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D.M. KISCH INC.
Sandton
20 February, 1996
PROPOSAL FOR
INCLUSION IN THE NEW CONSTITUTION - PROTECTION OF INTELLECTUAL PROPERTY OF
PERSONS AND THE INTELLECTUAL PROPERTY LAW
SYSTEM
I refer to my
submission to you dated 5 June 1 995 and your confirmation thereof, regarding
the above.
I have noted from the Draft Constitution that Intellectual
Property and the legal/administrative system therefor has not been included.
I
also make mention that neither the South African Institute of Intellectual
Property Law nor I was afforded an opportunity to address
the relevant Theme
Committee on this matter.
For your information I am telefaxing hereafter
a copy of my submission, together with the following comments, for
reconsideration
by the relevant Theme Committee:
- Intellectual
property should not be considered to be part of property per se and hence it
deserves special treatment in the Constitution.
- Intellectual
property has international rights attached thereto, and is indeed dealt with in
several International Conventions of
which South Africa is a signatory country
such as the Paris Convention of 1883 and the Berne Convention of
1886.
- Because
South Africa is a signatory country of the aforementioned Conventions, South
Africa is presently obliged to protect the intellectual
property of citizens of
other countries, as well as the Intellectual Property of its own
citizens.
- Intellectual
property and the protection thereof enables a country to develop
industrially/commercially and economically.
- It
attracts foreign investment and enables industry and commerce to expand and
hence provides labour i.e. jobs.
- South
Africa presently has a well developed legal / administrative system to protect
intellectual property. This system has been
and is still evolving
continuously.
- Our
system enjoys international respect and we can be proud of our system at present
but we need to ensure that the system is protected
and entrenched in a special
manner. This can be achieved by entrenching the system in the Constitution as
is the case in the USA
for example.
The above is a
non-exhaustive listing of considerations that should be taken into account in
considering this matter. I therefore
request the relevant Theme Committee to
reconsider this matter and to consider including the protection of intellectual
property
(i.e. inventions, trade marks, designs, copyright works, etc) and the
provision of an adequate legal/administrative system for the
protection of
intellectual property. I refer in this regard to the broad proposals listed as
paragraphs 1 and 2 in my aforementioned
letter.
I look forward to hearing
from you in this matter at your early convenience.
A. K. VAN DER
MERWE
JOHANNESBURG
PS. Should you require further
information or an oral presentation, please do not hesitate to let me
know.
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4 March 1996
PROPOSAL FOR INCLUSION IN
THE NEW CONSTITUTION - PROTECTION INTELLECTUAL PROPERTY OF PERSONS AND THE
INTELLECTUAL PROPER LAW SYSTEM
I refer to previous correspondence
herein, terminating with my letter to you dated 20 February 1996.
1
In support of my submissions made herein, I wish to draw your attention
to the following justification for inclusion of protection
of Intellectual
Property and Intellectual Property rights in the final constitution, namely as
set out hereunder.
The United Nations Universal Declaration of Human
Rights which has been adopted in 1948 reads as follows:
"Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic
production of which they are
the creator."
The aforementioned provision clearly envisages that persons
(including legal persons) are entitled to protection of their inventions
(by way
of patents), trade marks (by way of trade mark registration and the common law),
designs (by way of design registration and
the common law), and works such as
literary, musical artistic, dramatic works and also computer programmes (by way
of copyright protection).
I therefore look forward to hearing from you
regarding the above submission well as my earlier substantive submission, at
your early
convenience.
A. K. VAN DER
MERWE
JOHANNESBURG
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D.M. KISCH
INC.
5 June 1995
PROPOSAL FOR INCLUSION IN THE NEW CONSTITUTION - PROTECTION
OF INTELLECTUAL PROPERTY OF PERSONS AND THE INTELLECTUAL PROPERTY LAW
SYSTEM
Upon acceptance of the principles set out herein, the writer hereof
suggests the following as a proposal (made on his own behalf),
or at least a
starting point, for, consideration of the particular form in which protection
should be granted in the constitution
for intellectual property /
law.
The submission is that one clause is needed to grant protection as a
fundamental human right of the intellectual property of individuals;
and that as
a second aspect, the State should be enjoined to provide a system of laws and/or
administration to protect intellectual
property. The following is submitted as
a broad proposal or guideline:
- Every
person (including associations of persons and legal persons) shall be entitled
to protection of intellectual property developed
and/or owned by such
person.
