The Task Team on the Intellectual Property Laws Amendment Bill (the Bill) noted that it had been decided that a new advertisement calling for submissions for the public hearings would not be issued, doe to constraints of time and resources, but several requests, which seemed to be drawn from a wide spectrum, had been received, and three days had been set aside for public hearings, on 19, 20 and 22 October. The Department of Trade and Industry would be given a chance to respond after the public hearings. Stakeholders’ comments would enable the Committee to decide what cultural items needed protection, and to identify gaps in the current Bill. Members agreed that although the New Economic Development and Labour Council (NEDLAC) had already presented on areas of agreement it was still important to hear the views of the individual groupings. A Member pointed out that the Department of Trade and Industry had a commercially orientated approach to intellectual property policy, whereas some submissions heard previously suggested that a sui generis approach might be more appropriate, and that the final work of the Task Team hinged on deciding which would be the best approach. The Committee Researcher was asked to undertake some further research, and the State Law Advisor was asked to undertake research on the issues of reciprocity and whether there were any international agreements on traditional knowledge protection. Members agreed that after the public hearings a decision could be taken whether international submissions would be required, particularly since some of those who had asked to make submissions had international experience.
Dr Oriani-Ambrosini, a Member of the Committee submitted that the Department of Trade and Industry’s submission did not comply with TRIPS, that a regulatory analysis had shown that the Bill would cost the State far more than it proposed to save, that the workable and that the current process should be stopped. He pointed out that this Bill did not align to any other international legislation, making it difficult to get recourse internationally. Furthermore he doubted whether the Companies and Intellectual Property Registration Office would be able to protect traditional knowledge, that funds were likely to be accumulated but not distributed to communities, and that traditional knowledge protection could not adequately be addressed by intellectual property policy. He recommended that an entirely new Bill should be drawn. One Member commented that although the Committee had been seized with the matter for some time, it was more important to get it right than to focus on time frames, whereas another believed that it could not be postponed indefinitely, and that at some stage the Committee must stop collecting information and reach decisions.
In the afternoon session, Members of the Task Team set out their recommendations, which included that the Portfolio Committee on Trade and Industry should include other portfolio committees in the process, that courses should be invited on TRIPS and reciprocity, and that the Committee would need to hear all views before reaching a decision. It might be that a hybrid system might need to be adopted, but full consideration must be given to which traditional knowledge or cultural items needed protection. Broader research was needed, including consideration whether the Department had complied with the NEDLAC Act. The Committee Researcher would be asked to broaden his research from the last decision taken on the sui generis matter and the Parliamentary Legal Advisor and State Law Advisor were asked to provide an opinion on the legality of the NEDLAC process. The Task Team also had decided to address NEDLAC to call for submissions from the individual constituents of business, labour and community. There was also need for the Committee to monitor what deliberations had taken place at WIPO on the draft text relating to an international treaty on traditional knowledge. A written copy of the submissions from Dr Oriani-Ambrosini would be circulated to the members.
Deliberations on the Second Draft of the Committee Report on the World Trade Organisation’s Visit was postponed to the next meeting.
Task Team deliberations on the Intellectual Property Laws Amendment Bill
The Chairperson of the Task Team, Ms C September, was asked also to act as Chairperson of the meeting.
Ms September reported that the Intellectual Property Laws Amendment Bill would be considered further in November.
She reminded Members that the Task Team had decided that a new advertisement, calling for submissions for the public hearings, would not be issued, due to constraints of time and resources. The Committee Secretary had already received names of all those that had requested to make submissions on the basis of the previous advertisements.
Mr A Van Der Westhuizen (DA) asked when the public hearings would be held.
Ms September replied that the public hearings would be held the following week, on 19, 20 and 22 October 2010.
Mr T Harris (DA) asked why the public hearings were being held over a three day period.
Ms September replied that there were numerous submissions received, and it was felt that three days would be required to address these adequately. The public hearings would commence at 09:00. The Committee would continue to receive submissions until Friday 15 October 2010, which would allow not only sufficient time for submissions to be sent through, but also give some time so that Members could go through them before the meeting.
Ms September asked Members if they thought that a group from New Economic Development and Labour Council (NEDLAC) should also be invited to also make submissions at the public hearings.
Members of the Task Team reminded the Chairperson that NEDLAC had already presented its position on the Intellectual Property Laws Amendment Bill to the Committee.
Ms September responded that NEDLAC only presented on areas of agreement within the group, but the essence of inviting individual members of the NEDLAC group was to receive a presentation on areas of disagreement.
A Parliamentary Legal Advisor said that the Department of Trade and Industry (dti) should be given a chance to respond after the public hearings.
Mr Harris said that the list of those that would make submissions at the public hearings seemed to be conclusive enough. This would provide the Committee with valuable information input on areas of the Intellectual Property Laws Amendment Bill (the Bill) that still needed clarity.
Mr van der Westhuizen said that it was important to hear the views of the stakeholders, so as to know what cultural items needed protection, and to further identify gaps which were not covered by the current legislation.
Mr N Gcwabaza (ANC) said that if there were gaps in the legislation proposed by the Department of Trade and Industry, this could be addressed by other departments, such as the Department of Arts and Culture.
Mr van der Westhuizen said that the Department of Trade and Industry’s approach to Intellectual property policy was commercially oriented, in that it protected interests. This raised issues relating to complying with WIPO and TRIPS agreements. Non Governmental Organisations (NGOs) in Geneva were opposed to intellectual property policy, and recommended a sui generis system, which they believed would address issues broader than pure intellectual property policy.
Mr Harris said that the readings that had been circulated were also pointing to the need for a sui generis system, but that it was the essence of the Task Team’s work to determine which approach would be suitable.
