Intellectual Property Laws Amendment Bill: Input from NEDLAC & Departments of Trade and Industry and Science and Technology

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Trade and Industry

26 July 2010
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The National Economic Development and Labour Council said that it was in many respects a uniquely South African model, and that South Africa alone had responded to the recent international economic crisis through social dialogue. The Council explained its process for tabling policy proposals. The Bill under consideration was a complex issue. The Council agreed that indigenous knowledge needed to be protected and consequently regulated in law. However, it expressed the view that the Department of Trade and Industry was mainly interested in the interface of traditional or indigenous knowledge and intellectual property and its commercialisation. The Council agreed that international obligations must not be abrogated or undermined. Therefore national legislation must be aligned to international treaties and model legislation, such as the Berne Convention and the World Intellectual Property Organisation / United Nations Educational, Scientific and Cultural Organisation model legislation of 1982. The Council’s constituencies noted that the right to exploit in future would be affected but past financial transactions would not be affected retrospectively. The Council believed that the resulting Act must be accessible to individuals or groups who needed protection, including those with vested rights, and it must be enforceable and not unnecessarily result in court action. The Council’s constituencies agreed that the State Law Advisor should insert a preamble into the Bill, and that for ease of reading four headings should be inserted to indicate clearly where the amendments to each of the four pieces of legislation commenced. In accordance with the view of Government, an alternative dispute resolution mechanism should be included. The Council noted that the National Council as provided for in the Bill had advisory functions only.

The Council’s business constituency did not consider it appropriate for the Department of Trade and Industry to use one of its own laws to amend the laws of other departments, and warned that the matter of geographical indicators was part of the Doha Round of negotiations and that South Africa should keep its options open at this stage.

Members of the Inkatha Freedom Party asked about the derivation of this legislation from international instruments and from the Biodiversity Act, and, if the proposed act was not to be implemented retrospectively, what the proposed act was intended to protect; they also asked if knowledge protected in South Africa, and thereby becoming more expensive to exploit in South Africa, might be subject to exploitation more cheaply in other countries, while remaining unused and unknown in South Africa. These Members sought more clarity on the definitions of indigenous or traditional community and “community of people” in the proposed amendments, and wanted to proceed “from abstraction to reality”, and noted that folklore had no clear divides and carried from one community to another: it had to be asked if there would be faction fights. A Democratic Alliance Member said that the Council’s position sounded contradictory. He asked what the Council had done to liaise with international bodies.

The Department of Science and Technology regarded its role in respect of the Bill as complementary to that of the Department of Trade and Industry. However, the former believed that intellectual property rights were just one set of tools in the protection of indigenous knowledge systems and that the latter’s proposed amendments did not take into account the idiosyncrasies of indigenous knowledge in terms of duration, originality, material forms, and other aspects. The Department of Science and Technology believed that a more comprehensive sui generis law would be preferable, and was seriously concerned that indigenous knowledge existing before 1958 would not benefit under the Bill. The Department of Science and Technology believed that protection should be for perpetuity. The Department of Science and Technology proposed that the regulations should include guidelines or criteria formulated to make the determination of what constituted a “traditional work”. The Department of Science and Technology asserted that the area of cross-border indigenous knowledge systems must be protected in law. The term "traditional" which was transversal through out the amendments was loosely used and was not aligned with the national indigenous knowledge systems policy adopted by Cabinet in 2004 or with the indigenous knowledge policy on intellectual property developed by the Department of Trade and Industry. On the other hand, "indigenous" succinctly captured the impact of colonial oppression and obliteration of the identity and values of the people. The Department of Science and Technology did not support the route of reciprocal agreements, and believed that national treatment was better, since as a legal concept it was well-established. The Department of Science and Technology was concerned that the ownership of any copyright in the traditional work would belong to the Trust Fund for Traditional Intellectual Property and not the community. The Department of Science and Technology was developing a national recording system that would record undocumented indigenous knowledge through documentation centres. This differed from the national database that the Department of Trade and Industry was considering, namely indigenous knowledge residing in the public domain. The definition of database in the Bill was limited and did not provide sufficient flexibility for future development of sui generis legislation for knowledge that was undocumented and unrecorded. The Department of Science and Technology considered the concepts of “literacy” and “traditional works”, and “indigenous community”. The Department of Science and Technology indicated its views on the development of a sui generis legislation, of which the advantages, in the Department’s view, included flexibility as to definitions, objectives, subject matter and beneficiaries; the duration of protection in perpetuity; its allowance for both collective and individual ownership; and its mixing different types of systems. It took into consideration customary law; it allowed for the requirements for disclosure; it ensured prior informed consent and benefit sharing; it ensured both positive and defensive protection; its costs were less prohibitive; it allowed communities access to justice; it allowed for regional and national tailor-made solutions; and it allowed for the establishment of an indigenous competent authority.

