An Assessment of Intellectual Property Legislative Framework on Violations of Protected Goods

• Author: Godfrey Thenga
• Position: University of South Africa, Pretoria, SOUTH AFRICA College of Law, Department of Police Practice
• Pages: 1-17

Center for Open Access in Science  https://www.centerprode.com/ojls. html

Open Journal for Legal Studies, 2021, 4(1), 1-18.

ISSN (Online) 2620-0619  https://doi.org/10.32591/coas.ojls.0401.01001t

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© Authors. Terms and conditions of Creative Commons Attribution 4.0 International (CC BY 4.0) apply.

Correspondence: Godfrey Thenga, Senior lecturer, University of South Africa, College of Law,

Department of Police Practice, Pretoria, SOUTH AFRICA. E-mail: ts habg@unisa.ac.za.

An Assessment of Intellectual Property Legislative

Framework on Violations of Protected Goods

Godfrey Thenga

University of South Africa, Pretoria, SOUTH AFRICA

College of Law, Department of Police Practice

Received: 8 February 2021  Accepted: 9 April 2021  Published Online: 7 May 2021

Abstract

Infringement of intellectual property is a violation of protected rights. Intellectual property is an

asset owned by businesses and forms part of a trade. In South Africa, the Const itution and other

legislation guarantee ownership of property. The rights to ownership of protected pro perty are

affected when criminals misappropriate property. Th is abuse is evident when the protected

property is divested from its lawful o wners and sold at a profit to disadvantage the owners. This

has the potential of devalu ing protected property and contributes to the financial loss of the

owners. The abuse ultimately discourages innovat ion and creativity in businesses. The

government is responsible for protecting property rights; the positive spin-off is the taxes that

benefit the country. Poor protection encourages free-riding behavior where unscrupulous

criminals misuse the intellectual property for their benefit. This study assessed the effectiveness

of various legislation that protects property interests. It further highlig hted poor enforcement of

the law.

Keywords: intellectual property, protected goods, copyright infringement, counterfeiting,

terrorism, law enforcement.

1. Introduction

Inventions of the mind date back to the 1300s, so is the crime (Abbott & Sporn, 2002:

9; Harris, Stevens & Morris, 2009: 5). The crime of intellectual property theft was previously

punished by severe capital punishment that was proportional to the crime committed (Abbott &

Sporn, 2002: 9). There is not a single country in the world that is immune to intellectual property

crime (United Nations Office on Drugs and Crime, 2014: 1). Inventions of the mind are just as

profitable as physical goods, if not more. This is because mental creativity and innovation outlast

the physical product, which can be adapted from time to time as the years progress. The goods

that are produced can later be improved to become better in accordance with the needs that exist

at the time.

In 2018, there were more than 10.9 million trademarks in the world, with over

15,000,000 classes of trademarks (WIPO, 2019: 74-75). A lack of or poor law enforcement affects

businesses, people and government. The tax base will be eroded owing to taxes not being paid by

legitimate businesses. This could result in workers being retrenched and governments failing their

citizens by not delivering services in communities. The criminals divest the legitimate owners of

their businesses and rake in huge profits from selling imitations of genuine goods. South Africa

G. Thenga – An Assessment of Intellectual Property Legislative Framework …

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has promulgated legislation to fight intellectual property violations, such as the Copyright Act 98

of 1978, Trademarks Act 194 of 1993, Merchandise Marks Act 17 of 1941, Customs and Excise Act

91 of 1964, Counterfeit Goods Act 37 of 1997, South African Bank Act 90 of 1989, Tobacco Product

Control Act 83 of 1993, Designs Act 195 of 1993 and Patents Act 57 of 1978.

This study assessed the effectiveness of the intellectual property legislation in South

Africa by considering its strengths and weaknesses to determine whether it is fit for purpose. This

was done in order to assist the country in making improvements in enforcing the law in the country

and capacitating law enforcement to uphold intellectual property rights.

2. Key concepts

Intellectual property is an invention of human-made works which comprise symbols,

names and images that are registered by authorities and used in commerce (South African

Institute of Intellectual Property Law, 2013: 16). It is divided into industrial property such as

patents, trademarks, industrial designs and geographical indications, and copyright which covers

literary works, films, music, artistic works, architectural designs as well as recordings (WIPO,

2014: 2).

A trademark is a distinctive name, symbol, word, picture or combination of these that

is used by a business to identify its services or products (International Trademark Association,

2009: 1). It is designed to protect the good reputation of a business’s services and/or goods.

According to Ward (2011: 49), a sign is capable of being represented graphically and distinguishing

goods or services of one business undertaking from those of other businesses. However, it differs

from a patent, which covers a utility, design, plant or a design of machinery.

Copyright infringement is a violation of the protected rights of another person or

institution (Adams, 2010: 201). Copyrights are unregistered rights that allow copyright owners to

prevent the unauthorized reproduction of their goods. The fact that the owners of genuine goods

do not have to register as legitimate owners does not justify the reproduction of their products

without their permission (Lo, 2013: 109).

Counterfeiting denotes the unauthorized production of goods in relation to which the

state confers upon legal entities a statutory monopoly to prevent their exploitation by

unscrupulous people (WIPO, 2014: 2). Counterfeiting is the unlawful and intentional

misrepresentation of goods that leads to actual or potential prejudice to another (Kinnes &

Newman, 2012: 33). Moreover, counterfeiting is a routine and mundane form of organized crime

that involves the copying of genuine goods to mislead people into thinking they are real. It boils

down to the fraudulent manufacturing of goods.

A brand is a set of mental attachments and added perceptions held by consumers

about the value associated with intellectual property rights (registered product or service) that is

provided for at a cost (Kapferer, 2012: 8). A brand is a sign or set of signs certifying the origin of

intellectual property rights (registered product or service) and differentiating it from competitors’

products (Oosthuizen, 2013: 13).

3. International instrument for enforcement of intellectual property rights

The World Trade Organisation (WTO) was set up in 1995 as the custodian of all

member states regarding agreements in trade-related aspects. The Trade Related Aspects

Agreement is part of the General Agreement on Tariffs and Trade and the DOHA Round

Declaration (WTO’s DOHA Development Round of 2016 Declaration) of trade negotiation among

WTO members. Its objectives are to encourage free trade, reduce tariffs and ensure more equitable