Tuesday, 19 September 2017

Afro-Gore

Egypt enables e-filing system for patents

Good news from WIPO is that Egypt has enabled the e-filing of patents via PCT.

Applicants can file in Arabic or English and competant examining authorities include Austria, USA, Egypt and the EPO. There is a sliding scale on the fees depending on whether one is part of a research institute, company of less that 10 employees or larger company and it is cheaper to file electonically. An agent is required if the applicant is not local and a power of attorney is required to complete the filing. More information can be obtained off the WIPO website here.



Click here for the action

WIPO also reports that patent examiners from 8 African countries have recently completed the WIPO Academy/ASRT search and examination course in Egypt.


Brought to you by your correspondent in Rwanda, Afro-Gore.


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Monday, 18 September 2017

Afro-Buff

Africa’s percent and the digital future

Christophe Van Zyl, who heads up Dennermeyer's Africa practice, recently wrote to Afro-IP with a thought provoking analysis (below) of Africa's wordwide IP contribution, comparing it to the Asian boom and making a case for digitization as the key to promoting IP investment on the continent.  
"the possibility in the future for IP owners to file fast, digital and paperless in Africa, as can be done in North America, Europe and increasingly in Asia, might be the missing ingredient that is preventing a filing boom in Africa."
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"According to Wipo’s published statistics for the year 2015, the entire African continent collectively was the recipient of approximately 0.5 percent of the world’s patent filings in that year. The reported figure for Africa is approximately 14900 patent applications (including PCT national phase entries) out of a global total of nearly 2680900 applications. Approximately half of those patent applications were reported by the South African Patent Office (The South Africa Patent office reported 7497 applications in 2015).  
For trademarks, the reported figure is slightly higher in terms of global percentages, with approximately 207017 applications reported to WIPO out of nearly 7.5 million applications worldwide (for the purposes of its statistics, WIPO regards each class designated in a multi-class filing as a single class count filing). This brings the slice of the global trademarks cake for African jurisdictions to just under 3 percent.  
It is possible that the statistics may not necessarily be accurate for a number of reasons, for example some Intellectual Property Offices (IPO’s) in Sub-Saharan Africa may not necessarily report their data to Wipo and it can be argued that the data may be inaccurate or poorly collected in other instances due to a lack of proper record keeping and manually kept records.  
Despite the compelling arguments why the statistics may be underreported, the statistics are still an indication that industry, both global and regional in Africa, have very thin IP portfolios covering the region when compared to other regions. In addition, at least as far as reported figures are concerned, there has been a stagnation in Africa for the past decade in terms of reported patent filing numbers. There has been a slightly impressive increase in trademark filings, but there is still no filing frenzy boom of the kind seen in Asia in recent years nor the consistently high volumes in developed regions of the world. The figures below summarize the reported volumes for the continent.


