Intellectual Property Laws Amendment Bill [B8-2010]: public hearings Day 2

This premium content has been made freely available

Trade and Industry

19 October 2010
Chairperson: Ms J Fubbs (ANC)
Share this page:

Meeting Summary

Professor Johann Kirsten, Head of the Department of Agricultural Economics Extension and Rural Development, University of Pretoria, spoke on the need for recognition and protection of geographical indications in South Africa. Geographical indications were important enough to be part of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement 1994 because people sought a way to prevent the misuse of these names. TRIPS also required member states to protect these indications and specifically to introduce legal means to do so.

A specialist from the Western Cape Department of Agriculture submitted that the Bill made provision for traditional knowledge, but geographical indications were mentioned only about six times in the Bill. He said that there was need for a range of tools in the toolbox and to include geographical indications in it. There was some overlap between geographical indications and traditional knowledge. The current Bill did not provide sufficient protection for geographical indications. Currently it appeared that more protection was given to foreign geographical indications than to South Africa's own. A sui generis system which was empowering by nature and inclusive was to be recommended, with an institutional framework, public participation and appeal, inspection and certification services.

A Member of the Democratic Alliance asked if there was a need to amend the Trademarks Act, if in research it had been considered how many geographical indications it would be feasible to protect, how many countries had sui generis legislation, if South Africa was compliant with the TRIPS Agreement, and observed that South Africa needed an independent standard for geographical indicators as opposed to traditional knowledge. ANC Members asked if South Africa protected Biltong, if South Africa could use the Bill's reciprocity clause to allow neighbouring countries to use it, noted an emphasis was on examining local economic issues, asked how to deal with the reality of globalisation, and observed that geographical indications were not able to resolve the Basmati rice issue. They also asked about the folklore root of protecting indigenous knowledge and ethnicity - would that not be a safer route than just the geographical indications? Was it a tight enough dispensation that was asked for? South Africa as a developing country must develop its own economy. To what extent did South Africa follow the dispensation of geographical indicators rather than folklore? There was no indication that South Africa and other developing countries were developing their economies to ensure participation. The TRIPS Agreement did not provide enough protection. There did not appear to be an effective mechanism. Would trade secrets be protected? The European Union and the United States of America jealously guarded their products and technologies. Mexico had had to exert itself about the identity of tequila. The Rooibos case was raised. The Chairperson asked for a further submission on how one envisaged the Bill being able to achieve these proposals or if there were other routes.

The National House of Traditional Leaders submitted that there was a need for recognition and protection of indigenous knowledge systems in South Africa. However, what might be determined as traditional work in one community might be so in another community. A determination would need to be made in this regard. The House was concerned there was not a prescribed manner for payment into the proposed National Trust Fund for Traditional Intellectual Property, and that the ownership of any copyright in the traditional work would belong to the trust fund and not to the communities. The House's view was that ownership must belong to the community. The House supported the development of a national database. However, this must recognise the ownership of communities. The House was concerned that the disclosure of indigenous knowledge would lead to exploitation. The database must assist in identifying the beneficiaries of indigenous knowledge. Traditional leaders should be members of the proposed National Council of Traditional Intellectual Property.

Democratic Alliance Members asked if the National House of Traditional Leaders had conducted research on specific medicines that traditional leaders might have introduced to a possible geographical indications system and how traditional leaders would work with cross-border issues. A Member of the Inkatha Freedom Party asked about cross-communities. ANC Members asked if there was any traditional knowledge that was less than 50 years old, if the National House of Traditional Leaders had any proposals for the traditional works, about the issue of the disclosure of traditional knowledge, and thanked the House for its offer to provide an expansion of these issues.
 
The African Centre for Biosafety submitted that it had in the recent past undertaken extensive work in the field of biopiracy, intellectual property rights, access and benefits sharing. A key success was the challenge of a patent held by the German pharmaceutical company, Schwabe, on the use of Pelargonium sidoides and Pelargonium reniforme, South African indigenous plants traditionally used to treat various respiratory infections and diseases, including tuberculosis. This patent unlawfully used traditional knowledge held by the Masikhane community in Alice, Eastern Cape. The Centre advocated that Government played a central role in protecting traditional knowledge vis-à-vis biological resources from inappropriate and illegal use and commodification. The Centre opposed protecting traditional knowledge through the intellectual property system, found shortcomings in South Africa's legal framework pertaining to traditional knowledge vis-à-vis biological resources, argued in favour of a sui generis system to prevent the biopiracy of traditional knowledge with regard to biological resources, and criticised the vague terminology of the Bill. Also it submitted that the Bill lacked a mechanism for resolving disputes that might arise from various communities claiming the use or benefits of the commercialisation of particular traditional knowledge. The Centre advocated the implementation of sui generis legislation to protect traditional knowledge holders. Thereby the South African Government would act as a true guardian of the country's rich biodiversity and cultural heritage. The Centre explained a process of court hearings in Germany, said that there had been negotiation only between those who were unequal, and referred to the cross border issue. The Bill was not good enough, and problems could be expected where two communities held the same knowledge and one commercialised it while the other one did not want to. There needed to be one piece of legislation that people could engage with crafted around the particularity of traditional knowledge.

