Summary
Summary SU1-7 of IGZ 320
- Course
- IGZ 320 (IGZ320)
- Institution
- University Of Pretoria (UP)
This document contains Study Unit 1-7 of IGZ work. Includes case law and textbook summaries.
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Bianca & Jamie IGZContents
SU 1 IP RIGHTS & THE CONSTITUTION ................................................... 1
SU 2 COPYRIGHT .................................................................................... 13
SU 3 LAW OF DESIGNS ........................................................................... 40
SU 4 IMAGE RIGHTS ............................................................................... 51
SU 5: TRADE MARKS .............................................................................. 57
SU 6 COMEPTITION LAW ...................................................................... 132
STUDY UNIT 7: COUNTERFEIT GOODS ................................................ 159
SU 1 IP RIGHTS & THE CONSTITUTION
CHAPTER 11
Intellectual property rights and the Constitution
• IP (intellectual property) rights are afforded property rule-type
protection by legislation and common law, and private law honours this
position, thus IP rights are recognised as sui generis categories of
property in private law
• Private law property protection is concerned with protecting property
rights against infringements by 3rd parties. Constitutional protection
ensures that the state does not intervene with property unduly.
• S25 of Constitution has strict requirements before deprivation or
expropriation can take place. Also known as property clause. The effect
of the clause is that it lays down parameters within which the state may
interfere with property rights (including IP)
• In principle, the property clause can also potentially provide protection
where a particular property right comes into conflict with other
constitutional or private rights of other persons.
• Where another right is regarded as more valuable than the certain
property right the other fundamental right can outweigh the property
right and accordingly be protected.
Intellectual property rights under section 25
First certification case (CC) held that property concept used in a generic
property clause is wide enough to include rights and interest that
require protection according to international human standards
The absence of specific rights in the property clause does not mean they
are excluded since many are recognised in private law.
Since IP rights are recognised as property in private law (sui generis
basis) they should thus be included under the constitutional property
clause
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Laugh it Off v SAB
CC confirmed that intangible property is property in private law which
means it should be accepted as constitutional property as well. IP has
no special status and should not receive extra constitutional protection
rights are not absolute and may be limited like other property rights.
Deprivation and exporation of IP rights
❖ Property does not enjoy absolute protection from the state but
according to s25 of the Constitution certain requirements must be met
before any interreference can be considered lawful.
❖ Section 25(4)(b) states property is not limited to land; i.e. includes IP.
Thus, if any state action interferes with IP it would either be valid and
constitutionally legitimate deprivation or expropriation, or it would be
unconstitutional. Only existing property rights can benefit from
constitutional protection
❖ Section 25(1) states the police power principle which confers that
property is not absolute and as long as state complies with
requirements it is permitted. Should be interpreted in such a way that
individual rights are balanced against social responsibilities.
❖ First National Bank of SA/ Wesbank v Commissioner, SA revenue
services, is an important case as the court implied that intellectual
property could be considered to be constitutional property in future.
Case also confirmed that juristic persons may be the beneficiaries of
section 25 protection.
❖ Section 8(4) of the Constitution entitled a juristic person to the
protection of rights as protected by the BoR to the extent required by
the nature of juristic person.
❖ Small conclusion: constitutional property clause can offer recognition
and protection to IP where needed. May also allow restrictions on IP,
like any other form of property.
Intellectual property rights and constitutional rights in foreign law
➢ Section 39(1)(c) of Constitution; a court, tribunal or forum may consider
foreign law when interpreting the BoR. A comparative approach is
useful in enabling us to learn from interpretational problems
encountered in foreign cases and avoid their mistakes,
➢ Two restrictions are generally that expropriation may only be permitted
for a public purpose or public use and that some degree of
compensation must be paid. America calls this taking and Australia
calls is an acquisition.
