Bibliographie sélective OHADA

The present article explores the implication of fairness as a regulatory and competition law concept applied to digital and Artificial Intelligence markets, in light of recent law and policy developments targeting the interaction between data, market power and competition law. Much of the policy discussions, legislative proposals as well some emerging case law elevate the matter of “fairness” in the context of digital markets and AI, creating both a novel regulatory framework as well as encouraging competition law to curb “unfairness” of said markets and related “unfair practices”. The interface between intellectual property rights and competition law is of utmost importance in this context, where we might find similar analogous insights as we can find regarding the matter of fairness within traditional EU competition law. Further, the question remains whether the “fairness norm” expressed in regulatory acts such Digital Markets Act, EU AI Act and the EU Data Act are akin to the “fairness” norms found in Union competition law, mainly under Article 102 Treaty on the Functioning of the European Union (TFEU).

The freedom of the parties to choose the applicable law to the merits is often presented as an important benefit of arbitrating disputes involving intellectual property (IP). Yet, the reality is more uncertain and controversial than is commonly assumed. Is party autonomy really permitted in IP arbitration? Should it be? This article answers these questions with regard to patents, trademarks, and copyrights, using recent examples drawn from arbitral practice. It first examines the situation where the parties only made a choice of contract law, and considers in this regard whether that law can and/or should be extended to infringement claims and/or the remedies to infringement, either directly or through the technique of characterization. After discussing the impact of overriding mandatory rules in contractual IP cases, the article then examines the situation where the parties chose a law to govern IP questions, including by way of a broad choice-of-law agreement covering non-contractual problems. It seeks to provide as much guidance as possible to arbitral tribunals, using mainly the distinction among infringement, ownership, and validity issues, and by distinguishing among different scenarios in which party autonomy is more or less acceptable.

The OAPI member states constitute a space for theharmonization of copyright in Africa. This harmonizationis yet to be completed, as attested by the conventionalrules relating to the publishing contract. In addition,investigating about the publishing contract in the OAPIspace requires an examination of both the text of theBangui Agreement and that of the national laws of the 17member states. Some differences must be pointed outkeeping in mind the question of possible conflict of laws.

No abstract available.

Competition law and intellectual property law share the objective of incentivising innovation. However, this objective is achieved in different ways, which, at times, can create tension between the two areas of law. It is imperative that this tension at the interface of competition law and intellectual property law is resolved in a manner that encourages innovation. Issues regarding the licensing of intellectual property, Standard Essential Patents, pay-for-delay agreements and no-challenge clauses are instances where the tension between competition law and intellectual property law is especially prevalent. These instances will be discussed in detail, and what is learnt from how the European Union and Australia handles it, will be applied to South Africa. The European Union, Australia and South Africa have different ways of dealing with situations where the exercise of intellectual property rights has an effect on competition. The European Union has block exemptions, which contains “safe havens” for conduct in specific circumstances. The block exemptions are often accompanied by guidelines, providing firms and individuals with greater detail in order to self-assess their compliance with the exemption. Australia has authorisation, notification and class exemption procedures. Firms can apply to the Australian Competition and Consumer Commission to authorise conduct that might potentially breach the Competition and Consumer Act 2010. Exemptions may also be granted more broadly by the Australian Competition and Consumer Commission in terms of the class exemption procedures. In South Africa, the law concerning the interface between competition law and intellectual property is still in its infancy, and a lot can be learned from jurisdictions like the European Union and Australia regarding the most efficient way to handle this tension. Currently, the Competition Act 89 of 1998 in South Africa contains Section 10(4), the intellectual property exemption clause. A firm can apply to the Competition Commission for an intellectual property exemption from the application of Chapter 2 of the Competition Act “to an agreement or practice, or a category of agreements or practices” which pertains to the exercise of intellectual property rights. However, it is submitted that Section 10(4), by itself, is not the most efficient mechanism to resolve the tension that arises at the interface of competition law and intellectual property law in a way that incentivises innovation. It is proposed that the exemption provision can be made more effective if it is properly applied in conjunction with class exemptions and guidelines.

