Partial Patent Waiver for COVID-19 vaccines

Participating countries attending the 12th Ministerial Conference of the World Trade Organization (WTO) in Geneva, Switzerland reached an agreement on 17 June 2022 to partially waive intellectual property restrictions on the manufacture and production of COVID-19 vaccines for the next five years. The partial waiver provides that developing nations may authorise the use of the subject matter of a patent without having to make efforts to obtain authorisation from the right holder before granting such authorisation, subject to payment of adequate renumeration to the rights holder, which may be determined taking into account any not-for-profit purpose of vaccine production.

Furthermore, under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, a vaccine manufacturer so authorized would not be allowed to export its vaccines in bulk to another country, requiring the majority of vaccines produced to be retained by the manufacturing country. The waiver provides, however, that developing countries may waive this restriction too, to export vaccines in bulk to other developing countries under any initiative to ensure equitable access to COVID-19 vaccines, subject to an undertaking by the destination country not to re-export such vaccines.

The waiver, however, does not include diagnostics and therapeutics. A final decision will be made in six months as to whether to apply a waiver on the production and supply of diagnostics and therapeutics.

A TRIPS waiver for COVID-19 treatment was first proposed in 2020 by South Africa and India and was supported by over 100 countries.

Bittersweet Symphony IP dispute resolved

The dispute that first piqued my interest in intellectual property law was between The Rolling Stones and The Verve over the song Bittersweet Symphony in the late 1990s. Richard Ashcroft from The Verve, sampled a few seconds from a song by The Rolling Stones to make up the distinctive string melody that plays throughout the track and The Rolling Stones were having none of it.

It was a particularly obscure infringement in that (a) it was not a particularly well-known song by The Rolling Stones (it’s called The Last Time), (b) it was not even a sample from the original song, it was from an orchestral version of the song performed by the Andrew Oldham Orchestra, and (c) the outcome was notoriously one-sided as Richard Ashcroft ended up with 0% of all the publishing royalties from the song (and Jagger + Richards got 100% of the royalties).

I remember looking at the songwriting credits of my beloved BIG HITS 98 reading Jagger/Richards and thinking that this really didn’t seem fair at all. It was up there with the top songs of the year (along with Chumbawumba’s Tubthumping), and was by far the most famous song that The Verve ever released. To get 0% of the royalties seemed really harsh.

I was exceptionally happy to find out on Pitchfork that over 20 years later The Rolling Stones decided to give the songwriting credit and royalties of the song back to Richard Ashcroft.

The statement from Richard Ashcroft follows:

It gives me great pleasure to announce as of last month Mick Jagger and Keith Richards agreed to give me their share of the song Bitter Sweet Symphony. This remarkable and life affirming turn of events was made possible by a kind and magnanimous gesture from Mick and Keith, who have also agreed that they are happy for the writing credit to exclude their names and all their royalties derived from the song they will now pass to me.

I would like to thank the main players in this, my management Steve Kutner and John Kennedy, the Stones manager Joyce Smyth and Jody Klein (for actually taking the call) lastly a huge unreserved heartfelt thanks and respect to Mick and Keith.

Music is power.

Sometimes, things just turn out the way they should.

Photo by Florencia Viadana on Unsplash

So You Think You Can Patent Your Invention?

You’ve come up with a great new idea and believe you’re the first person in the world to have that idea. As you start planning world domination, you consider whether you can patent your invention. Patents protect new inventions and give the owner a 20-year head-start as it gives the owner a right to exclude others from making, using, importing or disposing of the patented invention.

Nic Rosslee had a bunch of questions for Hugo Biermann on this topic.

Nic: Hugo, what is the first thing our readers need to know about patenting their product?

Hugo: The most crucial element of patenting an invention is novelty –  an invention must be new. Keeping this in mind, remember that if you have a potentially patentable invention, it must be kept secret until a patent application has actually been filed. Of course, this means that the invention must also not yet have been disclosed to the public by the inventor or anyone else, e.g. through earlier use, in earlier patent applications, on the Internet or in literature.

So I can’t tell anyone about my amazing idea?

You can only disclose it on a strictly confidential basis prior to filing a patent application.  Once the invention has been made available to the public (which generally includes any commercial activity and any publication, e.g. on the Internet), it will no longer be possible to obtain valid patent protection.  If you have to disclose the invention prior to filing, be sure to have a confidentiality or non-disclosure agreement in place.

