Prioritise the public interest

05 April 2018 | Story Kate-Lyn Moore. Photos Je'Nine May. Read time 7 min.
Prof Caroline Ncube celebrates with friends and family, after delivering her inaugural lecture: “The public interest in intellectual property law: African solutions to global challenges”.

The importance of the public interest has been the central tenet of Professor Caroline Ncube’s formidable career.

The National Research Foundation-rated researcher has, among many other achievements, served as deputy dean of postgraduate studies and head of the Department of Commercial Law in the University of Cape Town’s Faculty of Law.

In her inaugural lecture, “The public interest in intellectual property law: African solutions to global challenges”, Ncube traversed her academic journey, gave an overview of her past and ongoing research success, and presented a snapshot of the themes that have emerged in intellectual property (IP) law over the past 16 years.

“A colloquial way of defining intellectual property is to say that it is any creation of the human mind,” she began.

“Intellectual property is ever present in our lives and we intersect with it almost without noticing. We create it and use intellectual property created by others all the time. Indeed, today all of us have had numerous encounters with it.”

To demonstrate the various ways in which individuals interact with IP works on a daily basis, Ncube asked attendees to think back to their morning routine.

“This morning you might have glanced at a newspaper, had some coffee, taken your multivitamins, brushed your teeth, had a 90-second shower and dressed before driving or catching a ride to wherever you needed to be.”

Each of these things was created by a human mind. IP laws protect the rights of this creator, author or innovation. In short, the IP law system governs different kinds of knowledge.

“The newspaper articles you read, including any pictures and illustrations, are protected by copyright. The coffee you drank may be sold under a big brand protected by a trademark. This also would apply to the toothpaste you used, the clothing you are wearing and the vehicle you rode in.

“The pharmaceutical make-up of your multivitamins is probably protected by patents, as is the water-saving shower head fitted on your shower.”

Prof Caroline Ncube was joined by Dean of Law Prof Penelope Andrews (right), as well as Prof Rochelle le Roux (left), who delivered the vote of thanks.

Promoting human rights

Ncube has published widely on IP in Africa. Her body of works holds as its centre that IP rights are exercised in an environment that prioritises certain values and is committed to protecting human life.

“As humanity, we collectively value human well-being and have a human rights framework that protects various aspects, such as the rights to dignity, life, health and education,” she explained.

How then does one balance the rights of individuals needing to access protected works, like medicine, or educational resources, with the rights of authors?

The answer, Ncube argued, lies in the notion of public interest.

But what exactly is the ‘public interest’?

“In my work, I have argued that it [the public interest] is the developmental aspirations that a country gives voice to through its constitution, laws, policies and plans,” she said.

Given that countries are at varied stages of development, and have unique systems of laws, it is clear why Ncube disagrees with a one-size-fits-all IP system.

IP laws, policies and plans should be uniquely crafted, while adhering to agreed international minimum standards of protection, she said.

Much of Ncube’s work has focused on answering the following questions: Who wants to access and use works and innovations, and why?

Consumption for day-to-day living – having food to eat, clothing to wear and technology to use – is one reason why we need to access works. Those looking to innovate further might also seek to access works, to fuel their own creative processes.

Ncube argued that the public interest should serve as the guide to create a fair system that facilitates access for these reasons.

Prof Caroline Ncube discussed her work in relation to IP law in Africa, focusing on how such laws can be used to promote the public interest.

A balancing of interests

IP law is a balancing act. That much is clear from Article 15 of the International Covenant on Economic, Social and Cultural Rights, which forms the basis of the protection of IP rights.

“This article recognises the right of authors and innovators to benefit from protection of economic and moral interests in works they have created,” she explained.

But this same article also recognises the right of everyone to participate in and enjoy culture, and to benefit from scientific progress and its use.

This tension is perhaps most apparent in relation to patents and access to medicine.

“You will appreciate that when dealing with some widespread illnesses like HIV and AIDS and some illnesses that affect mostly the developing world, such as malaria and TB, we have quite a hotly contested policy space.”

But international minimum standards provide space for countries to make their own laws catering for the public interest in such instances.

Ncube’s own work has focused on assessing how South Africa is using these public interest mechanisms. She has argued that the patent protection requirements and the application process can be strengthened.

Shoehorn or custom fit

But not all kinds of knowledge fit into IP norms, Ncube noted.

