Intellectual Property Laws Amendment Bill processing, Committee report adoption

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Trade and Industry

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

The Committee discussed how the Committee should proceed with the Intellectual Property Laws Amendment Bill (the Bill), which had been extensively examined by, and reported on, by the Task Team. Members had some divergent views on how the matter should be taken forward. The public hearings had reflected a number of views as well, raising issues around possible Constitutional challenges, and debating whether the current Bill should be amended in various clauses, or whether an entirely new sui generis approach should be taken to drafting a new Bill. The Democratic Alliance believed that a significant portion of submissions, including those from the South African Embassy in Geneva, had made strong recommendations for sui generis legislation, noting that in its current form the Bill protected only commercial aspects, but did not address issues such as preservation, and that the approach taken by the Department of Trade and Industry (dti) was incorrect. The DA suggested that the Bill should not be processed with these gaps and admitted deficiencies, and suggested that more information needed to be obtained also on the Constitutional issues. It urged that the Committee not be forced into timeframes to push the Bill through, but rather to look properly at all options, and ensure that the interests of the public were protected. The ANC believed that by delaying, it would not be protecting the interests of the most vulnerable. Some Members suggested that the Committee had already passed the stage where it should be considering whether a sui generis approach needed to be taken, suggesting that many submissions had suggested how the Bill’s deficiencies could be corrected by making amendments to it in its current form. They urged that there was a need to move forward and attend to the necessary amendments, taking the public submissions and including them where appropriate, and that for this purpose the dti should be asked to indicate, in respect of each submission, where an amendment could be drafted. The ANC stressed that the Bill was in the hands of the Committee and it must therefore process it without delay, as it was the only body recognised under the Constitution as having that mandate, and it was not the number of public opinions in support of the Bill that counted, but rather how the Committee decided to protect the interests of the country. A Member of COPE suggested that the Committee should perhaps adopt the middle ground approach and not close any doors, stressing that this was not an easy piece of legislation, and urging that the Committee must produce something that could be implemented, as all Members were agreed on the need for tighter regulation to protect the country. The Chairperson stressed that the Committee would not process legislation that was not robust and could not be defended against criticism and a Constitutional challenge. She indicated that during the break Members would have the opportunity to consult again with the experts who had provided input previously, and that the Committee recognised that the Bill was of such a complex nature that Members would need some help with the drafting.

The Committee adopted its draft Report on the Committee’s Study Visit to the World Trade Organisation. It then considered the draft report on the Eastern Cape Oversight Visit. Members proposed additions to the Report recommending that the dti should, in conjunction with the Economic Development Department, intensify its support for small, micro and medium enterprises, through development funding, to broaden participation of historically disadvantaged groups and rural areas, and should also interact with the Department of Water Affairs in regard to water in Mthatha, and with the Department of Agriculture, Forestry and Fisheries. Members thought dti should improve the current piecemeal fashion of dealing with community driven projects, and should look at whether it was correct to put so much money to supporting small groups of people in cooperatives, rather than investing more holistically. They added that lack of access to transport contributed to the non-sustainability of agricultural cooperatives in rural areas, and that challenges of ownership, cooperative governance and tax incentives must be resolved in the Coega Industrial Development Zone. The Report was adopted, subject to these amendments.

Meeting report

World Trade Organisation Study Visit: Committee’s draft Report
The Chairperson reminded the Members that they had, some time ago, been given the Committee’s draft report on its Study Visit to the World Trade Organisation.  She called on Members to propose any amendments or corrections.

Members noted that they had no corrections or amendments, and adopted the Report.

Intellectual Property Laws Amendment Bill Task Team: Future action
The Chairperson asked the Committee to make suggestions on how the Committee should move forward with the Intellectual Property Laws Amendment Bill Task Team (the Task Team), and with considering the legislation.

Mr B Radebe (ANC) thanked the task team that had been tasked with dealing with the Intellectual Property Laws Amendment Bill (the Bill), the Department of Trade and Industry (dti) and all the stake holders. There were diverging views emerging from the public submissions, but all had agreed that protection of indigenous knowledge was needed. It was also agreed that the Intellectual Property Laws Amendment Bill, as currently drafted, was not a perfect piece of legislation, but it did cover some aspects.

