The great and the good of IP law gathered in Stellenbosch last week. I went too. The occasion: a seminar to celebrate the creation of a Chair of IP Law at Stellenbosch University - funded by Johan Rupert, the chair is named in honour of a free-thinking judge who stood up to the apartheid regime, Anton Mostert, and the bottom of the person sitting in it belongs to leading IP lawyer, Owen Dean.
There were some very credible foreign speakers. Much of what they had to say was positive – EBay is cooperating with luxury goods manufacturer Richemont to take down counterfeiters' sites, the World Intellectual Property Organisation is working hard to get people to understand why counterfeiting is wrong, and the EU registration system gets slicker by the day. And an exchange between the Chinese delegate – who tried to justify his countrymen's propensity for copying by reminding us that IP is new to them – and the EU delegate, who said that it's a bit rich for what's fast becoming the world's largest economy to do the 'Go easy on us we're just kids' routine. Something we know all about of course! Which may explain the non-appearance of keynote speaker, Trade and Industry Minister Rob Davies, who, together his boss, appears to have decided that if the Young Turks were going to be running amok in Jozi, he'd prefer to watch from a distance. Just in case. Even from Norway where, as we know, anything can happen.
The seminar highlighted how far SA is falling behind the game – where others are amending their laws to deal with the challenges posed by the digital explosion, we obsess with the protection of traditional knowledge (TK) . It's part of a wider redistribution agenda of course and, although most IP lawyers are happy to see TK protected, they're adamant that it can't be done through IP. Leading IP judge Louis Harms did his by now familiar grumpy old man routine and said that the proposed protection of TK though IP will kill IP. It will certainly make a mess of it!
There was a bit of a discordant note, with a number of old school (yes white and grey!) lawyers bemoaning the current state of play and reminding everyone how good things were back in the day – at times it felt like being at one of those braais where you suddenly find yourself surrounded by bearded men in khaki shorts and no shoes using words like 'Zim' and even 'Rhodesia'. And the 'When We's' smiled inwardly when a delegate, who didn't identify himself but who we can only hope isn't involved in the drafting of legislation (and yes was black and IPad-bearing!), suggested that it was hypocritical to knock TK protection, simply because the knowledge is old, whilst granting copyright protection to Shakespeare – copyright, of course, expires 50 years after the death of the author!
The shadow of Justin Nurse loomed large, with the old guard still struggling to come to grips with the notion that trade mark rights aren't absolute. The judgment of the Constitutional Court in Laugh-it-Off was given by perennial bridesmaid, Deputy Chief Justice Moseneke, and, although he came to the right result, the reasoning's all wrong. And for once the old school do find themselves in sync with the new regime. Not a lot of people know this, but when Jacob Zuma read the judgment he was so appalled by the flawed legal reasoning that he roared to a colleague: 'That Moseneke's useless, I'll make sure he never becomes chief justice.'
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