practical application of iplab/ptk works and designs prof owen dean chair of intellectual property...

PRACTICAL APPLICATION OF IPLAB/PTK

WORKS AND DESIGNS

Prof Owen DeanChair of Intellectual Property LawStellenbosch University

PRINCIPAL FOCUS OF BILL

• Traditional Cultural Expressions

• Copyright Works/Traditional Works

• Registered Designs/Traditional Designs

http://hehasfreckles.blogspot.com

COPYRIGHT WORK/TRADITIONAL WORK

• Ndebele art can constitute “work”

• Under IPLAB – copyright in artistic work – Traditional Copyright Work

• Under PTK – Traditional Work

http://mrslangesartcart.wikispaces.com

www.booktravel.travel

IPLAB – ELEMENTS OF COPYRIGHT

• Exist in a material form or capable of substantiation from collective memory

• Original• Indigenous work• Community (collectively) is author and

owner (deemed to be a juristic person)• Where author cannot be determined or is

claimed to be more than one community, the Trust Fund (State) is owner

• Dual copyright

PTK – ELEMENTS OF TRADITIONAL WORK

• Exists automatically provided conditions are met.

• Exist in a material form• Recognition as being from, and

characteristic of, originating community by outside persons

• Person nominated by originating community (“Community Proxy”) is owner of work

• No State ownership

INDIGENOUS DESIGN/TRADITIONAL DESIGN

• Ndebele art can be embodied in design (shape or ornamentation) of an article

• Under IPLAB – Indigenous Design

• Under PTK – Traditional Design

'Ulona' Platform Sandal

by Christian Louboutin

http://thesmartstylist.co

m

www.taste-africa.com

Esther Mahlangu – BMW 525i Art Carwww.wikipedia.com

IPLAB – ELEMENTS OF INDIGENOUS DESIGN

• Registration necessary for protection of design

• Each individual design must be separately registered for each article to be protected

• If aesthetic, it must be new (different from earlier designs introduced to the public anywhere in the world) and original

IPLAB – ELEMENTS OF INDIGENOUS DESIGN (continued)

• Community creating design is author and can register and become proprietor

• Where author cannot be determined or design cannot be shared by multiplicity of communities, the National Trust (the State) can register and become proprietor

PTK – ELEMENTS OF TRADITIONAL DESIGN

• Exists automatically, provided conditions are met; no registration is required

• Exist in a material form

• Recognition as being from, and characteristic of, originating community by outside persons

PTK – ELEMENTS OF TRADITIONAL DESIGN (continued)

• Person nominated by originating community (“Community Proxy”) is proprietor in a representative capacity

• No State ownership

COMMERCIAL EXPLOITATION OF TRADITIONAL KNOWLEDGE

• Licence to use property subject to payment of royalties

• IPLAB – Onerous conditions for granting licence (agreement must be approved in advance by State)

• PTK – Informal, no formalities or conditions for granting licence; simple automatic licensing system

ROYALTIES

• Paid by licensees to National Trust• IPLAB – No obligation on National

Trust to pay monies to originating community; monies can be dispensed at discretion of Trust

• PTK – National Trust is obliged to pay royalties collected to originating community

Owen DeanStellenbosch University

o.dean@spoor.comwww.sun.ac.za/iplaw