Government News Agency 2013 www.sanews.gov.za. South African Government News Agency 'Dti working on finalising intellectual property policy' 27 February 2013 www.sanews.gov.za/south-africa/dti-working-finalising-intellectual-property-policy [date of use 28 Feb 2013]        [ Links ]

Teljeur 2002 www.tips.org.za. Teljeur E 2002 Intelectual Property Rights in South Africa: A Review www.tips.org.za/files/Teljeur_IPRs_paper_2003.PDF [date of use 2 Mar 2013]        [ Links ]

The Presidency 2008 www.thepresidency.gov.za. The Presidency 2008 Development Indicators www.thepresidency.gov.za/learning/me/indicators2008/development_indicators.pdf [date of use 2 Mar 2013]        [ Links ]

The President 2012 www.parliament.gov.za. The President 2012 Letter from the President dated 19 September 2012, in 'Announcements, Tabiings and Committee Reports No. 125-2012, Fourth Session, Fourth Parliament, 26 September 2012: Bill Referred Back to National Assembly'3226 www.parliament.gov.za/live/commonrepository/Processed/20121001/462777_1.pdf [date of use 3 Mar 2013]        [ Links ]

UN 2001 hdr.undp.org. UN 2001 Human Development Report: Making New Technologies Work for Human Development hdr.undp.org/en/reports/global/hdr2001/chapters/_[date of use 13 Feb 2013]        [ Links ]

UNCTAD 2011 www.unctad.org. UNCTAD 2011 Global Investment Trends Monitor No 5 (January 2011) www.unctad.org/en/docs//webdiaeia20111_en.pdf [date of use13 Feb 2013]        [ Links ]

WIPO 2003 www.wipo.int. WIPO 2003 Understanding How IP Relates to E-commerce www.wipo.int/sme/en/e_commerce/ip_ecommerce.htm [date of use 2 Mar 2013]        [ Links ]

WIPO 2013 www.wipo.int. WIPO 2013 Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities www.wipo.int/dc2013/en/ [date of use 28 Feb 2013]        [ Links ]

List of abbreviations

ABLJ American Business Law Journal

Case W Res J Int'L L Case Western Reserve Journal of International Law

DTI Department of Trade and Industry

JIPLP Journal of Intellectual Property Law and Practice

JWIP Journal of World Intellectual Property

JILT Journal of Information Law & Technology

IPRI International Property Rights Index

PELJ Potchefstroom Electronic Law Journal

NJTIP Northwestern Journal of Technology and Intellectual Property

RSA Republic of South Africa

Rutgers Computer & Tech LJ Rutgers Computer and Technology Law Journal

SAJLIS South African Journal of Libraries and Information Science

Seattle UL Rev Seattle University Law Review

SJICL Singapore Journal of International and Comparative Law

SLR Stellenbosch Law Review

SALJ South African Law Journal

SMU L Rev Southern Methodist University Law Review

TRIPS Agreement Agreement on Trade-Related aspects of Intellectual Property Rights including Trade in Counterfeit Goods, Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C TSAR Tydskrif vir die Suid-Afrikaanse Reg

UC Davis L Rev University of California Davis Law Review

UCT University of Cape Town

UN United Nations

UNCTAD United Nations Conference on Trade and Development

WIPO World Intellectual Property Organisation

 

 

