Professor Coenraad Visser, Professor of Law, University of South Africa, facilitated a workshop for the Committee on the Intellectual Property Laws Amendment Bill [B8-2010]. He discussed the aims of intellectual property, international frameworks, international treaties and obligations, the identification of the holders of rights, and the rights of the beneficiaries in terms of the Bill together with possible mechanisms for distributing benefits to them. He also sought to indicate the interests of other stakeholders in the process. Intellectual property was a way of encouraging contributions to arts, culture, science and technology by way of financial rewards. It was important to recognise that not all creative works or performances were of the same nature; it was therefore necessary in the legislation to ensure that all kinds were protected. There was a cultural dimension to intellectual property. The traditional paradigm in intellectual property was the individual author. On the other hand, indigenous knowledge was communal knowledge that developed over time: the challenge was to accommodate it within the intellectual property framework. The Bill was to protect people who, up till now, had been excluded from intellectual property benefits. Intellectual property operated within an international framework of international treaties. The oldest treaty, the Berne Convention, was adopted in 1882. The most important treaty was the Agreement on Trade-Related Aspects of Intellectual Property Rights. If the Bill became law, South Africa would have to respect the indigenous (traditional) knowledge of other countries in the same way that South Africa would protect its own citizens’ indigenous knowledge. The Bill’s definition of community was very broad. It did not indicate how we determined what a community was. The Bill provided for copyright in traditional works. These were basically the rights that were granted to all holders of copyright. However, before these rights were granted, copyright must subsist in the work, and this required reducing a work to writing or otherwise to material form. Thus an oral work would be protected only if it had been written down, or if it had been recorded on, for example, a tape or a video recording, or communicated by way of public performance to the public. However, performances in the traditional context, such as an initiation ceremony, were not a public performance in the accepted sense, but such was really the kind of subject matter that the Bill sought to protect. Professor Visser seriously questioned the Bill’s requirement of communication to the public.
The Chairperson noted that Members needed to acquire a great deal of knowledge to fully understand the implications of the Bill and develop the best possible legislation to fulfil their intentions to protect indigenous knowledge. All developing countries were facing the challenge of protecting indigenous knowledge. One of the most difficult challenges the Committee would face, would be to accommodate the need to protect community rights in a legal framework that had been shaped by the aim to protect individual interests and rights. She advised Members to read Professor Visser’s chapter ‘Making intellectual property laws work for traditional knowledge’. Public hearings were planned from 27-29 July 2010.Members asked about the illegal duplication of compact discs, and how South Africa could protect the intellectual property rights of indigenous people in other countries. A Member said that, whilst it would be proper to acknowledge the origin of traditional music or any kind of creative work, penalising the person who had used that knowledge might conflict with the South African Constitution’s provision for freedom of association. It was noted that the African people were oral in nature, and that there was oral transmission from one generation to another. There was considerable debate about mechanisms for collecting and distributing benefits. Communities were at different economic and educational levels. There was a risk of excluding those communities because of the class divide. Members thought it advisable for the state to be involved as a trustee; while others said that the state’s role must be to create an enabling environment by means of an independent body funded by the state. For some communities the idea of self-regulation might be appropriate. However, others appealed that Members avoid the extreme of recommending a completely independent body. To do so would be almost an abdication of responsibility.
The Chairperson welcomed Professor Coenraad Visser, Professor of Law, University of South Africa, who had kindly agreed to share his expertise with the Committee. She considered him to be the Committee’s own independent advisor; in that sense, he was not advising the Department of Trade and Industry in particular. He would facilitate the workshop. She also welcomed Ms M Dunjwa (ANC) a Member of the Portfolio Committee on Science and Technology, Ms Zodwa Ntuli, Deputy Director-General: Consumer and Corporate Regulation Division (CCRD), Department of Trade and Industry (dti), Ms Nomfundo Maseti, Chief Director: Policy and Legislation, CCRD, dti, and Mr MacDonald Netshitenzhe, Director: Commercial Law and Policy, CCRD, dti. The Department was present, however, to observe rather than to participate actively on this occasion.
The Chairperson advised Members of preliminary arrangements for the Committee’s forthcoming study tour and public hearings on the Intellectual Property Laws Amendment Bill [B8-2010] from 27-29 July 2010.
The Chairperson referred to a report in Business Day which appeared to interpret the Committee’s approach as favouring protectionism in a broad manner. However, a study of the Committee’s own report would reveal that the Committee advocated protectionism only to protect South Africa against unsafe imported products: this was covered under the World Trade Organisation (WTO). Secondly, there was also the need to ensure that infant industries were nurtured. The Business Day’s headline was a little misleading. The article itself gave a far better understanding of what was being said.