Examining the harmonisation of Intellectual Property policy, law and administration in Africa, this book evaluates the effectiveness of efforts to establish continental Intellectual Property institutions and frameworks. It also considers sub-regional initiatives led by the regional economic communities and the regional Intellectual Property organisations, focusing on relevant protocols and agreements that address Intellectual Property as well as the implementing institutions. The book assesses the progress of such initiatives with particular reference to the current socio-economic status of African states. It argues that that harmonisation initiatives need to be crafted in a way that is supportive of the developmental goals of African states and advocates for due consideration of individual states’ unique conditions and aspirations. This book will be of great relevance to scholars and policy makers with an interest in Intellectual Property law and its harmonisation in Africa.

Conventionally, conflicts over intellectual property rights have been addressed primarily in national courts. Nonetheless, there has been a considerable inclination towards arbitration in recent years. For example, the number of cases decided under the WIPO Arbitration and Mediation Rules is constantly increasing, and the number of specific IP-related arbitral institutions is rising as well. This is due, in part, to the territorially limited reach of state court procedures, which no longer match the needs of modern international commercial processes. The transition to arbitration is appropriate since arbitration is particularly well suited to settling intellectual property conflicts. Arbitration is a private process, which is especially beneficial in IP issues due to the sensitive nature of the material involved. Furthermore, specific knowledge is necessary to properly settle technological disputes, a challenge that might be overcome by choosing adequately competent arbitrators.

Cette thèse a pour objet d’étudier comment le dispositif institutionnel actuel pour l’adaptation du droit d’auteur dans l’Union européenne peut être reconsidéré afin de promouvoir le niveau de cohérence plus élevé dans les pratiques réglementaires des États membres, ainsi que dans l’intérêt de la promotion d’un corps de règles européennes plus dynamiques en la matière.À l’aide de l’outil normatif de l’analyse institutionnelle comparative, les dispositions institutionnelles actuelles sont examinées, en se concentrant sur la qualité de la participation des parties prenantes du droit d’auteur dans le système politique, le marché et les tribunaux. Des exemples d’institutions administratives du droit d’auteur dans certaines juridictions (États-Unis et Canada) sont analysés plus en détail, en tirant des conclusions sur leurs fonctions et leurs rôles dans leurs systèmes juridiques respectifs. Enfin, cette thèse propose plusieurs solutions politiques, y compris la possibilité d’envisager une nouvelle autorité au niveau de l’Union européenne pour le droit d’auteur. En fin de compte, la remise en question du statu quo institutionnel dans l’Union européenne peut révéler de nouvelles voies prometteuses pour développer les fonctions administratives, quasi judiciaires, d’observation et de conseil nécessaires à la gestion du droit d’auteur à l’ère du numérique.

In the present era of rapid globalisation, countries are intrinsically integrated with each other by way of international trade to ensure optimal utilisation of their resources. Trade facilitation is now recognised as a key driving factor in determining export competitiveness of a country. Customs administrations, the frontier border agency responsible for regulating import and export of legitimate goods, are increasingly faced with the challenge of intellectual property rights (IPR) infringement. In addition to national governments, various international organisations have devised guidelines and tools to facilitate and empower Customs agencies in their fight against IPR infringement. In particular, the multilateral Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) articulates a prescription for border enforcement of IPRs in Articles 51-60. In this backdrop, this thesis attempts to answer a very fundamental question: What are the implications of ‘Border Measures’, specified under the WTO TRIPS Agreement, for facilitating international trade? To this end, it critically examines the concepts of trade facilitation, TRIPS and IPR protection to highlight the links that connect them and the missing links that need to be established. Obligations to protect IPR under national and international laws are also scrutinised. Research shows that efforts by WTO, World Customs Organization (WCO) and World Intellectual Property Organization (WIPO) have been instrumental in this context. While policy planning at the national level should be the first priority, commitment by the advanced economies to support their less developed counterparts through technology transfer (TT) is of paramount importance. The thesis suggests that TRIPS-plus provisions, if implemented arbitrarily by developed countries, have the potential to undermine the interests of countries with resource constraints. In this context, the thesis analyses the effects and implications of the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP) agreements, and the Revised Kyoto Convention (RKC) for the border protection of IPRs. The thesis investigates the socio-economic impacts of IPR infringement and articulates strategies to be adopted and applied at individual, collective, business and government levels to stop trade and use of IPR infringed goods. Drawing on the analysis of the relevant WTO Articles, scrutiny of various border measures put in place by national governments and international bodies, and current state of play under the Doha Development Round (DDR), the thesis puts forward a set of short and long term policy recommendations for all relevant stakeholders. These inclusively include: (i) strengthening risk management procedures; (ii) cooperation and coordination at national and international levels; (iii) awareness raising initiatives; (iv) establishing advanced technologically driven border enforcement system; (v) empowering Customs with effective administrative authority; (vi) IP related technical capacity building within the Customs and business community; (vii) technology transfer to LDCs from developed countries; and (viii) LDC friendly dispute settlement process under the WTO.