Democratic Alliance Members commented that the issue about the plants Pelargonium sidoides and Pelargonium reniforme fell under the Patents Act 1978, said that they would appreciate an insight into traditional works, and asked about how an indigenous community should be defined. ANC Members asked if the Department could assist with the specific issue in Germany about the medicine, if the Centre's concerns were not sufficiently covered by the National Environmental Management: Biodiversity Act  2007 (NEMBA) , asked why borrow the sui generis system rather than adopt an African system, or accept the provisions of this Bill, how the Centre related to the traditional structures, thanked the Centre for definitions, and called for further responses, in writing. 

Dr Tim Burrell, a patent attorney, expressed the Law Society of South Africa’s gratitude to the Committee, but submitted that the Society recommended that the Bill be withdrawn: It was a badly drafted piece of legislation. The Committee must surely reject this bill. South Africa needed a sui generis bill. South Africa needed a set of rights that were different from the Western rights. Dr Burrell submitted that the Law Society of South Africa recommended establishing a committee of experts in the field to consider the matter.

Members asked what the point of another bill (sui generis) would be, how one should define “expert”, said the submission was insulting, and did developing countries have to conform to the West?

Mr Graeme Gilliland, a copyright specialist, acknowledged that he spoke from a radical viewpoint, but submitted that the Bill was well-intentioned, but enshrined theft from the past and was a path to hell. However, there was need to amend South Africa's laws, which were English in their approach.  Language was a window to culture, and the obsession with European languages, and the dominance of English had done great damage to traditional knowledge. Mr Gilliland called for a review of other legislation and suggested a redistributive approach. It was unacceptable to have to go to Switzerland, where the World Intellectual Property Organisation was based, to examine South African intellectual property. It was unconscionable that performances of South Africa's in Europe and the United States of America returned no royalties to South Africa whatsoever. Mr Gilfillan agreedd with Dr Burrell that the Bill should have been reviewed by specialists – including copyright specialists, but not academics.

Members said that Mr Gilfillan's view was a unique angle, asked if he proposed an African database at the World Intellectual Property Organisation, observed that there was no support for the World Intellectual Property Organisation in South Africa and that it was important to engage with the Southern African Development Community, and asked him to suggest which experts should be consulted and to respond in writing with more details of his recommendations.

Prof Esmé du Plessis, a registered patent attorney, had intended to present a submission on behalf of the Standing Advisory Committee on Intellectual Property to the Minister of Trade and Industry. The intended submission was simultaneously on behalf of Adam & Adams, a leading law firm specialising in intellectual property, and herself, in her personal capacity. However, the Chairperson ruled that  Prof Du Plessis should brief the Minister first; thereafter, she would be given a new appointment to brief the Committee.

The Chairperson observed that the proposed legislation was "a complex minefield". However, she dispelled any impression that the Committee had taken any decision to reject the Bill. The Committee's task team on the Bill would continue its work, and on 3 November 2010, the Committee would deliberate on the Bill.


Meeting report

Prof Johann Kirsten submission: Need for recognition & protection of geographical indications
Head of the Department of Agricultural Economics Extension and Rural Development, University of Pretoria, Prof Johann Kirsten illustrated his submission on the need for recognition and protection of geographical indications in South Africa by means of a Power Point presentation. Prof Kirsten's submission dealt with the amendment to Section 2 of the Act (No 194 of 1993) dealing with geographical indications.

Prof Kirsten referred to the Bill's definition of geographical indications: these indications related not only to place names but to a whole range of products, culture and places that had existed and developed over time and which reflected the whole experience of people in terms of their traditional practices and the connection with territory. Such connections could give a product a particular identity, but such an identity might have been crafted as a result of the interplay between the intellectual input of communities with that product.