Can that be a verbal agreement or does it have to be a formal signed agreement?

A signed formal agreement is not strictly necessary and the agreement may thus be a verbal one. However, I would strongly recommend having a written agreement in place.

Okay, so novelty is #1…

Yes, but there is another important patentability requirement, which is referred to as the “inventive step” requirement.  This is also known as non-obviousness. This means that what you consider sets your invention from apart from the rest must be a step forward that would not be obvious to someone skilled in that particular field.

Hugo Biermann

Anything else?

Yes, apart from the novelty and inventive step requirements, an invention must also relate to so-called “patentable subject matter”.  This means that certain types of inventions are simply not patentable.  Under South African law, this includes inventions like business methods, methods of playing games, scientific theories and discoveries, mathematical methods and computer programs as such.

Why did you say computer programs “as such”? Don’t Uber have patents?

Well, this is where the law becomes tricky.  Our Patents Act prevents the aforementioned types of inventions from being patented only to the extent to which they relate to the excluded subject matter as such.  In other words, if the inventive step of your invention relates solely within an excluded area, like a business method or computer program, it will not be patentable.  However, if your invention includes one or more inventive technical features, which go beyond the excluded area, it may be patentable.

Unfortunately, this is still somewhat of a grey area in South African law, and we cannot provide you with clearly defined guidelines or criteria to evaluate this.  In general, the more novel technical aspects that are included, the greater the likelihood that the invention will be patentable.  For example, if your invention has a new, technical feature that solves a technical problem encountered when using existing systems, it may well be patentable.

Companies like Uber do not obtain patents for “abstract ideas” or pure business methods.  Instead, they have been successful in obtaining patents for inventions that solve technical problems and improve the technical functioning of computerised systems.

How do you know if your product is novel?

We can conduct searches of the patent databases to obtain an idea of the novelty of an invention.  We refer to these as novelty searches.  This is a useful step to take before you begin incurring filing costs.

A novelty search is an optional step, but one that we typically recommend to our clients, especially when an invention comprises a combination of known elements.

I’m imagining a cross between Uber and a home cleaning service? Would I need to conduct a search?

Well, you’ve just invented SweepSouth, a South African startup that’s doing really well. So I wouldn’t recommend conducting a search in this case. Your flat in need of a spring clean?

*Nic decides to let this comment go through to the proverbial wicketkeeper*

Where were we… Oh, you can’t cover the world with one patent, right?

Patents are territorial and it is not possible to obtain an enforceable “international patent” by filing a single application.  Ultimately, you need to file separate patent applications in each country/region in which you want to pursue patent protection.  However, foreign patent applications can be based on the first filing for an invention in a single country of origin. This does not have to be a complete patent application, as there is the option of filing of a provisional patent application in South Africa.

Okay, how long do I have to file for my invention globally once filing a provisional patent in South Africa?

Both the South African complete patent application and any patent applications outside of South Africa must be filed within 12 months of the date of filing the provisional application. If you don’t file the complete patent application(s), the provisional patent application will lapse.

It should also be noted that you don’t have to start the process by filing a provisional application.  In some cases, like when your invention is in its final, commercial form, you may simply want to file a complete patent application in the first instance.

Okay, so 12 months and you’ll need to have filed in all your desired territories?

Well, there is another option. There is a mechanism called the Patent Cooperation Treaty (PCT) and you can file a PCT application within the 12 month period referred to earlier.  A PCT application may be thought of as a bridging or temporary international patent application. While it does not in itself get granted or become an enforceable right, it reserves the applicant’s rights in about 150 PCT member states for an additional 18 months or more. This means you can potentially have up to 30 months between the date of your filing of the provisional patent application to file your individual national patent applications in the countries/regions of interest.

Is that all I need to know about PCT applications?

No, after filing a PCT application an International Searching Authority (typically one of the large patent offices such as the European Patent Office or the United States Patent and Trademark Office (USPTO)) conducts a prior art search and establishes an “International Search Report”. This is a preliminary, non-binding written opinion on the patentability of the invention.