This article critically considers the legality of hyperlinking to copyright-protected material on the Internet. It considers the position with respect to standard hyperlinks, and attempts to provide a possible approach in light of the proposed introduction of two new exclusive rights, namely (i) the right of communication to the public; and (ii) the making-available right. These new exclusive rights appear to be an attempt to amend the South African Copyright Act in order to give effect to the 1996 WIPO Copyright Treaty, which sought to ‘digitise’ copyright law in light of the digital technology that had developed. The WIPO Copyright Treaty supplements, in particular, the rights granted to copyright owners under the Berne Convention, extending the right of communication to the public to include the making-available right. Use will be made of the case law of the Court of Justice of the European Union, which has given effect to the right of communication to the public (including the making-available right), following its inclusion in the WIPO Copyright Treaty of 1996. Through a more focused analysis of these exclusive rights, it is intended that this article can provide some guidance to South African lawyers and our courts when considering the application and scope of these exclusive rights.

The right to health and the right to development are intertwined socio-economic rights that affect the well being and growth of a country’s populace. Most developing and least developed countries face challenges in ensuring access to essential medicines vis a vis the realisation of the right to health and full potential of development. Patents, provided for under the TRIPS Agreement are partly to blame for the lack of access to essential medicines as they account for the excessive pricing of medicines. Zimbabwe being a developing country currently facing dire economic and political challenges but being obliged under the International and Regional Human Rights Conventions it subscribed to, has to ensure the progressive realisation of the right to health and development. However, as a member of the TRIPS Agreement, there are limitations to the country’s ability to ensure access to medicines and healthcare for developmental purposes. This thesis has outlined the problematic provisions of the TRIPS Agreement and Zimbabwe’s attempt to use the flexibilities provided to its advantage. Zimbabwe has only put into use the flexibility of compulsory licensing and parallel importation to a limited extent; hence the recommendation that even though the country has domesticated the Agreement to its advantage, the country needs to explore other flexibilities comprehensively and promote the realisation of the rights to health and development.

This study examines and critiques New Zealand intellectual property protection for industrial designs, taking into account that many New Zealand industrial design owners outsource manufacture of their designs to China. Industrial design, which refers to improving the aesthetics of products to increase their marketability, is evolving conceptually and practically. In New Zealand, copyright and registered design laws each protect, respectively, the visual expression and the “eye appeal” of an original design. As design practices evolve with advances in technology however, it is increasingly evident that industrial design is about more than just visual expression or “eye appeal”. Many designers are not focusing solely on product stylisation and decoration, but on the provision of a more holistic product experience for the consumer. The development process of industrial designs from concept to marketable product is also changing, with many New Zealand industrial design owners employing increasingly efficient design development strategies. The fast-paced, cost-effective infrastructure of China is often utilised by New Zealand businesses for the manufacture of industrial designs. This study therefore sought to determine how to appropriately protect New Zealand industrial designs, in light of: a. foreseeable advances in technology; and b. the fact that many New Zealand industrial designs are manufactured in China. To answer these questions, this study examined and analysed New Zealand’s copyright and registered design laws, taking into account not only existing protections, but also factors that are likely to be of significant relevance in the future, such as the impact on industrial design from developments in 3D printing and virtual reality. The Chinese intellectual property regime for industrial designs was also examined because China is a major trading partner and often, as noted, the locus of manufacture. The study included an empirical investigation, in the form of interviews with designers and design academics as well as legal practitioners specialising in intellectual property law. The input of the interviewees, together with the legal analysis, informed a series of suggestions and recommendations for New Zealand policy and its law-makers regarding how industrial design protection can be improved. A key finding of this study was that existing legal protections do not appropriately protect increasingly holistic designs, as well as new types of designs emerging from developing fields such as virtual reality. In assessing the appropriateness of protection, the interests of industrial design owners were balanced against the public interest in protecting the public domain. It is suggested that to achieve equilibrium copyright law should be expanded to protect design expressions for all senses. Moreover, new categories of copyright protected works should be introduced to accommodate emerging design. The definition of design in registered design law should also be reconceptualised in order to acknowledge new types of designs and evolving design practices. Industrial design owners who outsource manufacturing to China can protect their designs via copyright as well as design patent. However, enforcement of intellectual property protection is unsatisfactory in many areas of China. Therefore, New Zealand industrial design owners should also employ non-legal protection strategies. Interviews with successful businesses, in the course of the empirical investigation for this study, revealed that the leveraging of existing relationships of those with already established operations in China, and intentionally splitting an industrial design’s component parts for manufacture among several factories in different locations, are useful strategies to employ.