University of South Africa briefing on intellectual property
Professor Coenraad Visser said that he had always been interested in intellectual property outside the mainstream, with particular reference to intellectual property in developing countries and traditional knowledge. He had spent five years as an advisor to the President of the World Bank. He had also advised on the protection of intellectual property in Latin America and in Francophone Africa, in particular, Senegal.
Professor Visser said that he would begin by discussing what protection of intellectual property tried to achieve. Thereafter he would discuss international frameworks, international treaties and obligations in terms of intellectual property instruments. He would then discuss the identification of the holders of rights, and then the rights granted to these rights holders.
The aims of intellectual property
Intellectual property was basically society’s way of sustaining those who made a contribution to our cultural or scientific life by rewarding them. It gave them a legitimate right to make money from their activities. If somebody wrote a book, he could obtain royalties from the sale of the book. It was a way of encouraging contributions to arts, culture, science and technology by way of financial rewards. It was important to recognise that not all creative works or performances were of the same nature; it was therefore necessary in the legislation to ensure that all kinds were protected. There was a cultural dimension to intellectual property rights. It was important to note that the Copyright Act did two things. It gave financial rewards to authors. It also protected the integrity of the author. Thus the Copyright Act gave an author the moral right to object to any use of his work that might prejudice his or her reputation. This was an important dimension of intellectual property protection.
Intellectual property was a small aspect of indigenous knowledge systems. It was only those works which fell within the definitions of the intellectual property legislation, such as traditional botanical knowledge that was protected. The greater challenge was to integrate indigenous knowledge into the country’s knowledge systems, and this was the challenge of the Bill. The traditional paradigm in intellectual property was the individual author. On the other hand, indigenous knowledge was communal knowledge that developed over time: the challenge was to accommodate it within the intellectual property framework. The Bill was to protect people who, up till now, had been excluded from intellectual property benefits.
International frameworks, international treaties and obligations
Intellectual property operated within an international framework of international treaties. The most important of these was the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). The oldest treaty, the Berne Convention, was adopted in 1882. These treaties provided reciprocity. The problem that these treaties tried to address was that of enforcing the rights of South African authors, for example, in the United States of America; this was usually done on a reciprocal basis. National treatment basically provided that if a country was party to an international convention, it would treat the citizens of all countries that were party to the treaty, on the same basis as it would treat its own citizens. Professor Visser referred to Article 5 of the Berne Convention. This was repeated in Article 3 of the TRIPS Agreement. He warned the Committee that during the public hearings lawyers would point out that, if the Bill became law, South Africa would have to respect the indigenous (traditional) knowledge of other countries in the same way that South Africa would protect its own citizens. The more he thought about it, the more he thought it a good idea. South African citizens should not be able to appropriate the indigenous knowledge of any non-south African citizen anywhere. With this provision, South Africa would be on the moral high ground.
Ms H Line (ANC) asked about the illegal duplication of compact discs.
Professor Visser said that there were a number of explanations. One might be an economic explanation – that the cost of compact discs (CDs) was too high for the majority of the population. In other countries there were different business models to lower the costs of CDs. The other aspect was enforcement, which was difficult in South Africa because the police force was hard pressed. It was a question of resources, and one would have to be realistic. A Ghanaian musician had reconciled himself to piracy of his CDs by seeing such illegal duplication as a means of advertising for his live performances, by which he earned his living. He could not offer a legal opinion.
Mr Alan Jeftha, Member of the Standing Advisory Committee on Intellectual Property, replied that the legal answer was the Copyright Act and the Counterfeit Goods Act. These made provision to deal with the infringements. However, manpower was needed to enforce these Acts.
The Chairperson said that this was a whole area on its own. There were socio-economic issues involved, as well as our desire to conform to international regulations. She asked how a layperson could detect a pirated CD.
Professor Visser said that in terms of the TRIPS Agreement there were certain standards for the enforcement of intellectual property rights and recently, for example, China was taken to the World Trade Organisation for failure to comply with the reinforcement standards of the Agreement; it was a real issue. He agreed that this issue should be ‘flagged’ for further discussion.
Mr G Radebe (ANC) said that it was refreshing to hear from someone with experience of communal or traditional knowledge. When the Committee had begun discussing this subject, it was a contested issue. If, for example, someone in New York wanted to exploit a particular recipe, he or she must acknowledge that this recipe originated in South Africa. He asked how other nations protected such knowledge – knowledge that had not been originated by a particular individual but belonged to the whole community. He noted that the Copyright Act provided for the reward of the artist and protection of his or her integrity. He asked if the Bill would likewise provide for the reward of the community and the protection of its integrity, and how this would be done.