Mr T Harris (DA) confirmed that everyone felt that there was a need to protect traditional knowledge. The question was whether to accept the Bill in its current form. Most people were of the view that this should not be done. If the Committee did not do so, then there was a choice between making significant amendments to the current version, based on the inputs made, or going back to the drawing board to design a sui generis piece of legislation. The Committee needed to make a decision on how best to proceed.

Mr N Gcwabaza (ANC) thought that the Committee had reached a stage where it could agree what amendments needed to be done. He thought that the Committee had gone past the stage of whether or not to draft something completely new, and must now deal with amendments. A number of submissions suggested that merely making amendments would not be adequate. However, he said that those who were intimately concerned with the bill and the protection of indigenous knowledge through intellectual property law obviously did wish the Committee to go ahead and amend the Bill. There was need to move forward, and he thought that the Committee should rather take the inputs and use them to amend the Bill in a comprehensive way.

Ms C Kotsi (COPE) reminded Members that a view had been expressed that the Bill would not stand Constitutional challenge. She thought that the Parliamentary Legal Advisors needed to look into the issues. She also agreed that there were strong submissions in favour of drawing sui generis legislation. She urged that the Committee should be cautious about closing any doors. This was not an easy piece of legislation. It would be necessary for the Committee to pass something that could be implemented, and there was certainly a need to tighten up on regulation of the issues.

Mr S Njikelana (ANC) asked if the majority view had indeed been that the Bill was adequate, in its present form. He noted that the Committee adopted various procedures when dealing with legislation, including the public hearing process, and he said that the Committee was empowered to process the Bill if it saw fit. He asked whether the inputs had suggested that a different approach must be adopted.

Mr A Alberts (FF+) said that the problem was that the Department of Trade and Industry (dti) DTI had indicated that the Bill would protect commercial aspects, but it did not address other aspects, such as preservation. It had been suggested that this could perhaps be covered in other legislation. However, he would not go so far as to say that the Bill in its current form was acceptable. He felt that much more time needed to be spent on it. The South African embassy in Geneva was adamant that it would be correct to adopt a sui generis approach, and that the dti approach was incorrect.

Mr Radebe reiterated that it was up to the Committee to decide how to deal with the Bill that had been entrusted to it. The Committee was the only body recognised by the Constitution to process a Bill of this nature. He agreed that it might well be that public opinion took a different stance to that of the Committee, but at the end of the day it was this Committee that needed to take decisions. It was within the rights of the Committee to accept or reject the public submissions. The Committee needed to ensure that the interests of the country were being protected. He did not think that time was on the Committee’s side and urged that the Bill must be processed, and not be taken back.

Mr Harris said that there was not yet enough information on the alternatives. One proposal was to amend the existing Intellectual Property Laws legislation to protect traditional knowledge. Dti had forwarded a Bill to effect the amendments, and it was generally acknowledged that there were major problems with it. However, the Committee could work through the process of trying to amend it. On the other hand, the majority of the submissions had said that it was not in the best interests of the company to proceed with that legislation, however it was amended, but that it would be better to create a completely new sui generis Bill. Since the Committee did not know what this would look like, he suggested that perhaps Professor Owen Dean, who had submitted a draft  sui generis Bill, could be invited to speak the Committee. He thought that the comment that the Committee had gone beyond the point of considering whether to have a sui generis Bill was incorrect, and did not reflect the reality of the public hearings, in which, he reiterated, the majority of people had suggested that this would be a better option.

Mr D Smiles (DA) said that there was no way that the Committee could submit a Bill with loopholes for approval. The question of whether the Bill would pass Constitutional muster had to be answered. The Committee should not be pushed into a time frame for passing this Bill. It was important to look properly at all the options that were in front of the Committee, and if amendments needed to be drafted, then there was a need to look at the clauses requiring amendments, to consider them and then to pass the Bill. He reminded the Committee that Members were the public’s representatives and had to protect their interests.

Ms C September (ANC) noted that there were divergent views on how the Committee should move forward.  She noted that in the public hearings, a number of public submissions had been made, suggesting that clauses in the Bill required amendment. The Committee needed to reflect on some of these issues. An important issues that came out in the public hearings was that the vast majority of people holding traditional knowledge were not protected. The Committee needed to look at what the country required as a whole, and attach the necessary weight to that, rather than looking at how many people had spoken for or against amending the current Bill or redrafting it completely. She urged that those who were vulnerable needed to be protected.