Much has been written and said about the prospects of economic growth on the continent looking more positive than in previous decades and we agree with this assessment. After-all, there have been signs of growth south of the Sahara for at least the past decade and the population explosion alone is likely to continue fueling the need for consumer goods, whether they are manufactured in Africa or not. At least strategically, most in-house IP counsel would agree that it makes strategic sense to increase the size of IP portfolios in Africa and most would admit it is foolish to ignore Africa in any strategy discussion.  
If there is, indeed, a general consensus amongst IP counsel that IP owners are under-invested in their African IP portfolios, what is holding IP owners back from filing more liberally? One important factor is the domestic market. The boom in China has been fueled largely by Chinese firms filing domestic applications, yet if we look at the statistics for Africa a very large percentage of the filings are incoming foreign filings. There is, perhaps a need for more awareness amongst African firms, especially SME’s that IP registration and protection is a necessary grudge purchase, even on a startup budget.
Besides awareness, there is in our opinion possibly another issue that may be deterring IP counsel from investing more in Africa and the fact that statistics may be inaccurately reported highlights this issue. An important consideration for in-house IP counsel when deciding where to file and to what extent are the questions whether or not a potential filing jurisdiction has an effective and efficient system to both protect and enforce IP rights. This is not only a strategic issue but also one of cost and convenience.  Jurisdictions where it is difficult and costly to register IP fall into a category where the IP counsel only identifies a few key patents and trademarks to file, so that the protection can be adequate or, if the jurisdiction is not a key jurisdiction, the IP counsel could strike the jurisdiction off the list (and the budget) entirely. This approach is rather unfortunate as immediate cost and efficiency considerations can often override idealistic long term strategy considerations.  
To increase the filing volumes in Africa and to make it attractive for IP counsel to invest larger percentages of their portfolios in Africa, we think that digitization, efficiency and automation at IPO’s and in practice are key issues that require much more attention in Africa.  Global IP and also its practice, at least when it comes to filings, prosecution and renewals is becoming fast, digital and paperless. The corresponding expectation of the client is that technological advancements mean that the administrative components of filing and prosecution ought to be completed with relative ease and at a low cost. However, since administrative work in many African jurisdictions often needs to be done manually, this results in a high administrative burden of the old kind, with higher associated costs that are much more difficult for an in-house IP counsel to justify to their boards as necessary costs.  
The cost and convenience issue is not only about the direct cost of filing, but also the cost burden placed on an in-house team which often is under budget pressures.  If an in-house counsel files many patents and trademarks in an administratively inefficient jurisdiction, the administrative burden could be absorbed by either hiring more paralegals or by spending more on layers of agents to manage the administrative burden. Either approach can be costly and the question can be raised if it really justifies doubling the size of the budget to pay several in-house paralegals or agents to spend their day chasing after files that are lost.  From this perspective, in an era where IP strategy is a middle management issue and cost reduction is an upper management constraint, it is easy to see why filing jurisdictions that are perceived as costly and inefficient are simply struck off the list of filing destinations.
Efficiency is not all about automation and being digital, as someone still has to do the work. But, in Africa a lack of digitization in many jurisdictions and in some instances more general inefficiency can create enormous administrative burdens, least not because some routine tasks such as performing a search have to be done manually whereas there is an expectation  by the client that basic information ought to be easily available and accessible at a reasonable cost.
In conclusion, the possibility in the future for IP owners to file fast, digital and paperless in Africa, as can be done in North America, Europe and increasingly in Asia, might be the missing ingredient that is preventing a filing boom in Africa.  
There is indeed a lot of hope that change is on its way on the continent, but this change needs to accelerate.  One example is Microsoft’s 4Afrika program, which is reported to be developing an online IP registration system in Kenya and for other African jurisdictions. Then of course, in South Africa the PTO’s online platform and extensive efforts made by the registry to digitize is an encouraging step in the right direction.
However, more needs to be done for there to be a digital culture, which is becoming the norm in developed countries and this cultural shift has to be driven by IP professionals. For our part, paper files and manual diaries for example, are archaic and as African IP attorneys we should try to be as digital and paperless as is legally possible to drive and support the necessary changes at our IPO’s. Ideally, a technological shift across the entire African industry would reduce the overheads of African IP firms, increase the volumes of substantive work that clients are more prepared to pay for and in general increase the client’s appetite for filing higher volumes in Africa.  We hope so."

Christophe Van Zyl
Comment
For more information on the digitization efforts across the content please review Kinglsey's A to Z on Africa's online progress at the Registries.
For more information on the enforcement activity in Africa, blogger Darren Olivier covers it here.


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Thursday, 7 September 2017

Afro Leo

Calling all copyright experts...

An invitation brought to our attention by Prof Wim Alberts:
 

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Tuesday, 22 August 2017

Aurelia J. Schultz

New Legal Journal Debuts in Nigeria

The University of Lagos, Unilag for short, has recently launched a new law journal.  Vol. 1 No.1 of the UNILAG Law Review was issued in June 2017.  The new publication includes an online forum---an accompanying blog---which began in March of this year.  It's a student-edited journal with contributions from students and established scholars.  As the journal states,
...entries are accepted from Lawyers, Judges, Lecturers and Professors of Law, and Law Students alike. ... Entries are also accepted from authors outside Nigeria, may be from any area of the law...
The print version is available for subscription delivery around the world with prices outlined for different regions based on shipping costs.  [These costs appear quite considerable as a single issue in Nigeria is US$9 but a single issue delivered to the United States is US$114!]  There is also a special price for institutions that includes 6 copies of each issue at a slight discount.  The N30,000 price for six copies of a complete volume actually seems pretty reasonable for Nigerian university libraries interested in stocking this resource for their students.

For those with decent internet access, the journal is also published online.  The full journal for Vol. 1 No. 1 is available online directly from the UNILAG Law Review website as a downloadable pdf.