Ms September asked Members if they thought there was need for any international submissions, in addition to the workshop that had been held.
Members of the Task Team agreed that a decision on whether international submissions were needed or not could be made after the public hearings. It appeared that some of those who had requested to be part of the public hearings had international exposure to the issues at hand.
Ms September told the Committee Researcher that more research was needed so that members of the Committee would have better clarity on the areas that were still being contested.
She further asked the State Law Advisor to do some research on the issue of reciprocity, and also find out if South Africa entered into any agreements on traditional knowledge protection with other states.
Dr M Oriani-Ambrosini (IFP) requested whether he could make a submission on some issues relating to the Intellectual Property Laws Amendment Bill.
Ms September agreed that he could.
Dr Oriani-Ambrosini said that in his view, the Department of Trade and Industry’s submission did not comply with the trade agreement TRIPS. Furthermore, a regulatory analysis had showed that this Bill would cost the State far more than it proposed to save. The document was not workable and should be brought to a halt. He said that there was no international legislation to which the proposed Bill was aligned, and for this reason it would be difficult to get recourse internationally. The proposed use of Companies and Intellectual Property Registration Office (CIPRO) as a regulator of the patents was not adequate, because CIPRO was inefficient in processing ordinary patents, and would therefore be unable to protect traditional knowledge, which tended to be more complex. He further submitted that the Trust Fund proposed by the Bill would lead to accumulation of funds that would not be distributed to communities. Traditional leadership structures should instead be used to protect traditional knowledge. He added that traditional knowledge protection could not adequately be addressed by intellectual property policy, and that attempting to do so would amount to trying to fit a square peg into a round hole. He suggested that instead a new Bill should be drafted, as the current version did not fit what was currently required.
Ms September pointed out that some of the issues that had been raised by Dr Oriani-Ambrosini had been previously responded to by the Department of Trade and Industry. It was clear that more information was required on some of the issues that had been raised on the Bill.
She added that the Bill would need to be finalised, and that Members would have a chance to vote on the Bill, and recognised that this may amount to following a party position.
Mr Harris said that the principle was to get the Bill right, rather than focus on a time frame. He cautioned that too much haste in finalising it might result in Constitutional problems.
Ms September reminded Members that the Committee had been under the obligation to process the Bill, which had been with the Committee for some time. It would not be acceptable to continue postponing the processing of the Bill.
Mr Gcwabaza said that the Committee needed to state what information was missing, and what information needed to be included. He agreed that the Bill had been with the Committee for some time. At some point those areas that needed clarity must be isolated, rather than the Committee merely continuing to collect information – and this could include more information on the sui generis system.
Mr Harris said that it appeared that the decision at the end of the day would involve whether to pass the Bill in its current form, or including the sui generis approach.
Ms September said that the Task Team had not received sufficient information to reach any decision. She agreed that the Portfolio Committee on Trade and Industry needed to include other Committees in the process such as the Portfolio Committees on Agriculture, Forestry and Fisheries, on Arts and Culture, on Science and Technology, on Water and Environmental Affairs, on Cooperative Governance and Traditional Affairs, on International Relations Cooperation, and the Select Committee on Trade and International Cooperation.
Members of the Task Team agreed to the following recommendations, which would form part of the report to the full Portfolio Committee on Trade and Industry:
-That Phil Pla-Pillaus from Adams and Adams, and Georgetown University in Washington DC would need to offer a course on TRIPS and reciprocity.
- That there was a need to hear all the views before the Committee made a decision.
- That there was need to consider what traditional knowledge or cultural items were worthy of protection, and which aspects were not covered by the proposed legal regime. South Africa may need to adopt a hybrid system.
-That there was need to broaden research to assist the members understand the matters better.
-That there was also need to ensure that the Department had complied with the NEDLAC Act and, if not, then to consider what options were available.
- That there was need to ensure that NEDLAC constituencies were represented at the public hearings, and that a letter would be sent to Mr Herbert Mkhize of NEDLAC in this regard.
Presentation of Task Team report to full Committee
In the afternoon session, the Chairperson of the Intellectual Property Laws Amendment Bill Task Team, Ms September, presented the recommendations of the Task Team that had earlier been decided upon, to the full Portfolio Committee on Trade and Industry. She noted that these recommendations, as set out earlier in this Minute, were reached after three meetings. She also noted the submissions that had been received from Dr Oriani-Ambrosini, as set out in these Minutes. She added that it would also be important for the Committee to explore the issues around financing of the Bill and its implementation. She also noted that further information to assist the Committee in processing the Bill would be required.
Ms September noted that the State Law Advisor had informed the Task Team that the contents of the Bill would not affect customary law, as this fell in a different regime. She reiterated that the Task Team had asked the Committee Researcher to broaden his research from the last decision taken on the sui generis matter and provide information. In addition, the Task Team had asked the Parliamentary Legal Advisor and State Law Advisor to provide an opinion on the legality of the NEDLAC process.
Committee’s Second Draft Report on World Trade Organisation’s Visit
The Acting Chairperson referred Members to the Committee’s Second Draft Report on the World Trade Organisation (WTO) visit (the Report) and asked them to make recommendations.
Ms P Lebenya (IFP) proposed that members be given more time to read this Report, pointing out that not all Members had been present during the visit.
The Acting Chairperson asked other Members for their views, and it was agreed that more time would be afforded for them to study the Report, which would then be tabled for approval at the next meeting.
The Acting Chairperson also noted that because there was no quorum at this session, it was not possible to deal with approval of the Minutes, which would also stand over to a later date.
The meeting was adjourned.
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