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IP Briefs – May 2018

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IP Briefs – May 2018 IP BRIEFS Volume 2 / Issue 5 / May 2018 IN THIS ISSUE FROM THE EDITOR IP Exploration: Alternative Dr. MM Kleyn IP protection for creative works [email protected] Cybersquatting: Don’t bank Autumn it is! I quite love the warm colours of summer’s farewell and on it! It’s bad for the brand. looking forward to cosy winter nights in front of the fire place with a How do you like your glass of Pinotage! Naartjies? Essentially April 26th marked World IP Day. This year the theme is “Powering derived, or not? change: Women in innovation and creativity”. Across South Africa Politically (In)correct the day was celebrated in various locations. We include in this edition a reflection of events on the day. GDPR applicability to South Fresh from the grid… the dti announce on 30 May 2018 that African businesses – not just following the publication of the Intellectual Property (IP) for the EU after all! Consultative Framework in 2016, the Draft IP Policy Phase I which On a lighter note: was published for comment in August 2017, the inter-Ministerial IP and a little disruption Committee on Intellectual Property (IMCIP) considered stakeholder featuring some Stellenbosch submissions and amended the policy document accordingly. The women approved Intellectual Property Policy of the Republic of South Africa Phase I is available and will be published in the Government Gazette. Book Review: The Summit For a preview here, it is: Syndrome http://www.thedti.gov.za/news2018/IP_Policy2018-Phase_I.pdf. Case Law summaries News from the dti is that we can expect Phase II which will apparently addressing issues identified in the in-built agenda and Events Calendar deliberate upon the most efficient means of implementing the policy proposals discussed . Quote for today: “If we all did the things we are really capable of doing, we would literally astound ourselves...” ― Thomas A. Edison List of recent IP case law IP EXPLORATION: ALTERNATIVE IP PROTECTION FOR CREATIVE WORKS There is no doubt that South African artists, filmmakers and musicians are amongst some of the most creative across international industries, creating art, films and music sought after, celebrated and acknowledged globally. Artists have, however, struggled over the years with the protection of their works. This may be due to misinformation, lack of information or merely not being concerned about the implications of IP protection until it is too late. With the increase of counterfeit goods and copyright infringement of artistic, cinematographic and musical works, specifically of an African origin, the question arises whether we as a country are doing enough to protect our artists and artistic legacy. In this regard, it may have become necessary to not only educate local creatives in the traditional form of IP protection for their works, being copyright protection, but also explore the possibility of "extending" such protection through more formal and established forms, such as design and trade mark registrations. This being said; there are several pros and cons to the respective IP protection mechanisms discussed herein – which will be dealt with and consideredThe historical below. justifications However, for theIP protectionpros of “strong” The protection Copyright will Act always specifically far-outweigh lists thean consis theassociated interlocking with frames the vulnerabilityof referencein of “weak” artisticprotection work. as a work eligible for copyright access to knowledge; and balancing of protection. Section 2(1) of the Copyright Act interests, which are often not in harmony refers: with one another. “…Subject to the provisions of the Noteworthy is the Copyright and Patents Act, the following works, if they are clause of the US Constitution which sets out original, shall be eligible for the theoretical rationale for IP protection: copyright…” "The [promotion] of science and useful arts, by securing for limited times authors and The Act follows to list these works in Section inventors the exclusive right to their 2(1) thereof as being specifically eligible for respective writings and discoveries." copyright protection. These inter alia include "... artistic works, musical works, The rational behind a limited period of cinematographic films and sound protection is so that the intellectual recording...". creations will be available to the public and available for others to use in their own Section 1(1) defines “artistic works” to inter intellectual creations. alia include paintings, sculptures and Christiaan holds an LLB from The law and economics approach drawings, stating: “…artistic works means, NWU, is an LLM candidate at recognises that strong IP protection brings irrespective of the artistic quality thereof … UNISA, a Senior Domain Dispute with it both costs and benefits. paintings, sculptures, drawings, engravings Adjudicator with SAIIPL, and an and photographs…” admitted attorney with 10 years IP "The economic justifications for [IP such as] experience in the areas of trade copyright focus on the need to provide Musical works are defined