Professor Visser replied that until and unless there was an international treaty, there would be no way to enforce in New York the rights of the South African originators of recipes– unless there was an agreement relating to traditional knowledge between South Africa and the United States of America U.S.A. The best the Bill could do would be to say that one would protect that person in South Africa, against anyone else using that recipe, and that one would also protect the American hamburger recipe in South Africa against South African exploitation without consent. This was the best that we could hope for at the moment until there was reciprocity. His first reaction when he thought about international enforcement was that we were going the wrong way. It was a basic principle that you did not steal from anybody. If we managed to establish that principle, it would consolidate the principle of reciprocity. If we conveyed that message, it would be a very powerful message.
Professor Visser replied that the problem that we would face in the whole process concerning the Copyright Act was that we were trying to fit communal rights and communal property into a system that was designed to protect individual rights and property. That made the whole process difficult. This was why it was important to begin to identify communities as potential recipients of benefits. Although difficult, he believed that it could be done.
Mr Jeftha said that, with regard to the Trademarks Act, where one had geographical indications, regions could be protected; this had happened with champagne, sherry and port. South Africa had been on the receiving end where rooibos had been registered as a trademark in the U.S.A. Our exporters had experienced difficulties and there was a court case. Thus in the Trademarks Act, there was already a basis whereby one could protect, for example, a recipe, for a particular reason.
Professor Visser agreed with Mr Jeftha. Rooibos highlighted a problem that would be discussed later: where a member of a (community) group went alone overseas, and registered a trademark. In the case of rooibos, it was a South African who had registered the mark in the U.S.A., not an American citizen. It was a recurring problem in the protection of traditional knowledge.
Mr S Njikelana (ANC) asked how South Africa could protect the intellectual property rights of indigenous people in other countries.
Professor Visser gave Mount Kilimanjaro as an example of a geographical indication, and put the case of a South African who wanted to register ‘Kilimanjaro Beer’ as a trade mark. Could this be done? If Kilimanjaro was considered a geographical indication of Kenya or Tanzania, then a South African could not use it in a trade mark in South Africa, since he or she would be appropriating a mark which indicated a particular region.
Mr Jeftha commented with regard to further examples, including certain Ghanaian designs which had been exploited without acknowledgement but which could be protected in South Africa.
Mr X Mabaso (ANC) said that South Africa took interest in protecting outsiders just as it sought to protect South Africans. He asked how South Africa could get the same outsiders to take the same interest in protecting South African artists or designers.
Professor Visser replied that there were two ways of achieving that end. The more difficult was through an international treaty. This meant that one had to obtain a large enough group of countries to do the same, as with the Berne Convention or the Paris Convention. This group of countries would agree on minimum levels of protection. For example, all the countries of the Southern African Development Community (SADC) would agree to protect the indigenous knowledge of the member countries. This was a long term approach. That kind of agreement came into being only when there was a large enough group of countries each having national protection. It was more important to use bilateral agreements as a bargaining chip, if a country entered into a free trade agreement, for example, with the U.S.A. or the European Union (EU). Protection of intellectual property would be offered in exchange for concessions, say, on agricultural products. This was an important dimension.
Mr S Marais (DA) asked how members of a community would be identified and if there would be a register. How, for example, would an Afrikaner be identified and defined. He had used the example of Johnny Clegg and anyone who had used in music a Zulu rhythm. What was a community? In terms of the migration of people, even today across race barriers, how could communities be defined? Was the Bill really worth it? It might be said that we would face more problems than we solved. There must be a benefit for a community and not a burden. He feared creating jobs for other people on the backs of those who were supposed to benefit.
Professor Visser agreed that to identify the beneficiary group was very important, and to make the benefiting of communities in a system that was geared to rewarding individuals was a major difficulty. The issue of reward was really important. It was necessary to establish a link between the creator and the reward with as few intermediaries as possible. One had to be careful not to stifle traditional knowledge by over regulation. It was the one form of knowledge that was not static. It comprised ways of thinking about the world that were constantly evolving. Intellectual property had an instinct to freeze-frame things. There was an element of fixation in the requirement to record something in writing or in a sound recording in order to establish ownership. This was difficult to reconcile with traditional knowledge. One wanted the community to be free to use and develop their traditional knowledge. It was not a museum piece. Science and Technology were concerned with the progress of knowledge in general and traditional knowledge in particular.