This dimension of the Bill was also important in the context of international negotiations at the World Trade Organisation (WTO) and specifically in the context of the TRIPS Agreement. As Members knew, there were apparently new discussions at the WTO around the issue of geographical indications and their place in the TRIPS Agreement, and it was therefore necessary to remind ourselves how geographical indications were defined in Article 22(1) of the TRIPS Agreement 1994. Article 22(1) said that geographical indications basically identified goods originating in the territory of a member state or a region or a locality in the territory where a given quality, reputation or other characteristic of the goods was essentially attributable to its geographical origin. This was an important aspect which was driven largely by the European Union (EU) in terms of its protection of products with geographical names and geographical origins.

The main reason that geographical indications were on the Committee's agenda and part of TRIPS was that people sought a way to prevent the misuse of these names. TRIPS also required member states to protect these indications and specifically to introduce legal means to do so. The United States was not inclined to this concept of protecting geographical indications by sui generis legislation, but had registered some geographical indications under trademark laws, for example, Stilton Cheese. The rationale for protecting geographical indications included the protection of consumers and the reputation of the product concerned.

In contrast to many European countries, South Africa did not have a long history of protecting geographical indications. In the past five years research had been conducted on the misuse of geographical indications.
Prof Kirsten noted the famous case of Rooibos.

Prof Kirsten gave the example of misappropriation of the name Karroo, for example, Karroo Lamb. The universal resource indicator (URL) www.karoo.co.uk [for Karoo, a local portal for Hull and East Yorkshire, England] was an extraction of South African heritage for use outside South Africa's borders. This was a misuse. He was pleased that there was some reflection in the Bill of the need for protection of all products with a South African heritage. Dr Dirk Troskie would give further exposition on this topic. Prof Kirsten and Dr Troskie had collaborated for the past five years.

Discussion
The Chairperson thanked Prof Kirsten. She mentioned that she was about to travel to Brussels. She noted that the EU jealously guarded its products and technology. The same could be said of the United States of America (USA). Mexico had taken ownership of its tequila, but had to exert itself to ensure that it retained tequila's identity. Members were familiar with the Rooibos case. She felt very strongly about the agricultural producers. She thanked Prof Kirsten precise capturing of the issues.

Mr T Harris (DA) said that the previous day's meeting was a  full house on sui generis legislation. His understanding of geographical indications was that the subject was just an amendment to the Trademarks Act. It was really about the interaction between indigenous knowledge (IK) and geographical indications (GI).

Mr Harris asked if there was a need to amend the Trademarks Act, or if he was missing something else.

Mr Harris asked if Prof Kirsten had considered how many geographical indications it would be feasible to protect.

The Chairperson asked Prof Kirsten to please make it clear to the Committee how he saw this particular Bill's being able to achieve some of its proposals or if he believed that there were other routes to go.

Prof Kirsten replied that the debate was still very much open. One was trying to use the existing legislation.

Dr Dirk Troskie submission: Protection & promotion of Geographical Indications
A specialist from Agricultural Economics in the Western Cape Department of Agriculture, Dr Dirk Troskie presented a theoretical background to the protection and promotion of geographical indications; spoke on the GI system for wine and other agricultural products and then commented on the Bill.

His explanation of the theoretical background was illustrated by tables and graphs; price elasticity; the farm problem; the price/cost pincher; solutions to the farm problem; reputation without protection = disaster; GI system for wine; and GIs in the wine industry, under which heading Dr Troskie drew attention to the Crayfish Agreement of the 1930s and Regulation R1434 of 1990. His submission was illustrated by maps of the production areas of South Africa – geographical units; regions; 21 districts; and 56 wards.

Graphs were shown for certified wine from 2000 to 2009; and South African wine exports from 1991 to 2009. He referred to a GI system for other agricultural products.

Dr Troskie said that the conventional view of GI in South Africa could be illustrated by a cartoon: a supposed European Union (EU) Name Police would demand the removal from supermarket shelves of South African produced spaghetti and macaroni under a trade deal. The principle was that South Africa had a view that GI for other products was a threat; however there were a number of indigenous products whose case South Africa would lose without GI, for example, Grabouw wors – it had become a generic term. Examples of geographical indications for other products included (Cedarberg) Rooibos; Honeybush; Karroo Lamb; Boland waerblommetjies; Sandveld aartappels; Kalahari Gemsbok; and Swakara.

