Intellectual Property Rights Amendment Bill: Workshop

Meeting report

Intellectual Property Rights Amendment Bill
Chairperson's Introductory Remarks
The Chairperson thanked the guests from Geneva and South Africa who were in attendance to facilitate the workshop on the Intellectual Property Rights Amendment Bill (the Bill). They were Mr Ahmed Latif, Programme Manager: Intellectual Property and Technology at the International Centre for Trade and Sustainable Development (ICTSD), Dr Johanna von Braun, Post-Doctoral Research Fellow at the University of Cape Town’s Intellectual Property Law and Policy Research Unit, and Mr Olivier Rakundo, Associate Fellow at the Centre for International Sustainable Development (CISDL).She outlined that the Committee hoped to gain a clear appreciation of the issues in order to impart them to others.

Johanna von Braun presentation
Dr Johanna von Braun, Post-Doctoral Research Fellow, University of Cape Town’s Intellectual Property Law and Policy Research Unit, presented a paper on the Global Landscape of Intellectual Property / Traditional Knowledge. She informed the Committee that there was segregation and overlap of traditional knowledge (TK) and protection. TK was cross – cut several different United Nations (UN) forums, such as the World Intellectual Property Organisation (WIPO), World Trade Organisation (WTO), UNESCO, the Food Agriculture Organisation (FAO) and Convention on Biological Diversity (CBD). Not all of these, however, dealt with Intellectual Property Rights (IPRs), as some dealt with general protection of TK.

The WTO, through the Doha Round of 2001, broadened the TK mandate by reviewing Article 27.3(b) on the protection of traditional knowledge and folklore. The relationship between the trade TRIPS agreement and the Convention on Biological Diversity (CBD) was also examined. Developing countries had also called for the disclosure of the source and country of origin of the biological resource and of the traditional knowledge used in the invention. They further called for evidence of prior informed consent through approval of authorities under the relevant national regimes, and evidence of fair and equitable benefit. WIPO, in 2009, began a new negotiation mandate to undertake text-based negotiations with the objective of reaching agreement on international legal instrument(s) which would ensure effective protection on genetic rights, TK, and traditional cultural expressions (TCEs).

The Convention on Biological Diversity (CBD) focused on biological resources under national sovereignty. The objectives were conservation, sustainable use, and fair and equitable sharing of benefits. Approximately 60 national laws and policies hade emerged, based on CBD and access-based sharing.

The Food Agriculture Organisation (FAO) 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) required members to see to the protection of traditional knowledge relevant to plant genetic resources for food and agriculture, among other things.

The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, dating from 2003, called for the protection of practices, representations, expressions, knowledge and skills, as well as the instruments, objects, artifacts and cultural spaces associated with them, which were recognised by communities, groups and, in some cases, individuals as part of their cultural heritage.

Dr von Braun concluded her presentation by looking at the South African political landscape of traditional knowledge protection. This focused on the Acts and Bills presented by various departments such as the Department of Trade and Industry’s Intellectual Property Patent Amendment Act of 2005, which required the disclosure of title to use TK in patent files. The Department of Environmental Affairs had bio-prospecting legislation which looked at TK use related to indigenous biological resources, and the Department of Arts and Culture National Heritage Resources Act aimed at protecting tangible and intangible cultural heritage.

Discussion
Mr L Mphahlele (PAC) asked what sovereignty would legislate traditional knowledge in instances where intangible cultural heritage was held by two separate sovereignties, but a cultural thread cross-cut these two societies.

Dr von Braun replied that it would be nationally registered. Countries would put forward individual registrations for these intangible cultural heritages.

Mr B Radebe (ANC) observed that the Convention on Biological Diversity referred to equitable sharing of benefits. He asked who was to benefit from the equitable sharing, whether this would be the country as a whole, or the areas where the resource was found.

Dr von Braun replied that it was up to the country to decide on how this would be implemented.

Mr Olivier Rakundo, Governance Associate Fellow, Centre for International Sustainable Development added that the CBD recognised the sovereignty of nations, so it was up to countries to put the necessary legislation in place to deal with such issues.
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Mr A van der Westhuizen (DA) asked if there was a criterion that a country could use as a guide when deciding whether to go into its own sui generis system or the intellectual property system.

Mr Ahmed Latif, Programme Manager: Intellectual Property and Technology, International Centre for Trade and Sustainable Development, explained that sui generis was a Latin legal term that meant a special innovative system of protection. He said that those who advocated for a sui generis system believed that traditional knowledge should be treated differently from intellectual property rights because it was collectively owned, and because their protection should be indefinite among others.