as: marks, copyright, information incentives for the creation and “…arrangement or transcription of the technology law and domain dissemination of creative works." (M. work, if such arrangement or transcription disputes. Spence, 2002) has an original creative character…” Sher-Muhammad holds an LLB TRADITIONAL PROTECTION: Cinematographic films are defined as: from the University of London COPYRIGHT “…means any fixation or storage by any achieving the best result in his When discussing creative works, the first final year, is a Global MBA means whatsoever ... of being seen as a form of IP protection that comes to mind is moving picture ... and includes the sounds candidate with the same university usually copyright protection for artistic, and has 6 years IP experience embodied in a sound-track associated with cinematographic- or musical works – and the film…” with expertise in trade mark law, rightfully so. IP policy and legislative analysis. May 2018 Page 2 VOL 2 ISSUE 5 IP EXPLORATION: ALTERNATIVE IP PROTECTION FOR CREATIVE WORKS It is an established fact that copyright The lower threshold for design Reflecting on the traditional role of trade vests automatically in the author of any registration, and the fact that no marks: “The essential function of a trade work and the creation thereof into a substantial examination of design mark is to guarantee the identity of origin of tangible form. applications are currently carried out, the marked goods or services to the allows for applicants to apply for a consumer or end user by enabling him, With no formal registration avenue design application while establishing without any possibility of confusion, to available in South Africa for copyright "distinctiveness through use" in distinguish the goods or services from (save for specific forms), the most anticipation of a successful trade others which have another origin.” (Arsenal pressing concern is the ability to prove mark application for the same Football Club v Reed [2003] CMLR 481. ownership of such copyrighted works. product. This further makes the enforcement of There has been an increasing recognition of such rights an expensive and tedious Section 14(4) of the Designs Act may the non-traditional functions of trade marks. process for copyright owners, who, in pose an obstacle with this approach this instance, are (usually) struggling as it specifically excludes articles not There are benefits to be gained from trade artists. This begs the question to explore intended to be multiplied by industrial marks which have moved beyond their role alternative methods of IP protection. process from being registered as a as a badge of origin to embody other design. There may however be ways meanings. DESIGN PROTECTION in which to overcome this bar; for Another form of protection for artistic example, by simply showing an Trade mark protection of artistic works are works such as sculptures may be found intention of multiplication of an artistic no new phenomenon in trade mark law. in the Designs Act, in the form of work such as multiple "copies" of a Consider for a moment the existence of aesthetic designs. Section 1(1) defines sculpture being made by the artist figurative marks for instance. Such marks an aesthetic design as: himself. include devices and logos, which are in their essence artistic works. Several well- "...aesthetic design means any Another barrier may be the cost of a known images are registered as trade design applied to any article, design application that could be marks in a successful attempt by the whether for the pattern or the considered too expensive to justify authors to extend their rights well after the shape or the configuration or the the short duration (15 years for established copyright period has lapsed. A ornamentation thereof..." aesthetic designs) of such a form of good example is the iconic Mickey Mouse protection for most artists. As such and Donald Duck images, which have This specific form of design protection is design protection for artistic works been registered as trade marks. It is intended to protect inter alia the look and may not be the most ideal alternative already established practice to protect shape of an article. Arguably, as long as to copyright. certain artistic works by means of trade an artistic work meets the requirements mark protection, and we may be able to set in Section 14(1)(a) of the Designs Act TRADE MARK PROTECTION merely adapt such to protect other forms of (i.e. being "... new and original..."), it There has been an emergence of artistic works, such as sculptures, in the ought to be eligible for design protection. non-traditional trade mark protection. same manner. This is clearly limited to provide possible This aspect of trade mark protection alternative protection for artistic works, reveals its cross-cutting nature with Considering the preceding forms of and leaves the right holders in musical other domains of intellectual property. protection, the domain of trade marks is the works or cinematographic films without Forms of non-traditional marks most plausible possibility of providing the benefit of this form of protection.
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