Members said that if no efforts were made to reach out to people like traditional healers and persuade them to give their views, then the result might be legislation which excluded them. A Democratic Alliance Member noted the challenges which the Department of Science and Technology had mentioned regarding communities:  it was necessary to be more flexible, since there had been so much migration between population groups.  There must also be flexibility in definitions of traditional or indigenous knowledge. An Inkatha Freedom Party Member noted an apparent contradiction in the presentation: the Department of Science and Technology had alleged that the Bill did not create any new rights, but only affirmed rights which had existed since time immemorial; however, the Department also asserted that the Bill applied only to recent indigenous knowledge. The same Member detected an affirmation of support for the Department of Trade and Industry, but thought that there was throughout the presentation a preference for a sui generis approach. Members commended the Department, noted its science weeks to reach out to children, asked if the Department would work with the Department of Basic Education to empower both children and parents, and noted that Members appeared to be overlooking the whole area of the development agenda: this should be an area of focus in order to further the social and cultural empowerment of communities and to avoid giving the unfortunate impression that it was to be particular individuals in communities who would benefit.
 

Meeting report

Welcome and Introduction
The Chairperson welcomed Members and delegates, and reported that Members had learned, on their recent visit to Geneva, that the National Economic Development and Labour Council (NEDLAC), was unique internationally, and was an institution that the United States of America (U.S.A) and European countries sought to emulate.

NEDLAC presentation
Mr Herbert Mkhize, Executive Director, NEDLAC, said that he had with him representatives from NEDLAC’s business constituency, from NEDLAC’s labour constituency, and representatives of Government. NEDLAC was the seat of national social dialogue in South Africa and was in many respects a uniquely South African model of social dialogue. He noted that NEDLAC had become the envy of many countries in the world, and had hosted delegations from other countries which had come to learn from it. It had been established by an Act of Parliament of 1994 which had been supported unanimously by all parties, and was the first enactment of Madiba’s presidency. NEDLAC was a representative body that sought a consensus on a range of issues, and national unity of purpose and action. It was, however, unfortunate that NEDLAC still experienced difficulties with some Government departments in persuading them to table policy proposals from NEDLAC, and if they did agree, they delayed tabling. 

Mr Mkhize explained NEDLAC’s mission, remit, architecture, principal constituents, modus operandi, and key achievements. He noted that national and economic councils elsewhere did not have the same structure. There was a national summit once a year chaired by the Presidency. The Minister of Labour was the Executive Authority of NEDLAC as well as being the overall coordinator of Government in NEDLAC. Other NEDLAC principals included the Ministers of Public Works, Finance, and Trade and Industry. From the Labour constituency, the General Secretaries of the Federation of Unions of South Africa (FEDUSA), the National Council of Trade Unions (NACTU), and the Congress of South African Trade Unions (COSATU) served as principals; other NEDLAC principals included the President of Business Unity South Africa (BUSA).

Mr Mkhize said that NEDLAC was a negotiating body: there was no voting and decisions were taken by consensus – “We vote through body language”. The industrial relations system of South Africa was very sophisticated.

Mr Mkhize explained NEDLAC’s process for tabling of policy proposals. He said that tabling of policy proposals was governed by an agreed protocol for tabling and consideration of issues in NEDLAC.  Government tabled its programmes of policy and legislation in NEDLAC – often at the beginning of the first quarter. Labour, business and the community constituencies likewise tabled their own policy issues for inclusion in the work programme. Issues were tabled at least three months before sign-off was required. However, the protocol had provisions for issues that required quicker sign-off. Parties agreed at the outset whether the issue was being tabled only for consultations, negotiations or both. Parties then agreed on a process and timeframes to expedite the matter. A NEDLAC report, after sign-off by the relevant NEDLAC executive council, was sent to the Minister concerned, who in turn tabled it in Parliament. Mr Mkhize pointed out that when Government consulted NEDLAC about proposed legislation, it was the NEDLAC social partners who decided on how to deal with that process. Parties within the context of NEDLAC were bound not to reopen the discussion in Parliament on any area where agreement was reached in NEDLAC. However, parties within the context of NEDLAC could ask Parliament to reopen discussion on areas where there had been disagreement in NEDLAC or on which the NEDLAC agreement had been silent. NEDLAC did have the opportunity from time to time to brief portfolio committees on an ad hoc basis. 

