Intellectual Property Rights Amendment Bill: Continuation of workshop

Meeting report

Chairperson's Introductory Remarks
The Chairperson welcomed the facilitators; Mr Ahmed Latif, Programme Manager: Intellectual Property and Technology, International Centre for Trade and Sustainable Development (ICTSD), Dr Johanna von Braun, Post-Doctoral Research Fellow: University of Cape Town’s Intellectual Property Law and Policy Research Unit, Mr Olivier Rakundo, Associate Fellow: Centre for International Sustainable Development (CISDL), Prof Graham Dutfield, Professor of International Governance; University of Leeds and Mr Kabir Bauikatte, Co-Director Natural Justice, ICTSD.

Lessons learnt from South African Bioprospecting Framework: Dr Johanna von Braun briefing
Dr Johanna von Braun, Post-Doctoral Research Fellow; University of Cape Town’s Intellectual Property Law and Policy Research Unit, presented a paper entitled “Lessons learnt from the South African Bio-prospecting Framework”. The biodiversity framework was based on principles put forward by the United Nations (UN) Convention on Biodiversity and access based system discussions, which resulted in the national policy formulation of the Biodiversity White Paper in 1997. This legislation stipulated that a permit would be required before a person could carry out bio-prospecting involving indigenous biological resources, or export indigenous bio-resources for bio-prospecting. Furthermore a permit would only be issued if there had been disclosure to stakeholders and if their consent had been obtained. This consent needed to be reflected in an agreement that allowed for sharing of any future benefits. The Committee was informed that the legislation only covered traditional knowledge that was associated with indigenous biological resources, and the State played an oversight role.

Traditional knowledge, in terms of this legislation, was defined as customary utilisation or knowledge of indigenous bio-resources by an indigenous community, in accordance with written or unwritten rules, usages, customs or practices that were traditionally observed, accepted and recognised by them. This included discoveries about indigenous bio-resources. The community was defined as people living or having rights or interest in a distinct geographical area, with a leadership structure. Therefore, ownership of traditional knowledge could be both individual and collective, and benefits from traditional knowledge were paid to a trust fund.

Dr von Braun informed the Committee that the legislation did not provide for a distinction between secret traditional knowledge and traditional knowledge in the public domain. This, however, was important because the mere fact that something was known did not necessarily confer a right of use.

Dr von Braun stated that there were enforcement provisions. A contravention of the legislation could invoke penalties up to five years in jail and/or a fine of R5 million for a first conviction, rising to R10 million for a second conviction. One of the challenges was that there was not strict enforcement.

Traditional Knowledge in the Intellectual Property Rights Amendment Bill: Mr Kabir Bavikattebriefing
Mr Kabir Bavikatte, Co-Director: Natural Justice, ABS-Africa, presented an overview of traditional knowledge as contained in the Intellectual Property Rights Amendment Bill (the Bill). Mr Bavikatte discussed certain issues. An indigenous community, for the purposes of the Bill, was defined as any group of people who lived in South Africa. Therefore the Bill seemed to acknowledge the dynamism of the ‘traditional’ knowledge, and its only requirement for legitimacy was recognition as such by an indigenous community. The Bill aspired towards safeguarding economic opportunities linked to traditional knowledge, and towards defending the collective nature of traditional knowledge. However, there were questions around who would benefit from the opportunities and who would set the terms of use. He told the Committee that protection under the Bill was linked to knowledge in the public domain, but he raised the question as to who was supposed to decide when traditional knowledge was actually in the public domain, and able then to be owned by the Fund. It was also not clear on whether benefits kept within the trust fund would go towards general beneficiaries or specific beneficiaries.

Mr Bavikatte described four different models of traditional knowledge protection, which the Committee should reflect upon. In the first, the State owned all knowledge in the public domain and wanted to keep it in the public domain. The second scenario was that the State owned all knowledge in the public domain and wanted to profit from its use. The third approach was that communities were deemed to own their knowledge and they would set terms of access and benefit sharing. Lastly, there was a possibility of a system in which community knowledge commons came to the fore, with community values of knowledge sharing.

Discussion
Mr A van der Westhuizen (DA) asked for recommendations on the best method of traditional knowledge protection to be used in South Africa, given the country’s complex mix of people.

Mr Bavikatte replied that there had to be a delicate balance, to ensure that what was taken out of the common pool was returned back into the pool.

Mr S Njikelana (ANC) asked what the non-commercial benefits of traditional knowledge were.

Dr von Braun replied that non-commercial benefit could range from infrastructure development to joint research or even mere recognition of communities.

