Link between physical property and intellectual property needs clarity

10 Sep 2018


The link between fixed and tangible (or physical) property and its rights, on the one hand, and intellectual property (“IP”) and its rights, on the other hand, is not always apparent.

A professional body such as the South African Institute for Intellectual Property Law (“SAIIPL”), founded in 1954, is focused on IP law and protection, and has thereby considered itself to be the custodian of IP law in South Africa. Over the intervening years, its members have been involved both in the drafting of new IP legislation and in amendments relating to existing IP laws, generally aiming to strengthen IP protection. SAIIPL had submitted a formal proposal that IP and IP rights should be protected as a form of fundamental property rights in the Constitution, at the time that the Constitution was being drafted by CODESA during the early 1990’s.

The question of more strongly linking these two species of property therefore arises – and whether an organization exists that keeps a watchful eye on both forms of property and their protection, both internationally and nationally?

The Property Rights Alliance (“PRA”)

Fortunately, there is such a body, namely the Property Rights Alliance (“PRA”), based in Washington DC, that acts as an advocacy organization dedicated to the protection of physical and IP rights, both internationally and domestically.

Property rights in general are of course a key indicator of economic success and political stability, in addition to being an essential component of prosperous and free societies. On an international level, PRA works closely with various property rights advocates and over 100 think-tanks, NGO’s and other organizations around the world.

PRA’s International Property Rights Index (‘IPRI”)

The flagship publication of PRA is its annual International Property Rights Index (“IPRI”) and Report. The IPRI measures and scores, for each country, the underlying institutions of a strong property rights system, namely the strength of physical property rights and intellectual property rights, and the legal and political environment in which these systems operate.

The IPRI and its Report presents a valuable tool for policy-makers, business communities, and civic activists, and it highlights the essential role that property rights play in creating a prosperous economy and a just society. It is the world’s only index dedicated entirely to the measurement of intellectual and physical property rights.

The twelfth edition of this Index, IPRI 2018, released on 8 August 2018, and available in full on PRA’s website, covers 125 countries, 98% of the world’s Gross Domestic Product, and 93% of the world’s population. It was produced this year by Prof Sary Levy-Carciente in partnership with 113 international organizations/think-tanks from 70 countries, including the Free Market Foundation in South Africa, and using inter alia data from the latest Global Competitiveness Index of the World Economic Forum.

What exactly does the 2018 IPRI and Report show?


It shows firstly that world-wide progress over the last year in strengthening property rights systems remains slow, yet consistent, with the world’s IPRI average increasing by only 1.95% to 5.74.

Quoting Dr Hernando De Soto, a noted economist and President of PRA, it shows that: “Finland traded places with New Zealand for top spot (with an index score of 8.69) by improving access to loans and patent protection. In fact, Finland’s improvement also allowed it to displace the USA to become the world leader in protection of IP rights.”

“Weak property rights systems not only blind economies from realizing the immense hidden capital of their entrepreneurs, but they withhold them from other benefits as evidenced through the powerful correlations in this year’s Index: human freedom, economic liberty, perception of corruption, civic activism, and even the ability of being connected to the Internet, to name a few.”

Finland, New Zealand and Switzerland have achieved, together with the USA, the highest levels of property rights protection.

IPRI 2018 is the first publication to use the recently updated Patents Rights Index developed by Professor Walter Park at American University. IPRI 2018 also includes correlations with 23 economic and social indicators, including nine that are specific to e-commerce, which displayed some of the strongest relationships the IPRI has ever produced, suggesting that rights play. an important role in addressing Internet access issues.

In some countries, unfortunately property rights are restricted by gender. The Gender Equality component of the Index reveals that several countries in the Middle East, North Africa and Sub-Saharan Africa still limit property ownership based on gender.

South Africa

South Africa has received a favourable mention of its efforts to realize property rights from its indigenous communities based on their traditional knowledge and cultural expressions. However, South Africa’s ratings declined in the variable Physical Property Rights protection (-1.18). The data for this variable is derived from the World Economic Forum’s Executive Opinion Survey. This was prepared in April 2018, shortly after the ANC supported a motion submitted by the Economic Freedom Fighters party (EFF) to establish an ad-hoc parliamentary committee to review and amend section 25 of the Constitution.

This pre-election campaign propaganda should be short-lived with a more sensible approach supporting economic growth and boosting investor confidence setting in after the election. The medium to longer term prospects for investment in South Africa are entrenched through a world class Constitution and jurisprudence.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Andre van der Merwe

Andre van der Merwe is a Trade Mark and Patent Attorney and a Director at Kisch IP. His expertise includes: Preparing, filing and prosecuting patents and registered designs both locally... Read more about Andre van der Merwe


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