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