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The purpose of this introduction is to provide a brief outline of the scope and the progression of the thesis. Since the latter part of the nineteenth century, it has been a well-established principle of real property law in England and Wales that the burden of a positive covenant cannot run directly with freehold land at law or in equity. The fact that a positive covenant cannot run directly with freehold land has for many years been acknowledged to be a major defect of English land law. In Chapter I, the rules which govern the enforceability of freehold covenants are examined. Further, the chapter identifies why the Judges in the nineteenth century decided not to permit the burden of a positive covenant to run with freehold land. Conveyancers use a number of techniques and devices in order to circumvent the aforementioned principle. However, none of them are foolproof. In Chapter II, a number of devices which are used by conveyancers in order to circumvent the aforementioned principle are examined and evaluated. The difficulties which can arise from the present law's failure to provide a satisfactory means whereby positive covenants may be made to run with freehold land are identified in Chapter III. Local authorities possess a number of statutory powers to impose positive covenants on freehold land and to enforce them against successive owners. In Chapter IV, consideration is afforded to some aspects of their powers in this regard. The need to reform the present law has long been recognised. However, despite the fact that several Reports have been made and one draft Bill produced reform has still not been achieved. In Chapter V, the major proposals made for reform in the 1960's and 1970's are considered. Further, reasons are advanced to explain why reform of the law of positive covenants has proved to be so difficult to secure. One of the main consequences of the present law is that the vast majority of flats in England and Wales are held on long leases. The popular preference is for freehold not leasehold ownership. Several common law countries have comprehensive "condominium" legislation making full provision for rights and obligations, etc., in regard to freehold flats. The relevant legislation of New South Wales and Trinidad and Tobago is examined in Chapters VI and VII respectively. One objective of these chapters is to demonstrate that there are viable alternatives to using leasehold schemes for blocks of flats. In 1984, the Law Commission published their Report on Positive and Restrictive Covenants. Chapter VIII deals with this Report and with a number of other relevant recent developments.

During September 2010, Google decided to change their trade mark policy to allow keywords which is equal to an already own trademark to be offered to all who intend to link the word to their ad. They offered a service for this called Adwords. The update followed since The Court Of Justice (CoJ) stated that Google does not commit trade mark infringement by doing this. The question to answer is whether the proprietors of trademarks can do something to stop them from being used by competitors as keywords in Adwords. CoJ has stated that the advertisers are infringing the exclusive right of a trademark if the used keyword is identical to the trademark, the commercial focuses on products that is identical to the products which are registered on the trademark and if the commercial makes it difficult or impossible to an average internet user to decide whether the products originate from the proprietor, a company which has a financial connection to the proprietor or a third party. If an advertiser limits the ad to contain commercial which focuses on their specific business and products it is most likely not possible for the proprietor to claim trade mark infringement. The opportunities to stop the advertising is found in the Swedish Marketing Act . This section of law prohibit so-called abuse of reputes and misleading marketing. In the case Blocket vs Metro it is tested whether Metro had conducted Abuse of Blockets repute by using the trademarked term "blocket". The Swedish Market Court (MD) stated without justification that some abuse of repute did not exist. The trade mark has, because of the policy change, reduced its value since the opportunities to protect a trade mark are still around but now the process is less efficient and more expensive. This however can be changed as soon as the possibility of “misleading advertising” is tested by the MD.

Includes bibliographical references.

