Intellectual Property Laws Amendment Bill Task Team Meeting

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Trade and Industry

06 June 2011
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

Task team members from the Portfolio Committee on Trade and Industry met to discuss the Intellectual Property Laws Amendment Bill. Key issues and concerns were discussed in preparation for a full committee meeting in which the members would have the opportunity to hear from and ask questions of key members of the Department of Trade and Industry. Members noted that the proposed definitions signified an improvement, and that the establishment of a trust to manage a fund for the collection of royalties was a positive proposal. Key concerns related to the constitutionality of the Bill and the potential violation of international obligations that could exist through passage of the Bill.

Meeting report

Ms S Van der Merwe (ANC) said there were certain issues with many of the statements in the response from the Department of Trade and Industry (dti) and that the Committee would like to interrogate them. She wanted Ms C van der Merwe, the Parliamentary Legal Adviser, to go through some of the issues that she had picked up as a means of guiding the task team for the questions the members would ask the dti at the 8 June meeting with the Committee. She also said that the dti had responded directly to a number of issues that members had raise up to that point.

Ms S Van der Merwe said that the two most important issues in her opinion centered on the constitutionality of the Bill, and the definitions. She expressed her opinion that the definitions needed to be improved in the final Bill. In addition, there were a number of different issues in the Bill that would need to be addressed on an ad hoc basis. She added that the task team members needed to know exactly what the legislation was trying to say, and what the members were trying to do.

Mr T Harris (DA) said that firstly it was important to work out who would do the interrogation of dti, and there should be experts on hand to assist this process. Secondly, the Committee would need to make a decision as to whether these amendments were unworkable and overly cumbersome, and if a redraft was in order.

Ms S Van der Merwe commented that it was hard to anticipate, because they were at the beginning. She said she wanted to deal with issues where there was agreement, and then they would take the other issues to the Committee. She said there were going to be bigger issues to which the members would not agree, and those would have to be fleshed out. In addition, she said the task team could decide exactly what the form of the Bill was going to be. Her sense was that there may be a need for a redraft, but that was not clear.

Ms C Van der Merwe began discussing some of the issues she had noted in the Proposed Amendments. First, the definitions had been fleshed out, and a trust had been set up to manage the fund. Those were the major changes. One of the big problems was there was no information on how the fund would work, though there was an indication it would be demarcated by the type of intellectual property.

She said the big issue was constitutionality of the Amendment Bill, and that she wanted to see the State Law Advisor’s Opinion.

The dti had mentioned water and minerals as an analogous area of property law to the current issue. Ms C Van der Merwe, however, indicated some disagreement as to the efficacy of that analogy. She said that water and minerals had always been controlled by the state, whereas intellectual property was private.

She next addressed the issue of whether or not the Bill imposed a tax or provided for expropriation. She said the Act provided a vehicle for royalties to be paid, and that if it was categorized as a tax, not an expropriation, then it was a money bill. If it was not a tax, but simply a royalty, then there was still an expropriation, or a possibility of one.

She said the document highlighting the dti’s position on some of the issues raised was quite vague, and that dti was almost preaching to the Committee without providing explanation.

She concluded by stating that she was not convinced of the constitutionality of the Bill, while also acknowledging, she was not an intellectual property expert. She also reiterated her opinion that the broader definitions were good, but that there were possibly still areas those definitions did not cover.
 
Ms S Van der Merwe summarized Ms C Van der Merwe’s conclusions.

Mr M Oriani-Ambrosini (IFP) said that the issue was that the Bill took something from the public domain in order to make it proprietary, and that was an expropriation. He agreed that water and minerals was not a good analogy because they were coming from the domain of the ground. He said he was concerned, because the Bill dealt with commerce. Each of the Provincial House of Traditional Leaders Acts clearly stated that this institution was the custodian of culture. But the Bill would take culture and protect the commercial relevance and commercial value of culture. He said the provinces could not adopt this legislation, and that even if it were a Section 75 bill, it would still need to go before the House of Traditional Leaders.

Ms S Van der Merwe wondered why the Bill would need to go before the House of Traditional Leaders. She said that the Bill indicated that the traditional leaders should be represented in the National Council of Provinces.

Mr Oriani-Ambrosini said that they were not bound to follow the traditional leaders, but that they were bound to listen to what they have to say.

Ms S Van der Merwe asked Mr Oriani-Ambrosini to prepare for the next day’s meeting a statement about the issue of traditional leaders. She said she was sure that in terms of how they had resolved this issue, the dti would have a counter-argument.

Mr T Harris (DA) asked for a recapitulation of the money bill argument.

Ms C Van der Merwe said she had discussed with the State Law Advisor the concerns about the House of Traditional Leaders. She said that they were present when the Bill had been discussed, and that according to them, there was no problem. She said that there were aspects of their culture that might be subject to intellectual property, but that it was not clear. In addition, she said that since the House of Traditional Leaders did not feel the Bill should come to them, she felt at ease on the issue.

On the money bill aspect, she said that because the Bill dealt with money, she looked at what the Constitution said. She said it talked about expropriation, but in the Bill, that was not really the case. She said the key issue was whether there was an imposition placed upon the communities. The response of dti was that since the communities could receive royalties and negotiate on the royalties, there was not an imposition. The problem was that if it were a money bill, the Committee would be stuck on what the Bill could deal with.

