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

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Trade, Industry and Competition

02 November 2010
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Committee heard submissions from the Congress of Traditional Leaders of South Africa and the Community of Orania on the Intellectual Property Laws Amendment Bill.  The Bill introduced provisions concerning the protection of indigenous knowledge systems.

CONTRALESA was concerned over the exploitation of indigenous knowledge and rights without consent, recognition or benefits to mainly rural impoverished communities.  The Bill was necessary to protect and improve the livelihood of indigenous knowledge holders and communities, benefit the national economy, prevent misappropriation and to provide a legal framework for the protection and empowerment of local communities.

CONTALESA suggested that the definitions in the Bill were revised and aligned with the Constitution and other relevant legislation. Recommendations concerning the definition of ‘community’ were made. The organisations suggested that traditional leaders were involved in the establishment and administration of the proposed trust fund to be formed to administer royalties to beneficiaries.  CONTRALESA recommended that the Bill made provision for an effective dispute resolution structure.  The organisation was willing to participate in the establishment and maintenance of the envisaged database.  The legislation should make provision for the protection of confidential information. It was acknowledged that a presumption existed in law against retrospectivity but this was not an absolute concept and there was a compelling case for retrospectivity to apply in instances where the indigenous knowledge of a community had been misappropriated unlawfully and without compensation.  The difficulty with limiting the period for protection of indigenous knowledge under the intellectual property laws was acknowledged.

Members of the Committee asked questions to obtain clarity on the issues concerning the period of coverage and whether the proposed trust fund should be administered on a local, provincial or national level.

The President of the Orania Movement presented the second submission on behalf of the Community of Orania. The Community supported the Bill.  No specific recommendations were made but the submission focused on the need for a functional community to exist before the benefits generated from indigenous knowledge systems could be realised.

Members of the Committee asked for clarity on what was meant by a functional community, the location and composition of the Orania community and why the Afrikaners of Orania considered themselves to be an indigenous community.

Meeting report

The Chairperson welcomed the delegates from the Congress of Traditional Leaders of South Africa (CONTRALESA) and the Community of Orania. The Committee appreciated that CONTRALESA and the Community of Orania represented the traditions of South Africans and was eager to hear submissions from both organisations.

Submission by the Congress of Traditional Leaders of South Africa (CONTRALESA)
Nkosi Xhanti Sigcawu presented the submission on behalf of the Congress of Traditional Leaders of South Africa. CONTRALESA appreciated the opportunity to participate in the public hearings on the Intellectual Property Laws Amendment Bill. It was encouraging that community involvement in the legislative process was being carried out.

The Committee was informed that the rampant exploitation of indigenous knowledge through the intellectual property system had created a need for its protection. If not addressed, the exploitation of indigenous rights without consent, recognition or benefit would continue to impoverish communities, most of which were in the rural areas of the country. CONTRALESA was of the opinion that sufficient protection would advance the interest of many communities, alleviate poverty and stimulate economic activity in many communities. The Bill needed to improve the livelihood of the holders of indigenous knowledge and communities and benefit the national economy. The proposed legislation needed to prevent misappropriation and provide a legal framework for protection and empowerment of local communities in order to improve their social well-being.

CONTRALESA suggested that the definitions in the Bill were revised for consistency and alignment with the Constitution and other laws. In particular, the definition of ‘a community’ should be constructed in a manner that indicated the progressive nature of communities and should not be bound or limited to time and or age. The definition should be inclusive to allow sub-communities such as Christians, healers and other contemporary communities to be covered.

The Bill should be improved to include reference to ‘traditional leaders’ in the composition of the proposed national council. The involvement of traditional leaders through existing structures would advance the implementation of the legislation, especially in the areas of registration, complaints and dispute resolution. CONTRALESA recommended that provision be made in the Bill for the creation of an effective dispute resolution structure for speedy resolution of disputes. This structure could be complemented by the role of existing traditional structures in communities. CONTRALESA further submitted that traditional leaders were involved in the identification of communities and the creation of trusts for the distribution of royalties to beneficiaries.

CONTRALESA recommended the creation of an innovation fund to stimulate and advance the ideas and creations of community members into enterprises that would generate income to sustain communities.  CONTRALESA was willing to assist with the development and maintenance of the database envisaged in the Bill. However, a distinction should clearly be drawn between databases for indigenous knowledge and those for preserving information or culture. The Bill should include provisions that dealt with the maintenance of the confidentiality levels of the database to ensure protection of information that individuals or communities did not wish to be accessed by the public. The Bill made no provision for retrospective applications to protect indigenous knowledge from disclosure.  It was acknowledged that a presumption existed in law against retrospectivity but this was not an absolute concept.  There had to be a compelling case for retrospectivity to apply in instances where the knowledge of indigenous community had been misappropriated unlawfully and without compensation in the past. CONTRALESA noted the difficulty that could exist with limiting the period for protection of indigenous knowledge under the intellectual property laws. The period included in the Bill for protection of indigenous knowledge should be carefully considered to ensure that it did not unreasonably exclude work that was deserving of protection.

CONTRALESA concluded the submission by recommending that the recommendations made by the organisation were included in amendments to the Bill.


Discussion
Mr B Radebe (ANC) asked when the period of traditional knowledge cover provided by the Bill should commence.