The internet and digital technologies have irreversibly changed the way we find and consume news. Legacy news organisations, publishers of newspapers, have moved to the internet. In the online news environment, however, they are no longer the exclusive suppliers of news. New digital intermediaries have emerged, search engines and news aggregators in particular. They select and display links and fragments of press publishers’ content as a part of their services, without seeking the news organisations’ prior consent. To shield themselves from exploitation by digital intermediaries, press publishers have begun to seek legal protection, and called for the introduction of a new right under the umbrella of copyright and related rights. Following these calls, the press publishers’ right was introduced into the EU copyright framework by the Directive on Copyright in the Digital Single Market in 2019.

That intellectual property is the creation of ideas in the form of new discoveries, literary works, and works of art, symbols, names and images used in trade. Of course, intellectual property is closely related to the world of commerce because its emergence is triggered by the desires of the members of the World Intellectual Property Organization who want to protect their economies in the era of free trade. In this case how the form of protection of intellectual property rights in the perspective of international trade, it can be seen that basically the laws and or regulations in every country in the world are different and each country has the right to implement its own legal rules in the jurisdiction of their country.

This work is concerned with an analysis of the copyright protection of musical works. Musical works form part of the categories of works protected under copyright law. It would be easy to dismiss musical works as not warranting a serious study, as would for example, be warranted for “industrial property” rights such as patents and geographical indicators, or more “serious” copyrights such as architectural works and computer software. Such a perspective would however, not be cognisant of the significant contribution that the music industry, as part of the broader cultural and creative industries makes to the global economy. It has, for example, been shown that in 2013, the global cultural and creative industries contributed some US$2,250b, employing some 29,5 million people, with the music industry being one of the top three employers and with its revenues exceeding those of radio.1 A single successful musician can earn in excess of US$100m per annum,2 making the industry ripe for litigious claims. For this reason therefore a consideration of the legal rules that apply to the protection of musical works is crucial. There is currently no clear exposition and systematic analysis of the legal principles applicable to the field of music copyright and no work devoted to the in-depth delineation of the rights and sub-rights relating to musical copyright protection. This study seeks to address this research and knowledge gap by providing a historical and contextual analysis of the protection of musical works. The aim is to provide a complete picture of the milieu of music copyright protection to enable the reader to feel empowered in dealing with the subject-matter. This the writer does by mapping the historical development of music copyright protection in particular from eighteenth century England when the first copyright legislation was enacted, until the enactment of the British Copyright Act of 1911, which signalled the emergence of the “common law” copyright system. The writer then shows how this enactment shaped the development of modern music copyright law, and concludes by presenting a contextual consideration of the current South African law of music copyright and highlighting the challenges it is faced with.

This thesis is a comparative analysis of the provisions on the seller’s duty to deliver the goods free from any third-party intellectual property rights (IPRs) under the United Nations Conventions on the International Sale of Goods (CISG) and the UK Sale of Goods Act 1979 (SGA). As a consequence of technological advancement, there has been an increased observance of the interaction between intellectual property rights (IPRs), which are intangible property rights, and tangible goods. As a result of this interaction, growing numbers of goods, which are either subject to IPRs as a whole or that possess an IP-protected component, have become subject to sales agreements. The circulation of the goods around the world increases the likelihood that third-party IPRs over the goods will be infringed. This risk of infringement also raises the possibility that the application of IP law remedies will prevent the buyer from reselling or using the goods in question. This study is concerned with the question of how the sale of goods is affected by third-party IPRs, and it proposes to undertake a comparative analysis of the provisions that determine the seller’s liability when third-party IPRs arise in relation to goods that are sold under the CISG and the SGA. It seeks to determine which instrument offers sufficient protection that will benefit the buyer. In attempting to reveal the sufficient protection, it also undertakes a comparative analysis of the remedies that are available to the buyer under the CISG and the SGA when third-party IPRs over the goods are raised. With regard to the widely acceptance of the CISG by 89 states, and the dominant role of English law in commercial law and its preference as a governing law to most contracts, it is aimed to determine the differences and similarities between the CISG and the SGA, and the practical consequences of their application to the contracts when third-party IPRs over the goods arise. The thesis will seek to determine if the text of the relevant CISG articles can be improved and will accordingly formulate proposals that work towards this outcome.

