How COVID-19 Reinforces the Need for IP Reform and Research in South Africa
By Tobias Schonwetter
In South Africa, we are in the midst of an exciting and increasingly heated debate about domestic intellectual property (IP) reform; an area of law that concerns many members of the Global Network of Internet & Society Centers (NoC). Points in case for the remarkable domestic legislative activity in this field are the 2018 national IP Policy — phase I; the 2019 Protection, Promotion, Development and Management of Indigenous Knowledge Act; and the 2013 Intellectual Property Laws Amendment Act. In addition, 2019 saw parliament’s approval of the Performers Protection Amendment Bill and the Copyright Amendment Bill, and both Bills were recently vetted by the president and sent back to parliament to address outstanding constitutional concerns. Moreover, patent law reform is imminent as South Africa strives to replace its flawed depository system with a substantive patent examination system to increase our domestic standard of patentability and minimise the risk of awarding patent protection to undeserving inventions.
I find these reforms exciting not only because they are long overdue (for instance, our copyright and patent laws are essentially still from the 1970s) and necessary to generally future-proof our IP laws in light of the tremendous technological advances we have witnessed in recent times, but also because of the lawmaker’s clear intention to create frameworks that are more reflective of our domestic context. They aim to support South Africa’s development plans and objectives, and the country’s transition from a natural resource-based to a knowledge economy. The 2018 IP Policy contains, in its “purpose” section, the following guiding quote from Nobel Laureate in Economics Professor Joseph Stiglitz et al.:
“The developing country needs to ask, what IPR (or more broadly, innovation system) best advances its own standard of living. Stronger IPR may constitute a barrier to the ability of its firms catching up to the frontier, even if it enhances innovation within the country. Because developing countries are engaged in catching up, the optimal IPR regime for them will in general differ from that for a more advanced economy”.
Taking such a stance will move us forward on our important journey towards decolonising our (IP) laws in pursuit of development and the above quote (taken from a publication co-published by the UCT IP Unit) aligns well with our overarching research findings from the Open African Innovation Research network (Open AIR).
For a while, it seemed as if the government’s rather progressive policy decisions in this area somehow remained under the radar, especially of those less keen to expand the public interest dimension of IP protection. Opposition was measured and criticism was usually constructive and voiced through the appropriate channels. I even started to wonder, as a non-South African with almost 20 years of residence, whether this is the way things are done down here, and perhaps it is. But not least as a result of increased outside influence (the threat of South Africa losing its preferential trade benefits under the US’ African Growth and Opportunity Act (AGOA) being one of the latest examples), IP law and policy reform discussions have become increasingly heated, with op-ed wars now raging that do not shy away from personal attacks, undue simplifications, fear-mongering and, quite frankly, fake news. Earlier in June, readers of South Africa’s renowned online newspaper Daily Maverick could follow a memorable quarrel between a South African law professor on the one hand and a retired Constitutional Court Justice and national disabled people’s pressure group BlindSA on the other.
As an IP scholar, I enjoy the robust and relevant debates concerning IP reform in our country and I support the general direction we seem to be heading. I think some of this can and should become a model for other countries in the region and the continent. And I, like others, feel frustrated about the slow progress with patent and copyright reform and the fact that BlindSA had to approach the Constitutional Court to compel the president to deal with the Copyright Amendment Bill.
Yet, when COVID-19 struck us all earlier this year, I was, initially, distracted from these debates. My focus shifted, first, to personally complying with the new lockdown rules — South Africa has one of the strictest COVID-19 lockdown regimes in place — and to then adjust professionally as a university lecturer and engage in the multi-facetted discussions around delivering emergency remote learning at a South African university in a way that indeed reaches the vast majority of our diverse student body. Experts seem to agree that, unlike other parts of the world, Africa has not yet seen the worst of the COVID-19 pandemic, and the outbreak now accelerates quickly on the continent. When I first started to think about this article, about 100 days after the first COVID-19 cases were recorded, the continent had just reached the milestone of more than 100,000 confirmed cases. Now, not even 3 weeks later, we have already twice as many cases. Of all African countries, South Africa is most affected with, at the time of writing, just under 60,000 confirmed cases (Africa: ~217,000) and almost 1,300 deaths (Africa: ~5,850). And within South Africa, I happen to live in the most affected region. So against this backdrop, IP debates took a backseat in my work and when plans were shared with me in March or April to increase the pressure on the president to attend to patent reform and sign the Copyright Amendment Bill I caught myself wondering whether this really is the right time for this or whether he should not rather attend to more pressing issues.
But I soon realised that I was wrong. The COVID-19 pandemic in fact raises a number of important IP questions and brings to the fore some key deficiencies of our IP frameworks, which are often amplified if laws are as outdated as ours. Addressing these is now more urgent than ever. For me, three issues stand out.
First, almost immediately after plans were drafted to provide emergency remote teaching to our students, I received a flurry of copyright-related queries concerning the legality of creating and distributing digitised educational materials, including (parts of) textbooks. It seemed as if all of sudden most of my colleagues and students started to be concerned about the restrictions imposed by copyright law because, logistically, emergency remote learning builds on the legal distribution of and access to digital learning materials. I suspect that similar enquiries prompted my colleague at the University of Cape Town Professor Caroline Ncube, the South African Research Chair: Intellectual Property, Innovation and Development, to reflect on what is and what is not currently possible in an article for Afronomicslaw in May 2020. In this article, she observes (a) that existing standard licences ‘are inadequate to meet emergency remote teaching needs’ and that it is a double-edged sword to merely rely on goodwill and accommodations made by copyright-holders; (b) that our outdated existing copyright exceptions and limitations were created ‘at a time when online learning was not even contemplated and are not able to cater for the current emergency’ caused by COVID-19; and © that internationally, copyright exceptions and limitations are also in need of reform to respond to digital contexts. Ncube rightly concludes then that ‘it is clear that at both national and international level there is work being done to revise copyright law for digital contexts and that the pandemic has impressed upon us how important such work is.’ It is against this backdrop, that COVID-19 must not distract us from our work on copyright reform in South Africa (the South African Copyright Amendment Bill actually contains several new exceptions and limitations for educational use which would have benefitted remote learning) and our efforts to bring about necessary copyright change at the international level (as called for in a recent open letter by organisations and IP scholars, myself included, concerning COVID-19 and IP to the Director-General of the World Intellectual Property Organization in Geneva Switzerland.
Second, people in Africa start to wonder: once a vaccine and other health products such as testing kits and other medical/protective devices for COVID-19 are developed and approved, will these be available and affordable to all, including the most vulnerable, at the same time? And again, part of the answer lies in IP law. Last month, Bonginkosi Shozi wrote about this very issue on our UCT IP Unit blog. He, like Ncube, cautions against overemphasising voluntary measures, such as IP Pools, as key actors may after all ‘not agree to co-operate despite pressure from the WHO, EU, scholars, and civil society [and] an accessible vaccine or treatments for COVID-19 may still end up being beyond the reach of those who need them most.’ Shozi argues that to put the ‘fate of Africans in the hands of the governments which lead them’, these governments must better utilise existing public health flexibilities. These include safeguarding a high standard of patentability as well as flexibilities provided for under the WTO TRIPS Agreement, such as transition provisions for Least Developed Countries, compulsory licences and government use, and parallel imports. Shozi puts forward that ‘many African countries have IP regimes that are still governed by colonial-era statutes which do not take advantage of public health flexibilities’ and he concludes that African governments ‘must be proactive in positioning themselves to use the measures available to them to protect public health and promote access to healthcare, which includes the utilisation of TRIPS flexibilities. The number of lives lost by not doing so is the biggest price-tag we should be concerned about.’ In South Africa, more than 80 academics, researchers and teachers, including myself, used these and other arguments in a May 2020 appeal letter to President Cyril Ramaphosa to expedite patent law reform in line with the country’s 2018 IP Policy Phase I.
Thirdly, earlier this month, University of Ottawa Professor Chidi Oguamanam and Jessica Hennings raised another important and fascinating issue at the intersection of COVID-19 and IP which warrants further exploration in my opinion. Oguamanam and Hennings see the search for a COVID-19 treatment as an opportunity ‘to diversify Western medicine and to appropriately incorporate traditional knowledge into the development of this much-needed treatment.’ Yet, while this medical emergency requires the sharing of such traditional knowledge, such sharing must, according to the authors, be done through effective Access and Benefit Sharing (ABS) frameworks and not by way of biopiracy.
These are but three of many examples of how COVID-19 and IP intersect. And they remind us that also during and post-COVID-19, we must continue striving to solve a key problem at the heart of IP policy: how to reconcile tensions between appropriation and access, excluding and sharing, and competing and collaborating — from an African perspective.
Dr. Tobias Schonwetter is an Associate Professor in the Department of Commercial Law and the Director of the IP Unit, Faculty of Law, University of Cape Town, South Africa. He is a Director of the Open AIR network and he is involved in forming the law faculty’s new iNtaka Law Tech Centre.