➢ Irish law: Property concept includes a wide range of rights relating to
tangible and intangible assets. Important to SA law, the Irish case that
explicitly accepts copyright as a constitutionally protected property
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right and the view that the case serves as general authority that other
tangible rights are also viewed as constitutional property
➢ German law; German Civil Code restricts property concept to tangible,
corporeal things. Federal CC relies on the fundamental purpose of
property as a constitutional right for interpretational purposes.
o Constitutional property concept not limited to private law
property rights under Article 14. There is no article in the Basic
Law that provides constitutional protection for these interest and
the Federal CC is willing to treat them as property in
constitutional law since they share characteristics with property
recognised in private law.
o Purpose? To secure a sphere of personal liberty for the individual
and also only acquire protection if it is vested and acquired in
terms of normal law.
o Whether patrimonial interest is included under property
guarantee depends on their protection by Article 14 to secure a
measure of personal liberty which allows the individual to achieve
independence in the patrimonial field and help meet social
obligations attached to property.
o Schoolbook case, Federal CC stated the link between personal-
artistic creation and its economic utilisation should be
considered in the constitutional assessment as well as special
nature of property rights. Legislatures obligation to secure the
public good when in circumstances individual rights= fair
balance. Such approach is also adopted in SA.
➢ Australian law; For the purposes of constitutional property guarantee
one should lean towards a wider concept of property and look beyond
legal forms to the substance of the matter. SA courts could utilize this
approach in deciding when a particular incorporeal property interest
not recognised as property in private law can be recognised and
protected under constitutional law. The Australian approach is
important and apparent in the Agri SA case by the CC. The majority
stated that in order for expropriation to be proved a claimant must
establish that the state has acquired the substance or core content of
what it was deprived of. There has to be sufficient congruence between
what was lost and what was acquired. There can be no expropriation in
circumstances where deprivation does not result in property acquired
by the state.
Therefore, the acquisition of a property right by the state is required in
SA law before on can refer to an expropriation. This doesn’t apply when
what is being determined is whether a deprivation of a property right
has taken place.
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➢ USA; American Constitution has a clause pertaining to IP. The SA CC
decided that the property clause provides adequate protection. The
American courts generally use as authority that patents and copyright
are not protected under the Takings Clause. Various conflicting views.
Ghosh views that the inclusion of IP under the Takings Clause as the
best way of protecting IP against infringements. Determining
infringement of IP under the Takings Clause can be explained in 3
steps:
1. There must be a governmental use
2. The inquiry hinges upon which rights are granted by the relevant IP
statute (case by case analysis appropriate)
3. Must be a reduction in the licensing value of the IP.
International human rights law and IP
Section 39(1)(c) of Constitution.
Courts must also interpret legislation in light of international law
norms. SA courts have to consider the Universal Declaration of Human
Rights (UDHR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR) in interpreting the BoR. Courts have to
consider article 27(2) of UDHR and article 15(1)(c) of ICESCR when
considering whether a specific IP rights may be protected as a human
right under the property clause and find the correct balance approach
to the conflicting rights.
Both UDHR & ICESCR accept the right to IP as a fundamental human
right and require all states to provide adequate protection. Guidance
can be drawn for SA courts in determining how IP interest may be
protected as constitutional property without losing sight of
constitutional rights.
Two broad approaches to describe the interaction between human
rights and IP; the first the ‘conflict approach’ holds that strong IP rights
undermine human rights and prescribed the normative primacy of
human rights over IP law in instances where rights protected in treaties
may be in conflict. The ‘coexistence approach’ views IP laws and human
rights law as essentially compatible since both are concerned with
determining the correct balance between private and public rights.
Its important for the court to distinguish the human rights attributes
from the IP (moral rights connected to copyright) from the aspects of IP
protection that have no human right attributes (like economic rights
associated with IP). Where the non-human rights attributes of IP
conflict with fundamental rights it is self-evident that the fundamental
right will outweigh the intellectual property right in terms of the
principle of human primacy (protecting human right attributes above
rights that don’t have human attributes).
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