Is Compliance Enough: Can the Goals of Intellectual Property Rights Be Achieved in South Africa?

38 Pages Posted: 8 Feb 2013

See all articles by Caspar van Woensel

Caspar van Woensel

Leiden Law School - Institute for Private Law

Bernard H. Maister

University of Cape Town (UCT)

Date Written: January 28, 2013

Abstract

Patent applications by South African residents significantly lag behind non-residents both at home and abroad. South Africa, at least in terms of its legislation, is compliant with the Trade Related Intellectual Property Rights Agreement (TRIPS) – the consequence of which should be, according to its own Preamble, promotion of effective intellectual property rights that do not themselves become barriers to trade. How then to explain the poor record of South African resident patent filing?

One answer may be that this Agreement was based on intellectual property systems designed to function within industrially advanced countries that have a well established legislative, judicial and enforcement infrastructure. Given that many developing countries, South Africa being a good example, lack a similarly situated infrastructure, the authors question whether a country will see the promised benefits of intellectual property rights in terms of domestic innovation and development merely because it is TRIPS-compliant.

In this paper, we attempt to understand this issue by reviewing relevant aspects of the international IPR system and that of South Africa, and by considering the perspective of one of South Africa’s important trading partners in Europe, The Netherlands.

Keywords: Intellectual Property, Patents, TRIPS, development, South Africa, The Netherlands

JEL Classification: K11, K33

Suggested Citation

van Woensel, Caspar P.L. and Maister, Bernard H., Is Compliance Enough: Can the Goals of Intellectual Property Rights Be Achieved in South Africa? (January 28, 2013). Leiden Law School Research Paper. Available at SSRN: https://ssrn.com/abstract=2213263 or http://dx.doi.org/10.2139/ssrn.2213263

Caspar P.L. Van Woensel (Contact Author)

Leiden Law School - Institute for Private Law ( email )

P.O. Box 9520
LEIDEN, NL-2300RA
Netherlands

Bernard H. Maister

University of Cape Town (UCT) ( email )

Private Bag X3
Rondebosch, Western Cape 7701
South Africa

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