The written opinion provides the applicant with an indication of the novelty and inventive step of the invention. There is an opportunity to respond to the written opinion and potentially amend your specification to overcome any objections raised. Before the end of the PCT phase, the applicant must proceed with patent applications in the elected countries/regions.  In other words, the PCT application is not an “international patent” and if you don’t proceed with national patent applications, you will have no protection.

This sounds expensive.

It’s not lunch money… There is good news, natural persons (i.e. not a company or other juristic person) who are nationals of and residents in South Africa are currently entitled to a discount of up to 90% on the official international filing fee for and the official handling fee associated with a PCT application. Discounts are also available for natural persons or companies who qualify as “small entities” or “micro entities” in terms of the rules of the USPTO.

Thanks, Hugo

Cheers, Nic

Photo by Samuel Zeller on Unsplash

OMG! CAN YOU JUST BE CHILL!?

OMG, OMFG, WTF!?, COOL AF – offensive and inappropriate or effing cool taglines? This is a question that was recently considered by the Advertising Standards Authority of South Africa in Typo Stationery / Kathrine Marsden & Another / 2018-809F.

Popular stationery store, Typo, advertised a sparkle ball point pen. The advertisement consisted of an image of the pen, a bubble with the acronym OMFG (where the F stands for the F word) and an image of a model holding her cheeks seemingly astonished by the offer. The advertisement was circulated in an email that was sent to Typo customers.

A consumer filed a compliant with the ASA arguing that the advertisement was contrary to the Advertising Practice Code (“the ASA Code”) in that it was highly offensive and insensitive towards children.

Clause 1 of Section II – Offence

The ASA had to consider the advertisement in terms of Clause 1 of Section II of the Code which provides that advertisements should contain nothing that is likely to cause serious, wide-spread or sectoral offence. The Clause provides that the fact that an advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to the advertisement. In considering whether an advertisement is offensive, consideration will be given to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest.

The ASA looked at a series of cases in which it had considered whether the acronym OMG and the word “effing” were considered offensive.  In Department of Social Development/E Cillie/17620, the Directorate held that whilst the complainant had a personal view on the acronym OMG, it does not believe that the use of OMG is likely to cause serious, widespread or sectoral offence, especially since the term has become widely used in the media.

In Webafrica / Fibre Internet / Timothy Wege & Another / 2018 – 7354F, the ASA held that the word “effing” is not per se offensive, is commonly used and other phrases or acronyms such as “WTF” are also in common use. Considering the widespread use of the word effing and that it was used in a way intended to be humorous, the hypothetical reasonable adult would not be offended by the use of the word “effing”.

In the present case, the ASA accepted that OMFG, where the F stands for the F word, was arguably more offensive than the acronym OMG, particularly to religious people. However, the ASA, by a slim majority held that OMFG was similar to the use of “effing” or OMG and, therefore, would not be offensive to adults.

Clause 14 of Section II – Children

The ASA also had to consider the advertisement in terms of Clause 14 of Section II, which provides that advertisements addressed to or likely to influence children should not contain any statement or visual presentation which might result in harming them mentally, morally, physically or emotionally.

The ASA, again, considered previous decisions. In particular, Dial A Nerd // AA Milford / 15791, which involved a radio advertisement where the F word had been bleeped out. The ASA held that the use of the F word in the commercial, although censored, is still not desirable when young and easily impressionable children are listening to the radio.

In Webafrica Fibre Internet / Timothy Wedge & Another / 2018-7354F, the advertisements under review was a billboard which contained the phrase “Effing Fast Internet” situated on school grounds and a radio advertisement where the word “Effing” had been bleeped out. The ASA enquired whether a child imitating the commercial and using the word “effing” would be acceptable and concluded that it would not. The ASA held that it was highly unlikely that a child would not understand the meaning of “effing” as used in the context of the advertisements. The ASA noted that it is required to err on the side of caution in matters involving children.

In the Typo case, it was the placement of the advertisement which resulted in the ASA finding that the use of OMFG in the advertisement was not harmful to children. Whilst the ASA accepted that the product, a sparkle pen, would be attractive to children, the advertisement was circulated via email to Typo customers only. Typo customers were identified as aged 18 – 35. The ASA held that a child who could be harmed by inappropriate language should not have unchecked access to emails.