The dissertation addresses the legal conflict which is related to the legitimacy of comparative advertising. The national legal system has the task to balance antagonistic interests of trademark proprietors, advertisers, consumers and the public at large. The thesis examines the South African, the European and the German legal system implemented a legal balance and presents consequences, commonalities and differences. After starting with an historical overview on comparative advertising in South Africa and the Advertising Standards Authorities' self-regulating system, the Common law of Unlawful Competition will be addressed with regard to its influences on comparative advertising. Further, the thesis deals with the South African Trade Mark Act and its interpretation of infringement in terms of comparative advertising. Also considering European jurisdiction will be considered. The European approach on trade marks and comparative advertising will be presented as it leads to the German approach on comparative advertising and served as inspiration for the South African Trade Marks Act. The manner of implementation of European Directives influencing comparative advertising in German national law will be examined. Hereby, the distinctive characteristics which are required for comparative advertising as well as the special statutory mentioned cases in which it is unlawful will be presented. The high level of legal differentiation shall be emphasized since this may lead to differences compared to the South African law. Finally, I will compare how South African law and German law approach the subject comparative advertising. Especially the influences of Common law and statutory law on unlawful competition will be compared and evaluated. It shall be presented which consequences can arise out of different systematic approaches in this field of law. Additionally, the differences in the legal approaches on trade mark infringement will be highlighted in respect of presenting whether they cause actual consequences for the final legal valuation of comparative advertising. Furthermore, the commonalities concerning the purpose of encouraging comparative advertising will be addressed.

This thesis argues that the implementation of inclusionary housing in South African law will affect property rights in the form of landownership and expected earnings. By invoking the non-arbitrariness test that was adopted by the Constitutional Court in the FNB decision, the thesis illustrates that the factors mentioned in the non-arbitrariness test can be used to understand the scope of the state’s obligations in fulfilling the right of access to adequate housing. The symbiotic nature of the relationship between the right to property (section 25) and the right of access to adequate housing (section 26) is therefore underscored. In drawing this link, I rely on the principle of spatial justice that is enshrined in the Spatial Planning and Land Use management Act (SPLUMA) to show that the implementation of inclusionary housing requires a more inclusive reading of spatial justice than what the Act envisages. I argue that to effectively implement inclusionary housing, the owner’s right to exploit property for economic benefit should be balanced by a housing beneficiary’s right to well-located, affordable housing. While the South African legal response to the problem of homelessness has emphasized affordability of housing, location has largely been overlooked. To satisfy the non-arbitrariness test for the deprivation of property rights, it must be shown that the imposition of inclusionary housing requirements on property developers will lead to housing that is both affordable and well located. Appropriate building and rent regulation measures can lead to affordable and well located housing in the South African legal context, but only if these measures recognize that a developer is not ordinarily entitled to the most profitable use of her property. As currently conceptualized, the principle of spatial justice in SPLUMA gives owners excessive protection against state interference with their property rights by insisting that the spatial justice principle must be read together with the principles of sustainability and effectiveness. The thesis concludes that SPLUMA nevertheless lays a foundation for the implementation of inclusionary housing in South Africa because it requires municipalities to include crucial information (such as estimates of the level of unemployment, family sizes and expected economic activity) in their Municipal Spatial Development Frameworks (MSDFs). MSDFs will play the role of providing sufficient reason for regulating developers’ property rights (especially the right to exploit property for economic benefit) in line with the idea of substantive non-arbitrariness envisaged in FNB / Thesis (LLD)--University of Pretoria, 2020. / Private Law / LLD / Unrestricted

Includes abstract. / Includes bibliographical references (leaves 310-370). / The patent system exists to encourage the development of new products from which society will benefit. The strength of protection awarded to patented products is a policy decision, allowing states to balance the monopoly rights of patent-owners against the inherent social costs of monopoly protection. The effective policy space within which states may establish domestic patent policy is increasingly circumscribed by international rules prescribing minimum protection levels regardless of local circumstances or consequences. In international negotiations, developing states have attempted to resist policy space curtailment using arguments that rely on foundational principles of the intellectual property system: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; its opponents counterargue that stronger patent protection achieves the same ends. This dissertation examines the resulting circular discussions at the 2001-2003 Doha negotiations and the WIPO Development Agenda talks since 2004. I argue that the impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Economists have been unable to resolve this tension by identifying optimal protection levels. Furthermore, intellectual property theory is unable to provide a bottom line at which the short-term social costs of patent monopolies must be deemed unacceptable, regardless of anticipated longerterm benefits. The developing states' negotiating stance will be strengthened if a bottom line can be identified. I argue that the International Covenant on Economic Social and Cultural Rights provides benchmarks to fulfil this function. ICESCR obligations are specific, objective, and measurable; they have international legitimacy; and they bind almost all states. I examine the Article 12 right to health to show that states violate the ICESCR if they ratify other treaties which reduce policy space and make it more difficult for states to adopt policies to meet their domestic or extraterritorial obligations. I also examine Article 15, concluding that it is insufficiently developed to offer firm guidelines. I use insights from international relations theory to examine the practical possibilities of adopting a human rights-based approach, and argue that the strategy will become progressively more effective as human rights norms are internalized through the negotiating process and by other means.