Mr Olivier Rakundo presentation
Mr Olivier Rakundo presented a paper on the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore. He told the Committee that the Intergovernmental Committee (IGC) mandate for the period 2003 to 2009 included various IGC meetings aimed at examining intellectual property issues that arose in the context of access to genetic resources and benefit sharing, protection of traditional knowledge and protection of expressions of folklore. The IGC 12 meeting was held in February 2008, and this had looked at providing options to address any identified gaps, including legal and other possibilities, at the international, regional or national level, with regard to traditional cultural expressions (TCEs) and TK. At the IGC 14 meeting the African proposal was launched, which advocated for a legally binding instrument.

Mr Rakundo concluded the presentation by looking at the new mandate for IGC for the period 2010 to 2011. This aimed to undertake negotiations with the objective of reaching agreement on a text for an international legal instrument (or instruments) which would ensure the effective protection of genetic rights, TK and TCEs. In line with this, the IGC 16 meeting, held in 2010, focused on draft provisions on the TK policy objectives, which could set common general directions for protection and could provide a consistent policy framework.

Discussion
Ms C September (ANC) asked what advice was being given at an international level on rights for protection and constitutional rights.

Mr Rakundo replied that some objectives within the CBD sought to address this issue, including Objective Number 3.

Ms September asked if there was equilibrium in the world, despite the many conventions and the difficulties in striking a balance.

Mr Latif replied that with regard to traditional knowledge, WIPO and other initiatives aimed to get an international instrument that protected traditional knowledge, so that it could then be enforceable by countries.

Mr Ahmed Latif presentation
Mr Ahmed Latif, Programme Manager: Intellectual Property and Technology, International Centre for Trade and Sustainable Development, presented a paper on the issues and challenges around the IGC negotiations on Traditional Cultural Expressions (TCEs. He highlighted some of the revised provisions for the protection of TCEs, such as the subject matter of protection contained in Article 1, beneficiaries and management of rights contained in Articles 2 and 4, and acts of misappropriation and limitations contained in Articles 3, 5 and 7. Other provisions to be revised included the term of protection and transitional measures contained in Articles 6 and 9, sanctions and exercise of rights in Article 8, relationship with IP protection and other forms of protection, preservation and promotion in Article 10 and international and regional protection contained in Article 11. The main discussions around these Articles centred around trying to reach a balance, based on different positions presented by various states (see attached presentation for full details).

Discussion
Ms September asked how traditional knowledge could be secured to ensure that those that were appropriating it were acting on behalf of the intended beneficiaries.

Dr von Braun replied that in the Intellectual Property Rights Amendment Bill, the trust fund took a very strong management role and would have ownership over the copyright.

Mr Mphahlele asked how traditional practices could be immune to modification when everything human was subject to change. He posed the question whether, if a traditional song was accompanied by modern instruments such as violin and guitar, this would be considered as a “distortion”.

Mr Latif replied that follow-on creativity was permitted, and this was generally not viewed as a distortion as it enhanced the original work. These, however, were complex issues that could best be decided by the local indigenous people who owned the particular traditional knowledge.

Mr N Gcwabaza (ANC) asked if those who advocated for a limited time frame of traditional rights had recommended what should be done when the period lapsed.

Mr Rakundo replied that copyright law evolved around the idea of originality, but traditional cultural expressions did not fit this criterion of originally because of their distinctive nature. It was therefore difficult to apply a time frame to traditional cultural expressions in the same way as it was applied in copyright law.

Mr Gcwabaza asked how disputes that required international intervention would be resolved, as the issue of protection had not been formalised internationally.

Mr Rakundo replied that most issues were trans-boundary, involving possible application of many different laws. That was why developing countries were advocating for an international framework on access benefit sharing.

The Chairperson asked how to deal with the issue of products from bio-prospecting that left the country and then remerged in other forms.

Prof Graham Dutfield, Professor of International Governance, University of Leeds, replied that countries usually adopted very strict rules about access benefit sharing.

Mr S Marais (DA) stated that the debate about traditional knowledge was about money, whether this was held by the community or in a government trust.

Prof Dutfield replied that patents provided no guarantee that money would be made from the idea, as some patents were not in fact worth anything. He agreed that many of the issues around traditional knowledge did come down to money, but this was not necessarily a bad thing. It was of greater importance to decide how it was to be regulated.

Ms September asked if there was a level of rights that countries could go below or above.

Mr Latif replied that discussions were ongoing, but most countries followed a minimalist approach in adopting international outcomes, and then building further on these at the local level.

Ms September asked how the international rights frameworks related to national sovereignty.

Mr Latif replied that consideration of the international right framework was a national decision. It was important that the outcomes must be consistent with other international obligations.

Mr Mphahlele asked for the definition of an indigenous community. He questioned whether the genetic makeup or the language would be considered more important.

Dr von Braun replied that in the bio-prospecting framework, a community was defined as being linked to a particular geographic proximity, sharing certain knowledge and, above all, having a common leadership structure.

The Chairperson thanked the team and said the workshop would continue the following day.

The workshop was adjourned.