Therefore, whilst the ASA has adopted quite a liberal approach in holding that advertisements containing commonly used phrases alluding to the F word are not offensive to adults, the same principles do not apply to advertisements that are accessible to children. It is likely that if the phrases, OMFG, WTF, EFFING, AF are included in advertisements that are easily accessible by children, whether on radio, in print media, billboards or point of sale material, such advertisements, whilst effing cool, will most likely be found to contravene the provisions relating to children in the ASA Code.

Who owns the Roger Federer RF monogram trade mark?

While you channel hop between the FIFA World Cup and the tennis you may have noticed that Roger Federer is no longer resplendent in Nike apparel at Wimbledon this year and is now sponsored by the Japanese brand Uniqlo (he still wears Nike shoes though).

We were very interested to read the article on the Mail & Guardian yesterday titled Is Roger Federer in danger of losing his iconic logo? 

The tl;dr (too long; didn’t read) summary for you: it’s not clear exactly what will happen with the RF trade mark in future.

Luke Feltham from the Mail & Guardian writes:

“Roger Federer’s initials have helped define an era of tennis. The two letters, sleekly melded together, have been sewn onto the hats and shirts of thousands of adoring fans. The marketability of the logo is only outpaced by the world’s largest football clubs. For his fans, the badge is emblematic of sporting excellence.”

This is a very exciting trade mark discussion that goes to the first principles of trade mark law. As readers of this blog will know, trade marks act as a badge of origin which communicates to the public that ‘these are my goods/services’. So when potential customers see the RF monogram trade mark do they associate it with Roger Federer or Nike, or both.

Most will agree that matter is not so simple and that it will likely turn on the agreements between Nike and Federer which governed their commercial relationship for many years. Nike, have undoubtedly invested significant sums of money over many years marketing the line of goods under the trade mark.

As Jacqueline Pang writes on The Trademark Lawyer:

“As always, much will depend on the contract between Nike and Roger Federer, and whether and to what extent provision was made for such an eventuality. On the face of it, Nike’s legal position seems strong. It owns a number of trademark registrations around the world for the RF logo and presumably also owns the copyright. Barring anything in the contract to the contrary, it could retain ownership of the brand and continue to exploit it. In that case, it would also be in a position to prevent Federer or any third parties (i.e. Uniqlo) from using the RF logo or anything similar for clothing and related goods.”

Photo by John Fornander on Unsplash

How Intellectual Property Rights are Human Rights

In Part One of this series of articles we introduced the concept of cultural appropriation and provided an explanation of why it sits uncomfortably with most of us. In Part Two we discussed the power dynamics at play and whether that power-balance has been struck in the current IP legislation we see internationally. This article by Myriam Christmann focuses on those power dynamics once more and looks at the remedies that are offered in order to strike the balance between indigenous people and the State using Human Rights Law as a lever for interpreting IP legislation.

The relationship between Human Rights and Intellectual Property is an interesting one, because it transcends different levels and aspects of each legal field respectively. However, it seems as though the relationship between the two only became apparent only in the 1990s. This is primarily due to the fact that intellectual property rights, by broadening its scope of protection, imposed limitations on the accessibility and realisation of Human Rights. This has primarily been through the effect that intellectual property laws have had on access to healthcare.

The overlap of Human Rights Law and Intellectual Property Law

When intellectual property laws were initially drafted, the motivation was purely commercial. Today Human Rights Law and Intellectual Property Law overlap to an extent far greater than initially envisaged. Indeed Intellectual Property found its way into Human Rights. Indeed, the right to intellectual property is embedded in the Universal Declaration of Human Rights (UDHR) and the United Nations Declaration for the Right of Indigenous People (UNDRIP).

The UDHR is probably the most prominent international document to be said to ‘constitutionalise’ the Human Rights regime, which effectively constitutionalises intellectual property rights on an international scale. Although not expressly mentioned, Article 27 (2) UDHR states that “… everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Another observation that was made in the early 1990s, mainly by human rights advocates, was the neglect of the rights of indigenous people due to increasing numbers of misappropriations and exploitation of traditional knowledge and expressions. Various international instruments, concerning the subject of indigenous cultural heritage, e.g. sacred objects and knowledge or traditional cultural expressions, such as dances and music, and its relation to the intangibility of the culture, have come into existence.