Nkosi Vtuthuko Khuzwayo; Deputy President,
CONTRALESA replied that the years 1927, 1936 and 1913 proposed to date were not acceptable to the people. There was a need to look at the consequences of specifying any particular date.

Mr Radebe asked if the proposed trust fund should be administered at the national, provincial or local level.

Nkosi Khuzwayo replied that traditional leaders needed to be involved in the identification of communities and the creation of a trust for the distribution of royalties to beneficiaries. This recommendation was not intended to undermine other structures but was meant to enhance community involvement in the administration of the trust.

Mr Radebe asked if the Department of Trade and Industry had made any adjustments to the Bill following previous interactions with CONTRALESA.

Nkosi Khuzwayo replied that CONTRALESA was not consulted when the Bill was drafted. The contribution of CONTRALESA was made after the Bill was formulated. Therefore no input from CONTRALESA was contained in the Bill but assurances had been given that suggestions and recommendations would be considered.

Mr N Gcwabaza (ANC) asked to what extent confidentiality applied with regard to particular pieces of indigenous knowledge.

Nkosi Khuzwayo replied that in the event that indigenous knowledge was regarded as confidential by its holder, the holder had to be consulted and give permission before the knowledge could be appropriated or brought into the public domain.

Mr T Harris (DA) asked if there had been any indigenous knowledge that had arisen within the last fifty years, which was the proposed period for cover by the Bill.

Nkosi Khuzwayo replied that most of the origins of indigenous knowledge were traceable although it was difficult to know who was responsible for each item of knowledge as information was not well documented.

Mr Harris asked if existing traditional knowledge in communities could be codified.

Nkosi Khuzwayo replied that indigenous knowledge had been kept in formats other than the written word. This information could be registered to avoid the exploitation of communities.

Submission by the Community of Orania
Mr Carel Boshoff; President of the Orania Movement, presented the submission on behalf of the Orania Community.

Mr Boshoff informed the Committee that what needed to be protected with regards to indigenous knowledge were not so much isolated pieces of knowledge or expressions of culture preserved as if in a museum, but a perpetually self-transforming system of meanings and sources of meaning that equipped its users for the challenges that life confront them with. The protection of certain pieces or expression of indigenous knowledge had double value in itself for the protected item (for example a financial benefit) but the symbolic value of the proper regard for the system it represented might be greater in the long run.

It would consequently make no sense to try and protect functional knowledge systems, or afford them the circumstances in which to thrive, without affording the communities that embodied it the circumstances and opportunities to thrive as well. Functional knowledge systems needed functional communities.  There were four preconditions that were needed to sustain functional communities. The first condition was recognition, which was not just an act, but a state of being and living in the eyes of others. Everything that a community needed to thrive flowed from recognition and could be understood as an expression of it. The three other conditions were the existence of a functional community, empowerment and space. Space could be mental or physical and a community needed both to thrive.

Mr Boshoff explained that the Afrikaners of Orania were an indigenous and traditional community, despite coming into being only during the previous three hundred years.  The Afrikaner community could not be viewed as an original nation. The ethnic and cultural identity of the Afrikaners of Orania did not date back to time immemorial, but this did not mean that they were not authentic, did not exist or were not indigenous.  The Afrikaner language culture and ethnic consciousness came into existence within and in terms of Africa and South Africa. By securing the future rather than condemning the past of indigenous people should form the basis of recognition of the community.

Mr Boshoff concluded the submission by stating that with regard to indigenous knowledge, members of the community of Orania were able to look after their individual interests fairly well with the instruments that were currently available. However, the community was under pressure in many other ways with regard to indigenous knowledge systems. One such area where the community had experienced problems was the endangerment of previously practiced traditional forms by the replacement of cooperatives with more competitive systems.


Discussion
Mr Harris asked if there were any indigenous knowledge items within Orania that the community felt should be protected by the Bill.

Mr Boshoff replied that it was a difficult question to answer as Orania was a relatively modern community that used the mainstream instruments to protect individual indigenous knowledge. The community could not isolate any particular aspects that might need protection.

Mr L Mphahlele (PAC) asked how many people lived in Orania, the size of the area occupied, where it was located and what currency was used.

Mr Boshoff replied that Orania was a relatively small community, which was growing by approximately 14% to 20% per year. There were 850 permanent residents on 3.5 thousand hectares of land, which included a town and agricultural land. Orania was situated in the Northern Cape Province, on the southern banks of the Orange River.

Mr Mphahlele asked what Orania’s definition of a functional community was.

Mr Boshoff replied that a functional community was one that was not dysfunctional as a result of poverty and a lack of basic instruments to address the challenges of living today.  

Mr Mphahlele asked for an understanding of indigenous knowledge.  He understood that indigenous people predated the colonial period. 

Mr Boshoff replied that he respected the definition understood by Mr Mphahlele.  The Afrikaners were not French, German or Dutch but were descendants all of these nations.  Afrikaners considered themselves to be indigenous to South Africa.  

Mr Mphahlele asked if the definition of community as contained in the Bill was adequate.

Mr Boshoff replied that the Orania community approved of the Bill but this did not exclude adding sui generis types of legislation to address items that were not currently addressed. 

The Chairperson thanked the community of Orania and CONTRALESA for their submissions. She advised that the Department of Trade and Industry would have an opportunity to brief the Committee on the response to all the submissions received during the following week.

The meeting was adjourned.


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