She returned to her example of the morning routine. Suppose instead of a multivitamin, you took a herbal mixture that stemmed from the knowledge of an indigenous community, she said.

How can the law best protect indigenous knowledge and ensure that these communities have an equitable share in the benefits of their knowledge?

“There is tension between IP norms and African indigenous knowledge governance systems,” Ncube said.

For instance, classic copyright law supposes a single author, whereas the bedtime stories told to her by her grandmother and aunts were imagined by many members of the family – with each generation embellishing the tale.

“It is difficult to shoehorn this into copyright protection because there is no clearly identifiable author, nor is the story original.”

Instead of shoehorning such scenarios into existing IP law, one needs to custom-make protections, and these protections need to be informed by the existing governance systems of communities.


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The Vice-Chancellor’s Inaugural Lecture Series

 

Inaugural lectures are a central part of university academic life. These events are held to commemorate the inaugural lecturer’s appointment to full professorship. They provide a platform for the academic to present the body of research that they have been focusing on during their career, while also giving UCT the opportunity to showcase its academics and share its research with members of the wider university community and the general public in an accessible way.

2019

 
Nature’s role in economic development Professor Edwin Muchapondwa delivered this yearʼs sixth and final Vice-Chancellorʼs Inaugural Lecture on Wednesday, focusing on the role the environment can play in economic development. 11 Oct 2019
Decoding genomes to improve Africa’s health Professor Collet Dandara’s inaugural lecture provided a brief overview of how African genomes can be decoded to unlock a deeper understanding of patients’ responses to treatment. 30 Sep 2019
Rattling conventional thinking on evolution Research by Professor Rebecca Ackermann shows that our huge diversity results from two other major evolutionary forces, in addition to natural selection. 19 Aug 2019
Fighting the power in hip hop and scholarship While they may seem worlds apart, music and scholarship face the same challenges, UCTʼs Professor Adam Haupt said during his recent Vice-Chancellorʼs Inaugural Lecture. 05 Aug 2019
Making Africa’s past ‘usable’ for the present In his 3 May inaugural lecture, Professor Shadreck Chirikure shared insights from deep history and archaeology. 07 May 2019
Growing Africa’s genetic ‘library of life’ Professor Ambroise Wonkam delivered the first Vice-Chancellorʼs Inaugural Lecture for 2019, with a focus on enabling genetic medicine in Africa. 15 Mar 2019

 

2018

 
Working towards a water-sensitive Cape Town When it “forgot to rain” in Cape Town, the city went on water-saving alert. Now it’s time for a holistic approach to future water management. 22 Oct 2018
Reconfiguring the human through the child Existing education models “colonise” children merely to prepare them for adulthood, ignoring what they naturally excel at, says education Professor Karin Murris. 07 Sep 2018
Archie Mafeje’s legacy honoured Archie Mafeje was a revolutionary thinker, a man ahead of his time, Professor Shahid Vawda said in his Vice-Chancellor’s Inaugural Lecture. 10 Aug 2018
Making a case for investing in mental health Professor Crick Lund made a compelling case for investing in population mental health in low- and middle-income countries during his Vice-Chancellor’s Inaugural Lecture. 25 May 2018
Some surprises in search for SA’s first composer Historical musicologist Professor Rebekka Sandmeier's inaugural lecture documents her search for South Africa's first composer of Western music - and yields some surprises. 04 May 2018
Prioritise the public interest When creating a system where access to intellectual property works is regulated fairly, prioritise the public interest, says Professor Caroline Ncube. 05 Apr 2018
Peace parks: the future of Africa’s natural resources Peace parks, or transfrontier parks, have a long history in Africa, which should not be forgotten when looking at the opportunities they offer for conservation, says Maano Ramutsindela. 13 Mar 2018

 

2017

 
Lessons in innovation and intervention Professor Ulrike Rivett traversed 17 years of ICT4D research in her inaugural lecture: “ICT for development: the good intentions of the mobile phone”. 20 Oct 2017
Vulnerability at the heart of explosions research In the week of Genevieve Langdon’s inaugural lecture on explosions, a terrorist bomb was planted on the London Underground. It was a reminder of human vulnerability. 20 Sep 2017

 

2016 and 2015

 

No inaugural lectures took place during 2015 and 2016.

 
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