Due to the concern that indigenous peoples’ rights were neglected and that they have suffered from historic injustice as a result of colonisation and dispossession of their land and resources, the United Nations became the leading power behind the efforts to protect indigenous peoples’ culture. Two agencies in particular a noteworthy here, that is the work of WIPO and UNESCO. The work of the latter will be of concern in this post.

UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage

Within the last 25 years, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage and the United Nations Declaration on the Rights of Indigenous People were created. Within these frameworks ‘intangible cultural heritage’ refers to traditions or living expressions inherited from the ancestors and passed on to the descendants, such as oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature and the universe or the knowledge and skills to produce traditional crafts.

Traditional cultural expressions can succinctly be defined as “heritage that is embodied in people rather than in inanimate objects.”

There are generally two form of intangible cultural heritage that exists:

    • the first form of intangible cultural heritage exists independently from tangible objects, such as prayers songs and dances; and
    • the second form is the physical objects themselves.

The latter is in most cases is inextricably linked and has a close mutual relationship with the former, often in such a manner that their separation would be counter-intuitive. Traditional cultural expressions can thus either be intangible, or a combination of the intangible value and tangible object, resulting from each other respectively.  The value of indigenous culture, and intangible cultural heritage in particular, lies in the discernment of indigenous people on how they relate to it and what meaning they confer upon it.

Although neither the UNESCO Convention nor the UN Declaration on the Rights of Indigenous People are binding, the Declaration that makes a very important policy consideration, namely in the form of the right to (cultural) identity. The right to cultural identity is not represented by one single provision in the Declaration, but is comprised of multiple rights granted therein. This is comprised of the right to self-determination (Art. 3), the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions (Art. 5), the right not to be subjected to forced assimilation or destruction of their culture (Art. 8 (1)), the right to practise and revitalise their cultural traditions and customs including the right to maintain, protect and develop the past, present and future manifestations of their culture (Art.11(1)). Moreover, the Declaration mentions the obligation to provide redress with respect to indigenous “cultural, intellectual, religious and spiritual property” taken without free, prior and informed consent (Art. 11 (2)). This provision must be read in conjunction with Arts. 31 and 33.

These provisions include the rights to maintain, control, protect and develop their cultural heritage, traditional knowledge, traditional cultural expressions and their intellectual property. The Convention provides that “indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions”, without the impairment of obtaining nationality of the State they reside in or participating in the States life. In toto, these rights portray the right to cultural identity as a whole.

There is a strong argument that the right to identity is said to form part of customary international law, as was affirmed by the International Law Association by acknowledging that “states are bound to recognise, respect, protect and fulfil indigenous peoples’ identity (in all its elements, including cultural heritage … through all possible means – in order to ensure its preservation and transmission to future generations). Cultural rights are the core of indigenous cosmology, ways of life and identity, and must therefore be safeguarded in a way that is consistent with the perspectives, needs and expectations of the specific indigenous people.” The intangible nature of spirituality and belonging is patently encapsulated in this quote and furthermore, denotes that the right to cultural identity is an enforceable right under international law.

Thereby, it perpetuates the necessity that existing IP systems have to realise and demand a change within the legal system and its perception on indigenous communities’ cultural (IP) rights.

It can be recognised that cultural expressions (no matter in which form they occur – medicine, arts or performance) do fall – at least descriptively – under works protected as intellectual property. This will fall in line with Art. 27 UDHR, not only allowing intellectual property as a Human Right, but also merging the right to intellectual property with the right to cultural identity.

The Challenge to Western IP Regimes

There are two broad principles to discern, the thrust of which run counter to the policies of Western IP regimes. The first evolves around the proprietaries principles that recognizes the claim to the entire culture of indigenous people. However, such propriety claim to an entire cultural heritage is not a right that is currently recognized by western IP systems. Secondly, there is the principle of cultural diffusion. The principle signifies the spread of cultural beliefs and social activities from one group of people to another. The mixing of cultures through different ethnicities, religions, and nationalities has only increased with advanced communication, transportation and technology.

