[A2k] ITweb: SA legal reform vital for global trade

Denise Nicholson Denise.Nicholson at wits.ac.za
Sun Feb 23 22:54:28 PST 2014


Just to add.   The DTI has not championed any improvements or reforms in our IP legislation, except the TK Act, which we all know is very controversial and problematic.    Back in 1998 and 2000, when the higher education and libraries (I was convenor of both Task Teams) challenged and stopped proposed amendments to the Regulations and the Act respectively going through, the DTI promised it would produce an IP Policy in a few years.  It has taken 16 years to publish a Draft IP Policy, despite lots of lobbying from the higher educational sector and libraries and a number of organisations/IP initiatives. With regard to copyright, the Policy document is sadly lacking in any substance, does not mention the Marrakesh Treaty nor any other important issues that we have been lobbying for for so many years.

I believe we need to put pressure on the DTI even more so, to do something about amending the Copyright law and other related IP laws to improve access to information as a matter of urgency.


-----Original Message-----
From: Andrew Rens [mailto:andrewrens at gmail.com] 
Sent: 21 February 2014 06:40 PM
Cc: a2k discuss list
Subject: Re: [A2k] ITweb: SA legal reform vital for global trade

Thank you for posting this Thiru.

Since I am quoted extensively in the article it seems that I should set the record straight. While the article valorises Trade and Industry the reality is more complex.

The journalist neatly excised my criticisms of Trade and Industry for not even mentioning the urgent necessity of amending copyright law so that blind and visually impaired people enjoy the same freedoms as everyone else. The policy is intended to be a comprehensive document but doesn't mention Marrakesh at all.

The article also gives the impression that it is Trade and Industry which has championed patent reform. The proposed patent reforms in South Africa are entirely the result of advocacy by the Treatment Action Campaign, Section 27, Medicine Sans Frontier and their allies.

Trade and Industry were initially reluctant to institute a patent examination system in South Africa and the policy document is more equivocal than the article suggests; it speaks of having an examination system (presumably for pharmaceuticals) alongside a registration system. The drafters of the policy don't seem to have given any thought to the impact of TRIPS Article 27(1) "patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced".  Does this non discrimination principle prohibit establishing two systems?

It is important to remember that this is only a draft policy, not draft legislation. It is likely that that any legislative process will be hard fought, with multinational pharmaceutical companies amongst others willing to expend considerable resources to resist reform.

The draft policy is a hopeful development but Trade and Industry have not exhibited that it is committed to reform. Impetus for reform will continue to originate with South African civil society. It is possible to win this battle but it is not a foregone conclusion.