Mr Mkhize expected therefore that parties in NEDLAC would still come to lobby the Committee about those issues on which there had not been agreement concerning a bill. Social partners of NEDLAC therefore had the opportunity to present their views. Thereafter, Government would reflect on those views, and these views would, if all went well, be reflected in a white paper. Thence would follow a draft bill.

Referring to the legislative process, Mr Mkhize said that if Government initiated legislation at the white paper, or draft bill stage, rather than at the stage of a green paper, this presented challenges if NEDLAC had not had the chance to engage. The Bill under consideration was a complex issue.

Mr Mkhize referred to paragraph 4, pages 6 to 16, of “NEDLAC. Trade and Industry Chamber. Final NEDLAC report on the Intellectual Property Laws Amendment Bill and Annexures”, which had been circulated to Members during the recess. This dealt with areas of agreement. Paragraph 5, pages 16 to 19 dealt with areas of disagreement.

Areas of agreement included NEDLAC’s view that indigenous knowledge needed to be protected and consequently regulated in law. NEDLAC felt that the Department of Trade and Industry was only interested in the interface of traditional or indigenous knowledge and intellectual property and its commercialisation. Also among areas of agreement, international obligations must not be abrogated or undermined; therefore national legislation must be in line with relevant international treaties and model legislation, such as the Berne Convention, and the World Intellectual Property Organisation (WIPO)/United Nations Educational, Scientific and Cultural Organisation (UNESCO) Model Legislation of 1982. The legislation would not be implemented retrospectively, and vested individual rights would not be undermined. Constituencies noted that the right to exploit going forward would be impacted but past financial transactions would not be affected retrospectively. The resulting Act must be accessible to individuals or groups who needed protection, including those with vested rights, and it must be enforceable and not unnecessarily result in court action.

In considering the Bill line by line, the constituencies agreed that the State Law Advisor should insert a preamble into the Bill, and that for ease of reading four headings should be inserted to indicate clearly where the amendments to each of the four pieces of legislation commenced. It was also agreed, while noting that the National Council was provided for in the Bill, that it had advisory functions only, and that as in the view of Government, an alternative dispute resolution mechanism should be included.

Among areas of disagreement, Government and Labour agreed that it was appropriate to include a provision in the Bill to allow Government to declare geographical indicators unilaterally. The Bill was being processed in the absence of the international treaty or agreement. National priorities on these issues of intellectual property and traditional knowledge should not be hindered by deadlock at international levels. Business did not support this unconditionally because this matter currently formed part of the Doha Round of negotiations, and business believed that South Africa should keep its options open at this stage. Business also believed that it could have significant cost implications and that a cost benefit analysis needed to be done. Also business did not believe that it was appropriate for the Department of Trade and Industry to use one of its laws to amend the laws of other departments.

Advocate Joel Baloyi, Legal Counsel, South African Music Rights Organisation (SAMRO), a business constituent of NEDLAC, gave further details.

Ms Nomfundo Maseti, Chief Director: Policy and Legislation, Consumer and Corporate Regulation Division (CCRD), Department of Trade and Industry (the dti) said that Cabinet had approved the Bill in October 2009.

Mr Mkhize concluded NEDLAC’s presentation, by saying that NEDLAC had acted as an important yardstick to measure the extent to which policies could find resonance with the needs of South Africa’s citizens. It followed that where social partners found absolute or sufficient consensus, ownership of policies was co-shared. This, he felt, facilitated implementation and, most importantly, prevented unnecessary legal challenges and squabbles.    

Discussion
Mr S Marais (DA) asked, with reference to paragraphs 4.1.2 and 7.3 of NEDLAC’s Input on the Bill [Areas of Agreement [Section 4]], if NEDLAC was referring to a sui generis piece of legislation, and what was NEDLAC’s intention. 

Mr M Oriani-Ambrosini (IFP) said that he had not received a copy of NEDLAC’s Report. He asked about the derivation of this legislation from international instruments, and if there had been a study of compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). He could not understand the derivation of this piece of legislation from the Biodiversity Act. He asked for an oral reply about implementation. If the proposed act was not to be implemented retrospectively, he asked what the proposed act was intended to protect. He did not see why future knowledge could not be protected under existing intellectual property legislation. 

Mr Oriani-Ambrosini asked, secondly, if knowledge protected in South Africa, and thereby becoming more expensive to exploit in South Africa, might, as a necessary consequence, be subject to exploitation more cheaply in other countries, while remaining unused and unknown in South Africa.

Mr Oriani-Ambrosini asked, thirdly, for more clarity on the definition of indigenous or traditional community. He had hoped to find such clarity in the proposed amendments. He needed to proceed “from abstraction to reality”. He had more familiarity with the Zulu community, in which there were some 282 traditional councils, than with other indigenous communities. Songs were very important in Zulu culture. In each community there were subdivisions, and each developed its own indigenous knowledge, songs, and folklore. However, there were elements in common. Folklore did not have clear divides, and carried from one community to another; it had to be asked if we were going to have faction fights. The question remained how to decide which was retrospective or prospective. 

Mr P Smith (IFP), a Member of the Portfolio Committee on Science and Technology, said that he too had a big problem with the definition of indigenous or traditional community; he read the definition, and said that he found it “pretty pathetic”. He asked who historically lived within the geographical area of the Republic of South Africa. Was the definition meant to refer to pre-colonial peoples or people living in South Africa up to today? He asked what was meant by “a community of people”. He had no idea what that meant. He referred to NEDLAC’s position (paragraph 4.1.7). He gave the example of a white traditional healer and asked if such a healer was part of the traditional community or not. He said that much of the knowledge extended beyond the confines of the country. He disputed the concept of retrospectivity, and said that it was not specific enough.  

Ms Maseti replied that the definitions needed to be revised, and the Department was working on these. 

Mr Marais asked for clarity on NEDLAC’s position (paragraph 1.4 and 4.1.3). It sounded contradictory. He asked what NEDLAC had done to liaise with international bodies.

Mr Vuyo Ninzi, representing the Labour Constituency of NEDLAC, said that it was necessary to establish legislation that recognised the uniqueness of traditional knowledge. He said that one of the problems with indigenous knowledge (IK) was that it was not written. This problem was highlighted in NEDLAC’s report. Present legislation required that if intellectual property was to be protected, it had to be reduced to material form. Hence the need to recognise that traditional knowledge was unique. “So this is referring to sui generis.”

Mr Ninzi said that the proposed act would not be retrospective, but would apply from the day that it became law.

Mr MacDonald Netshitenzhe, Director: Commercial Law and Policy, CCRD, Department of Trade and Industry, said this Bill was not intended to breach international agreements. The Berne Convention was incorporated in the TRIPS Agreement, and it was proposed to follow that route in protecting indigenous knowledge in relation to copyright. 

Mr Netshitenzhe said that even if South Africa had not ratified certain treaties, it could still take what was of benefit from those treaties and incorporate what was useful into its legislation.

Mr Netshitenzhe said that preferably one would like to legislate on the new products coming from the indigenous knowledge, but folklore would be protected by being considered as belonging to the state; whoever wanted to exploit it would have to apply for permission as in the francophone African countries such as Tunisia, where nobody could own an item of folklore without innovation.  

Mr Netshitenzhe said that perhaps in the future one could debate in the future what is in the public domain.

Adv Baloyi said that NEDLAC had emphasised that the proposed act would not be implemented retrospectively (paragraph 4.1.4), that individual rights were already protected under existing legislation and would not be eroded by the new legislation; also NEDLAC emphasised that the TRIPS Agreement would not be undermined.  

The Chairperson said that she was not sure that Mr Marais’ question had been answered.

Mr Marais said that his question had not answered his question. He pointed out that his question concerned the NEDLAC report and not the Department of Trade and Industry’s report. He said that there seemed to be an Africa position in Geneva that was different from Mr Netshitenzhe’s position. However, the lady from the World Intellectual Property Organisation (WIPO) who had addressed the Members in Geneva was from Peru; it appeared from that interaction that the perception in Geneva was quite different from Mr Netshitenzhe’s. This was why paragraphs 1.4 and 31.5 were quite contradictory to Members’ experience in Geneva the previous week. He advised Mr Netshitenzhe to address that in terms of the question put to him. Quite clearly Geneva had a different view, Africa had a different view, but Mr Netshitenzhe had kept referring to another submission that had been made.

Mr Netshitenzhe apologised for any misunderstanding. There were genetic resources outside the country which the proposed legislation could not protect. The Biodiversity Act gave protection to species of trees that were endemic only in South Africa.

Mr Smith interjected that his whole point was about resources in two or more countries.

The Chairperson stopped Mr Smith, and told him, in no uncertain terms, that this was not the way she conducted a committee.

Mr Smith later asked for further clarification on retrospectivity, giving the example of someone who represented a pharmaceutical company.

Mr Oriani-Ambrosini said that it was very important to move away from unprofessional answers to answers that were clear and defined. He resented listening to things that were imprecise. He also asked how one proposed to remove something from the public domain. “How do you propose to unscramble the egg?”

Mr Ninzi said that South Africa was unique and it was necessary to ensure that what we did was consistent with South Africa’s legal framework.

The Chairperson said that the Executive had tabled the Bill and the Committee could expect to have Government “constantly back with us”. NEDLAC had given its views. The Committee was getting responses from labour too. WIPO itself was grappling with these issues and was eagerly anticipating South Africa’s proposed legislation: Members had found this ironic; she noticed that Mr Marais was smiling.  

Mr Netshitenzhe said that at WIPO people were still debating the issues.  The Department was grappling with reciprocity.

Mr Baloyi referred to the protection to be given to the nationals of other countries and the TRIPS Agreement.
 
Mr Mkhize said that some of these were questions that should be posed to the Department than to NEDLAC. It was a complex process and “We are chasing a moving target”.

The Chairperson said that the Committee had wanted a social partnership view from NEDLAC; at the very least the Committee had learned the NEDLAC position. The Committee had last year thought that it would be a quick process, but had later learned that the Bill would require a longer process. After the Committee had visited Geneva, it realised that it was barely scratching the surface. However, it was important to remember that the longer the Committee delayed, the more the vulnerable people whom the Committee wanted to protect would loose out. It was necessary to balance competing demands.

Department of Science and Technology. Presentation
Dr Yonah Seleti, Chief Director, National Indigenous Knowledge Systems Office (NIKSO), Department of Science and Technology (DST) said that the Department expressed its support for the Department of Trade and Industry’s Intellectual Property Laws Amendment Bill [B8 – 2010], in so far as it  believed that the current amendments protected trade and commercial aspects of indigenous knowledge recognised collective ownership; indigenous knowledge that was in the public domain; the development of a database to protect indigenous knowledge; and recognised the establishment of a National Trust fund.

The Department commented on intellectual property versus indigenous knowledge systems (IKS). The Department proceeded on the premise that intellectual property rights were just one set of tools in the protection of indigenous knowledge systems. Whilst the Department accepted that the mandate of the Department of Trade and Industry was to protect indigenous knowledge through a system of commercialisation there were other systems, including recording, documenting, and sui generis form of protection. The approach represented by the amendments did not take into account the idiosyncrasies of indigenous knowledge in terms of duration, originality, material forms, and other aspects.

The Department of Science and Technology, Dr Seleti said, acknowledged the Department of Trade and Industry’s contributions, but his Department believed that a more comprehensive sui generis law would be preferable.

The Department submitted that works of intellectual property needed to be “novel” and “original”, while, by its nature, indigenous knowledge was understood to have descended across generations. Works of intellectual property could be protected for only a limited period, after which the work entered the public domain. The purpose of protecting indigenous knowledge was to protect it in perpetuity for future generations. The Bill applied only to recent indigenous knowledge. The Department was seriously concerned that indigenous knowledge in possession before 1958 would not benefit under the Bill.

The Department was serious concerned believed that protection should be for perpetuity.

The Department foresaw potential conflict among communities if what constituted "traditional works" was left for them to determine subjectively, and it therefore proposed that the regulations should include guidelines or criteria formulated to make this determination. Its view was that what might be determined as traditional work in one community might not be in another.  Traditional character might vary from one community to another.
It would also like to draw attention to the fact that not all traditional performances had indigenous origins.

The Department gave its views on issues of implementation. Dr Seleti noted that Mr Smith had raised the matter of the trans-border nature of IKS. This was an important area, since there were communities which straddled borders thereby existing across two or more jurisdictions. Such communities shared biological resources across borders. Also these communities traded across borders. The Department did not feel that this important area could be left to amendments in the hands of the Executive. This area must be protected in law.

The issue of national treatment should be examined. The Department did not support the route of reciprocal agreements, and believed that national treatment was better, since as a legal concept it was well-established. The Department noted in the amendment that the Minister might enter into a reciprocal agreement with another state in respect of traditional performances. The Department was concerned that these agreements would run counter to the national treatment provision under international obligations which South Africa must comply with.

The Department was concerned that giving the Council the responsibilities of collecting societies was rather confusing. It was also concerned that the structure and responsibilities of the Council would not render it competent to function as a collecting society. The Department was unclear as to how the 12 person Council would remedy the failure to identify communities as beneficiaries.

The Department explained its views on indigenous vis-à-vis traditional knowledge. It pointed out that the term "traditional" which was transversal through out the amendments was loosely used and was not aligned with the national IKS Policy adopted by Cabinet in 2004 as well as IKS policy on IP developed by the Department of Trade and Industry.  "Indigenous" succinctly captures the impact of the historical context of colonisation, oppression and obliteration of the identity and values of the people.

With further regard to issues of implementation, the Department said that Trust Funds were supported in principle as these appeared to be one of the most equitable and flexible mechanisms of managing monetary rewards in both the near and long-term for indigenous and local communities. It noted a contradiction, namely that the amendments themselves implied that the indigenous community might own the traditional IP and that the copyright would vest in the “National Trust Fund for Intellectual Property.” It was also unclear whether a community or the fund could be legal entities for the purpose of copyright ownership. The concern was raised at the proliferation of the number of Trust Funds envisaged by a litany of Bills and Acts relating to the protection of indigenous knowledge. The risk of competing for resources as well as duplication with other existing Trust Funds, for example, the Trust Fund created under the Biodiversity Act, would be onerous.

The establishment of a Trust Fund as proposed by the amendments must ensure that it did not duplicate the functioning of the collecting society. Section 4 of the Amendments made provision for payment to be made into the fund for the benefit for indigenous and local communities in a “prescribed manner.” The Department’s concern was that there was no prescribed manner stipulated in the amendments. It was also concerned that the ownership of any copyright in the traditional work would belong to the Trust Fund for Traditional Intellectual Property and not the community. The concern was complicated given that the Trust Fund was not a juristic person in law.

Also with regard to issues of implementation, the Department acknowledged the Bill’s support for the development of databases. However, this inclusion in the amendments must not lose its flexibility in terms of the protection of contents in the databases that recognised the ownership of communities. The idea of disclosing indigenous knowledge in a public forum, even with controlled access, represented an unacceptably high risk of exploitation and destruction. That protection was granted only to what was residing in the database, and other mechanisms for housing data, such as community registries, were not provided for in the amendments. The proposed database must assist in identifying the true beneficiaries of the indigenous knowledge, given that no data existed of who these beneficiaries were and where they were located.

The Department of Trade and Technology’s system did not allow for a search and examination procedure or validation of entries into the database. It would be a nightmare for the Department of Trade and Industry as all kinds of data would be recorded as traditional works. The Department of Science and Technology was developing a national recording system that would record undocumented indigenous knowledge through documentation centres. This differed from the national database that the Department of Trade and Industry was considering, namely IK residing in the public domain. The definition of database in the Bill was limited and did not provide sufficient flexibility for future development of sui generis legislation for knowledge that was undocumented and unrecorded. 

The Department explained the components of its national recording system (NRS) [slide 13], such as, a metadata system and taxonomies; a centralised database; the host institution; decentralised databases; the steering committee; the communities; and the National Indigenous Knowledge Management System (NIKMAS) at the centre. The NRS supported the NIKMAS in standardising the management and protection of IK in South Africa by supplying a multi-media IK information management system and documentation that was focused on capturing IK in identified spheres.

Reverting to issues of implementation, the Department said that the clarity of the objectives, functionalities and technical specifications of the proposed databases in the amendments needed to be made. For example, it had to be asked if the objectives of the database were for conservation and preservation, defensive protection, or for positive protection. The Department’s view was that the objective of the database would determine its functionality and technical specification. The amendments should also focus on registers developed and maintained by indigenous and local communities which were not in the public domain and the contents of the registers that remained undisclosed.

The Department spoke of the concept of “indigenous community”. The distinction between indigenous and local communities was clearly made for a purpose.  A local community was normally considered to be a body of people living in the same locality.  Thus, with no other distinction, it could contain indigenous or non-indigenous citizens; however, the amendments specifically marked out indigenous communities, and so the meaning must be more specific. The San community, for instance, had consistently maintained that its members were the first people of South Africa, and the expression "historically lived" in the definition of indigenous community would exclude certain indigenous communities.

The Department spoke of the concepts of “literacy” and “traditional works”. The term "traditional" would be a policy challenge as the Department of Trade and Industry had drafted an IKS intellectual property policy.  The term "traditional" did not refer so much to the content of the culture, but to the way in which a community preserved its identity. The Department’s view was that the definition also excluded the recital of poems, stories and discourses, and that it would prefer a definition of "traditional works" that was inclusive of orators, story tellers, and spiritualists. 

The Department indicated its views on the development of a sui generis legislation. Its context was the Department of Trade and Industry process, namely the amendments; the African position; the
TRIPS Agreement processes concerning disclosure; the database policy process; and the natural justice project.