IP laws have the underlying goal to achieve, promote and develop human creativity. Cultural heritage is seen as the fundamental basis of humankind, which should be accessible to everyone around the world, in order to ensure the prosperity and flourishing of human creativity regarding intellectual property. This is also in line with the notion of the public domain into which copyright works enter after the propriety rights extinguished. Cultural diffusion is based on the premises that cultures are part of a global intellectual good to which all humans have some rights of access, because a “broad dissemination of ideas and knowledge, based on the freest exchange and discussion is essential to creative activity, the pursuit of truth and development of the personality. Copyrights are therefore used and seen as economical wheels, since they are linked to the individual to maximize the capacity of individual owners to trade these rights. Consequently, this means in praxis that indigenous communities often fail to obtain protection for their traditional heritage resources.

Hence, the individualistic notion (particularly of copyright) needs to refocus, which will be further elaborated on the next and final part of this series.

Photo by Kyle Glenn on Unsplash

Power dynamics and IP laws | Is the balance fairly struck by current IP legislation?

Part one of this series by Myriam Christmann was titled The Thorny Issue of Cultural Appropriation and served as an introduction to the topic in general and introduced the idea that the remedy to widespread cultural appropriation could be achieved through carefully-drafted intellectual property laws. This post is an overview of the developments that led to the phenomenon of cultural appropriation and the contrasts that exist between today’s dominant culture and minority cultures (when we refer to culture, we are generally referring to an integrated system of symbols, ideas and values that a particular community may adopt or live by).

In my previous post I discussed that although the phenomenon of cultural appropriation is relatively simple, its roots and developments are much more controversial. One particular difficulty that arises in this context is the phenomenon’s multidimensional nature, being pervasive into a vast number of creative domains, as cultural influences blend, merge, and synthesise. Since appropriation occurs through the dominance of a subordinate by a dominant culture, what becomes central to the concept of cultural appropriation are relationships of power. Calls to redress the phenomenon thus arise from attempts to address power imbalances consequent of colonisation.

Colonisation has occurred with the rise of modernity, namely the Discovery of the New World and the achievements of the Renaissance and Enlightenment movement with Europe as its centre. Together they built the underlying foundation and the unfolding of the Western civilisation (‘the West’). The emergence of the West’s achievements, for example, technology, freedom of the individual and equality are often praised to be the greatest in human history. Whilst these achievements are in no way meant to be condemned, the darker sides are often neglected; one of them being the effects of colonisation that are still felt today.

During colonialism the West manifested itself as the superior power, dominating native inhabitants not only by means of cultural assimilation (language, belief, clothes, etc.) but also by means of degradation and dehumanising, physical and psychological violence to the extent of genocide and complete extinction of native and indigenous communities. To put it mildly, the West imposed itself forcefully on every corner of the world. The inflicted wounds on generations of people are still to heal. And it is until today that the aftermath, or rather development of coloniality is extending into our present and future. Indeed, colonialism has not disappeared with the processes of decolonisation, but rather furthered the process where communities and people have been, and are, racialised and gendered socio-economically and politically according to an invented Eurocentric worldview.

And the law is no exception in this regard. The creation and foundation of intellectual property laws as we know them today have been shaped primarily by a Eurocentric worldview.

With the emergence of copyright, the foundation for the creative “Self” was laid down by the Enlightenment movement. While authors like Plato, Aristotle or Confucius regarded themselves as mere vessels and transmitters of ancient knowledge (or even receiving gifts from the muses), the period of Enlightenment and Romanticism liberated the notion of the Individual as the sole creator of an artistic work, thereby reshaping the traditional creative process. Copyright laws aim for the protection of the (individual) author’s identity and his/her creative process and not for the creative process that resulted within the traditions of (indigenous) communities.

The same holds true for the law of trade marks, in the sense that “self-realisation” within the realm of the individualisation process is marked by the phenomenon of consumerism – I buy therefore I am. The role of trade marks is hence justified by granting monopolies within the market, in order to indicate the source of origin for the consumer. However, the longing for such self-realisation is most often satisfied by the consumption of material goods without proper consciousness and lacking awareness of the consequences it bears; one of them being cultural appropriation.

Both notions (legal and non-legal) originate from the Eurocentric point of view, yet, the issue increasingly becomes a global one. This is not in itself a problem, but since cultures portray permeable concepts that transcend, develop and grow from each other it would be negligent to assume that the only creative processes that can be protected are those that emanate from an individual self. The problem of that assumption is that the contrasting of two different cultures depends, obviously and necessarily, on the dichotomy of otherness.