Mr N Gcwabaza (ANC) said that, whilst it would be proper to acknowledge the origin of traditional music or any kind of creative work, we should not go so far as to penalise the person who had used that knowledge, precisely because in the South African Constitution we spoke about freedom of association. This suggested that, for example, Johnny Clegg was free to associate with the Zulu musical tradition, in the same way that an African poet could associate with Afrikaans poetry.
Professor Visser agreed that one must be careful of over regulation, and be aware that communities evolve and that barriers are broken down. What had worked with indigenous communities in Latin America might not work in an open society such as South Africa’s. It was necessary to allow for cross cultural influences while protecting a community’s rights; in this regard the concept of moral rights was very important.
Mr Radebe noted that the African people were oral in nature. There was oral transmission from one generation to another. However, some people became the best conveyors of that knowledge and took initiative in promoting it in other countries while remaining part of the communities. He asked if the Bill could be in two sections.
Professor Visser said that such an artist would be protected by the Copyright Act and by the Performers’ Rights Act. The Bill would not take away anything from such an artist. He did not have a problem with an artist receiving payment for work while paying royalties to the community or communities from which the artist had drawn inspiration. However, he was concerned not to prevent a community from doing what it had always done, and make those people liable to pay royalties. One still wanted the traditional activities to continue in the traditional context. He noted that the Bill made no reference to traditional contexts. He flagged this as an issue to be talked about later.
The Chairperson asked about timeframes. For example, the work of Shakespeare was now in the public domain. She could not see timeframes in application to indigenous knowledge.
Professor Visser replied that this was the second big challenge of this legislation. It was easy to specify time frames for written works, but difficult with traditional knowledge, which was fluid and was constantly evolving. With performances of indigenous works, it was possible to envisage consecutive terms. There was international precedence for this, though not in traditional knowledge. In the European Union, each time one made an addition to the collection of knowledge or a data base, a new term of protection began. He envisaged including a similar mechanism in the Bill.
Adv A Alberts (FFP) asked if indigenous law was taken into account in drafting legislation to protect indigenous knowledge. He noted that there were parallel processes and asked who was going to coordinate them. He asked if Section 185 of the Constitution had been taken into account. Collection of royalties was a difficult task throughout the world. How would royalties due to poor people be collected?
Professor Visser replied that the question of indigenous law was an important one, and he was not sure that this was adequately addressed in the Bill. He would be interested to hear what traditional leaders had to say about the Bill. Ownership was crucial in indigenous law, and he was not sure that this was addressed in the Bill. He said that he knew very little about indigenous law. He wondered if traditional knowledge would be entrusted to traditional leaders who would exercise certain rights. Parallel processes were a matter for interdepartmental cooperation. There was very little that this Committee could do about that. He was aware that there was an interdepartmental committee consulting between the Departments of Arts and Culture, Science and Technology, and the Department of Trade and Industry. It would make sense to establish one collecting body, on the lines of the innovation fund. These were issues of governance. The link between the beneficiary and the person collecting on behalf of the beneficiary should be close. For this reason he felt that to entrust this work to a governmental body would not be advisable.
Adv Alberts asked if Professor Visser had any views on a Section 185 commission.
Professor Visser said that it would be a matter of how to define the community that one wanted to protect. Probably language would be one of the defining factors.
Mr Marais observed that what one did and what one became were more than often a product of the influences in one’s life.
Professor Visser replied that it was not only a question of defining the community but defining the member of the community. Defining a member of the community also involved acknowledgement of that person as a member of the community by the community itself. It was also important to be careful of overly defining. He would be happier to live with wider definitions than narrower.
Mr Mabaso warned of the dangers of becoming trapped in one part of the discussion at the expense of others. It was important to take a holistic view of the subjects to be discussed.
The Chairperson agreed and advised Members to flag issues for later discussion if necessary. The objective should be to complete all the issues.
Mr Jeftha said that the Patents Act was not being amended. Recipes – these were not inventions - might fall under patents rather than trademarks.
Professor Visser said that a recipe might fall under the Copyright Act. Moreover, it was not true that South Africa was alone in trying to protect indigenous knowledge.
The identification of the holders of rights
Professor Visser referred to Clause 5(d) which defined ‘indigenous community’. The problem was that there was no international precedent of this kind of definition. The Bill’s definition was very broad. It did not indicate what was meant by community or how we determined what a community was. Therefore to look at language rights was an important suggestion. A community could mean almost anything – the Afrikaner community, the Jewish community, for example. It was necessary to find an additional element.
