South Africa: New Prominent Pro-IP Academic Comes Out Against Government

The new Anton Mostert Chair of Intellectual Property Law at the University of Stellenbosch in South Africa, Professor Sadulla Karjiker, has pointed a finger at the country’s Department of Trade and Industry (DTI) for being “unresponsive” to stakeholders offering their input into proposed IP legislation.

The Anton Mostert Chair of Intellectual Property was created with the objective of elevating the status of IP at the university, as well as nationally and internationally. The first holder of the industry-donated Anton Mostert Chair was Prof. Owen Dean, who assumed the chair on 1 July 2011. During his tenure, Dean was an outspoken and vocal critic of some of government’s proposed IP legislation, and his views expressed in the Chair’s blog was widely distributed nationally and internationally. Dean raised the profile of the Chair significantly and was often referenced in IP matters in the country.

Professor Owen Dean retired as the incumbent of the Anton Mostert Chair at the end of 2015.

Sadulla Karjiker

Professor Karjiker has been a lecturer in the Faculty of Law at Stellenbosch University since 2008. He is an admitted attorney in South Africa and a solicitor in England and Wales, and has practised in corporate and commercial law in both jurisdictions. He also worked for a UK legal publisher on its technology-related projects. Prof. Karjiker’s current research interests are copyright law and trademark law.

In an interview with Intellectual Property Watch, Karjiker said he is frustrated by the lack of “expertise” in IP legislation produced by government.

In reference to last year’s proposed Copyright Amendment Bill, Karjiker said: “My comments on that have been published. It [the Bill] evidences a lack of expertise actually and basic knowledge of IP.”

“I’m not going to mince my words, my view may not be based on hard evidence, but it seems that the DTI doesn’t speak to anybody. They do things behind closed doors. The process is opaque and you don’t get the impression that when you make written submissions that it is taken seriously. You also have to make comments via the media which is not a healthy state of affairs,” he said.

“There are scores of practitioners and academia who want to give of their time to work on draft legislation but the DTI does not take up that offer, probably worse, it actually spurns them,” he added.

Karjiker noted in the interview that he does not view himself as a lobbyist, and that the chair is not designed to fight for a particular segment of industry, but rather for “good, workable legislation.”

Government’s much-anticipated draft IP policy is also a point of frustration for Karjiker.

South Africa does not currently have a general IP policy and critics have argued that this has resulted in a fragmented and unconsolidated approach to IP matters, a point which government has previously conceded. The draft IP policy aims to remedy this fragmentation by coordinating the country’s approach to IP matters on both a national and international basis.

“The draft IP policy was even worse than the Copyright Amendment Bill. It was completely incoherent. It looked like somebody’s bad homework over the weekend. There was no sense of what it was seeking to achieve. We should start from a clean slate. This is an open invitation to the DTI to engage with stakeholders. Let’s come up with a battle plan. Let’s get consensus about what are the most urgent issues in IP that need to be updated.”

Karjiker says that his concerns are not unique and are largely shared amongst “IP stakeholders.”

“My predecessor has made overtures to DTI and they have fallen on deaf ears,” he continued. “We continue to make efforts to engage DTI. We are reduced to screaming from the rooftops because we don’t get engagement at government level.”

“The frustration is not limited to the IP chair,” said Karjiker. “The concern is widespread that the DTI is unresponsive and refuses to engage. It’s about showing a willingness to engage and cooperate with stakeholders. When the Copyright Amendment Bill comes out you are blindsided. What type of process pre-empted it? What was the plan of action?”

Karjiker elaborated further: “It undermines the current system. That’s what the frustration is borne out of. There’s no coherent rationale in the legislation. You get the impression that IP is a politicised issue. There’s an undercurrent that IP is to blame for a lot of ills in South Africa.”

Karjiker went so far as to say that his strong views come from a “sense of patriotism.”

“The criticisms should be seen in a particular context. It comes from a sense of patriotism. We have expertise in South Africa. The type of legislation that we are producing amounts to a national embarrassment. I believe government has failed in its service to deliver. It is an issue of national pride.”

Spreading the Word on IP

Speaking specifically to his role as the IP chair, Karjiker said that one of the functions of the chair is to spread the word about IP and get people to study IP.

“I’d like to continue the work of Professor Dean. He raised the profile of the Chair significantly. I’d like to maintain that and then to expand on that and have the Chair connected to a network of IP faculties at other universities, nationally and internationally.

“The IP Chair is quite willing to participate in a process of legislative updates in South Africa and be part of that process,” the professor said. “We want to bring academics and practitioners closer together. The two tend to be in distinct streams. The practitioners have their own hierarchy and superstars. They are in parallel silos. It would be nice to have more of an interaction between those groups, not that I think the role of university is to deliver practitioners; it is important to be informed of what happens in practice, it might help indicate areas of research.”

Karjiker also shared his views on IP more generally.

“What’s become increasingly apparent is that there is an interest outside of law students for IP,” he said. “I think in a lot of contexts, people come across IP issues and they would like to have a better knowledge of what they are dealing with. People are concerned with protecting their intellectual capital to the extent that they can. Popular folklore regarding IP pricks people’s interest in the subject.”

“IP has actually become a political issue as well,” Karjiker offered. “In Europe you have Pirate parties. Essentially, they are doing away with IP. They feel IP imposes too high a social cost. It’s become a political issue. Particularly in South Africa, IP debates are never far from access to medicines.”

“It’s nice that IP is front and centre stage where [before] it probably was a little subject confined to an esoteric part of practice and law,” he said. “But I find the debates rather unsophisticated, where people are making rash statements. People are quick to say that copyright amounts to a monopoly, that it stunts creativity and forms a barrier to creative enterprises. Of course there are outlier cases where that may be true but for the wider spectrum that is certainly not the case. People don’t understand the rationale behind copyright protection. You start from the ground level. If you believe in IP, you must be able to defend it from the ground up.”

“I’m not saying the IP system is without its criticism,” he said. “It must be periodically reviewed. I don’t think it is being reviewed in South African law.”

The IP Chair is funded until 2019. It is not a fixed term.

Image Credits: Stellenbosch University