Dr Troskie said that geographical indications for other products were compliant with the TRIPS Agreement. There was no sui generis system, but there existed the Trade Marks Act 1993, the unfair competition regulations, and the consumer protection laws. He suspected that more protection was given to foreign geographical indications than to South Africa's own. The Bill made provision for traditional knowledge (TK), with a council, a fund, a database, international recognition, and reciprocity. GI was mentioned about six times. There was need for a range of tools in the toolbox: traditional knowledge, geographical indications, trademarks, and patents. He suggested possible recommendations on TK: secret TK; consumer communication – some form of mark; nature of protection – sanctions.

 Dr Troskie recommended a sui generis system which was empowering by nature and inclusive; an institutional framework; with public participation and appeal; an inspection and certification service; consumer communication; and resolution of cross-border issues. The Bill made provision for TK - "it looks right". However GI was only mentioned about six times in the Bill. One needed a range of tools in the toolbox and to include GI in it. There was some overlap between GI and TK. The current Bill did not provide sufficient protection for GI.

Discussion
Mr Harris asked how many counties had sui generis legislation. South Africa needed an independent standard for GI as opposed to TK. He asked if South Africa was complaint with the TRIPS Agreement.

Mr N Gcwabaza (NA) asked if South Africa protected Biltong. Could South Africa use the Bill's reciprocity clause to allow neighbouring countries to use it?

Ms September noted that Dr Troskie’s emphasis was on examining local economic issues. She asked how to deal with the reality of globalisation. GI was not able to resolve the Basmati rice issue. How could one overcome this? She asked about the folklore root of protecting indigenous knowledge and ethnicity. Would that not be a safer route than just the GIs.

Ms September observed a very localised focus. She asked if it was a tight enough dispensation that Dr Troskie was asking for. This came very close to the label of origin kind of regime that South Africa had.

Ms September said that South Africa was a developing country and must develop its own economy. She asked to what extent South Africa followed the GI rather than the folklore dispensation. There was no indication that South Africa and other developing countries were developing their economies to ensure participation. Members would be interested to the extent that these things were found in local communities.

Mr J Smalle (DA) observed that Dr Troskie had made reference to internal or external arrangements.

Dr Troskie responded to Mr Harris and Ms September. China, India, and Indonesia had specific chapters in IP laws. The distinction was older world versus new world. Columbia had sui generis legislation to protect its GI. One should not equate GI with the European Union (EU). South Africa did not have the same history, but it had other things that make its products unique.

Dr Troskie noted that South Africa had specific bushes the biochemical composition of which related to the geology of the time when the Karroo, 400 million years ago, was a sea bed.

Dr Troskie spoke about reciprocity. It should be asked if there should be a register that was voluntary or was enforced, and if South Africa was just going to accept all EU products on that register. This was why one needed a multilateral register.

Dr Troskie said that the Indian legislation was as a result of the Basmati case 10 years previously. The Basmati region straddled the borders of India and Pakistan.

Dr Troskie said that the legislation would make South Africa comply with the TRIPS Agreement. From that perspective South Africa was compliant with TRIPS.

Dr Troskie said that there was no magic bullet to deal with folklore. There might be need for a specific legislation. South Africa might need a patent or trademark and these were not necessarily exclusive. A number of wines were trademarks.

Dr Troskie spoke about "the internationalisation of localisation". He referred to the recognition of Karroo lamb.

Dr Troskie said that it was important that the producer decided in what market he would work. Cost saving would be of the essence.

The Chairperson said that to an economist, the TRIPS Agreement was important in intellectual property (IP). He asked for a written paragraph giving Dr Troskie's understanding of the matter. She did gain the impression from Dr Troskie that sui generis legislation would solve these grey areas. She requested more explanation of the demand curves in his graphs so that these technical matters could be better understood by those whose expertise was politics rather than economic statistics.

Mrs September said that the graph did not show when Government could make an intervention. The graph should go further. TRIPS did not provide protection. There did not appear to be an effective mechanism. She wondered if trade secrets could be protected.

The Chairperson thanked Dr Troskie nd asked him to provide written answers to outstanding questions.

National House of Traditional Leaders. Submission
Nkosi S E Mahlangu, Chairperson, House of Traditional Leaders, Limpopo, representing the National House of Traditional Leaders, said that the House had studied the Bill and it was the view of the House that there was a need for recognition and protection of indigenous knowledge systems in South Africa.

