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Opinion: Threat to traditional works by Owen Dean (Cape Times), 20 August 2013

27 August 2013

In 2004, the cabinet approved the adoption of a policy on indigenous knowledge systems, known as the IKS Policy. Pursuant to this, the Department of Trade and Industry (DTI) formulated a policy document on the protection and commercialisation of indigenous knowledge. This policy sought to recognise and protect indigenous knowledge as a form of intellectual property and to enable and promote the commercial exploitation of such material for the benefit of the indigenous communities from which the material originated.

In 2008, the DTI sought to give effect to this policy by drafting and publishing the Intellectual Property Laws Amendment Bill (Iplab). This bill proposed to amend the Copyright Act, Designs Act, Trade Marks Act and Performers’ Protection Act. The aim was to introduce into them special provisions applying the subject matters of those acts to what it termed “traditional knowledge”, but what can more correctly be described in terms of internationally recognised terminology as “cultural expressions”. This refers to folklore, traditional art and music, traditional designs and signs and performances of traditional works.

Iplab has had a very tortuous and controversial journey through the legislative process. It has been roundly condemned as being badly drafted and unworkable by a wide spectrum of people and groups – from high court judges, academics, legal practitioners and other government departments, to business people, the cultural community and opposition parties.

Despite all this, it was passed by Parliament last year and submitted to the president for his assent. He, however, declined to sign it on the basis that it had not been considered by the National House of Traditional Leaders, the representative body of the avowed beneficiaries of the measures to be introduced.

The main criticism of Iplab has been that it attempts to do the impossible. It purports to grant protection to traditional knowledge by bending the principles of existing intellectual property laws beyond breaking point. It amounts, in effect, to trying to mix oil and water. The counter-argument and proposal is that the desired protection should be granted by means of a custom-made (a so-called sui generis) statute providing for a new species of intellectual property with its own unique characteristics. It would thus join and supplement the existing intellectual property statutes, such as the Patents Act and the Copyright Act, which each regulate a separate and unique form of intellectual property.

To illustrate how the government’s goal could be achieved by means of such a sui generis statute, I prepared a unique draft bill covering the same ground as Iplab. This draft bill was made available to the trade and industries portfolio committee of the House of Assembly at the time when it considered Iplab.

The committee either ignored or disregarded this draft bill and Iplab was approved after substantial amendment by the parliamentary drafting team. These amendments, however, did not remove or cure the objections to Iplab.

The DA and other opposition parties, mindful of the damning criticism that had been voiced against Iplab, felt that an error was being made by passing it. Dr Wilmot James, the DA’s spokesman on trade and industry, tabled my draft bill in Parliament as a private member’s bill.

Parliament is thus faced with two fundamentally different competing bills aimed at achieving the same objective – Iplab and the James bill.

The beneficiaries of the bills – the traditional communities whose works are involved – had never really been given an educated choice as to how they felt that their works should be protected. This has been rectified. The options have now been presented to them at a recent meeting of the National Council of Traditional Leaders in Durban. The bills and their effects and implications were described to them to enable them to make an informed choice as to which they prefer. The essence of the information put before them is as follows:

Iplab has been described by the deputy president of the Supreme Court of Appeal as fundamentally flawed and incapable of delivering any protection to traditional cultural works. This sentiment has been echoed by experts in the field of intellectual property law. The World Intellectual Property Organisation (Wipo) has expressed similar views. Even the independent organisation that did a regulatory impact assessment of the bill at the government’s behest condemned it as unworkable and undesirable.

Iplab purports to create a system which in certain circumstances will confer ownership of the property created in the state, and not in the communities themselves. Such property will be commercially exploited by the state, and royalties flowing to the state from the use of the works will accrue to a trust fund administered by the state. The trust operating the fund has discretion as to how the money should be spent or allocated, and no obligation is placed on it to transfer money to any community. Royalty payments could be viewed as a sort of tax, somewhat along the lines of the e-tolls to be extracted from motorists for the use of Gauteng highways.

Licensing of the traditional works is subject to onerous formalities and conditions, and the state is required to give advance approval to any licence agreement. This is not in accordance with the realities of the marketplace in the licensing of works of intellectual property, and it is likely to be a strong disincentive to anyone contemplating acquiring a licence.

Iplab deprives traditional communities of rights that they currently enjoy under intellectual property law in certain respects. For instance, traditional signs are prevented from being registered as trademarks, which is currently possible.

The James bill follows the sui generis legislation route. This approach to protecting traditional knowledge enjoys the support of Wipo. It is the approved international approach. It is also subscribed to by all our neighbouring countries and the International Association of Intellectual Property.

The James bill, with its sui generis approach, has received widespread support in South Africa, including from the Department of Science and Technology, the Competition Commission, the Association of Law Societies and prominent academics and legal practitioners. No comment that the bill is pursuing the incorrect approach has been offered.

The James bill provides for protected traditional knowledge to be owned by the community that originated it and for that community to exploit the works commercially to its own advantage. No deprivation or expropriation of a community’s property thus takes place.

Licensing of traditional knowledge property takes place on a simple, uncomplicated and user-friendly basis in keeping with standing commercial practices. Payment of royalties for use of the property can be made to a trust fund operated by the state, but such moneys are specifically directed to be paid to the relevant community owning the work being exploited.

Provision is made for the state to enforce rights in protected works, at the election of the owner and on its behalf. All existing intellectual property rights currently available to communities are preserved and are not taken away.

The principal benefit of the James bill is that it is capable of actually working in practice and granting the desired protection to traditional works for the benefit of the respective originating communities – in contrast to Iplab, which is doomed to becoming a dead letter if passed.

Professor Dean is the incumbent of the Anton Mostert Chair of Intellectual Property Law at Stellenbosch University. This article is based on his address to the National House of Traditional Leaders on July 3.