Mr Harris summarized, stating that if there was no tax or levy imposed then it would not be considered a money bill.

Ms C Van der Merwe again referred to the analogy of water and minerals in relation to expropriation. With minerals in particular, there was actually an imposition of a tax. Because water and minerals had always been aspects that fell within state control, imposing a tax did not take away a right. If it was a tax, you could get away with saying it was not an expropriation, because the individual would retain all rights. But with the Bill that is not the case; that the Bill would seem to interfere with that right.

Ms S Van der Merwe said that she wanted to flag that issue and move on to other issues. The task before them was to make a recommendation to the Committee. She wanted to make sure that with Ms C Van der Merwe’s help, the task team would find the issues that should be flagged for discussion with the dti.

She then said there were a few good things that had come out of the amendments, namely the definitions and the trust to manage the fund. She added there were big questions around constitutionality in addition to the questions about the House of Traditional Leaders.

Mr Oriani-Ambrosini said there were two issues. The first was the international obligations of South Africa. His understanding told him that the Bill was in violation of the Berne Convention. He wanted to receive a proper legal opinion on that so the task team could understand the parameters of those obligations. The second issue was whether copyright protection of indigenous knowledge was workable.

Ms S Van der Merwe noted that official public documents had the copyright symbol. Mr Oriani-Ambrosini said it was absurd to presume the public documents were protected by copyright, because then every time he made a photocopy he was committing an offence punishable by imprisonment. He reiterated his desire to receive legal opinions from legal experts that would deconstruct the arguments and convince the Committee on the legal aspects of the Bill.

Ms S Van der Merwe said that her understanding was that Mr Oriani-Ambrosini was calling for an understanding or comparison to see if the Bill complied with the international laws to which South Africa was a signatory.

Mr N Gcwabaza (ANC) said the task team should look at the Bill and see how to address particular issues.

Ms S Van der Merwe asked Ms C Van der Merwe to address the issue of international obligations at the full Committee meeting on 8 June, as she was not familiar with the particular requirements of the Berne Convention.

Ms C Van der Merwe said the Berne Convention dealt with copyright. The problem was that the Bill provided for certain rights that only nationals would be able to have. It would be good to get an opinion on that issue.

Mr Gcwabaza said the Berne Convention did not deal with traditional indigenous knowledge. The idea behind the Berne Convention was to regulate international intellectual property. In contrast, the Bill aimed at protecting and commercializing traditional intellectual property.

Mr Oriani-Ambrosini said the Berne Convention dealt with copyright. It stipulated what one can and cannot do with copyright. With regard to the Amendment Bill, South Africa could achieve the same result without calling it copyright, without putting it under copyright law. He then excused himself from the meeting.

Ms S Van der Merwe said these were all issues the task team still had queries about. They needed to take those issues to the full Committee meeting in order to interrogate the dti on its responses. She hoped that would provide the means to get a conversation going as well with the expert panel being brought in to advise the Committee.

Mr Gcwabaza expressed a concern about the different definitions of indigenous community used in the Bill.

Ms C Van der Merwe said there was more information about the fund, but there were questions about how the money in the fund would be used. The dti did not appear willing to consult with Parliament on that issue.

Regarding constitutionality, she could not find any core case that would indicate that the Bill was unconstitutional, but there was one person in the legal office that believed otherwise based on a court case. She said there could be a situation where there was a disagreement on the regulations, and that a stalemate between the executive and the legislative branches would become an unconstitutional interference.

She also said that the Bill needed to be a lot clearer. Even though dti had given more information, it had not given enough, particularly on the type of funds being used, and whether the money would either be used in favour of the community or go back to that community. It was critical that Parliament was 100% in agreement on how the funds should be used. Either the Bill should clearly state how the funds would be used, or that there should be a regulation on that point passed by Parliament.

Mr Harris raised two additional issues. He had looked at the documents in the morning, and the document dti had given out did not fill him with faith. There were omissions, grammatical errors, and phrasing issues. He said it was “approaching sloppy” in the way it had been delivered. 

He also said that Clause 7 was a concern. It said that a copyright might be conferred upon a traditional work if the work was created within a period of 50 years preceding the date on which the law was passed. Because most traditional knowledge is actually ancient, certainly older than 50 years, it seemed the current document would not protect any traditional knowledge. He did not think that dti raised this issue in response to concerns yet.

Ms C Van der Merwe said Mr Harris’s concern touched on whether or not the work protected was an original or derivative work. The dti indicated that original art, in the case where the owner is unknown, would vest in the state. However, this issue was not touched on in the Amendment Bill.

Ms S Van der Merwe said that issue was an important one the Committee needed to tackle. She asked what points dti had conceded to, noting that the Department had made a number of concessions.

She also said the task team needed to look at ways of proposing how to take the matter forward and make progress. There were a number of things the task team could raise with dti that they wanted responses to. She said they were not convinced that the responses, particularly where there were concessions, were reflected in the Bill.

Finally, she said that some of the constitutionality issues were unresolved. In particular, the issues regarding traditional leaders, money bills, international obligations, disbursement of funds, and copyright protection. She said they needed a new definition for traditional performance, and that the issue of original versus derivative works was relevant.

She said it was difficult to give it full attention on such a short period.

The meeting was adjourned.

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