- In
order to promote the development of technology, commerce, and the arts, and any
allied activities, acid [caving regard to the existing
legal and administrative
system, the State shall provide a legal system, and when necessary/applicable an
administrative system,
for protection of intellectual property, in accordance
with any international conventions or treaties to which South Africa is a
member
country or signatory.
Although the Interim Constitution does,
and also I assume the Final Constitution will, grant rights of protection to
property of the
individual, it is submitted that intellectual property can be
distinguished from other forms of property, and hence should be protected
as a
separate genus or species of property and hence should be given special
protection in the New Constitution.
Intellectual property, as the name
suggests, includes the products of the intellect of persons such as inventions,
designs, trade
marks, literary, musical, dramatic, artistic, cinematography,
works, broadcasts, computer programmes, and know-how etc. Intellectual
property
law comprises that part of the law relating to patents, aesthetic and functional
designs, trade marks (both under statutory
law and under common law), copyright,
etc.
Our system of intellectual property law is based largely on the
corresponding English or British system which in turn corresponds
with that in
many other countries. Most if not all countries of the world protect the
intellectual property of individuals and organisations.
In line with this legal
philosophy, various international conventions and treaties have been concluded
over the years for example
the Paris Convention of 1 883 in respect of patents,
designs and trade marks, and the Berne Convention in respect of copyright.
South Africa is a full member nation and signatory of the aforementioned two
conventions and operates fully in accordance with the
provisions of these
conventions.
The United Nations also recognises the particular importance
of the protection of intellectual property and has a particular agency
namely
WIPO (World Intellectual Property Organisation) which is located in Geneva,
striving to harmonise intellectual property laws
world-wide and for example to
provide model laws for developing countries.
Although it may not appear
necessary to explain the rationale behind the protection of intellectual
property, a short motivation is
set out hereunder.
The right to a
person's intellectual property, for example a person's invention, trade mark or
literary work can be considered in
one sense to be akin to a fundamental right
such as a right to the protection of one's corporeal property, the difference of
course
being that intellectual property is an abstract and a very different form
of property. However, it is property none the less and
hence deserving of
protection.
From another point of view, it should be noted that all
industrial nations in the world, including the former USSR for example, have
considered an intellectual property law system to be essential for the
development of industry and commerce. In fact it is rightly
believed that,
without such a system, persons and companies would either not invest money and
effort in research and development,
and the consequent industrialisation
thereof, but would merely try to copy their competitors' products.
Alternatively they would
try to keep secret any technological
developments.
However, an intellectual property law system provides the
incentive for a company to develop new products, to manufacture and market
any
new products, and to protect its works and its identity. For example
pharmaceutical companies spend millions of dollars and
years of painstaking
research to develop new life-saving drugs. They should be afforded an
opportunity to recoup their investment
and to make a profit proportionate to
their efforts. Such profit also serves to finance further
development.
One could also consider trade marks and the identities that
trade marks and company names provide for their owners, for example Coca-Cola,
Rank Xerox, Volkswagen to mention a few international examples, and locally
names and trade marks such as Sasol, Simba, Iscor, Sanlam.
In support of
the above, one could look at countries such as Japan, the USA and Germany to
realise that companies in such countries
invest considerable effort and money in
research and development, and jealously protect the results of their work. For
the past
few years, Japan is the single country which files more patent
applications annually at the USA Patent Office than any other single
country
including the USA itself. The development, industrial power and export might of
Japan or Taiwan over the past two decades
are certainly to be admired and
emulated, but are based on research and development and the ability to protect
the fruits thereof.
It has been part of the legal tradition of South
Africa to recognise and grant protection for works of intellectual property.
This
field of law has for approximately a century followed British law, both as
far as statutory and common law is concerned. Consequently,
our legal system
has for a long time given recognition to both statutory and common law rights in
this regard. Our statutory and
intellectual property laws have been
administered by the Registrar of Patents, Designs, Trade Marks and Copyright,
and by his administrative
offices (and officials). This is fully in line with
international practice and administration. Our judicial system has also
developed
a fairly extensive system of case law in regard to intellectual
property and intellectual property law and unlawful competition,
and our Courts
give full recognition to, and uphold, such rights.