Traditional leaders were the custodians of the customary values of the communities and traditional leaders and their communities should be involved in the processes. Traditional leaders should be the access point to the communities in respect of indigenous knowledge. Access to communities would have to involve discussions with traditional leadership structures. Traditional leaders and their communities were the guardians of their indigenous knowledge and they must protect that knowledge. Traditional leaders had tacit knowledge which could be adequately used for the development of communities. The ancestors and great-grandparents managed to develop their own environment with the tacit knowledge that they had.
There were practices that could be considered indigenous knowledge and some cut across different communities while others were confined to specific communities. An example could be that of a situation whereby a baby survived while his mother died so the baby could not breast feed. In such a situation, the baby would be fed through some leaves from a milky tree called "Ndleve" in shangaan. The watery milk substance would be injected around the breasts of women which enabled them to develop and produce milk.

Nkosi Mahlangu commented that the definition of "traditional work" as a literary work, an artistic work or a musical work which was recognised by an indigenous community as a work having an indigenous origin and a traditional character, would cause conflict among communities if that was left for them to decide. What might be determined as traditional work in one community might be so in another community. It was the view of the House that a determination should be made in this regard.

The National Trust Fund for Traditional Intellectual Property was proposed and there was provision for the payment to be made into the fund for the benefit of indigenous and local communities in a prescribed manner. The House was concerned that there was not any prescribed manner stipulated. The ownership of any copyright in the traditional work would belong to the trust fund for traditional intellectual property and not to the communities. The House's view was that ownership of any copyright in the traditional work must belong to the community.

The House supported the development of a national database. However, this must protect the contents that recognised the ownership of communities. The House was concerned that the disclosure of indigenous knowledge would lead to exploitation. The database must assist in identifying the beneficiaries of indigenous knowledge. The House supported the concept of a National Council of Traditional Intellectual Property and that traditional leaders should be members of the Council, whose function was to advise the Minister on any matter concerning indigenous knowledge.

Discussion
Mr Harris said that Nkosi Mahlangu had spoken about the trust and shared some concerns; could he advise Members of any traditional knowledge that was less than 50 years old?

Ms P Lebenya (IFP) asked about cross-communities.

Nkosi Mahlangu responded that the National House of Traditional Leaders proposed that those communities should be clustered.

Mr N Gcwabaza (ANC) asked about the position of individuals.

Nkosi Mahlangu replied that the culture of the individual in the African context had not received serious attention.

Mr J Smalle (DA) asked if the National House of Traditional Leaders had conducted any research on specific medicines that traditional leaders might have introduced to a possible GI system and if traditional leaders would work with cross-border issues.

The Chairperson asked about the disclosure of traditional knowledge.

Nkosi Mahlangu responded that “we were one African community”. We all lived under certain circumstances but used techniques used in other areas. As traditional leaders they had not undertaken research into medicines.

Ms F Khumalo (ANC) asked about the background Nkosi Mahlangu had given. If an individual wished to have an access to this indigenous knowledge, what did the ‘responsibility of protecting the communities’ mean?

The Chairperson asked if the National House of Traditional Leaders had any proposals for the protection of traditional works.

Nkosi Mahlangu said that he was informed that the National House of Traditional Leaders was not able to conduct a full consultation with the communities and that it was subordinate to a department – the Department of Cooperative Governance and Traditional Affairs - and was constrained by the limitations of its budget, which rendered the House unable to conduct proper research. However, at a provincial level, traditional leaders would consult and submit findings to the Committee.

Nkosi Mahlangu said that the communities had been exploited for too long. It was a matter of great concern to the House, which desired to protect that knowledge. There were many African communities. The House was worried about how that information could be protected for the benefit of the communities by means of a data base. Traditional leaders were supposed to be access points. There was a host of other bodies. Protocol had to be observed. One must first greet and take up the proper positions. In most cases it was not done. Nkosi Mahlangu said that he would provide further explanations subsequently.

The Chairperson thanked Nkosi Mahlangu for his offer to provide an expansion of these issues.

African Centre for Biosafety (ACB) submission
Ms Haidee Swanby, ACB researcher and outreach officer, said her organisation was a non-profit non-governmental organisation based in South Africa concerned with the promotion of biosafety and challenging biopiracy, agrofuels, and the commodification of biological resources and associated traditional knowledge. The ACB had in the recent past undertaken extensive work in the field of biopiracy, intellectual property rights and the discourse on access and benefits sharing. ACB’s primary concern was to ensure the proper protection of traditional knowledge vis-à-vis biological resources.

One of the organisation's key successes was the challenge of a patent held by the German pharmaceutical company, Schwabe, on the use of Pelargonium sidoides and Pelargonium reniforme. These two South African indigenous plants were traditionally used to treat various respiratory infections and diseases, including tuberculosis (TB). This patent unlawfully used traditional knowledge held by the Masikhane community in Alice, Eastern Cape.