Mr Mabaso thought that this related to the passing of time. In the past a community would speak the same language and have the same historical background, but with the passage of time a community would become more diversified. There used to be a sharp difference between townships as communities and traditional communities in, for example, Limpopo. However, in a township one would find a community in which all languages were spoken. Hopefully, in future, areas like Soweto would eventually see white people living there amongst the black people, so that it became a diverse community. However, this question also related to class issues.
The Chairperson said that she had flagged the definition of community. She wanted to obtain the principal act and related legislation, and asked the researcher to assist. These would help in discussing definitions of community.
Professor Visser said that the above would relate also to science and technology. It would be helpful to use similar terms. He agreed with the Chairperson. It was also necessary to note the definition of a traditional work.
Mr Marais asked Members to note for further discussion how the Bill would deal with a situation in which more than one community claimed rights to a particular item of intellectual property.
The rights of the beneficiaries in terms of the Bill
Professor Visser said that Clause 9 of the Bill provided for copyright in traditional works. These were basically the rights that were granted to all holders of copyright. However, before these rights were granted, copyright must subsist in the work. Clause 6(c) referred to reducing a work to writing or otherwise to material form. This worried Professor Visser. An oral work would thus be protected only if it had been written down, or if it had been recorded, for example, on a tape or in a video recording, or communicated to the public. This was a problem since one had to ask how to handle performances in the traditional context. An initiation ceremony was not a public performance in the normal sense of the term. This was really the kind of subject matter that one wanted to protect. He would seriously question the Bill’s requirement of communication to the public.
Mr Marais said that a traditional work could also be defined as something that had a rhythm. One could again use the example of Johnny Clegg. He noted that South Africans had migrated to South America and asked what their position was. Would their productions belong to South Africa in the future, or would the descendents of those emigrants still have a right in terms of music or of rhythms? One had to play devil’s advocate in this regard.
Professor Visser did not think that rhythm in itself would constitutive a musical work.
Mr Jeftha said that for copyright to apply, it must be recorded in a material form. If you were able to record it and somebody else were able to play it, then that would constitute a musical work.
Professor Visser said that he thought rhythm would be similar to exclusions in the Patents Act for scientific theory and similar matters. The rhythm itself, unrelated to musical notation, would not be protected. It would be the musical notation that would be protected. He could not see the rhythm of drumming falling under the Bill’s definition of an artistic work.
Mr Jeftha commented on the definition. He said that to the extent that it could be reproduced, it would qualify.
Professor Visser said that the bigger problem was whether with a musical work one wanted to require any kind of fixation at all. He said that he had worked in Senegal on its copyright law. A French lawyer had advised Professor Visser that to protect traditional musical works it was necessary to get rid of the requirement for fixation. Traditional work required live performance. To require a recording would deny protection to too many of those works. This requirement could be kept for the other forms of traditional work.
Mr Marais said that a community could still argue that their work came from a traditional background, that is, traditional knowledge or property from generation.
Professor Visser said that the problem was more one of defining the community than the principle that if you used somebody else’s work, you must acknowledge it and be prepared to share the benefits. It was different if you used it for non-commercial purposes.
The Chairperson emphasised the importance of developing a robust piece of legislation which would stand the test of time. Hence the Committee was consulting widely, and in particular had sought independent legal expertise. The Chairperson acknowledged the presence of Adv M Kweta, Senior State Law Advisor, Office of the Chief State Law Advisor, who had certified the Bill. The Committee had already adopted informally ‘an in principle’ position. The Intellectual Property Laws Amendment Bill was precisely that. She emphasised laws in the plural. The Committee had repeatedly asked for the principal act. She thought that Members had been talking ‘past each other’. This was the first bill that was bringing together five pieces of legislation, It was a very difficult piece of legislation in that it sought to consolidate a number of related pieces of legislation. The Committee would revise its programme in view of this. The period 27-29 July 2010 would be open for more engagement on how these four other pieces of legislation fitted in, and on definitions and the other matters which the Committee was flagging. She said that Mr Netshitenzhe’s presence would be required since he had been directly involved in ‘the traditional piece of legislation’. She would communicate to the Minister the progress in this regard.
Mr Jeftha said that the Standing Committee on Intellectual Property would assist Mr Netshitenzhe in formulating some of the definitions, and these would be made available.
The Chairperson said that she expected that Members would be informed of the definitions through the Department of Trade and Industry, in accordance with the usual procedures. It was unwise to flout these.