Due to the fact that within the Eurocentric standard the world is perceived by means of identity, there is an implication of relational standards. The Self, the “I” opposed to the other. Identity is, however, only represented by an established social order or hierarchy, in which a certain group (or certain groups) is founded as being superior to others. This again results in notions of power relationships reflecting superiority and inferiority embedded in particular identities.

It is for this reason important to understand the value of cultures that are opposed to the Eurocentric view, and what culture actually means to indigenous communities and the world as a whole. The next post will, therefore, be dedicated to elaborate in more detail on indigenous culture, indigenous identity as a human right and the role of intellectual property laws in that regard.

 

Photo by Martin Sanchez on Unsplash

The Thorny Issue of Cultural Appropriation

In the South African context, we are regularly confronted by examples of what is labelled as “cultural appropriation”. What is cultural appropriation and where is the line between cultural appreciation and cultural appropriation? In this guest post (the first in a series of posts on this topic), Myriam Christmann introduces us to the concept and provides an explanation of why cultural appropriation sits uncomfortably with many of us. 

Allegations of cultural appropriation are frequently in the headlines in both South Africa and abroad. While it is not a new concept, the phenomena of cultural appropriation (and the blurry line between it and cultural appreciation) seem to have been reported far more frequently in recent years. This is most likely due to the rise of new technologies, the lack of effective enforcement mechanisms and potentially also an element of naivete in consumer awareness and behaviour in the market.

Cultural appropriation is an omnipresent and diverse phenomenon and it is something that occurs globally. Although examples in the fashion industry probably get the most attention, cultural appropriation extends from the creative industries to the sciences. Accordingly, there are regularly claims of misappropriation of traditional cultural expressions by individuals and communities of cultural minorities.

Despite there being a lot of attention to cultural appropriation and numerous difficulties in dealing with it, cultural appropriation itself is a relatively simple phenomenon. The concept stems from sociology and deals with the adoption of the elements of a minority culture by members of the dominant culture. In many instances, those from the dominant culture may reduce cultural elements to exotic fashion or toys, which may have deep meaning to the original culture. In a sense, cultural appropriation is a form of bullying where a dominant party uses unfair tactics to exert its dominance over a smaller party.

In a more straightforward manner, cultural appropriation is a means to the end of ethnocide, an anthropological concept referring to the extinction of several cultures and the assimilation to one particular culture. The latter is the dominant culture and is today portrayed by the Western society. Although the law does not currently regulate ethnocide in itself, model laws and recommendations acknowledge that the right to cultural identity is protectable as an International Human Right.

In this series of articles, I would, however, like to go a step further. I am of the opinion that, if carefully drafted, intellectual property laws can be beneficial for the support of indigenous people and the protection and safeguarding of their culture, hence their traditional knowledge and traditional cultural expressions. Well-drafted intellectual property laws seem to be the most appropriate means to achieve the protection of such rights, and indeed, legislators ought to be drafting such legislation.

The first reason is that the right to (intellectual) property constitutes a fundamental right in most of today’s constitutions. Accordingly, it should be obligatory for any state to ensure that intellectual property rights are accessible and granted. And secondly, the philosophies on which current intellectual property regimes are based, protect the identity (in form of its material expression) of the creator. This fundamental rationale is nonetheless not sufficient in light of the interconnection with intellectual property and human rights. When having a closer look at the philosophies that underlie current IP laws, – in both modern society and indigenous communities – it becomes apparent that they share similar values.

It is time for contemporary laws to safeguard the past and the future. Creative works are the product of the individual’s imagination and emanate from the spiritual inner self, which is why there is such high emotional and spiritual value to the expressions attributed by the community to which they belong. Perhaps that is one reason why cultural appropriation sits so uncomfortably with many.

by Myriam Christmann with Nic Rosslee

Photo by Denisse Leon on Unsplash

Five IP lessons from Kanye West

“Cars have four wheels. Hoodies have hoods. It’s amusing to me when someone says this is an original hoodie. Bro… it’s a hoodie @kanyewest

If you have opened Twitter at all this week you would have no doubt encountered Kanye West’s latest tweets. His tweets are coming thick and fast, covering his musings on everything from the political world order, consciousness, time and of particular interest to the IPLive team, creativity and intellectual property. In fact, he has said that this series of tweets is a book that he is writing in real time.