ACB advocated that Government played a central role in protecting traditional knowledge vis-à-vis biological resources from inappropriate and illegal use and commodification. ACB opposed any attempts to protect traditional knowledge (TK) through the intellectual property system (IPS) which conferred monopolistic rights to biodiversity and traditional knowledge in line with the Trade Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organisation.

ACB discussed the shortcomings inherent in South Africa's legal framework pertaining to traditional knowledge involving biological resources.

ACB noted the Bill aimed to confer protection of traditional knowledge through the intellectual property system and pointed out its ramifications for traditional knowledge in the realm of biodiversity. It argued in favour of a sui generis system to prevent the biopiracy of traditional knowledge with regard to biological resources. It criticised the vague terminology of the Bill as it failed to define clearly indigenous community, traditional work, and traditional performance.

The Bill provided for the establishment of a National Trust Fund for Traditional Intellectual Property that would comprise sub-funds administered by the registrars of patents, copyright, trademarks and designs. These sub-funds would be responsible for distributing benefits accruing from the commercial use of TK to TK holders. This was similar to the model presented in the National Environmental Management: Biodiversity Act 2007 (NEMBA) bio-prospecting regulations, which catered for the establishment of a bio-prospecting trust fund. However, unlike the bio-prospecting regulations that specified how this trust fund would function, the Bill did not outline these functions.

Crucial questions that the Bill left unanswered included how received royalties would be transferred to beneficiaries; what the exact duties and responsibilities of the different fund administrations would be and how to deal with surplus money in the funds.

ACB pointed out that the Bill lacked a mechanism for resolving disputes that might arise from various communities claiming the use or benefits of the commercialisation of particular traditional knowledge. The Bill should include dispute mechanisms that accommodate both indigenous and Western conflict resolution mechanisms.
 
ACB observed that, although not its focus, the Bill strengthened the protection of traditional knowledge within the intellectual property system, thereby commodifying and privatising knowledge that was a vital part of our human heritage. Since traditional knowledge was collectively owned and developed for non-commercial use, exchange of this knowledge was regulated through customary laws of information exchange.

ACB maintained that traditional knowledge did not belong within the intellectual property regime that was designed to provide ownership for technological inventions within the context of industrial applications. In addition, ACB submitted that the intellectual property system did not cater for protection in perpetuity and could provide protection to a recorder of knowledge rather than the rightful knowledge holders.

ACB was fundamentally opposed to the strategy for protection of traditional knowledge taken in the Bill.

ACB advocated the implementation of sui generis legislation to protect traditional knowledge holders from the inappropriate use of their knowledge. Such a system should contain provisions that provided protection from all forms of traditional knowledge, including traditional knowledge vis-à-vis biological resources.

By implementing a sui generis system for traditional knowledge protection, the South African Government would act as a true guardian of the country's rich biodiversity and cultural heritage.

Ms Swanby explained a process of court hearings in Germany.

Ms Qayi Funeka, Secretary, Masakhane CPA, Alice, Eastern Cape, said that she had taken part in court hearings in Germany. She said that if the Government was considering a bill or proposing legislation, there must be input from the community, including the rural areas. She described how the German company had exploited her community.

[A crew from a German television company were present and filmed parts of the meeting's proceedings.]

Ms Swanby said that there had been negotiation only between those between those who were unequal.

Ms Swanby referred to the cross border issue.

Ms Swanby said that the Bill was not good enough and emphasised that she anticipated problems where two communities held the same knowledge and one commercialised it while the other one did not want to. There needed to be consultation mechanisms. These were some of the problems with the bill as it stood. There needed to be one piece of legislation that people could engage with crafted around the particularity of TK.

Discussion
Ms September asked if the Department could assist with the specific issue in Germany about the medicine.

Ms September asked if the ACB was not sufficiently covered by the NEMBA.

Ms September asked why borrow the sui generis system, which was not quite indigenous, rather than adopt an African system, or accept the provisions of this Bill?

Ms Khumalo asked how ACB related to the traditional structures.

Mr Harris commented that the issue relating to the plants Pelargonium sidoides and Pelargonium reniforme fell under the Patents Act 1978.

Mr Harris said that he would appreciate an insight into traditional works.

Mr Harris, with reference to the proceedings of the meeting held on 19 October 2010, commented on traditional law. He asked about the concept of an indigenous community. How should we define it?