This article is partially derived from the author's thesis: CB Ncube Intellectual Property Protection for e-Commerce Business Methods in South Africa: Envisioning an Equitable Model for SMEs nn the Tourism Industry (PhD thesis UCT 2011).
1 The draft national intellectual property (IP) policy GN 918 in GG 36816 of 4 September 2013
2 Ncube and Laltaika 2013 JIPLP 114.
3 WIPO 2013 www.wipo.int.
4 Ncube 2012 SLR 438; Tong 2009 JWIP 266; De Villiers and Tshaya 2008 www2.warwick.ac.uk 1; De Villiers 2006 SALJ 315.
5 Schonwetter, Ncube and Chetty "South Africa" 231-239; Jonker "Access to Learning Materials" 113-146.
6 See, for example, Cross 2010 PELJ 12; Dean 2012 Without Prejudice 41; Masango 2010 SAJLIS 74; Tong "Does the Intellectual Property System offer adequate protection for traditional knowledge?" 375-381; Van der Merwe 2010 PELJ 2; Rengecas 2013 afroip.blogspot.com.
7 Poiicy Framework for the Protection of Indigenous Traditional Knowledge through the Intellectual Property System and the Intellectual Property Laws Amendment Bill, 2008 (Gen N 552 in GG 31026 of 5 May 2008).
8 Dean 2012 blogs.sun.ac.za.
9 The President 2012 www.parliament.gov.za.
10 Seleti 2012 www.pmg.org.za.
11 Dutfield and Suthersanen Global Intelectual Property Law 51.
12 Dutfield and Suthersanen Global Intelectual Property Law 52.
13 Dutfield and Suthersanen Global Intelectual Property Law 52.
14 Dutfield and Suthersanen Global Intelectual Property Law 52.
15 Maskus 2000 Case W Res J Int'L L 471; Evenson 2001 Case W Res J Int'L L 187; Maskus "Foreign Direct Investment" 41; Idris Intelectual Property.
16 Sen 2000 issat.dcaf.ch 13.
17 Gibbons 2011 SMU L Rev 923; Dutfield Intelectual Property Rights 29; Ostergard Development Dilemma 19. Also see Vaver Intellectual Property Rights 449.
18 Chang 2001 Journal of Human Development 287, 303; Teljeur 2002 www.tips.org.za 25.
19 Bird 2006 ABLJ 323-329; Bird "Impact of Coercion" 431-432; Bird and Cahoy 2007 NJTIP 403.
20 McIntyre and Mooney "Where Now With Equity? " 259 note that Brazil delayed the provision of patents for pharmaceuticals until December 2004, but has become a leading global generics manufacturer.
21 Yu "China Exception"; Yu "China Puzzle" 174-175, 180.
22 Kaplan "Intellectual Property Rights" 5.
23 Kaplan "Intellectual Property Rights" 2.
24 Kaplan "Intellectual Property Rights" 2, noting that in 1998 South Africa was ranked the highest out of 44 developing and industrialising countries. In a study carried out by Lesser in 2005, South Africa scored higher than other similarly placed developing countries and even some developed countries on the Ginarte Park Index, and in 2008 South Africa ranked 22nd out of 115 countries in the Property Alliance's International Property Rights Index (IPRI). See further Lesser 2001 www.wipo.int and Property Rights Alliance 2008 internationalpropertyrightsindex.org. The Property Alliance's 2011 IPRI ranks South Africa's IP system as number 21 out of 129 countries with a score of 7.3 out of 10 (Property Rights Alliance 2011 internationalpropertyrightsindex.org 35).
25 In contrast to South Africa's placing at 21, the 2011 IPRI ranks Brazil and India at 51 with a score of 5.5 each. China ranks at 59 with a score of 5.2 and Russia ranks at 67 with a score of 5.
26 UNCTAD 2011 www.unctad.org 3 notes that in 2010 South Africa received .3 billion FDI inflows, whilst Brazil received .2 billion, China received 101.1 billion (exclusive of the financial sector), India received .7 billion and Russia received .7 billion.
27 As recommended by principles 1 and 8 of the Adelphi Charter. See Royal Society of Arts 2006 www.thersa.org 4-5
28 Dutfield Intellectual Property Rights 1, 25. For a similar definition, see Henderson and Kane 2001 www2.warwick.ac.uk.
29 WIPO 2003 www.wipo.int.
30 Drahos Philosophy of Intellectual Property.
31 As recommended by Elkin-Koren and Salzberger Law, Economics and Cyberspace 5: "the uncritical use of a conventional analytical framework runs the risk of producing a distorted view on both positive and normative level".
32 Drahos Philosophy of Intellectual Property 215.