Andrew Rens

On 21 February 2014 03:54, Thiru Balasubramaniam <thiru at keionline.org> wrote:
> http://www.itweb.co.za/index.php?option=com_content&view=article&id=70
> 949
> SA legal reform vital for global trade By Jon 
> Tullett<http://www.itweb.co.za/index.php?option=com_content&view=autho
> r&id=11515>,
> Editor: News analysis
> Johannesburg, 18 Feb 2014
> South Africa is changing its intellectual property legislation in an 
> attempt to strengthen local business.
> Spearheaded by minister Rob Davies and the Department of Trade and 
> Industry (DTI), these efforts could have profound effects on local 
> business, and the technology sector, in particular.
> Last year saw the publication of the draft National Policy on 
> Intellectual 
> Property<http://www.ip-watch.org/weblog/wp-content/uploads/2013/09/SA-
> IP-Policy-Sept-2013-36816_gen918.pdf>,
> calling for sweeping reform of all areas of IP, notably patents and 
> copyrights, but extending to numerous other areas of law such as 
> pharmaceuticals, sporting events, agriculture and more.
> Since then, we've seen the first result: the recent amendment of 
> copyright laws, attempting to tackle the specific issues surrounding 
> indigenous knowledge. That amendment was panned by 
> critics<http://www.itweb.co.za/index.php?option=com_content&view=artic
> le&id=70772:cultural-ip-now-protected-by-law>,
> but opinion of the overall draft National Policy on IP remains broadly 
> positive. SA is at the conjunction of rapidly evolving technology, 
> with IP laws strained beyond breaking point, and frantic IP reforms 
> taking place in other countries.
> 'Dodging bullets'
> The draft IP policy, if it delivers its promises, could be hugely 
> important to the country. "SA is dodging multiple bullets," says 
> Andrew Rens, a South African lawyer specialising in intellectual property.
> "There is ongoing external pressure for SA to commit to a number of 
> treaties, and change its laws to suit multinational corporations." 
> Failing to stand up to pressure could be disastrous for the country, he says.
> Internationally, entities such as the World Intellectual Property 
> Organisation (WIPO) and the World Trade Organisation (WTO) are working 
> to coordinate discussion around IP, as a facilitator of innovation and 
> fair trade. But the efforts have been strongly influenced by 
> commercial interests, such as the wrangling over 
> theAnti-Counterfeiting Trade 
> Agreement<http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agree
> ment>
> (ACTA),
> which sparked widespread protests, prompting the EU to reverse its 
> original decision to accept the treaty. The controversial and 
> secretive Trans-Pacific Partnership (TPP - of which SA is not a member) is another.
> SA vs the world
> SA's IP policy is setting the country up as a leader in progressive IP 
> protection, observers note. Dr Tobias Schonwetter, who teaches 
> copyright law at the University of Cape Town, noted in a response to 
> the draft 
> policy<http://ip-unit.org/wp-content/uploads/2013/10/IP-Policy-Academi
> cs-Submission_final171013.pdf>
> that
> "we believe that the intention of the Draft National Policy on 
> Intellectual Property is good: it is grounded in a developmental 
> approach appropriate to our country, and seeks to eliminate the many 
> perverse outcomes of IP protection which are detrimental to the broader society".
> Schonwetter told ITWeb he was optimistic that the DTI "fully 
> understands the implications of international law and policy-making".
> "SA has been a leader, together with Brazil, Argentina and India at 
> the WTO and WIPO in efforts to make international IP law more friendly 
> to developing countries," Rens says. "The US trade representative has 
> responded to the developing countries by going outside of WIPO and the 
> WTO to try and conclude treaties. ACTA, which was thoroughly rejected 
> by the European Parliament, was one of those treaties, the 
> Trans-Pacific Partnership is another. In the US, Congress is currently 
> refusing to give the authorisation that will be necessary to conclude the TPP."
> Emerging markets have a particular interest in taking a strong stance 
> in IP. National interests must be protected against international 
> corporate giants, while not deterring those corporations from 
> conducting business here. Difficult areas, like allowing local 
> pharmaceutical manufacturers access to generic antiretroviral 
> medication for AIDS treatment, put national interests directly at odds 
> with big international businesses and their lobbying might.
> "SA may find itself under immense pressure from other countries and 
> regions (usually the US and Europe) to ratify and implement treaties 
> that are not in the national interest, or to agree to bilateral trade 
> agreements that contain similar provisions," Schonwetter says. 
> "Resisting such pressure is very difficult and may appear costly if 
> the refusal can lead to the termination of trade negotiations or - as 
> is often threatened - the exodus of IP-based industries.
> Earlier this year, health minister Aaron Motsoaledi reacted with fury 
> after leaked documents showed international pharmaceutical companies 
> proposing a coordinated attack on IP reform in 
> SA<http://mg.co.za/article/2014-01-16-motsoaledi-big-pharmas-satanic-plot-is-genocide>.
> "SA is now ground zero for the debate on the value of strong IP 
> protection," the leaked document states. "It may also provide the 
> model for other developing nations, inside and outside Africa, 
> including such important aspiring economies such as India and Brazil."
> The latter two have been making major strides in their own IP reform, 
> particularly around pharmaceuticals, and the industry is clearly 
> uncomfortable. The South African groups named as partners in the 
> leaked documents hastened to distance themselves from it, saying they 
> had rejected the proposal.
> With some firms threatening to pull out of the country entirely if a 
> favourable IP regime is not implemented, Schonwetter says the country 
> should call their bluff. "I simply don't buy the argument that private 
> companies would leave SA if we did not strengthen out IP protection 
> further. SA is too important a market to leave behind (and competitors 
> would quickly fill the gap) and offers exemplary infrastructure for 
> conducting business."
> Patent reform
