The effect of copyright term length on South African book markets (with reference to the Google book project)

The effect of copyright term length on South African book markets (with reference to the Google book project)

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

The effect of copyright term length on South African book markets (with reference to the Google book project)

Author: Paul J Heald

ISSN: 2521-2591
Affiliations: Richard W. & Marie L. Corman Research Professor, University of Illinois (USA) College of Law Fellow (2018), Stellenbosch Institute for Advanced Study (STIAS), Stellenbosch University
Source: South African Intellectual Property Law Journal, 2019, p. 71 – 98

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Heald, PJ
The effect of copyright term length on South African book markets (with reference to the Google book project)
South African Intellectual Property Law Journal, 2019, p. 71 – 98

Abstract

Research on the effect of copyright term extension in the United States demonstrates the negative effect of protection on the availability of new bound editions, ebooks, and audiobook editions of older works. Among the most popular titles, copyright protection is also associated strongly with higher prices in the US. Another recent study documents the negative effect of copyright term extension on titles available for e-lending in the US, Australia, New Zealand, and Canada. The present study measures the effect of copyright on the availability of bound volumes and ebooks in South Africa, a jurisdiction currently under pressure to extend its term of copyright beyond the current life-plus-fifty. Monopoly pricing effects in ebook markets in South Africa, and by analogy to other life-plus-fifty jurisdictions, are also shown. Finally, the article measures the extent to which the Google Books Project improves the availability of books in South Africa.

Jurisdictional issues in intellectual property disputes in Zimbabwe

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Jurisdictional issues in intellectual property disputes in Zimbabwe

Author Charlene Musiza

ISSN: 2521-2591
Affiliations: PhD Candidate Department of Commercial Law, Intellectual Property Unit Faculty of Law, University of Cape Town
Source: South African Intellectual Property Law Journal, 2019, p. 99 – 115

Abstract

This article discusses the various approaches to the resolution of intellectual property disputes in use across the world, with specific reference to Zimbabwe’s approach. A country decides whether IP disputes are best resolved in generalist courts or specialised courts. There is a trend toward setting up specialised courts to adjudicate disputes for specific IP rights; these can be courts of first instance or appellate courts. In 2017, Zimbabwe established the Intellectual Property Tribunal as a specialised division of the High Court. The Intellectual Property Tribunal Act (Chapter 26:08) provides the jurisdiction of the tribunal. The challenge, however, is that the statutes regulating the different IP rights also contain jurisdictional provisions. The situation can create challenges in the resolution of IP disputes.

Social media, online communications and defamation in the workplace: A puzzle for liabilities?

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Social media, online communications and defamation in the workplace: A puzzle for liabilities?

Author Caroline Joelle Nwabueze

ISSN: 2521-2591
Affiliations: Post doctorate research fellow under the South African Research Chair in Law, Society and Technology, College of Law, University of South Africa; Senior lecturer at the Faculty of Law of Enugu State University of Science and Technology.
Source: South African Intellectual Property Law Journal, 2019, p. 116 – 142

Abstract

The online interaction of individuals and exchange of user–generated content or information has transformed the way people work and communicate in the 21st century. Social media, so defined, includes microblogging (Twitter®), social networking (LinkedIn®, Facebook®) multimedia (Flickr®, YouTube®). The media community in the digital age has noticed dramatic changes in the way content and information are created, consumed and shared. This is particularly noticeable in the workplace, where social media enables brand marketing and aids in recruiting and professional networking. However, online statements can also tarnish the company’s reputation. Despite all the advantages, employees’ online communications, especially bad-mouthing, may raise ethical issues. This paper examines the liability of the employee, as author of a defamatory statement related to the employer, when his/her communication is accessed online. The employee’s right to privacy/freedom of expression against the employer’s right to reputation is discussed, as well as the mechanism of acquisition of the contents of a communication within a workplace as part of a defamation-based claim. The paper establishes the liabilities within the tripartite relationship of media distributor–database provider–user, as well as data law, taking an example the European Union system. The conclusion includes recommendations on creating a framework of guidelines and principles to foster productive employer–employee dialogue in the digital context within the workplace in African jurisdictions, including South Africa, Nigeria and Cameroon.

Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

Author Kolapo Omidire

ISSN: 2521-2591
Affiliations: North-West University, Potchefstroom
Source: South African Intellectual Property Law Journal, 2019, p. 143 – 162

Abstract

South Africa is considering plans to develop shale gas by hydraulic fracturing as a source of energy. In countries where hydraulic fracturing is presently undertaken a claim of trade secrets by operators is a common phenomenon. However, while the underlying rationale of safeguarding commercial transactions by means of protecting trade secrets may be reasonable, there is a need for caution as, unfortunately, other interests may be prejudiced. In the case of hydraulic fracturing, the conceptualisation of the right of access to information as a leverage right which makes other rights possible, means it could be applied by people whose rights may be infringed by a claim of trade secrets. Therefore, any restriction of the exercise of that right by a claim of trade secrets has the potential to violate the right of access to information. A claim of trade secrets which ultimately violates the exercise of the right of access to information in relation to hydraulic fracturing also contextualises the problem in relation to similar claims in other developmental processes. Given the need to guarantee the right of access to information as an enabler for the enforcement of other rights that may be adversely impacted by hydraulic fracturing, this article examines potential lessons that can be distilled for South Africa in relation to the regulation of trade secrets under the law of the state of Pennsylvania in the United States of America.

Statutory trade mark infringement and questions about confusion

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Statutory trade mark infringement and questions about confusion

Author Owen Salmon

ISSN: 2521-2591
Affiliations: One of the Senior Counsel for the Republic of South Africa
Source: South African Intellectual Property Law Journal, 2019, p. 163 – 181

Abstract

This article considers the principles advanced by South African courts in trade mark infringement litigation pertaining to confusingly or deceptively similar word marks. Such consideration entails the discussion of case law from other jurisdictions, where it has informed South African case law. It also draws on recent UK and ECJ case law that exemplifies a modern purpose-driven approach to these disputes. The article argues that several of the principles applied by South African courts are outdated, inappropriate and ill-suited to the task. It contends that the courts ought to dispose of or modify such principles in view of current modern contexts, including online environments, in which consumers operate. Accordingly, it puts forward recommendations for statutory reform which would be more appropriate for the contemporary context.

Analysing South Africa’s comlicensing jurisprudence: Is there room for the public interest (PI) in intellectual property (IP)?pulsory

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Analysing South Africa’s compulsory licensing jurisprudence: Is there
room for the public interest (PI) in intellectual property (IP)?

Author Yousuf A Vawda

ISSN: 2521-2591
Affiliations: Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Intellectual Property Law Journal, 2019, p. 182 – 198

Abstract

Despite South Africa having provisions for compulsory licensing on its statute books in over a century of patent legislation, no compulsory licences have been granted on a pharmaceutical-related patent in the country. Given the impact of the high prices of many life-saving patented medicines on affordability and access, it raises the question: why is this the case? This article endeavours to review the case law on applications for compulsory licences on pharmaceutical and related patents under the current legislation, analyse the interpretations placed on the relevant sections, and draw conclusions about judicial reasoning, impediments to the grant of such licences, and generally the courts’ approach to disputes relating to patents. It concludes, among others, that the very architecture of the patent landscape, combined with an overly formalistic approach to judicial interpretation and adjudication, may be responsible for the lack of efficacy of this provision in the law.