A guide to intellectual property law

February 1st, 2012

By Peter Ramsden

Cape Town: Juta & Co Ltd (2011) 1st edition

Price: R495 (incl VAT)

486 pages (soft cover)

This newly published work deals with the three fields of intellectual property (IP) law that South African legal practitioners are most likely to encounter. These are copyright law, trade mark law and patent law (but not design law). The book also deals with the common law aspects of unlawful competition and passing off, and discusses IP law in respect of certain internet matters, biodiversity and traditional knowledge.

The existing South African textbooks on IP law generally deal with one field (or at most two fields) of IP law, mainly because each of these specialised fields is extensive and IP practitioners in South Africa tend to specialise in one (or possibly two) of these fields. Accordingly, this is a rather unusual work in that the author has attempted to deal with three major IP law fields in South Africa in a single text – although not in the form of a textbook but rather in the form of a guide. This is a daunting task and the author is to be commended for tackling such a broad and challenging work, which will no doubt be useful for students and attorneys in general practice. If the intention of the author was to provide a complete overview of IP law, it would be worthwhile to consider including a chapter, however brief, on design law in a future edition.

The author’s approach is generally to provide an explanation of a particular provision of the law and then to cite the relevant section(s) of the IP Act directly thereunder. Some attorneys may find this approach helpful but others may find it unduly repetitive, as opposed to the more traditional style of setting out the entire Act at the end of the text. A helpful technique is that, in the chapters that deal with each of the three Acts, the author uses paragraph numbers that correspond with the relevant section numbers of each Act. A further useful technique is the use of diagrams to show various substantive requirements in these Acts and the use of flow diagrams to show various procedures that a particular matter may follow. The discussion of decisions in important decided cases is clearly done by using bullet points for the ratio decidendi of each case.

The guide is not fully comprehensive (nor quite on target) in all respects and will benefit from some adaptation in a future edition. This should, for example, include comment on the propriety of works and on so-called commissioned works in copyright law, on attorneys being able to practise as ‘agents’ in terms of the Trade Marks Act 194 of 1993; on clarifying the judgments of the Commissioner of Patents in respect of the late renewal of a patent and in respect of exchange control implications on the assignment of a patent (or other IP for that matter) to a foreign entity based on the recent Oilwell (Pty) Ltd v Protec International Ltd and Others 2011 (4) SA 394 (SCA) decision by the Supreme Court of Appeal (which may have been handed down after this book went to press) and comment on the regulations promulgated under the Electronic Communications and Transactions Act 25 of 2002 for dealing with .za domain name disputes and the various alternative dispute resolution decisions issued under these regulations since 2007, including appeal decisions, by (South African) accredited adjudicators.

Andre van der Merwe is a director at DM Kisch Incorporated in Johannesburg.

This article was first published in De Rebus in 2012 (Jan/Feb) DR 53.