The tweets which I have embedded below give an indication of Kanye’s philosophy on creativity and intellectual property.

embedhttps://twitter.com/kanyewest/status/986640217904852993/embed

embedhttps://twitter.com/kanyewest/status/986641122381344768/embed

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These tweets (or mini-chapters of his book) and Kanye’s commercial savvy has motivated me to come up with five IP lessons that we can learn from Kanye West.

Collaborate

My favourite Kanye album is My Beautiful Dark Twisted Fantasy which included collaborations with John Legend, Drake, Jay-Z, Elton John, Alicia Keys, Seal, Beyoncé, Kid Cudi, Bon Iver and Rihanna, to name but a few. When he collaborated with these megastars on his album he not only had his fans lining up around the corner to buy his album (or stand in a free wifi zone to download it), he also piqued the interest of the fans of all his guests on the album.

The collaborations which interested me most were the unusual ones such as Elton John, Seal and Bon Iver, who all come from very diverse musical genres.

Elton John, for example, played the piano and added his vocals to the mix on All Of The Lights below.

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Remix

This will be my last My Beautiful Dark Twisted Fantasy reference I promise.

My favourite track on the album is Lost In The World which features a sampled Bon Iver song titled Woods. The original Woods track was a track that did not even feature on a full-length Bon Iver album (it featured on the Blood Bank EP).

Kanye took the reasonably obscure Woods track and turned it into what he has acknowledged as being one of his most poetic.

As Kanye notes in his tweet above: “Feel free to take ideas and update them at your will all great artist take and update.”

It was after all Isaac Newton who said: “If I have seen further, it is by standing upon the shoulders of giants”.

https://www.youtube.com/watch?vofaRvNOV4SI

License

Kanye has been using the nickname Yeezy since 2009 and first used it commercially in collaboration with Nike. In 2015, Kanye then partnered the Yeezy brand with Adidas which has gone on to be one of the most sought-after sneaker brands internationally. The hype around this brand is phenomenal and GQ profiled Yeezys as The Most Influential Sneakers of 2016 and ‘one of the most covetable items in the world’.

Although Kanye is certainly not the first musician to license his brand out to a fashion/footwear label, the Adidas Yeezy’s have got to be one of the best examples of doing it properly.

Trade Marks

Kanye and his wife Kim Kardashian are no strangers to understanding the commercial value of trade marks, they even trademarked their child’s name (although some nerds IP lawyers may suggest North West is not the most distinctive trade mark on earth).

He has registered Kanye, Kanye West, Yeezy and a number of other trade marks in a multitude of classes and will not allow other individuals to profit off his brands without his consent.

Think

Going back to Kanye’s tweets which philosophise about creativity and intellectual property rights, what I find most impressive, is that he actually thinks about these things. Kanye clearly has an open-sourced, sharing philosophy which has opened up doors for him to collaborate with others, remix old songs and licence his brand into different markets.

While his philosophy may resonate easily with other musicians, it does not necessarily provide a silver-bullet for those in other industries who may face different challenges.

I think the number one lesson that anyone can take from Kanye, is that you or your business should have a philosophy relating to innovation and creativity. And do not be afraid to nail your colours to the mast.

 

Photos by Reinhart Julian and Sebastian Pociecha on Unsplash

 

IP for good (beer)

AB InBev offers its patented technology for free to microbrewers after patenting a new brewing innovation

The Guardian reports here that AB InBev, the World’s largest brewer, has developed a greener way to put bubbles in beer. This innovation may reduce the company’s CO2 emissions by 5% which is said to be the equivalent to the energy consumption of 120,000 families.

The innovation relates to a technique it has developed which generate gas bubbles without the need to boil the water and hops. Traditionally, gas bubbles are generated via steam through the natural cooking process, requiring significant levels of water and heat.

“The new technique involves heating the brew to below boiling point and then blowing nitrogen or CO2 into the tank to create bubbles without changing the taste. The company claims that because the beer is brewed at a lower temperature in the early phase, it can also stay fresh for longer.” via The Guardian.

What interested us at IPLive was the fact that AB InBev is offering to share the patented technology free of charge to smaller brewers and largers brewers will pay a licensing fee that will re-invested into further research for similar projects.

But fear not, they have assured us that this innovation won’t detract from the (wonderful) taste of its beers.

 

Photo by Patrick Fore on Unsplash