How do we legislate for the unknown? This work tackles the question from the perspective of copyright, analysing the judicial practice emerging from case law on new uses of intellectual property resulting from technological change. Starting off by comparing results of actual innovation-related cases decided in jurisdictions with and without the fair use defence available, it delves deeper into the pathways of judicial reasoning and doctrinal debate arising in the two copyright realities, describing the dark sides of legal flexibility, the attempts to ‘bring order into chaos’ on one side and, on the other, the effort of judges actively looking for ways not to close the door on valuable innovation where inflexible legislation was about to become an impassable choke point. The analysis then moves away from the high-budget, large-scale innovation projects financed by the giants of the Internet era. Instead, building upon the findings of Yochai Benkler on the subject of networked creativity, it brings forth a type of innovation that brings together networked individuals, sharing and building upon each other’s results instead of competing, while often working for non-economic motivations. It is seemingly the same type of innovation, deeply rooted in the so-called ‘nerd culture’, that powered the early years of the 20th century digital revolution. As this culture was put on trial when Oracle famously sued Google for reuse of Java in the Android mobile operating system, the commentary emerging from the surrounding debate allowed to draw more general conclusions about what powers the digital evolution in a networked environment. Lastly, analysing the current trends in European cases, the analysis concludes by offering a rationale as to why a transformative use exception would allow courts to openly engage in the types of reasoning that seem to have become a necessity in cases on the fringes of copyright.

Over the last years, academics, practitioners and policy makers have focused their attention on an emerging technology: three-dimensional printing (“3DP”). 3DP is often portrayed as a game changer, showing the potential to disrupt established socioeconomic paradigms and exert profound implications in disparate areas of law. 3DP not only is well integrated in the manufacturing industry, but also increasingly adopted at consumer level. Recent developments have made it possible for ordinary people to take an active role in the production, customization and distribution of goods, and likewise paved the way for the proliferation of new market entrants, such as 3DP online platforms. Against this background, this thesis aims to shed some light on the implications that 3DP may have for Intellectual Property Law. In particular, this work attempts to predict and grasp the consequences that the digitization of real world things may carry in the area of IP law, both from the side of protection and infringement. This contribution is intended to create general awareness about the current state of the art and likewise delineate possible future scenarios in the 3DP ecosystem. The research question at the core of the analysis is whether the current legal framework of different IPRs already offers suitable means for regulating the thin dividing line between the digital and the analogue world, or rather needs to be amended, in order to cope with such a fascinating reality. To this end, the analysis contributes insights to the best legal treatment that CAD files shall receive, in case such files embed products protected by copyright, designs, patents and trademarks. Hence, it addresses right owners’ concern that the online transmission of CAD files, combined with the ease of converting such files into the final printout, will facilitate mass-scale and worldwide infringement of all IPRs.

But de la recherche : déterminer la dépendance des caractéristiques des marques (perceptibilité visuelle, représentation graphique, le caractère distinctif, non-généricité etc.), sur les types généraux spécifiques de capacités intellectuelles et sur les caractéristiques conatives des consommateurs de la population générale, par application de nombreux tests. La recherche a été réalisée sur un échantillon de 206 sujets-consommateurs. Ils ont évalué la qualité des marques de commerce (déposées et refusées) pour différents types de produits et services (TM-1 test). Les sujets ont été testés avec 3 tests cognitifs et 6 tests conatifs. Méthodes quantitatives appliquées : paramètres élémentaires de la statistique descriptive ; corrélation ; analyse factorielle ; analyse de régression multivariée, analyse canonique des corrélations. Les résultats ont indiqué que les variables cognitives et conatives ont des relations statistiquement significatives avec les résultats de TM test (qualité des marques).