Intellectual Property as a Constitutional Property Right: The South African Approach MIKHALIEN DU BOIS* University of South Africa 1 Introduction Laugh It Off v South African Breweries, 1 an important South African Constitutional Court case, implicitly raised the question whether intellectual property could be recognised and protected as constitutional property under s 25 of the Constitution of the Republic of South Africa, 1996. South African Breweries (SAB) brought a case of trade-mark infringement against Laugh It Off, a company that sells T-shirts which make fun of existing trade marks. SAB had a registered trade mark for the words ‘Carling Black Label’ and for a representation of the label of its product. Laugh It Off sold T-shirts with the slogan ‘Black Labour, White Guilt’. SAB argued that this negative connotation for their product caused damage to their property and business reputation. Laugh It Off, on the other hand, argued that they were allowed to parody a trade mark in terms of the right to freedom of expression. In South African law, this is the most important example of a conflict between an intellectual property right (in this case, a trade mark) and another fundamental right (freedom of expression). The case provides some clarity on whether intellectual property could be recognised and protected as constitutional property. If intellectual property is recognised as constitutional property, it could be protected, but also limited by the property guarantee, just like tangible property such as land. 2 The state is permitted to interfere with property rights in terms of the provisions in s 25(1) to (3) for deprivation and expropriation. Intellectual property rights may furthermore be limited by public interests such as the public domain and private interests such as the right to freedom of expression. In other words, the property clause cannot serve to insulate intellectual property rights completely. Like all rights, property rights may also be limited by s 36 of the Bill of Rights. 3 * LLB LLD (University of Stellenbosch). Senior lecturer, Department of Mercantile Law, School of Law, University of South Africa. This is the first of two articles based on a presentation at the 3rd Meeting of the Association for Law, Property and Society in March 2012: M du Bois ‘Intellectual Property as a Constiutional Right? A Comparative Approach’. I wish to thank Prof AJ van der Walt, Dr S Maass and Prof CJ Visser for valuable comments. 1 SAB International t/a Sabmark International v Laugh It Off Promotions [2003] 2 All SA 454 (C); Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International 2005 (2) SA 46 (SCA); Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC). 2 See AJ van der Walt Constitutional Property Law 3 ed (2011) at 143–50. 3 Constitution of the Republic of South Africa, 1996. © 2012. All rights reserved. Cite as: (2012) 24 SA Merc LJ 177–193. 177 Open Rubric