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
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
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
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
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