Ms Ntuli confirmed that the Standing Committee on Intellectual Property was an advisory committee to the Department and to the Minister.
Mr Marais asked about the Patents Act. Was it not affected?
Professor Visser replied that the Patents Act had already been amended in 2005 to accommodate traditional ecological knowledge.
Mr Marais asked if the same could be applied to the other Acts.
Professor Visser thought that the Patents Act was a special case, since it dealt with scientific knowledge and genetic resources. These were already listed by the Council for Scientific and Industrial Research (CSIR) in a database. The Latin American countries had done exactly the same thing.
A Member said that it would be helpful if that Act could be made available to Members, although they would examine it in the context that Professor Visser had explained.
Professor Visser said that since there would be an agreement with the community concerned, there was no question of a trust fund under this Act. Mr Netshitenzhe could explain further. Professor Visser said that it had to be asked who would exercise these rights, since this involved the collection of royalties. The Intellectual Property Laws Amendment Bill provided for the establishment of a national trust fund. It had to be asked what the nature of this trust fund would be, and if it would be an organ of state. Alternatively, it might be a trust established independently by indigenous communities. Professor Visser’s own view was that it should be separate from the state. It made for better accountability if there were trustees elected by members of the community. His first impression of the Bill was that there was a disconnection between the creator of an item of indigenous knowledge and the distributor of the benefits of that creation.
Mr Marais said that if that string were made too long, there would be problems of possible loss of benefits to the community. One must beware of creating yet another structure that would incur costs. This was not an allegation, but the danger was real. One had only to think of the example of the Companies and Intellectual Property Registration Office (Cipro).
Professor Visser said it was not a matter of whether one liked state organisations or not, but a matter of ensuring a direct link to the beneficiaries.
Ms M Dunjwa (ANC) asked about the formation of the board of trustees. Communities were at different economic and educational levels. There was a risk of excluding those communities because of the class divide. She thought it advisable for the state to be involved as a trustee.
Professor Visser said that this was a difficult issue. This legislation was pro-poor. Ideally the state had to be involved at some point as at least one of the trustees. The collecting society had to be able to enforce rights. This was one advantage of involving the state to have the enforcement mechanism of the state behind one.
Mr Radebe concurred with his colleague from the Portfolio Committee on Science and Technology that there was a need to involve the state. One could not wish this away. If every community had its own trust, there would be too many different trusts. A state organ, however, could be devolved provincially. The principle, in his view, was that the state should be at the centre.
The Chairperson was concerned about the administrative costs of collection. It was also important to ensure that the communities were involved in the decision of that collecting body. The Committee had had experience of the National Lotteries Board. There was need for state backing. Enforcement was a huge issue. It might be advisable to adopt the ‘stick and carrot’ approach of the South African Revenue Service (SARS) to inculcate the desire to comply.
Professor Visser concurred that the communities should be represented on the board of the trust. There were international best practices for collecting societies and the administrative costs that they could retain. He feared the proliferation of officials. He suggested ‘capping’.
Adv Alberts said that the state’s roll must be to create an enabling environment. One would recommend an independent body funded by the state, like the Competition Commission, the Lotteries Commission, and others. One could use an existing body and adapt its mandate. An independent body would create a distance between the communities and the state, which he thought would be appropriate. Communities must also have a choice as to whether they wanted the state to assist them or not. Also the option of self-regulation must be offered to communities, but with proper oversight.
Mr Njikelana found it very odd that Members were seeking to protect the communities, but were now suggesting distancing the role of the state. ‘It’s shocking, in fact.’ An academic had said on the radio recently that legislation was generated out of social practice. This meant that Members of Parliament, as legislators, were responsible to legislate to protect these communities. ‘How do we at some stage get out of it [this responsibility]?’ Mr Radebe had raised the issue of capacity. This was over and above the fact that Members had taken upon themselves a moral obligation and political task to ensure that indigenous knowledge in its various forms was protected. It was logical that Members should be part of those protection mechanisms. Of course it was fundamental that one gave space to those owners of that indigenous knowledge. Not all communities were the same. Some were more affluent than others. Hence for some the idea of self-regulation might be appropriate, if they were able to do that. He appealed that Members avoid the extreme of having an independent body. This was highly risky. Perhaps in two centuries time this would be possible.
Professor Visser replied that it was an issue for debate. One could not advocate that the state should not be involved at all. It would always be involved in enforcement. The state was not involved in the Copyright Act itself, but the state still enforced copyright. It would be advisable to discuss the subject with the traditional leaders.