The Chairperson called for written responses, if possible, through the Committee Secretary.

Ms Swanby thanked the Chairperson on the first issue of the process of benefit sharing. The ACB had objected to the permits that Schwabe was seeking. That was imminent. The ACB would know in the next few weeks if it needed any assistance.

With reference to the National Environmental Management Act (NEMBA), the ACB objected to the beneficiary agreement which it felt had not been consultative enough. The ACB wanted a different kind of consultative process. The company was going away with the knowledge. The IP protection was not appropriate for the kind of protection needed by this kind of IK; there were conceptual difficulties.
 
The ACB was not asking for something that already existed but for the Government to craft something special for IK. IP and TK were two systems that could not be married.

The Chairperson ruled that the ACB delegation would respond in writing to outstanding questions and the Committee would welcome enlightenment on the issue of definitions. She undertook to inform ACB of developments in the Bill.

Ms Funeka said that the farmers were farm workers and were not under any chief at that time.

The Chairperson said that she was sure that this response could be expanded in a further written submission and thanked the ACB delegation.

Afternoon session

Dr Tim Burrell submission: fundamentals revisited
Dr Tim Burrell, Patent Attorney, Burrells Consulting Intellectual Property Lawyers, Sandton, introduced himself as the author of 30 books in intellectual property (IP) law. He expressed the Law Society of South Africa’s gratitude to the Committee, the dedication of which had not passed unnoticed.

Dr Burrell explained the current IP law statutory rights as opposed to a parallel system of rights. The Patents Act 1978 gave no protection to indigenous communities. South Africa was much the poorer for the omission.

With regard to statutory rights, Dr Burrell observed that the trade mark Coca-Cola was worth much more than the company's physical assets. This was the sort of value that attached to these intellectual property rights.

Dr Burrell referred to the TRIPS agreement, copyright, common law rights, and trade secrets.

Dr Burrell said that most trade marks fell into “the generic trap”, for example, Hoover, Thermos, Vaseline, and Xerox. Even the trade mark Rolls Royce was prejudiced by its use in an expression such as 'this product is the Rolls Royce of bottled water'.

Dr Burrell discussed the purpose of the Intellectual Property Laws Amendment Bill in relation to these specifics.Under existing legislation, a performer would be covered for 50 years from the date of his death. For example, Jimmy Cliff was adequately covered from the date of his first performance. Existing legislation made adequate provision to combat counterfeit goods so they could be deleted from the list of items that needed to be addressed by amendments or new legislation. Computer software – in which copyright subsisted as in a literary work - was covered by the present copyright legislation. Egyptian cotton had become a generic name. Cinematic films could be registered, and were protected for 50 years. Roman reticulation systems would, hypothetically, fall under patents. Italian food would fall under the Patents Act 1978. Scotch whiskey would be protected by the Patents Act 1978. Dr Burrell said that the Scottish tartan was one exception – it was a design. Rooibos was no longer a trade mark: it was a generic name for a type of tea. Books were protected by the copyright legislation. MacDonald's was adequately covered as a trade mark. It could be crossed off the list of items that might be considered as items of intellectual property that needed to be protected by the proposed amendments. Johnny Clegg was protected by existing copyright or performing rights legislation.

Dr Burrell said that the Committee must surely reject this bill. South Africa was a party to various treaties. Dr Burrell read from the Paris Convention. Dr Burrell submitted that the Law Society of South Africa recommended that the Bill be withdrawn. It was a badly drafted piece of legislation. He submitted that the Law Society of South Africa recommended establishing a committee of experts to consider the matter.

Discussion
Mr Harris asked what the point of sui generis legislation would be.

Dr Burrell said that South Africa needed a sui generis bill. South Africa needed a set of rights that were different from the Western rights.

Mr X Mabaso (ANC) asked how to define an expert.

Dr Burrell replied that he envisaged a committee formed of experts in the field. He added that one could not apply for a patent for a wheelbarrow since it was an old invention.

Mr Gcwabaza said that Dr Burrell's allegation that the Bill was completely irrelevant was an insult to those who had drafted it to amend the legislation aimed at the protection of traditional knowledge. Dr Burrell's submission was an insult to the whole process. Secondly, Mr Gcwabaza echoed Mr Harris. What purpose would be served by another bill? He asked if South Africa did not need legislation for itself so that it could implement the international conventions to which South Africa was signatory.