Dr M Oriani-Ambrosini (IFP) asked what happened in instances where traditional knowledge was held between two communities, and one called for protection while the other did not.

Mr Bavikatte replied that the Bill stated that the community that developed the knowledge was entitled to the rights.

Mr S Marais (DA) asked if the proposed state ownership of traditional rights would not come into conflict with communities where the community had held the rights for some time.

Mr Bavikatte replied that communities were asserting for ownership of traditional rights because things that were once freely shared were being taken out of the common pool for benefits. The State could therefore play a role in safeguarding the interests of the community.

Mr Marais asked how easy it would be to identify community ownership of traditional rights in South Africa, given that there were so many communities.

Mr Bavikatte replied that the communities were usually a continuum rather than segmented, and therefore identifying those communities would always pose a challenge. Definitions of communities were therefore always open ended.

The Chairperson asked what would happen in instances where a plant might obtained legitimately in South Africa but was later developed for commercial use.

Dr von Braun replied that the Bio-prospecting framework would be triggered as soon as the plant was used for commercial use.

Details of the Intellectual Property Rights Amendment Bill: Mr Olivier Rakundo briefing
Mr Olivier Rakundo, Associate Fellow; Centre for International Sustainable Development (CISDL), presented a paper that took a closer look at the Intellectual Property Rights Amendment Bill. He informed the Committee that the use of the copyright concept would present some problems, including the issue of ‘fixation’. This related to Clause 6, which suggested that traditional knowledge could only be protected if “fixed”. This was an obstacle in the protection of traditional knowledge, which was not always manifested in tangible expressions. The second problem related to originality. Copyright law required that a work be ‘original’ in order to merit protection. Since most traditional knowledge was ‘traditional’ rather than new, that originality requirement would often be difficult to satisfy. Another problem was the timespan for protection of copyright. In most countries this was limited and not infinite, and was therefore not applicable to traditional knowledge.

Mr Rakundo informed the Committee that the issue of collective certification, as contained in Clause 19, would require members of indigenous groups to form an association for the purpose of marking their cultural expressions. He also highlighted Clause 18(6), which stated that a traditional term or expression may constitute (a) a certification trade mark or a collective trade mark; and (b) a ‘geographical indication’. The inclusion of geographical indication would require that the geographical name of a country, region, or specific place was named, in order to designate a product originating in that region or whose characteristic qualities were due exclusively or essentially to the geographical environment, including natural or human factors. This was a difficult requirement to have for traditional knowledge.

Mr Rakundo also noted that Clause 40 required a database for traditional intellectual property, but this limited the protection, as it had not extended to undocumented and unrecorded traditional knowledge.

Discussion
Dr Oriani-Ambrosini stated that intellectual property protection did not give protection to prior knowledge as was being advocated with traditional knowledge.

Mr Bavikatte replied that the Intellectual Property Rights Amendment Bill covered traditional knowledge that was developed 50 years before the Bill’s enactment. The knowledge would be held by the State in trust, therefore addressing the issue of ownership.

Dr Oriani-Ambrosini stated that the whole idea of nationalising traditional knowledge was to create value. Intellectual property could not be created out of something that was not new, and therefore using intellectual property laws for traditional knowledge was a wrong approach.

Prof Dutfield replied that if the Committee had noticed that some sections of the intellectual property laws did not cover other forms of knowledge, then the Committee may need to make some decisions on alternative legislation.

Mr van der Westhuizen stated that the aim of the Bill was to protect certain forms of information held by communities. He asked if this would work well with the South African Constitution, which protected individuals rather than groups.

Mr Bavikatte replied that the construction of the “individual” was not the liberal conception of the individual. The “self” was constructed as a relationship, and therefore this included a broader recognition of the “self”.

The Chairperson asked what would happen to information not protected by the database. She noted that there was emphasis was put on establishing a database.

Mr Bavikatte replied that such a situation could be overcome at a point when the copyright was being sought. Other groups were free to contest the copyright application, by proving that it was prior art.

Dr Oriani-Ambrosini stated that most of the traditional knowledge in Africa was publicly known, and whatever was not known was secret. Therefore, engaging in exercises aimed at collecting such knowledge would be inimical to traditional values.

Mr Bavikatte replied that such issues were always difficult, but the essence of protecting traditional knowledge was to safeguard the rights of the communities over their knowledge.

Dr Oriani-Ambrosini asked whether protection was just about protection, or about financial prioritisation.

Mr Bavikatte replied that rights and incentives were the push-and-pull factor behind the protection of traditional knowledge.

Mr Ahmed Latif thanked the Committee for engaging with the facilitators.

The Chairperson thanked the facilitators for their insightful presentations.

The workshop was adjourned.