Mr Marais observed that all these points were valid. He agreed that the state must have a role. However, the challenge would arise at the beginning of registering communities. To what extent would those communities be involved in their own affairs? No independent body should be so independent that it was independent from the community. The intention was exactly to involve the community in protecting their own rights. An administrator’s views on what constituted indigenous knowledge might diverge from those of the community.
Professor Visser said that the composition of the board of the national trust must be flagged for discussion. The Bill also provided for a national council to act as an advisory body. There was a need for the legislation to protect moral rights.
Mr Jeftha referred to the Copyright Act, and the two statutes covering trade marks and designs. When a person registered, he or she received a certificate. That certificate served as a burden of proof of the existence of that person’s rights. In a court, that would normally be that person’s prima facie evidence. In respect of copyright a person could receive registration only in respect of the registration of cinematographic forms. The Bill provided for recording the right. He asked if there was contemplation of issuing certificates in respect of the works, as with cinematographic forms. He wished to flag that issue.
Professor Visser replied that one of the advantages of the establishment of a data base would be proof of entitlement or ownership.
The Chairperson asked about communities which did not record their indigenous knowledge in written form. Proof of ownership would call for it to be written down. There would be a need to align the intension. ‘What is it that would be more important.’
Professor Visser said that the Bill provided for a database to be compiled in electronic format. However, inclusion in the database was voluntary. It was not a precondition for protection. Inclusion in the database would make enforcement easier.
Adv Alberts said that there were certain requirements of the Copyright Act that one must meet in order to receive protection. Perhaps one should examine best practice internationally.
Professor Visser replied that the Copyright Act required the artist to create a work that was original. Physical form was necessary in order for copyright to be applicable. There was no registration requirement. Proof of ownership of copyright was necessary in order to sue for infringement of copyright. A database was a way of getting around that burden of proof. Conflicting claims of ownership must be anticipated in respect of traditional knowledge. He noted that there was, in international best practice, usually a distinction drawn between use of the work in the traditional context and use of the traditional work for commercial practices. If one wanted to use a work in a traditional context, one did not need permission. It was important to obtain the views of the traditional leaders. This also related to a question asked in the briefing by the Department of Trade and Industry on 19 May 2010. There was need here to limit this to the traditional context and to non-commercial use. A special exclusion could also be made for teaching purposes. There was a need to define indigenous knowledge systems (IKS) in the educational system.
The Chairperson observed that it was important that the teacher him- or herself was well informed of the practice in order to avoid distortion or wrongful transmission.
Professor Visser said that it was important to ensure that there was no barrier to prevent teachers from using traditional material.
Mr Gcwabaza asked Professor Visser to comment on a situation where a school was using an item of traditional knowledge to raise funds for the school.
Professor Visser replied that this would be a borderline situation. Perhaps a sliding scale would be appropriate.
The Chairperson noted, from Professor Visser’s article, that Australia was one of the first countries to consider such a situation. She referred to the constitution of the Philippines. She asked what challenges the Philippines may have faced with regard to this whole sui generis issue.
Professor Visser replied that the Philippines had adopted legislation along the lines of that on which the Department of Science and Technology was working. The Philippines’ legislation assisted that country with avoiding the problems faced with international conventions. Australia’s legislation was limited mainly to amendments to Australia’s legislation on trademarks. Professor Visser assured the Committee that South Africa was not working alone in developing this kind of legislation. There were already 64 pieces of legislation internationally which provided examples. South Africa was aiming at more comprehensive legislation, but it was not without precedent.
The Chairperson noted that it would be necessary to discuss further the matters of accountability and methods of collecting and distributing funds and benefits. She asked Professor Visser to point out any other vulnerable areas.
Professor Visser replied that in the case of the Designs Act it was necessary to think about the creation of a third part of the designs register for traditional designs. It would be useful to do this ‘when we have the full act available’. There were two parts of the designs register already – for functional and aesthetic designs. Traditional designs would overlap with these two categories. There was, however, often a problem when one created special categories.
In the Copyright Act there might be an overlap with other categories. In the case of copyright this was not such a big problem. If there was an overlap, one would rely on the longest term of protection.
Mr Jeftha raised two issues with regard to the Trademarks Act and the Designs Act. Typically when registering a trademark the Registrar would look to see if there were existing trademarks that were similar. It would be necessary to require the Registrar to ensure that the trademark for which registration was required had not appropriated anything that was indigenous.
Professor Visser replied that it was necessary to relate this to the database and the work of the Department of Science and Technology. There was a flaw in South Africa’s trademark legislation that even now there was no register of traditional expressions. Such existed in the U.S.A., Brazil, Australia, and New Zealand.