The Chairperson said that Cartesian philosophy was not in present in African thought so differences in philosophies had to be taken into account. She said that she had not read Dr Burrell's books, but she would make herself aware of them in future. She asked if he really believed that there was no difference and that South Africa, and other developing countries, must conform to the West.

Dr Burrell replied that one had to be provocative.

Mr Graeme Gilfillan submission
Mr Graeme Gilfillan, Copyright Specialist, NISA
Global Entertainment, submitted that Bill had good intentions, but enshrined theft from the past and was "sending us to hell". However, there was need to amend South Africa's laws, which were English in their approach. South Africa lacked laws in other languages. Language was a window to culture, and the obsession with European languages, and the dominance of English had done great damage to traditional knowledge. He called for a review of other legislations. He suggested the approach of redistribution. He criticised the need to go to Switzerland, where the World Intellectual Property Organisation (WIPO) was based, to examine South African intellectual property. He noted that it was unconscionable that performances of South Africa's national anthem in foreign countries, in particular in Europe and the United States of America, returned no royalties to South Africa whatsoever. He concurred with Dr Burrell to the extent that the Bill should have been shown to specialists, although he did not agree with him on all points. The idea that a traditional work was something that had not been recorded was a joke. However, the intention of the Bill was to do well.

Discussion
The Chairperson said that Mr Gilfillan's view was a unique angle. She asked if he proposed an African database at the World Intellectual Property Organisation, observed that there was no support for the World Intellectual Property Organisation in South Africa and said that it was important to engage with the Southern African Development Community.

Mr Mabaso asked Mr Gilfillan to suggest which experts should be consulted and to respond in writing with more details of his recommendations.

Mr Gilfillan responded that experts on land and property were needed, also those knowledgeable on the redistribution of wealth and property, with master's degrees in copyright, but not necessarily lawyers. Also experts in language and history could make a contribution, but not academics.

Mr Harris asked how Mr Gilfillan envisaged the time frame. He also asked about the definition of a traditional community and the place of customary law.

The Chairperson asked Mr Gilfillan to contextualise, and bear in mind the financial constraints of a developing country.

Mr Gilfillan said he came from a radical viewpoint. There was need for "a commission on the land of the mind." He said that the Bill was shoddy and that South Africa had existing databases.

Mr Gilfillan spoke about the issue of customary law. He said that English was a hegemony that was destroying our culture. Afrikaans was being displaced too. South Africa was obsessed with English and insufficiently concerned for its neighbours.

The Chairperson asked how many languages Mr Gilfillan spoke. She commended him on his enviable fluency.

Intellectual Property Laws Amendment Bill [B8-2010]. Intended Submission
Prof Esmé du Plessis, Registered Patent Attorney, and Consultant, Adams & Adams, gave an introduction to her submission on behalf of the Standing Advisory Committee on Intellectual Property to the Minister of Trade and Industry. It was simultaneously on behalf of Adam & Adams, a leading law firm specialising in intellectual property, and herself, in her personal capacity. Prof du Plessis had herself redrafted the current version of the Bill and invited Members to reflect on it.

The Chairperson was worried lest by receiving a submission on behalf of the Advisory Committee on Intellectual Property at this time she would be guilty of a breach of protocol. She would rather err on side of the side of caution: the Advisory Committee's mandate was surely to advise the Minister rather to advise the Portfolio Committee. Therefore the Minister should be advised first; moreover, the proposed legislation was "a complex minefield".

The Chairperson asked the Committee Secretary to obtain a ruling from the Senior Procedural Officer of Parliament. She asked Prof Du Plessis first to advise the Minister and tell him what she, Prof Du Plessis, wanted to submit to the Committee. Thereafter, Prof Du Plessis would be given a new appointment to brief the Committee.

Committee business
The Chairperson said that the Committee would not meet on Thursday or Friday, 21 or 22 October 2010. The Committee's task team on the Intellectual Property Laws Amendment Bill would meet on Tuesday, 26 October 2010 – a venue was required. On Wednesday 27 October 2010 the Committee would consider the budget review. Members should make a special note of the date for the meeting on Friday, 29 October 2010. On Tuesday, 02 November 2010 there would be a compulsory meeting of the Intellectual Property Laws Amendment Bill task team; the same day the Minister would brief Members from 16h00 to 18h00 on the Department of Trade and Industry's Annual Report 2009/10. On Wednesday, 03 November 2010 the Committee would deliberate on the Intellectual Property Laws Amendment Bill. The Chairperson advised Members that she would be travelling to Brussels on Friday, 22 October 2010 on official business.

The meeting was adjourned.

Share this page: