Intellectual Property Bill: input by Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities & Department of Trade and Industry

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Trade and Industry

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

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities noted the importance of nation building and bringing communities together. With or without legal background, the definition of “indigenous community” as defined in the Copyright Act 1978 and in the Bill was difficult. A serious debate about this terminology was imperative. The Committee had acknowledged this and was conducting such a debate. According to the Commission’s research department, some scholars believed that there were more than 150 possible meanings of “community”. The Commission had been expected to produce a definition of “community” but it did not want to exclude other communities which might not fit its definition of “community”. It might appear that any group could fit the definition. At the very least, “community” usually denoted a group of people within a bounded geographical area who interacted within shared institutions and who possessed a common sense of interdependence and belonging, and that what bound a community was not its structure but a state of mind: a consciousness or kind or feeling of solidarity. Communities were, moreover, never static. Within one community, not withstanding a number of commonalities such as language, culture and religion, there could be serious differences with regard to interpretation and practice.  Some religious tendencies tended to reject other religious groupings simply because they differed in their interpretations of their relevant sacred writings. Even within cultures there were broad strokes which defined them, but within these strokes there would be certain differences of interpretation, nuance and emphasis. This meant that communities themselves must be entities that made room for these differences. Afrikaners, for example, tended to speak of the “Afrikaans community” as if it was monolithic, but this paradigm excluded those who spoke Afrikaans but were not of white Afrikaner origin. There could be several reasons for the need for communities. In African spirituality and philosophy, these revolved around Ubuntu – I am because we are; ubuntu was the glue binding every community. This had to do with security and sustenance.  Within those communities there were custodians or banks of memory. These were the elders led by chiefs within communities. General knowledge of herbs for medicinal purposes was shared, although there was very specialized knowledge which was kept by the Inyangas or traditional doctors. The Commission emphasized the importance of acknowledging indigenous knowledge and concomitant aspects that accompanied the traditional imperatives. Indigenous or local knowledge referred to the complete bodies of knowledge, know-how, practices, and representations that were maintained and developed by peoples with long histories of close interaction with the natural environment. Such knowledge provided the basis for local decision-making about many fundamental aspects of day-to-day life in these societies, such as hunting and gathering, fishing, agriculture, animal husbandry, food production, water, health, and adaptation to environmental or social change. Furthermore, non-formal knowledge, in contrast to formal knowledge, was transferred orally form generation to generation, and was seldom, if ever, documented. Culture was never purely and individual attribute, but always evolved in a social context. Culture shaped behaviour and was closely linked to traditions, customs and beliefs. However, culture was not static. It involved what people thought, what they did, and what material products they produced. Therefore mental processes, beliefs, knowledge, and values were parts of culture. Culture was expressed in many ways including language in the form of idioms, proverbs and other linguistic forms. Language was one of the most important vehicles for transmitting indigenous knowledge from one generation to the next. Strategic ways of teaching the younger generation included proverbs and idioms. Institutional indigenous knowledge systems must be perceived as centres for innovation and the incubation of ideas, consciousness and action. Also of importance were traditional leadership and traditional healing, and the concept of technological indigenous knowledge. The Commission believed that South Africa was a nation of giving, and that this Bill was vital.

Members noted the enormous complexity of the concept of community and that people no longer lived in compartments as they had in the past, were concerned that one would never attain one definition of community, noted that today we tended to separate religion – separating, for example, the mainstream and charismatic churches, and observed that the Constitution was one of the more difficult concepts with which South Africans had grasped.

The Department of Trade and Industry submitted that the World Intellectual Property Organisation advocated for recognition of intellectual property developed from indigenous knowledge. Forms of intellectual property included patents, trade marks, copyright, and designs. The Department recommended key interventions that should be included in the Bill: these included registration and identification of the intellectual property component of indigenous knowledge for protection from unlawful use. The definition of “community” should be flexible but allow improvements by courts and should be informed by other relevant legislation. All intellectual property or traditional knowledge should be recorded or be placed into the intellectual property database or register and should be identifiable. In the area of the Copyright Act, “registration” was being introduced as with video and cinematographic films. The Bill provided for the creation of retrievable repositories for proper keeping, indexing and categorization of the indigenous knowledge data for accessibility, preservation and maintenance for later retrieval. Also provided for was making communities aware of social development issues associated with indigenous knowledge. Enforcement structures to be established included a National Council, a Community Trust and collecting societies – to negotiate for licensing of indigenous knowledge on behalf of the communities or any business enterprise. A tribunal and courts were to enforce indigenous knowledge rights, including settlements through the Alternative Dispute resolution process. There was to be provision for investigation of possible violation, and there were to be penalties, including the nullification of registration and ownership, for violations.

The Department of Trade and Industry presented an educational programme which it used to explain intellectual property to the public. The programme defined intellectual property before illustrating various kinds of intellectual property: the trade mark, the copyright, the trade secret, patents; and why intellectual property mattered. A trade mark was an element that identified goods and services. It could be a word, a symbol or device, or an aspect of shape and packaging. The Department referred also to the device or shape, and to scent. This last was hard to trademark. He referred also to sound, colour, and service marks. A certification mark certified the source material, mode of manufacture or quality of goods and services. A collective mark indicated membership in a union, association or other organization. Trademarks identified the source of goods and services, and protected forever. In South Africa, protection for ever was by renewable periods of ten years. Copyright was an original expression of an idea expressed in a tangible medium. Copyright could subsist in movies, music and software; also in books and carpet designs, arts and crafts, and tapestry. A trade secret was one not generally known by the public and with independent economic value. Steps were taken to protect information commensurate with the value of trade secrets, for example, physical security, computer security, and licensees.  The Department explained that a patent granted its owner a legally enforceable right to exclude others from practicing the invention described and claimed in the document of exclusive right, and provided for criminal enforcement. The Department explained what intellectual property was. Intellectual property included trade secrets or formulae, trade marks, copyright expression in the label, design or shape of a bottle, or a word mark – for example, Coca-Cola. The Department explained why intellectual property mattered and the benefits of intellectual property enforcement: cultural identity; health and safety; social values; and the economy (in the form of jobs, for example). In brief, intellectual property mattered because it encouraged and supported innovation. With regard to health and safety, intellectual property protection was important to combat counterfeit medications and goods, which could be lethal. From a social viewpoint, the manufacturers of counterfeit goods commonly used child labour and ruthlessly exploited child workers. Intellectual Property protection created local jobs, promoted foreign investments, promoted the learning of technological know-how, and slowed the brain drain from developing and developed countries which enforced the protection of intellectual property. Pirates (copyright) and counterfeiters (trademarks) did not pay taxes. Selling counterfeit products was illegal.

Democratic Alliance Members criticised the Department for its apparent assumption that indigenous people were, by definition, poor; this did not necessarily follow: they argued that indigenous people were human beings. Members asked who decided who these particular people were, and what defined particular groups. Members observed that the Department of Trade and Industry seemed to be the only opponent of the sui generis approach; and noted that the business and labour constituencies of the National Economic Development and Labour Council had, in the previous meeting, reported that it was in favour of sui generis. Democratic Alliance Members also noted life was built on the knowledge that had been gathered by past civilizations, and that many people had contributed to South Africa. It was important to stand up for South African rights. African National Congress Members asked about the mechanism for enforcement, and what the pros and cons were. A Congress of the People Member said that people were taking the initiative of going to the communities and patenting indigenous for their own self benefit. The Chairperson asked about the concept of perpetual protection.

Meeting report

Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities: submission
Ms
Marlene Francis Le Roux, part-time Commissioner of the CRL and full-time Manager at the Artscape Theatre, reported that the Commission had embarked on a journey to the provinces to see to the recognition of councils. It was a journey that was not easy. The Commission had gone on a listening campaign. Defining a community was a task that had posed great difficulties to anthropologists; these bonds were fluid and might change over time. She referred also to the notion of serial rights, and observed that not everyone who spoke Hebrew was Jewish. One could not just say that language defined a community. The Commission could not be in isolation as a Chapter 9 institution. To prevent exploitation was a challenge for the Department, and this could not be done in isolation from the Department of Arts and Culture.

Ms Le Roux noted the importance of the implementation of nation building and bringing communities together.

The definition of “community” was problematic, especially in South Africa, where there was a conglomerate of people with different interests, cultures, religions and languages. The CRL’s founding act, Act No. 19 of 2002, defined a “’community council’ for example, as a voluntary association of persons or community organizations based on the principle of freedom of association and which represents a cultural, religious or linguistic community…”

According to a paper by the research department of the Commission, even leading scholars found the definition of community a problem. Some scholars believed that there were more than 150 possible meanings. The Commission had been expected to produce a definition of “community” but had not wanted to rush to do so since it might then find itself excluding other communities which might not fit its definition. It might appear that any group could fit the definition of “community”.

Ms Le Roux referred to the view of Chris Shore, that, at the very least, “community” usually denoted a group of people within a bounded geographical area who interacted within shared institutions and who possessed a common sense of interdependence and belonging, and that what bound a community was not its structure but a state of mind: a consciousness or kind or feeling of solidarity. The Commission specifically worked within parameters that have either one or all of the following communalities: belongingness or identification in respect of culture, religion or language. Communities were never static; they underwent change, and so, while one might speak of a river, the water was never the same, because it was constantly flowing. So it was with communities.

Within one community, not withstanding a number of commonalities such as language, culture and religion, there could be serious differences with regard to interpretation and practice.  The question of a large number of some religious tendencies which tended to reject other religious groupings simply because they differed in their interpretations of their relevant sacred writings was also a case in point. Furthermore, even within cultures there were broad strokes which defined cultures, but within these strokes there would be certain differences of interpretation, nuance and emphasis. This meant that communities themselves must be entities that made room for these differences.

There was a strong tendency, for example, for Afrikaners to speak of the “Afrikaans community” as if it were one monolithic and definable entity. Among Afrikaners were individuals or even groups who believed that being an Afrikaner was speaking the Afrikaans language and being white. This paradigm excluded those who spoke Afrikaans but were not of white Afrikaner origin.

It had to be asked why community was so important. There could be several reasons for the need for communities. In African spirituality and philosophy, it was now commonly known that these revolved around Ubuntu – I am because we are; ubuntu was the glue binding every community. This had to do with security and sustenance in African villages. It had tremendous implications in that no child belonged to a family. All children belonged to the community within the village. African children knew that all parents were their parents. Orphans and widows were automatically taken care of under that “way of life”. Within those communities there were custodians or banks of memory. These were the elders led by chiefs within communities. General knowledge of herbs for medicinal purposes was shared, although there was very specialized knowledge which was kept by the Inyangas or traditional doctors.

Ms Le Roux emphasized the importance of acknowledging indigenous knowledge and concomitant aspects that accompanies the traditional imperatives. The concept of indigenous or local knowledge (IK) referred to the complete bodies of knowledge, know-how, practices, and representations that were maintained and developed by people with long histories of close interaction with the natural environment. These sets of understandings, interpretations and meanings were part of a cultural complex that encompassed language, naming and classification systems, ways of using resources, rituals, spirituality and a worldview. Such knowledge provided the basis for local decision-making about many fundamental aspects of day-to-day life in these societies, such as hunting and gathering, fishing, agriculture, animal husbandry, food production, water, health, and adaptation to environmental or social change.

Furthermore, non-formal knowledge, in contrast to formal knowledge, was transferred orally form generation to generation, and was seldom, if ever, documented. Therefore, indigenous knowledge could be, based on the above, defined as the sum total of the knowledge and skills which people in a particular geographical area possessed, and which enabled them to get the most out of their natural environment. Most of this knowledge and skills had been passed down from earlier generations, but individual men and women in each new generation adapted and added to this body of knowledge in a constant adjustment to changing circumstances and environmental conditions. They in turn passed on the body of knowledge intact to the next generation, in an effort to provide them with strategies for survival.

Ms Le Roux emphasised that culture was never purely and individual attribute, but always evolved in a social context. Culture shaped behaviour and was closely linked to traditions, customs and beliefs. However, culture was not static, but changed over time. This implied that culture involved at least three components: what people thought, what they did, and what material products they produced. Therefore mental processes, beliefs, knowledge, and values were parts of culture. Culture was expressed in many ways including language in the form of idioms, proverbs and other linguistic forms.

Ms Le Roux gave emphasis to language as one of the most important vehicles for transmitting indigenous knowledge from one generation to the next. One of the strategic ways of teaching the younger generation was through proverbs and idioms.

Ms Le Roux stated that institutional indigenous knowledge systems must be perceived as centres for innovation and the incubation of ideas, consciousness and action.

Ms Le Roux also gave importance to traditional leadership and traditional healing; and explained the concept of technological indigenous knowledge. With or without legal background, the definition of “indigenous community” as defined in the Copyright Act 1978 (Act No. 98 of 1978) and in the Bill had its own challenges. She referred to Section 1 of the Copyright Act 1978, which stated that “indigenous community meant any community of people living within the borders of the Republic, or which historically lived within the borders of the Republic.” She referred to the definition in the New Merriam Webster Dictionary, 1989: “produced, growing or living naturally in a particular region”. A serious debate about this terminology was imperative.

South Africa was a nation of giving. This Bill was vital. As the Commission realised all the time, one must ensure the protection of culture per se, and verify the track record of particular custodians before examining claiming rights. It was important that communities, for the purpose of the Bill, be relatively long-standing communities. She noted the importance of the Bill of Rights and the possibility of conflict when people read and interpreted the Constitution from only their own perspective.

Discussion
Mr B Radebe (ANC), said that Members had asked the World Intellectual Property Organisation (WIPO) in Geneva about definitions; however, WIPO had replied that it was looking to South Africa to answer the same questions.

Mr S Marais (DA) commended the presentation, and concurred that not everyone who spoke Afrikaans was an Afrikaner. The Commission, however, had followed on with a wrong assumption. There were people who spoke Afrikaans who saw themselves exclusively as Afrikaner. He himself came from a white Afrikaner community in the Western Cape. He agreed that the concept of community was difficult to define.

Ms C Kotsi (COPE) also spoke about the Members’ visit to WIPO. She noted that Ms Le Roux had spoken about various languages. Ms Kotsi was concerned that one would never reach one definition of community. Today one separated religion. One talked about mainstream churches as distinct from the charismatic churches.

The Chairperson said that, at a minimum, members of a community denoted needed to accept themselves as a community. There was a sense of consciousness that needed to be taken into account. The Constitution was one of the more difficult things in which South Africans had engaged.

Ms Le Roux said that she was privileged to work with communities. It was important not to see them as a difficulty. It was not an easy road, but it was an invigorating one.

Ms Le Roux asked if the Committee had considered all the traditional musicians in this area; this was extremely important.

The Chairperson noted Ms Le Roux’s question and acknowledged that a lot of indigenous music went to the West where others made a fortune exploiting it commercially.

Department of Trade and Industry. What is Intellectual Property and why it Matters? Presentation
Advocate Mandla Mnyatheli, Chief Director: Office of Companies and Intellectual Property (IP) Enforcement, Department of Trade and Industry, explained that his presentation was an educational programme to explain IP. The Department would begin the programme by defining intellectual property, before going on to talk about various kinds of intellectual property: the trade mark, the copyright, the trade secret, and a brief mention of patents; and why intellectual property mattered. Adv Mnyatheli explained why intellectual property mattered. Trade secrets were regulated under the common law.

Adv Mnyatheli explained a trade mark as an element that identified goods and services. It could be a word, a symbol or device, or an aspect of shape and packaging. Coca-Cola had always been written the way it was written on bottles or cans containing the product. Other examples were Lyle’s Golden Syrup, Freshpak tea, the Nike symbol, and the McDonald’s global chain of fast-food outlets with its characteristic big “M” and the words “I’m lovin’ it”. The last was two trade marks in one – a symbol and a word mark. 

Adv Mnyatheli referred also to the device or shape, and to scent. This last was hard to trademark. He referred also to sound, colour, and service marks. An example of a sound trademark was the sound of the Windows operating system when starting. Examples of the last were SAA Airways and Greyhound. Service marks identified the source of the service. An example of certification marks could be the logos of Woolmark, the South African Bureau of Standards (SABS), or Underwriters Laboratories, Inc. (UL). A certification mark certified the source material, mode of manufacture or quality of goods and services. A collective mark indicated membership in a union, association or other organization. Examples would include the marks of the African National Congress (ANC), the Democratic Alliance (DA) and Inkatha Freedom Party (IFP).

In summary Adv Mnyatheli said that trademarks identified the source of goods and services, and protected forever. In South Africa, protection for ever was by renewable periods of ten years.

Adv Mnyatheli continued with an explanation of copyright. This was an original expression of an idea expressed in a tangible medium. Copyright could subsist in movies, music and software; also in books and carpet designs, arts and crafts, and tapestry.  .

Adv Mnyatheli defined a trade secret as one not generally known by the public and with independent economic value. Steps were taken to protect information commensurate with the value of trade secrets, for example, physical security, computer security, and licensees.  An example of a trade secret was Coca-Cola, which had been protected for over 100 years. 

Adv Mnyatheli explained what a patent was. A patent granted its owner a legally enforceable right to exclude others from practicing the invention described and claimed in the document of exclusive right, and provided for criminal enforcement. Adv Mnyatheli remarked that he was supposed to be the policeman of intellectual property.

Adv Mnyatheli explained that intellectual property included trade secrets or formulae, trade marks, copyright expression in the label, design or shape of a bottle, or a word mark – for example, Coca-Cola. 

Adv Mnyatheli explained why intellectual property mattered and the benefits of intellectual property enforcement: cultural identity; health and safety; social values; and the economy (in the form of jobs, for example). He gave examples of cultural identity, such as Jamaican reggae and the singer Jimmy Cliff. He gave the example of the Hyundai car as an example of the highly regarded Korean technology. In brief, intellectual property mattered because it encouraged and supported innovation.

With regard to health, intellectual property protection was important to combat counterfeit medications, which could be lethal. It was important also to safety. He gave illustrations of counterfeit lighting and switches in Kenya. These could cause fires. The prices might be unbelievable, but the results might be unimaginable (slide 48). Counterfeit automobile parts could cause premature failure of engines, transmissions and brakes, and result in fatal accidents. Counterfeit computer parts could also cause fires, as well as loss of data and work.

From a social viewpoint, the manufacturers of counterfeit goods commonly used child labour and ruthlessly exploited child workers.

Intellectual Property protection created local jobs, promoted foreign investments, promoted the learning of technological know-how, and slowed the brain drain from developing and developed countries which enforced the protection of intellectual property. Pirates (copyright) and counterfeiters (trademarks) did not pay taxes. Selling counterfeit products was illegal.

Department of Trade and Industry. Intellectual Property Laws Amendment Bill. Presentation
Mr MacDonald Netshitenzhe, Director: Commercial Law and Policy, CCRD, Department of Trade and Industry, stated that patents generally had a lifespan of 20 years. Indigenous knowledge was “inputted” into modern inventions. The World Intellectual Property Organisation (WIPO) advocated for recognition of intellectual property developed from indigenous knowledge, and had requested that the following features should be available, namely: disclosure of origin of genetic material used that led to the patent invention; disclosure of the indigenous community that assisted in the development of the intellectual property; prior informed consent; and disclosure of a benefit sharing agreement. It should be said that these features were already incorporated in the Patents Amendment Act, 2005. “The amendment process in the Bill concentrates on the other four domains since it was already done in respect of PATENTS.” (Slide 5)

Forms of intellectual property also included trade marks, under which were included geographical indicators (GI); i.e., a product peculiar to a particular area, for example, Rooibos.

A further form of intellectual property was copyright, which protected, for example, books, compact discs (CDs), and computer software.

The Department recommended that key interventions contained in the Bill should be as follows: registration and identification – this facilitated registration of the intellectual property component of indigenous knowledge for protection from unlawful use. Registration would be done through the Companies and Intellectual Property Commission established in terms of the Companies Act of 2008.
All four pieces of legislation should be amended to have clauses such as the one in the Patent Amendment Act 2005, namely to disclose a prior informed consent from the relevant community; disclose the knowledge used from the community that enhanced the new “work” or ”discovery”; and disclose a benefit sharing agreement with a particular community. The definition of “community” should be flexible but allow improvements by courts and should be informed by other relevant legislation. All intellectual property or traditional knowledge should be recorded or be placed into the intellectual property database or register and should be identifiable. Confidentiality, where applicable, was to be respected. In the area of the Copyright Act, “registration” was being introduced as with video and cinematographic films.

The Department noted, under the Bill’s provisions, key interventions contained in the Bill, such as, in the area of the Trade Marks Act, the prohibition of registration of indigenous knowledge without consent or in a manner offensive to a particular public (slides 11-14).

The Department noted further that the Bill provided for recording, documenting and storage – creating a database or sub-databases of intellectual property and indigenous knowledge for storage, keeping and verification or validation of the indigenous knowledge. It created retrievable repositories for proper keeping, indexing and categorization of the indigenous knowledge data for accessibility, preservation and maintenance for later retrieval. Also provided for was the education and making communities aware of social development issues associated with indigenous knowledge.

Enforcement structures to be established included the National Council (NC) with a role to advise the Minister on indigenous knowledge and the registrars of intellectual property in relation to the registration of intellectual property and indigenous knowledge. Also to be established were a Community Trust and collecting societies – to negotiate for licensing of indigenous knowledge on behalf of the communities or any business enterprise.

A tribunal and courts were to enforce indigenous knowledge rights, including settlements through the Alternative Dispute resolution process. There was to be provision for investigation of possible violation, and the creation of an inspectorate enforcement model to monitor compliance. There were to be penalties, including the nullification of registration and ownership, for violations.

Mr Netshitenzhe said that indigenous knowledge was perpetual but trade marks for protected for 10 years at a time with the opportunity to renew protection. He referred to quality control and Egyptian cotton, which had been given as examples in the Committee’s meeting on 02 June 2010. He said that in South Africa there was no registration of copyright per se as in the United States of America. In South Africa, there was registration of copyright only in cinematographic films; in other media one had to go jurisdiction by jurisdiction.

Mr Netshitenzhe said that there should be a database at
the Companies and Intellectual Property Registration Office (Cipro). This Bill was intended to protect the indigenous people, the poor people. It was also intended to safeguard business enterprises as long as they were legitimate. The proposed national trust was to be self-funded. He referred to the issue of alternate dispute resolution – the guidelines could be developed later. There was a need to strengthen them. He referred to tribunals for companies and copyright, word for word drafting, and penalties. These were the areas in which we needed interventions; these were policies and principles. The drafting would be done at a higher level. Mr Netshitenzhe remarked on the function of a trade mark.

Ms Zodwa Ntuli, Deputy Director-General: Consumer and Corporate Regulation Division (CCRD), Department of Trade and Industry said that the presentation was a recapitulation of what the Department had given the Committee previously. Today, however, the Department was more focussed. The principles of intellectual property were the same and dealt with in specific pieces of legislation. What was important was the recognition of why one should protect somebody’s knowledge. The country gave protection, but one did not receive protection without giving something in return. It was necessary to use that intellectual property for the benefit of the country. There was no protection just for the sake of it. The issues of licensing came into the picture. In introducing that principle it would help for the payment of royalties. It could also work for indigenous knowledge.

Ms Ntuli discussed, with reference to indigenous knowledge, the aspect of public interest. If one granted that protection but it was counter to public interest there would be problems. Drugs for HIV/AIDS were becoming more expensive since generic medications were not allowed. She referred to the alignment of moral rights with protection, and gave the example of New Zealand. The Department needed to return to the Committee with more clarity. She admitted that perhaps the Department had not articulated the issues sufficiently. She referred to the enforcement mechanism, which had not been in the Department’s intellectual property framework, and the mechanism for the alternative resolution of disputes.

With reference to the correct use of a people’s culture and the importance of respect, Ms Ntuli alluded to the closing ceremony of the 2010 FIFA World Cup.

Discussion
The Chairperson said that she hoped that the presentation would have deepened Members’ understanding.
It was not duplication.

Mr Marais remarked that “I’m lovin’ it” could not be exclusive but could be a trade mark with and in combination with certain symbols; in arts and crafts, such as bead work, the exact design would be protected by copyright.

Mr Marais criticised Mr Netshitenzhe for his assumption that the indigenous people were poor; this did not necessarily follow: Indigenous people were human beings. It had to be asked who decided who constituted those particular people, what defined particular groups, and who was to say what was offensive. The Committee needed to discuss many more issues, and gain much more clarity.

Mr Marais said that the Department of Trade and Industry seemed to be the only party which was against the sui generis route. He thought that the sui generis route might be quicker. Otherwise one might end in the Constitutional Court. He noted that the National Economic and Development and Labour Council (NEDLAC)’s business constituency had in the previous meeting expressed its preference for sui generis. He asked why the Department was so much against sui generis. The WIPO and the World Trade Organisation (WTO) seemed to be in favour of that. Also NEDLAC’s labour constituency seemed to be in favour. However, Mr Marais perceived that Mr Netshitenzhe was against it.

The Chairperson agreed with a number of Mr Marias’ points, however she could not recall NEDLAC’s labour constituency indicating that it preferred sui generis.

Ms Ntuli responded to Mr Marais that the Department did not follow a specific process.  It was preferable to distinguish aspects that related to NEDLAC itself. If members of the Department came as the Department, they would not give answers for NEDLAC as a structure.

Mr Netshitenzhe stated that Mr Marais was correct and referred to FIFA and its trade marks. FIFA had wanted to own South Africa in 2010. He referred to rules in the area of trade marks. With regard to the issue of offence, there were many issues which went to courts. He remarked that as children we hardly knew the names of wines and spirits. He said that children might be the best public for particular cereals. He thought that there had been discussion already on sui generis. He rested his case.