Mr Gcwabaza said that the question about the Bill not standing the Constitutional muster was unlikely to arise, as the Committee had sought advice on the tagging concerns, and he did not think there would be a Constitutional challenge.

Mr Radebe said that the dti had made a good start, and that the Committee would not ignore the shortcomings of the Bill, as raised in the public hearings. The Department could suggest amendments to all those clauses queried. He believed that the Committee had already done its part of the job thoroughly so far.

Mr Harris said that the Department needed to understand the sui generis option properly. There was a need to convene a session to consider that option exclusively.

The Chairperson asked the Parliamentary Legal Advisor to advice on the Constitutionality issues.

A Parliamentary Law Advisor said that the overarching Constitutional issue was the tagging of the Bill, which had been dealt with. The Parliamentary legal team was of the view that the Bill was correctly tagged, as it sought to protect indigenous knowledge and not address customary law.

A State Law Advisor said that the main issue was that one of the submissions had suggested that the Bill was amending or repealing Customary Law, but this was not correct. This Bill did not go deeper than protecting indigenous knowledge. The State Law Advisors agreed that the tagging was therefore correctly done.

The Chairperson said that the Committee had been dealing with the Bill for sometime. The Portfolio Committee on Arts and Culture had also been involved, and public hearings were held and CONTRALESA was consulted. There had been a workshop, and the World Trade Organisation and a number of qualified people in the field were consulted. From the beginning of the process, the Committee had been aware that the processing of the Bill would not be a rapid process. She assured Members that there was no fast-tracking of the legislation. The Committee would not process any legislation that was not robust, and that could not be defended, including standing up to a Constitutional Court challenge. She noted that during recess, the Committee would have another opportunity to engage with experts both locally and overseas, in order to get some help with the amendments. The amendments that were required were serious, and could not be attended to by the Committee alone, without help from drafters. She noted that the Committee also had the right to amend the Bill.

The Chairperson then summarised that, in accordance with the majority viewpoint expressed, the Committee would continue to process the current Bill, starting by seeking more advice from those experts that had already been consulted. She reiterated that the Committee would need to engage with experts on the current Bill, and should it prove that the amendments were not providing an adequate solution, then it could consult further.

Draft Committee Report on Eastern Cape Oversight
The Chairperson noted that Members had received their copies of the draft Report on the Eastern Cape Oversight (the Report) well before the meeting to enable them to go through it. She asked that any recommendations, amendments and corrections be suggested.

Mr Alberts said that one concern was that the community driven projects were not supported in a holistic manner, but rather in piecemeal fashion, which resulted in unsustainable outcomes. He thought that the report should reflect that the dti needed to attend to this.  

Ms Kotsi said that some of the cooperatives that were being supported had a small membership, being limited, in some cases, to just 11 members. Government was pouring a lot of resources in to supporting only a few people. She thought that there should be better investment of resources.

Ms F Khumalo (ANC) said that the nature of farming required more people to be involved. She suggested that the Report should reflect that there was a need for involvement from both dti and the Department of Agriculture, Forestry and Fisheries.

Mr Radebe said that dti, in conjunction with the Economic Development Department, should intensify support for small, micro and medium enterprises (SMMEs) and cooperatives through development funding, to successfully broaden participation of historically disadvantaged groups and rural areas in the economy.

Mr Radebe said that there was a need for dti also to interact with the Department of Water Affairs, especially in regard to the water that was bypassing Mthatha, because of the dam, to stimulate more business.

The Chairperson said that lack of access to transport contributed to the non-sustainability of agricultural cooperatives in rural areas.

The Chairperson said that in the Coega Industrial Development Zone (IDZ), challenges of ownership and cooperative governance needed to be resolved, to promote real growth.

Mr Alberts added that there was a need to consider tax incentives within the Coega IDZ to promote investments.

The Chairperson noted that all the recommendations made should be added to the Report.

The Members then adopted the Report, with the addition of all the amendments proposed.

The Chairperson asked Members to be available for meetings after formal closure of Parliament, to conclude any unfinished business.

The meeting was adjourned.


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