Although neither our
constitution nor the British constitution has seen fit to entrench such rights,
the writer hereof feels that
in the new South Africa, its constitution should
protect and enshrine such rights. Although other precedents can be cited, the
most
notable precedent is that of the United States of America which had seen
fit to adopt a patent and copyright system as far back as
the writing of its
original constitution in 1776. The relevant part of the USA constitution in
this regard reads as follows:
ARTICLE 1, SECTION 8: POWERS GRANTED TO CONGRESS
"The congress shall have power:
(1) .................
(8) To promote the progress of science and useful arts by securing for
limited times to authors and inventors the exclusive rights
to their respective
writings and discoveries."
Besides the historical import of the above example, the USA patent and
copyright systems are entrenched in their constitution by the
bill of rights
which protects the fundamental rights of their citizens. Because of the
aforementioned, it would be very difficult,
and the writer hereof suggests
virtually impossible to abolish the patent system in the USA and any act by
Congress in this regard
would be unconstitutional and could be challenged in the
Supreme Court of the United States.
Although the writer hereof does not
necessarily wish to propose the precise wording for inclusion in the
Constitution, what is being
raised is the important principle that a New
Constitution should make provision for the inalienable right of individuals and
organisations
such as companies to obtain protection for their intellectual
property, both under the statute and common law, as applicable.
It is
submitted that the present system of law should be acknowledged and accepted,
without stultifying the system which is continually
evolving and developing, for
example in line with international trends and developments in this field of
law.
The writer hereof therefore looks forward to hearing from you in
this matter at your early convenience, and as a final thought, I
would like to
share with you a quotation which I understand has been credited to Mark Twain
namely :
"A country without a good patent office, like the crab, can only move
side-ways".
ANDRE K. VAN DER
MERWE
JOHANNESBURG
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THE SOUTH AFRICAN INSTITUTE
OF INTELLECTUAL PROPERTY LAW
Pretoria
31 May 1996
FINAL
CONSTITUTION BILL - SUBMISSIONS MADE ON BEHALF OF THE SOUTH AFRICAN INSTITUTE OF
INTELLECTUAL PROPERTY LAW FOR THE PROTECTION
OF INTELLECTUAL PROPERTY OF PERSONS
AND THE INTELLECTUAL PROPERTY LAW SYSTEM
The Institute and I have
made submissions in the above regard to the Constitution Drafting Committee of
the Constitutional Assembly,
and I enclose a copy of my submissions for your
information.
Unfortunately the Constitution Drafting Committee has seen
fit not to include provision for protection for intellectual property and
the
legal / administrative system therefor in the Constitution Bill. I also make
mention that neither the South African Institute
of Intellectual Property Law
nor I was afforded an opportunity to address the relevant Theme Committee on
this matter.
Together with the enclosed submissions, I make the following
comments, for your consideration:
- Intellectual
property is a special form of (abstract) property and should not be considered
to be part of property in the ordinary
sense of the word. Hence it deserves
special treatment, more particularly in the Constitution. See in this regard
the inclusion
of protection by way of patents and copyrights provided in the
first Constitution of the United States of America drafted in
1776.
- Intellectual
property has international rights attached thereto, and is indeed dealt with in
several International Conventions of
which South Africa is a signatory country
such as the Paris Convention of 1883 (patents, trade marks and designs) and the
Berne Convention
of 1886 (copyright).
- Because
South Africa is a signatory country of the aforementioned Conventions, South
Africa is obliged to protect the intellectual
property of citizens of other
countries, as well as the intellectual property of its own
citizens.
- Intellectual
property and the protection thereof enables a country to develop industrially /
commercially and economically.
- It
attracts investment including foreign investment and enables industry and
commerce to expand and hence provides labour i.e. jobs.
- South
Africa presently has a well developed legal/administrative system to protect
intellectual property. This system has been and
is still evolving continuously
under both statute and common law.
- In
spite of criticism by certain bodies in the United States of America in recent
times, our system enjoys international respect and
we can be proud of our system
at present. However, we need to ensure that the system is protected and
entrenched in a special manner.
This can be achieved by entrenching the system
in the Constitution as is the case in the USA for example.
The
above is a non-exhaustive listing of considerations that should be taken into
account in considering this matter. I therefore
request the Constitutional
Court to reconsider this matter and to consider expressly including in the final
Constitution provision
for the protection of intellectual property (i.e.
inventions, trade marks, designs, copyright works, etc) and the provision of an
adequate legal/administrative system for the protection of intellectual
property.
I look forward to hearing from you in this matter at your early
convenience.
A. K. VAN DER MERWE
CONVENOR : PUBLIC AFFAIRS
COMMITTEE
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