The inaugural issue does not have any articles directly on intellectual property topics.  However, it does have the following topics that tangentially touch on IP-related issues:
  • An Overview of Legal and Regulatory Framework for Renewable Energy Projects in Nigeria: Challenges and Prospects by Oluwaseun Viyon Ojo.  -- This area of innovation is a prime spot for patents, and indeed, with all its talk of R&D and foreign-direct-investment, this article dances neatly around patents throughout
  • An Overview of Mergers and Acquisitions under Nigerian Law by Omotayo Akinrinwa -- IP being an important type of asset that may be overlooked in such processes
  • Exploring Alternative Means of Energy in Nigeria: Lessons from Canada by Adewale Ajayi -- Definitely potential for some foreign IP-licensing here
And from the Online Forum:
Hopefully, we will see some IP-focused topics handled in the journal's pages as it continues to grow, especially if Afro-IP readers inclined to take up the pen make some submissions.  In the meantime, it is wonderful to see a new forum for African legal scholars, especially one that was the initiative of and is being run by African law students.  Kudos to the UniLag Law Students Society.
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Sunday, 13 August 2017

Aurelia J. Schultz

First International Conference on Law and Digital Technology Explores Number of IP Issues for Africa

Babcock University torch at entrance to main campus
Little Leo recently had the privilege of attending the First International Conference on Law and Digital Technology hosted at Babcock University in Nigeria.  The ambitious conference title was well met during the two-day program with sessions covering everything from e-banking and e-health to Nigeria’s space program and international shipping law.  As may be expected, several sessions touched on intellectual property issues, and Professor Emeritus I.O. Agebede set the conference tone in his welcoming address with a charge to all to let law be a moderator of technology.

The Impact of Digital Technology and E-Commerce on Other Areas of the Law

Professor Joke Oyewunmi opened this session very optimistically, pointing out that Nigeria has the tools: the largest number of smart phone users and the most room for growth.  The point is, Prof. Oyewunmi stressed, to "enable our systems to use what we have to get what we want."  The speakers on the panel outlined ways e-commerce can be improved to improve Nigeria.  The draft copyright act was highlighted as one improvement, particularly for its provisions introducing ISP-liability for copyright infringement and addressing circumvention of technological protection measures.*  The Cybercrimes Act 2015  [more on this act] and the Nigerian Information Technology Development Agency (NITDA) were two other pieces highlighted as helping strengthen e-commerce in Nigeria.

In terms of needed changes to help e-commerce, Dr. Vera Ekundayo spoke about the need for more certainty on the validity of e-contracts in Nigeria.  Her research with Dr. Dorcas A. Odunaike found that there is little case law on clickwrap, browserwrap, or shrinkwrap licenses in Nigeria.  Overall, the Nigerian legal system needs a deeper awareness of the benefits of functioning e-contracts.  Adedotun Olusanya added that one of the main challenges for e-commerce is finding the correct price for intangible IP products, such as music, movies, etc.  This, indeed, is a problem companies around the world are trying to sort out.  He also discussed the need for companies, particularly start-ups, to have a better understanding of all the IP assets involved in a company: databases, copyright, design, patent, trademark, domain names, trade secrets, and know-how.  He urged IP attorneys to do more to help educate start-ups so they can succeed in the e-commerce field.

Even the seemingly-IP-less presentation "Information and Communication Technology for Shipping Operations: A Review of the Master and Crew in Maritime Employment Law" included potential ramifications for intellectual property.  Traditionally, the captain of a boat is responsible for the contents and everything that happens on the boat, not the owner of the boat.  The law developed this way because out at sea, the captain had all the control and the owner none.  But with new technology, the captain and owner can stay in constant communication, the owner can actually receive detailed data about the boat, and the owner can make decisions about things like cargo and course.  This may mean new legal responsibilities for boat owners, including responsibilities for the legality of their boats' cargo.  The law is changing, and new rules aren't settled yet.  Ship owners beware.  If you own a container freighter, say one that goes between China and Africa, you may suddenly find yourself liable for a whole lot of copyright and trademark infringement.

E-ADR: The Impact of Technology on Dispute Resolutions

Although this isn't a strictly-IP topic, it is one of importance for the area because of the difficulties IP-owners often site with attempting to bring cases in court.  Alternative dispute resolution (ADR) gives IP-owners another method to enforce their rights.  David T. Eyongandi introduced a number of global e-ADR platforms, highlighted the benefits such platforms can provide to Nigerians, and discussed changes necessary for these platforms to truly work in the country.  e-ADR can avoid complex jurisdictional issues, which can be a huge benefit for intellectual property creators who often have partners and audiences across the continent.  It is also relatively cheap and convenient compared to either court or in-person ADR. However, if e-ADR is to be a legitimate option for IP-owners in Nigeria, the law needs to clarify that electronic agreements with electronic signatures do count as "writings" under the ADR law; Nigerians need reliable power supply and internet connections so they can stay connected to the network long enough to complete e-ADR sessions; and Nigerians need to be assured of the confidentiality and security of their conversations that take place during e-ADR.  Eyongandi also recommended that a Nigeria-specific e-ADR platform be developed.