The rationale for sui generis legislation was exclusive ownership; a finite time period; commercial application; ownership; its inter-generational nature; and that it was oral and performance based; the passing on from generation to generation was not considered. Its advantages were flexibility as to definitions, objectives, subject matter and beneficiaries; the duration of protection in perpetuity; its allowance for both collective and individual ownership; its mixing different types of systems: the Convention on Biodiversity allowed enforcement by various actors; sui generis legislation took into consideration customary law; it allowed for the requirements for disclosure; it ensured prior informed consent and benefit sharing; it ensured both positive and defensive protection; its costs were less prohibitive; it allowed communities access to justice; it allowed for regional and national tailor-made solutions; and it allowed for the establishment of an Indigenous competent authority.

Dr Seleti emphasised that the Department of Science and Technology regarded its role in respect of the Bill as complementary to that of the Department of Trade and Industry. The Department reached out to the young people through national science week. Currently in Durban there was an IKS expo. The Department sought to contribute to the moral development of the country. The Department also acknowledged the importance of natural justice and noted that communities were beginning to protect their own knowledge.

Mr Tom Suchanandan, Director: Advocacy and Policy Development, NIKS0, the Department of Science and Technology, added that there was separate legislation on biodiversity, which did not fall within the ambit of the amendments under discussion. In 2009 the regulations of the Biodiversity Act were promulgated. To access any aspect of biodiversity, a permit was required. The requirement for such a permit was an access and benefits sharing agreement. South Africa and Mozambique had ratified the Convention on Biodiversity. The user had to apply for a certificate. This certificate was issued by the country of origin. There was a difference between country of origin and country of source. With regard to the issue of the public domain, the current IP regime was very different from the IK regime. In trying to marry the two systems Mr Suchanandan anticipated a big problem. In terms of patents, if one examined public domain patents, the criterion was novelty. Indigenous knowledge was not novel. In terms of novelty, the proposed amendments would fail. As regards public domain, copyright protection required originality; in this regard also the amendments would fail. As regards retrospectivity, the amendments were not creating new rights for indigenous communities; they were only affirming rights that had existed since time immemorial.

Discussion
The Chairperson asked if the Department of Trade and Industry wished to comment.

Ms Zodwa Ntuli, Deputy Director-General: Consumer and Corporate Regulation Division (CCRD), Department of Trade and Industry, did not want to comment at this stage

The Chairperson asked if Members wanted clarity.

Mr X Mabaso (ANC) said that the mere fact that indigenous knowledge was under discussion widened the scope of Members’ enquiries and challenged them to interact with people for whom Parliament was a distant organ. Therefore if no efforts were made to target and find those people, then the result might be legislation which excluded them. It was not their duty to make inputs but Members’ duty to go to them and persuade them to give their views, for example, traditional healers.  

Mr Suchanandan responded that Mr Mabaso’s comments fell within the ambit of the biodiversity regulations. Previously, when the biodiversity regulations were promulgated, a benefits sharing agreement had to be drafted at the time of disclosure. Where a traditional healer disclosed information to a traditional healer, it was necessary to enter into a benefits sharing agreement and a material transfer agreement.  Unfortunately the regulations were amended to allow for an individual to claim intellectual property, and secondly, the benefits sharing agreements only kicked in at the time of commercialisation. The time of commercialisation was defined as when the applicant applied for intellectual property protection. Therefore a traditional healer could apply for intellectual property rights, but at the time of commercialisation, and the validation was done at a research institution. 

Mr Marais commended the Department of Science and Technology.  As to the challenges which the Department had mentioned regarding communities, he also agreed that one should be more flexible. He pointed out that there was only a small group whom one could identify as pure San, since there had been so much migration between population groups.  He gave the example of a little Van der Merwe whose mother was black and his father white and mother was black. Now one saw communities that could not be identified in a traditional way. So there must therefore be flexibility in terms of those definitions. There must also be flexibility in terms of definitions of traditional or indigenous knowledge. These days there were white sangomas.  The way in which our children grew up made it hard for them to tell who came from which community.  

Mr Smith said that the Department of Science and Technology had alleged that the Bill did not create any new rights, but only affirmed rights which had existed since time immemorial. However, the according to the presentation, the Bill applied only to recent indigenous knowledge, and indigenous knowledge not possessed before 1958 would not be protected.   He asked for elucidation.

Mr Suchanandan responded that the Department of Trade and Industry was in support of perpetuity, as long as the IK was eligible for protection, but was concerned that the amendments commenced from 1958, as Dr Seleti had made clear.

Secondly, Mr Smith detected an affirmation of support for the Department of Trade and Industry, but that there was throughout the presentation an undercurrent that a sui generis approach would be better.