Ms Nomfundo Maseti, Chief Director: Policy and Legislation, CCRD, Department of Trade and Industry, gave the Department’s view on sui generis. She said that the Department would prefer to return with a comprehensive response, because the Department was not now able to respond in a well-coordinated way. She referred to paragraph 4, on areas of agreement, of the NEDLAC Report (discussed in the 27 July 2010 meeting of the Committee) and said that NEDLAC’s labour constituency which was the only one that seemed to be in favour of sui generis.

Mr A van der Westhuizen (DA) asked for clarity now or in a further submission. He referred to the philosophy of the protection of knowledge. He said that life was built on the knowledge that has been gathered over the ages. Many of the things we eat could be referred back to certain civilizations. He asked what would happen if Egypt claimed intellectual property rights over paper. The Romans had pioneered systems of water reticulation when they built their aqueducts. The Italians had pioneered fast food. At the same time one wanted to protect indigenous knowledge. The South African Government had done ground-breaking work. He asked the Department where we were heading. He did not admire that person who had registered the name of McDonald in South Africa since that person had not benefited South Africa. It was only about making money. Many people had contributed to South Africa. Why could not others benefit. He gave the example of rooiboos. With regard to communities, if we wanted to stand up for rights, we should stand up for South African rights.

Ms Ntuli replied that the Department would answer these questions in more detail when it returned in due course. It was necessary to examine purposes. There was possibly a lack of alignment. A specific law could be implemented separately from that for intellectual property, but people would use intellectual property to exploit indigenous knowledge. It was necessary to achieve integration; this was why the Department spoke of moral rights.

Ms Ntuli emphasised that she did not want to advise Parliament to persist with a fragmentation of legislation. She mentioned that when she worked for the South African Airways (SAA), and had been assigned to assist with registering a domain name for the new subsidiary Mango and had experienced the effects of fragmented legislation.

Mr Radebe asked what the pros and cons were.

Ms re-emphasised the Department’s request to return and give a more detailed response, while putting all parts of the response in the context of all that had been put on the table. Indigenous did not mean poor. But it was the poor who had been exploited the most. The poor formed the majority of the unprotected. Of special concern were the extremely rural areas. Many indigenous people had lots of cows. There were established concepts as to who was who. The Department would refine definitions. As to how the Department would we deal with the borderline cases, she said that judges were not disabled innocents in this area.

Ms Kotsi said that she tended also to agree that over many years there had been these various laws and regulations. People had been innovative, but other people had not benefited. People were taking the initiative of going to the communities and patenting their ideas and products for their own self benefit. A Member from the Science and Technology Portfolio Committee had said that there was a boy who had designed a car and nobody had recognised his design and it was not patented: thus his idea was stolen. However, the boy’s idea might benefit others who had not originated it.

The Chairperson referred to an observation of Ms Khumalo. She asked if there would be a tiered system. She recalled visits overseas and the Doha Round. She noted that Doha was on the trading side of things. She noted that South African wines were subject to bans, and asked where it would end. She asked about the concept of perpetual protection. How, for example, did this apply to a pop group? Did protection apply as long as the group remained a group or for longer?

Mr Netshitenzhe said that the issue of domain names for the World Wide Web (WWW) was disturbing. There was discussion in Geneva, and 108 countries had agreed that they should not trade mark “gov.za”. However, the United States of America (U.S.A.) had refused.  With regard to geographical indications, it had to be asked what was causing a break down of those negotiations. He proposed a data base. According to Articles 22 and 23 of
the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement), there was, in the area of geographical indications, nothing wrong. Therefore one could recognise such indications. He believed that South Africa should begin to recognise them.

Adv Mnyatheli said that if Nestlé adopted the words “I’m lovin’ it”, McDonald’s the fast-food chain could object. He spoke sound in commerce, indigenous knowledge, and commercial gains, and the reasons for protecting intellectual property. He rested his case.

Ms Ntuli reiterated the need for her Department to return and give further clarity, and thanked the Committee.

The Chairperson said that the process of engagement would continue, and offered participants the opportunity to share their views with the Committee in writing as part of this ongoing process. She affirmed that we could work together.

Committee business
The Chairperson said that the Committee’s programme would be subject to major changes. Forthcoming matters for the Committee’s attention included the Companies Amendment Bill, and, the need to accommodate recent developments of which the Committee had learned on its recent visit to Geneva.

The meeting was adjourned.




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