This thesis examines international approaches to musical work copyright infringement law for the purpose of establishing an approach that can be utilised effectively under the South African copyright infringement framework. In doing so, the importance of the various interactive elements of musical works is investigated as well as the modes of assessment in infringement scenarios. The findings are used to create a robust middle-ground approach to be adapted into the South African copyright infringement framework. Further considerations that impact infringement outcomes are addressed to the extent that they are contextually relevant. These include a discussion of research undertaken on the continent regarding the relationship between creators and the music-related copyright regime as well as the role that exceptions and limitations play in infringement outcomes.

Hyperlinks serve as essential tools to communicate and disseminate information on the World Wide Web. As one commentator stated: ‘without hyperlinks, the web would be like a library without a catalogue: full of information, but with no sure means of finding it'.1 Unfortunately, hyperlinks may also be utilised to enable copyright infringement.2 Copyright protected works may be disseminated on the internet without the authorisation of the copyright owner using hyperlinks. Accordingly, effective legal rules are necessary to not only safeguards the rights of copyright owners but to also preserve the fluid communication and dissemination of information on the internet. The dissertation will have the aim of analysing the approaches taken by the European Union's (EU) courts and the Unites states of America's (US) courts in dealing with hyperlinking to copyright protected works. The terms necessary for the proper understanding of the dissertation will be first outlined. It will then be determined if the EU originally offered a satisfactory solution to the hyperlinking issue. Thereafter, it will be explored if the EU currently effectively addresses the legal treatment of hyperlinking under copyright law. The approach taken by the US will then be critically analysed. Moreover, the dissertation will also have the goal of recommending how these jurisdictions should refine their laws to tackle future hyperlinking cases in an effective manner. Finally, it will be proposed which approach SA should favor when dealing with hyperlinking to copyright protected works.

Indigenous knowledge is a broad term that is used to describe various knowledge systems that are intimately linked with traditional communities.1 It is communicated orally and stored in the memories of people belonging to traditional communities; it is also expressed through the art of traditional communities, their practices, community laws, cultural values, folklore, proverbs and activities. 2 The World Intellectual Property Organization (WIPO), defines ‘indigenous knowledge' as a living body of knowledge - know-how, skills and practices that are formed, sustained and passed on through generations of a traditional community, often forming part of its cultural or spiritual identity.3 There is no internationally accepted definition of indigenous knowledge as the protection of indigenous knowledge is a recent discourse amongst relevant global institutions and countries protecting intellectual property. The term ‘traditional knowledge' is sometimes used in place of ‘indigenous knowledge' and this may create confusion. Therefore, for the purposes of this dissertation, it must be noted that these terms are used interchangeably. Furthermore, it must be expressly established that indigenous knowledge is the property of indigenous communities. Indigenous communities, in their interaction with the environments in which they have resided, have developed a body of knowledge, skills and creative expressions over the centuries and this knowledge has formed an integral part of their cultural heritage.4 Such knowledge is now termed indigenous or traditional knowledge and as the true and original creators of such knowledge, indigenous communities are the rightful owners of it. Such ownership is recognized in Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples which states that indigenous peoples have the right to maintain, protect and develop their own cultural heritage, traditional knowledge, and cultural expressions. 5 All claims on the infringement of the ownership right on indigenous knowledge, which shall follow, are based on this recognition of ownership rights held by indigenous communities in their indigenous knowledge.