The Chairperson observed that Mr Smith’s question was more of a comment than a request for clarification.

Dr Seleti replied to Mr Smith that the country needed both generic legislation and sui generis legislation. It was not possible to do without the conventional intellectual property rights. The amendments done in 2005 and some of the amendments which were being driven at present were to seal the gap that existed in the conventional intellectual property legislation. However, these amendments fell short of comprehensive protection of indigenous knowledge – hence the need for sui generis legislation to complement the conventional intellectual property regime. “We support our colleagues.” However, the Department also noted what needed to be done.  

Ms M Dunjwa (ANC), a Member of the Portfolio Committee on Science and Technology, commended the Department for its science weeks in some areas in order to reach out to children. She asked if the Department would not consider working with the Department of Basic Education to empower children and to assist parents to help and supervise their children. The parents’ role was often overlooked, especially with regard to technology, in respect of which the older generation was often at a loss. It was necessary to move away from the purely academic. The President had called for an activist Parliament.

Dr Seleti replied that the Department hoped, at the University of the North West, to train teachers in regard to indigenous knowledge. It was also intended to train cutting-edge researchers, up to the level of the Doctor of Philosophy degree (Ph.D.). The Department was confident that its initiatives would go a long way.

Dr Seleti also said that the Department realised that it was not always appropriate to speak about formal, westernised education. Accreditation and certification should also accommodate the system of indigenous knowledge, and establish standards, for example, for different categories of traditional healers. The Department believed that, in this area too, it had opened a front for the Department of Trade and Industry.  

Ms Dunjwa asked as a follow-up question if anyone who was not a teacher could participate in the Department’s programme at the North West University.

Dr Seleti replied that the previous day the Department had had 400 learners from primary and schools who attended an IK expo, and who were very keen to learn about enrolling. Thus the Department was beginning the campaign to reach them. There were six qualifications, in such fields as management of the environment and food security. There was a four year professional course leading to a degree of bachelor of indigenous knowledge: the first year was spent in the field at the community level – it was not the aim to train armchair indigenous knowledge people.  

Mr N Gcwabaza (ANC) expressed his appreciation to the Department of Science and Technology. He noted that Members appeared to be overlooking the whole area of the development agenda of this intellectual property discussion including traditional or indigenous knowledge protection.  Therefore he wanted to hear much more of that in order to further the social and cultural empowerment of communities, in order to avoid giving the unfortunate impression that Members were suggesting that it was particular individuals in communities who would benefit. Therefore it was necessarily to thread carefully the discussion on the mother being of this race and the father of another race, and the child being in the middle. He preferred to “talk to” the development agenda of this debate. Communities, rather than individuals, should be the focus. 

Dr Seleti replied to Mr Gcwabaza that it was indeed important to go to the grass routes. He had recently visited various communities to negotiate with them and to ensure that there was public awareness of community rights. However, the Department felt that it could do more and it would try to do more. It was doing the same in the scientific community. Scientists were being brought together on a bio prospecting platform.  

The Chairperson noted that no doubt the Department of Science and Technology would in the near future want to share more with the Committee. She noted that both Departments approaches complemented each other, and it was useful to explore the Departments’ experience and knowledge. It was useful to obtain the background to this “final” version of the Bill that was before the Committee. However, the Committee was facing more challenges than it had expected, and the more one learned about the Bill, the more one realised that one needed to learn more. She noted that Members of the Committee had visited the International Centre for Trade and Sustainable Development, the World Trade Organisation, and the World Intellectual Property Organisation. The Committee’s programme would be adjusted to accommodate the issues raised.  

Ms Ntuli thanked the Committee for the chance to interact with it and acknowledged the complexity of the issues, which, by their nature, affected many people. It was not the occasion for her to answer the questions of Members of Parliament. She said that her Department had noted the issues raised and would address them in more detail when the Department returned. Both Departments had a particular mandate. The Department of Trade and Industry took the lead with intellectual property. The Department was within its rights to propose how this should be protected. It had consulted fully with the Department of Science and Technology and noted its comments. There was a need for alignment of South Africa’s laws. The intentions might be very good but the mode of presentation to the public might be a problem. The Departments agreed on the principles but the question remained as to how the Departments would make sure that these principles were acceptable. She said that the Department of Trade and Industry had raised the issue of retrospectivity repeatedly in its consultations.  

The Chairperson thanked everyone present and assured Members of the Portfolio Committee on Science and Technology that the Portfolio Committee on Trade and Industry Committee would remain in communication with their Committee.

The meeting was adjourned.



 

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