“Investing in Africa’s Future” INSTITUTE OF PEACE, LEADERSHIP AND GOVERNANCE PIP 502: Intellectual Property Law, business and Ethies END OF FIRST SEMESTER EXAMINATIONS NOVEMBER/DECEMBER 2016 LECTURER: Muzah and Munguma DURATION: 3 HRS INSTRUCTIONS ‘Answer TWO questions in Section A and TWO Questions in Section B Use only the Examination Answer Book provided. Obtain a Continuation Answer Book if necessary Write legibly and concisely You are expected to give a critical analysis of each question. Ifyou cite the works of any author, make sure you give credit and acknowledgement to that author. Provide the following information on the cover page ofthe Examination Answer Book. 6.1 Write your University LD. number clearly in the space provided. Do not wite ‘your name on the Answer Book, 6.2 Write the Course Code & Course Title indicated above in the space provided. 6.3 For Faculty write 'IPLG’ 84 For Progfmme write MIP” 5.5 For Academic Year write 2016/17 5.6 For Semester Number write ‘Residential Phase’ (DO NOT TURN THIS PAGE UNTIL YOU ARE TOLD T0090SECTION A (Answer TWO Questions only) (A) Built on the comersione of the Paris Convention for the Protection of Industrial Property [hereinafter Paris Convention] and the Berne Convention for the Protection of Literary and Artistic Works [hereinafter Berne Convention], the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) profoundly altered the nature, scope, and economic consequences of international intellectual property regulation. Provide an overview of the main enforcement provisions of the TRIPs agreement and discuss the practical value to your country, (25 Marks) (2) Im your opinion, how effective is your country’s border control mechanisms in preventing piracy and counterfeiting? Discuss a possible strategy to combat IP crimes ‘in your country. (25 Marks) @ A proper management of IP is essential for an effective enforcement. Discuss (25 Marks) 4. The Internet allows counterfeiters to reach a global audience at very low cost and minimal risk. Counterfeiters benefit from the anonymity of the Intemet and consumers are extensively exposed to the phenomenon. Because there is little to no risk associated with their behavior, perpetrators are eager to develop the online sale of counterfeits, which renders enforcement increasingly complex and sophisticated. Discuss possible preventative actions to address online counterfeiting. (25 marks) SECTION B (Answer TWO Questions only) 5. The Republic of Utopia (a fictitious country) has recently joined the World Trade Organization and is now a member of TRIPS. Utopia has enacted a criminal code that has been hailed as being pro- intellectual property rights. The criminal code makes it an offence punishable by imprisonment to infringe among other IP rights, industrial designs, patents and copyright. As an expert reviewing this new law on behalf of Utopia advises the government if the criminal code criminalizing all forms of intellectual property infringements is justifiable according to international norms. (18 marks) b) The same country allows the Registrar of Intellectual Property through its Intellectual Property Code to grant compulsory licenses on any patent rights upon the application of a government minister. The law provides that the decision of the Registrar “shall not be subject to appeal or review in any court or tribunal”. You are required to comment on this provision in your advice to the government. (7 marks) © It has been said by many commentators that a right without remedy is no right at all Analyze this sentiment in the light of any four (4) civil law remedies that are available to an IP owner incthe event of infringement of his rights. (20 marks)b) Explain how a court would apportion compensation to a plaintiff in a case where it is applying; (1) the licence fees/royalty and (2) an account of profits approaches to assess the damages. (5 marks) 7. “The judgement of the Constitutional Court of South Africa in the case of Laugh it off Promotions is a refreshing balance of private rights and public rights. Private rights for business men to make profit should not be allowed to trample the fundamental rights of citizens to enjoy their constitutional rights.” Comment and discuss this 3 sentiment in the light of the judgement of the court. (25 marks) ae It is widely believed that despite relevant legislation, the effective enforcement of yee intellectual property rights in Africa will remain a distant dream, Identify and exp! at least four (4) challenges or limitations to the effective enforcement of IP rights in your country and suggest possible solutions to these challenges.’ In your answer you May use a case study of your hme country or any other country of your choice. (23 marks) 9. The long drawn dispute between NkosaneMakate v Vodacom(Pty) Ltd [2016] ZACC 13 in South Africa concerning ideas and IP rights (inventions) made in the course of << ‘employment calls for properly drafted contracts of employment as well as clear work place polices on inventions made by employees in the course of employment. a) You are required to summarise the findings made by the Court of Appeal in the above case. (8 marks) b) Explain how an employer can craft a contract of employment and workplace polices to cater for situations like these. (10 marks) ©) Explain the safeguards that TRIPS insist on as a way of protecting defendants from abuse by plaintiffs, (7 marks) 10. Analyse the role played by the WIPO Arbitration and Mediation Centre in resolving IP related disputes. (10 marks) b) Alternative dispute resolution (ADR) has some distinct advantages as well as disadvantages as compared to court litigation. Analyse the advantages and disadvantages of ADR. (7 marks) ¢) Analyse the similarities and differences between arbitration and court ligation. (8 marks) - 11. The cases of Monsanto v Bowman on the one hand and that of Kirsten v Wiley &Son on the other deal With the same subject, albeit in different IP domains. The decisions reached by the courts are different. In your view which decision is supportable and on. what basis. (25 marks) [END OF DOCUMENT]