33 Drahos Philosophy of Intellectual Property 200-202; Dutfield Intelectual Property Rights 1; Drahos "Death of a Patent System" 3-8.
34 Fisher "Theories of IP" 172.
35 For example the UN's Human Development Report 2001 states that the fair use of IPRs is essential if developing nations are to meaningfully participate in e-commerce and achieve economic development. See UN 2001 hdr.undp.org 7.
36 For instance, WIPO's adoption of the Development Agenda is a clear instance of strategy that is influenced by the public interest. See De Beer "Defining WIPO's Development Agenda" 2-3.
37 Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfett Goods (1994) (TRIPS).
38 Fisher "Theories of IP" 193; Chander and Sunder 2007 UC Davss L Rev 567.
39 Fisher "Theories of IP" 152.
40 Chander and Sunder 2007 UC Davis L Rev 577.
41 South African Company Law for the 21st Century: Guidelines for Corporate Law Reform (GN 1183 in GG 26493 of 23 June 2004) 80.
42 Integrated Strategy on the Promotion of Entrepreneurship and Small Enterprises: Unlocking the Potential of South African Entrepreneurs (DTI Pretoria 2005) 3, White Paper on Small Business: National Strategy for the Development and Promotion of Small Business in South Africa (DTI Pretoria 1995); Sa Government Information 2008 www.info.gov.za.
43 Dutfield and Suthersanen Global Intellectual Property Law 223.
44 Chander and Sunder 2007 UCDavis L Rev 577; Helfer 2007 UCDavis LR 1015-1020; Okediji 2003 SJICL 353; MacQueen et al Contemporary Intellectual Property para 10.19.
45 Helfer 2007 UC Davis LR 1018; Chapman 2002 Journal of International Economic Law 873-879; Barrat Battle for Policy Space 6-7, 294-303.
46 Constitution of the Repubiic of South Africa, 1996.
47 In re certification of the Constitution of the RSA 1996 4 SA 744 (CC) 799.
48 Dea n Handbook of South African Copyright Law 1-2A.
49 International Covenant on Economic, Social and Cuttural Rights (1966) (ICESCR).
50 See s 231(4) of the Constitution; Azapo v The President of the Republic of South Africa 1996 4 SA 671 (CC) 688 para 26.
51 See for example Pollack 2002 Rutgers Computer & Tech LJ 28.
52 UN Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP).
53 Article 31 UNDRIP.
54 For an overview of this right, see Davis "Economic Activity" 29-15-29-19; Le Roux 2003 SALJ 452, 458-462.
55 Rautenbach 2005 TSAR 854; Affordabee Medicines Trust v Minister of Heatth of RSA 2005 6 BCLR 529 (CC) para 59.
56 JR 1013 Investments CC v Mnnsster of Safety andSecurtty 1997 7 BCLR 925 (E) 929 where the court said: "The right to choose a trade, occupation or profession is entirely different in nature from a right either to engage in economic activity or to pursue a livelihood. It is wider in content. It is sacrosanct"(my emphasis).
57 For example, see Reddy vSiemens Telecommunications (Pty) Ltd2007 2 SA 486 (SCA) 496 para 15, where the court said: "...all persons should in the interests of society be productive and be permitted to engage in trade and commerce or the professions..." S 22 of the Constitution guarantees "[e]very citizen . . . the right to choose their trade, occupation or profession freely" reflecting the closeness of the relationship between the freedom to choose a vocation and the nature of a society based on human dignity as contemplated by the Constitution. Also see Rautenbach 2005 TSAR 855 citing Affordabee Medicines Trust v Mnnsster of Heatth of RSA 2005 6 BCLR 529 (CC) para 58.
58 See s 7(2) of the Constttution and Rautenbach 2005 TSAR 856.
59 For example Reddy vSiemens Teeecommun/'cations (Pty) Ltd2007 2 SA 486 (SCA); JR 1013 Investments CC v Minister of Safety and Securtty 1997 7 BCLR 925 (E).
60 The need to obtain licences is a major barrier. See Krause 2000 Seattle UL Rev 80.
61 Bessen and Meurer Patent Falure 8-9.
62 Rens "Introduction" 4.
63 Davis "Freedom of Expression" 11.4.2.
64 Davis "Freedom of Expression" 11.4.2.
65 Davis "Freedom of Expression" 11.4.2.
66 For commentary on this right ,see Davis "Education" 24-1-24-6.
67 Jonker "Access to Learning Materials" 141.
68 Jonker "Access to Learning Materials" 126.

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