Mr Marais asked for more clarity and asked if perhaps sui generis legislation might be the answer.
Professor Visser said that this was not so. ‘Nothing is perfect’. It was really a matter of what we wanted to protect. As Members of the Portfolio Committee on Trade and Industry, Members were dealing with protection of intellectual property from a commercial perspective. He did not think that sui generis legislation was needed in that regard. It was possible to adapt existing intellectual property statutes to do so. If Members wanted to go beyond the commercial aspect then it would be an arts and culture or science and technology issue.
Mr Jeftha said that there had been no complaints about amendments to the Patents Act.
Professor Visser replied that he had anticipated problems with amendments to the Patents Act, but none of them had materialised.
Ms Ntuli commented that the database was a very important tool, not only for registration and identification, but for the registrar. She said that it would be important to examine how to use that database for the benefit of people who had knowledge which they did not want to disclose to the public but which they wanted to be registered so that when they went to court for some reason, that registration could be used as a basis. This would entail making a part of the database for information that was to be registered but kept confidential to minimise the burden of proof on the person who had created that item of intellectual property.
Mr Netshitenzhe added that, with regard to the database, trade secrets should be respected. In other jurisdictions, examiners had to sign confidentiality clauses.
Professor Visser said that it would be possible to structure layers of disclosure in the database.
The Chairperson observed that the old cliché applied: the more one learned, the more one realised how little one knew. It was also a mark of Members’ commitment to learn as much as they could operationally and effectively, so that they could develop legislation that was robust and met many criteria, not least that the legislation should fulfil the intention of the legislation itself and elements and principles that were considered very important in the South African Parliament – accountability and the cost factor. It was not unknown to find some community organisations of which as much as 70% of their funds were consumed in administration, leaving little to distribute to the community. These technical issues related directly to the intentions of the Bill to protect and contribute to, in this case, the indigenous communities. Some core areas, particularly with regard to definitions, needed to be grappled with and a consensus reached. Mr Williams had drawn attention to matters of heritage. The Chairperson observed that Members were not fully aware of all the related information. Members had been in that vulnerable position with legislation on gambling. It would be important to discuss this with the Chairperson of the Portfolio Committee on Science and Technology, who had expressed a very real interest. The Portfolio Committee on Cooperative Governance and Traditional Affairs had expressed strong interest, as had, in the beginning, the Portfolio Committee on Arts and Culture and the Portfolio Committee on Health. It was apparent that indigenous knowledge was important to a large number of interests. All developing countries were facing the challenge of protecting indigenous knowledge. One of the most difficult challenges the Committee would face would be to factor in the need to protect community rights in a framework that had been shaped by the aim to protect individual interests and rights. She advised Members to read Professor Visser’s chapter ‘Making intellectual property laws work for traditional knowledge’. In: Finger, J M & Schuler, P. Poor people’s knowledge. Oxford University Press and World Bank. Pages 207-241. She asked Professor Visser to make Members aware, through the Committee Secretary, of other relevant information, research and resources. Also Members should approach the Committee Secretary if they themselves learned of something, or knew of something that they would like to find, so that the Committee Secretary could ask Professor Visser to help in this regard.
The Chairperson thanked Professor Visser, the Department of Trade and Industry, the Senior State Law Advisor and the legal advisors, and all who had contributed to or participated in the meeting.
Mr Radebe, the Whip of the Committee, also thanked Professor Visser for his valuable input.
In response to a visitor’s complaint that he was discriminated against as to the supply of documents, the Chairperson explained firstly that it was necessary to have a record of all who were present at a meeting of the Committee and secondly that documents were made available to the Parliamentary Monitoring Group, to journalists, and to others, when there were sufficient copies.
The Committee Secretary informed Members that all major reports had been adopted. Three sets of minutes were outstanding.
The Chairperson ruled that consideration and adoption of the outstanding minutes could be postponed until Members returned from the recess.
The Chairperson asked Members to inform the Committee Secretary of how they should be contacted during the recess.
The Chairperson asked the Committee Secretary to give ample notice to Members of travel arrangements for the oversight visits.
Mr Mabaso suggested that, as a matter of courtesy, the provincial and local municipal authorities concerned should be notified of the intended oversight visits.
The Chairperson confirmed that Members would indeed arrive having properly informed the other spheres of Government.
The Chairperson wished Members safe journeys, exhorted them to work hard in their constituencies, and to return refreshed. ‘Enjoy the World Cup!’ she said.
The meeting was adjourned.
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