> Patents are a key enabler of innovation, and SA has traditionally 
> lagged in its protection for inventors. The draft IP policy attempts 
> to correct, at long last, many of the areas of concern. "The South 
> African patent system currently does not examine patents," Rens says.
> "Anyone can patent anything, provided that he pays a patent lawyer to 
> submit the documents. Then he can send you a letter telling you that 
> your product or service violates his patent and you must stop what you 
> are doing or pay up. If you don't he could sue you. If you have R2 
> million to spare you could go to court and argue that the patent is 
> invalid, or you could pay up. Examination, pre- and post-grant 
> opposition will reduce, even if they don't eliminate, abuse of the patent system."
> In the technology world, software patents are the elephant in the 
> room, with billion-dollar 
> lawsuits<http://www.itweb.co.za/index.php?option=com_content&view=arti
> cle&id=69154>  andpatent 
> trolls<http://arstechnica.com/tech-policy/2013/01/how-newegg-crushed-t
> he-shopping-cart-patent-and-saved-online-retail/>
> becoming
> de rigueur. That is one of the bullets SA is dodging, Rens says.
> The US opened Pandora's Box in 1972, with landmark decisions allowing 
> software patents to go forward. The result was a flood of patents, and 
> then a flood of litigation. "In the US, a government report found 
> 'software-related patents accounts for about 89% of the increase in 
> defendants between 2007 and 2011, and most of the suits brought by 
> PMEs [patent monetisation entities - colloquially known as patent 
> trolls] involved software-related patents'. In the US, there is a 
> heated debate about the appropriate response to the problem created by 
> software patents, but that there is a problem is no longer disputed."
> The US is now desperately trying to get matters back under control - 
> with some success. The "America Invents Act" passed in 2011, and 
> included several key legislative changes intended to encourage 
> innovation, while throttling back abuse.
> In SA, software patents are explicitly forbidden, though Rens notes 
> that some may have sneaked through. The proposed reforms should clamp 
> down on those further, and will bring SA into accordance with other 
> nations taking similar action. "New Zealand, like SA, has prohibited 
> software patents in principle for decades, but last year amended its 
> law to prevent abusive attempts to get software patents. SA should take note," Rens says.
> And in that regard, SA can join other developing countries in taking 
> bold strides in IP innovation, he adds. "India's reform of its patent 
> legislation is the most innovative in the world. Brazil is currently 
> engaged in a patent reform process which builds on the Indian example. 
> The draft policy indicates that SA will adopt many of the features of 
> the Indian patent reform. It will also be possible for SA to go beyond 
> these features, learning from Brazil and others."
> Copyleft, copyright
> In the copyright arena, the draft IP policy also makes clear note of 
> the need for balanced reform. Dominant creative industry bodies, such 
> as the RIAA and MPAA, have been instrumental in the passage of 
> US-based legislation such as the DMCA, which attempted to stamp out 
> piracy through wide-reaching provisions, such as a ban on reverse 
> engineering. US trade officials have pushed hard for similar provisions in other countries.
> The draft policy makes explicit mention of this, though it mislabels 
> the relevant legislation as "the DCMA". "SA... should not follow the 
> path of the DCMA and EU database directive as these instruments are 
> restrictive and, therefore, bad models for copyright legislation of a 
> developing country like SA," the draft policy says. It also calls for 
> specific allowance to be made for software reverse engineering, to 
> "allow software to be adapted to local needs", and makes provision for 
> fair use in Internet works. This is a growing area of dispute, locally 
> and abroad - it is, for example, the central issue in the current 
> legal fight between Moneyweb and 
> Fin24<http://www.marklives.com/2014/02/analysis-moneyweb-vs-fin24-plag
> iarism/>
> over
> reuse of content.
> "Fair use", though a vague term, allows for flexibility in copyright 
> issues, and can underpin innovation, Rens argues. "Fair use has 
> enabled US courts to adapt copyright law to fast-changing technology. 
> For example, Google uses thumbnails of images to show the results of an image search.
> It's simply impossible to write a law that will predict that kind of 
> innovation and allow it. Instead, the law has to have open-ended 
> provisions that allow the courts to adapt to changing technology. 
> South African copyright legislation, which dates to 1978, does have 
> some exceptions, but research has found these to be inadequate. The 
> draft policy approves fair use, but there is no suggestion of any 
> timetable or urgency to enact a fair use provision in South African 
> law. The current copyright act could be easily amended by copying the 
> US fair use provision. A major advantage would be that no country 
> would dare claim that it's contrary to SA's treaty obligations."
> Lingering concerns
> Although the draft policy is a good start, there are lingering concerns.
> Schonwetter notes that some areas are unclear and may fail to achieve 
> change without clarity. "It is too vague in some places to effectively 
> promote any policy's key objective of harmonising legislative 
> activity," he says.
> "The policy itself states that currently 'departments that deal 
> directly or indirectly with IP approach the system differently. To 
> ensure coherence, there is a need for a coordinated approach'. But a 
> coordinated and harmonised approach becomes impossible if a policy is 
> too vague on crucial issues - then we are essentially back at square 
> one and can save ourselves the efforts of formulating a policy altogether."
> Intellectual property is the central concept of the information age, 
> and SA's ability to formulate, and enact, clear IP policy will be a 
> major factor in SA's place on the stage. All eyes will be on the DTI 
> as it proposes further amendments, with plenty of sabre-rattling 
> expected from foreign governments and industry bodies.
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