Techno-Jurisprudence, E-Justice, E-Terrorism and E-Governance

As discussed above, the session on e-commerce talked about changes to the law that help secure IP rights in an e-commerce environment.  The techno-jurisprudence panel added some more, namely the recognition of electronic evidence in the 2011 Evidence Act.  Kingsley Osinachi N. Onu pointed out that although the law is there, this is only a first step.  In his research with Aniekan Andikan Ikpinyang, the pair discovered that the law's two subsections for authenticating electronic evidence are creating confusion.  Sections 84(2) and 84(4) both provide means for authentication.  Sometimes judges allow one method, sometimes they require both.  Onu recommended that more details be added to the law so that courts treat all e-documents the same.

New Dimensions for Copyright Works in the Digital Era

Now this one we can definitely see is IP straight off the back.  Dr. Ifeoma Oluwasemilore discussed open access and made a recommendation that Nigeria not join the WIPO Internet Treaties as she sees the requirements in these treaties impeding the goals and workings of open access.  Her presentation on open access was a little different than others Little Leo has seen on the continent as it was to a less-agreeable audience than usual on this topic.  Many were skeptical about losses to academics who might otherwise receive royalties for their publications.**

Bayo Ayo gave a count of the on-going collecting society saga in Nigeria, in which he has been involved for over two decades.  [Afro-IP has covered a good portion of the last decade of this battle with at least six different authors writing on the topic; relevant posts can be found here and here.]  Ayo cited the 2004 Copyright Act stipulating that there should be one CMO for each area that "adequately protects the interest of that class of copyright owners."  (Section 39(3).)  Up until April of this year, Nigeria had three main collecting societies: Repronig for reprographic rights, COSON for the music industry, and AVRS for the movie industry.  But on April 17th, the Attorney General gave approval for MCSN to return as a music collecting society, along with COSON.  This is the on-going battle.  So far, there are no specifics on how the two will co-exist.  Will they compete?  Will they complement?  Will time even tell?

In addition to the confusion surrounding the music collecting societies, Ayo pointed out other challenges that have led to Nigerian copyright owners earning more royalties from foreign collecting societies than from their own.  These include low data on tracking use of works, especially online uses of work.  John Asein, Executive Director of Repronig, was more optimistic on the ability to track uses, highlighting new tracking technologies such as DJ monitor.  Additionally, he urged collecting societies to have proper industry practices and to charge royalty rates appropriate to the market rather than attempting to charge 'international' rates across the board.

Artificial Intelligence and the Future of Innovation and Technology in Nigeria

Also of interest for attorneys following this blog, the conference addressed an issue creeping up on all of us: the effect of artificial intelligence on the practice of law.  Little Leo was impressed with the approach taken by all the speakers who acknowledged and highlighted legal tasks that could be done by AI in the near future.  She has heard the same topic oft discussed in the U.S. where attorneys take more of an ostrich approach and insist they are too special to be replaced by computers.  Various presenters discussed aspects of their practices that they could see artificial intelligence handling, including contract and license drafting.  Interestingly enough, Professor Bankole Sodipo pointed out that manufacturing jobs are unlikely to be turned over to AI in Nigeria the way they were in the West.  This is because most manufacturing is done by individual craftsman.  [Indeed, that is one of Little Leo's favorite things about coming to the continent, the ability for anyone, even of modest means, to have many items custom made for them: clothing, furniture, window grates.  These are luxuries available only to the very rich in the United States.]

2nd Annual?

The organizers at Babcock hope to follow-up this First International Conference with a second and third and so on.  Those interested in future programing can contact the organizer, Dr. Arowolo, here.

*Note: the introduction to the last public version of the draft Nigerian copyright law stated that changes in the law are intended to implement the WIPO Internet treaties (WCT and WPPT), among other agreements.  The public comment period for the law has ended, so the dedicated portal for the draft, http://www.reform.copyright.gov.ng/, is no longer available.
**Many scholars in Nigeria publish books with local publishers rather than publishing in international legal journals which are rather notorious for not paying royalties.  Whether these locally published books result in substantial royalties for the authors, Little Leo knows not.  She will however, remark that such publications are much more difficult to find outside of Nigeria than articles from said journals.
Little Leo with Dr. Ayoyemi Arowolo and John Asein

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