Intellectual Property Laws Amendment Bill: Resolution to redraft

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Trade and Industry

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

The Portfolio Committee tabled, but did not adopt, the minutes of previous meetings, noting that certain amendments requested to the minutes of 20 April 2011 had not been made, and the adoption must stand over until the Committee Secretary was present and could answer queries. Similarly, it was noted that the Committee’s draft report on the Prague Congress could only be adopted when a Committee Members who had attended the conference was present.

The Task Team who had been appointed to consider the Intellectual Property Laws Amendment Bill (the Bill) then gave a brief report, reminding the Committee of a decision to redraft the Bill entirely, due to various difficulties with the original wording that would have required very substantive amendment. The Committee formally approved the wording of a resolution to this effect, which would be tabled to the House. It was noted in that resolution that the Committee would determine the drafting team.The Committee then discussed the process involved in the redrafting. The Committee was agreed that experts would be used, and asked that the curriculum vitae of those suggested be made available to Members by 13 June and would be discussed on 14 June. It was further agreed that in addition to the experts, who may be general experts, or may be called in for advice on specific points only, the new drafting Task Team would include State Law Advisors, members of the Department of Trade and Industry (dti), the Parliamentary legal advisors, who would also have the ability to consult with other departments, including the Department of Science and Technology, particularly in regard to World Intellectual Property Organisation (WIPO) agreements, and Department of Environmental Affairs, who had been involved in indigenous knowledge systems and practices. Key issues identified for resolution included the submissions on Constitutionality raised previously, how to ensure that South Africa’s international obligations, especially under the Bern Convention, were captured, and The Chairperson then asked for comments on the candidates of experts that were listed. A Member said that without all the CVs, the Committee could not make decisions on the experts. He requested that the Committee Secretary ensure that all CVs were available by the following Monday.
The Task Team on redrafting of the Bill then met to discuss the way forward. The process would require guidance from experts, the law advisors and DTI. Key issues were clarification on Constitutional issues during the redrafting; and how redrafting could reflect more accurately compliance with international obligations, especially the Bern Convention, as well as finding solutions to challenges raised during the previous processes. It was agreed that the State Law Advisors would lead the drafting, and the Parliamentary Legal Advisors would be closely involved. The State Law Advisors stressed that instructions were still required from the Committee on what must be captured in the redraft, and it was resolved that the policy objectives remained unchanged, but that the input of the original drafters, and top management, from the dti should be sought, to identify what substantive issues seemed to have been overlooked, and what constitutional problems were suggested, in the original process.

Meeting report

Adoption of Minutes
The Chairperson said that the minutes of meetings held on 20 April 2011, 25 May 2011, 27 May 2011 and 1 June 2011 had been reviewed, and now that the requested amendments had been effected, they needed to be adopted. However, the Committee Secretary was on leave, and the Committee Secretary from the Portfolio Committee on Science and Technology was standing in.

The Chairperson noted that one of the requested amendments, to page 3 of the minutes of 25 April 2011, had not been made. She noted her displeasure that this had not been done, despite the fact that only one line needed to be amended, and noted that the corrected minutes must be tabled on Tuesday, and that the Committee Secretary must be available on Wednesday to answer queries, so that the minutes could be adopted.

The adoption of the minutes was therefore postponed.

Committee Report on International Congress in Prague
The Chairperson noted that the Department of Science and Technology (DST) had asked that the adoption of the report on the International Congress in Prague, on 26 September 2010, be expedited. However, it could not be adopted until Adv A Alberts (FF+) was present.

Intellectual Property Laws Amendment Bill: Report of the Task Team: Recommendation to redraft
Mr N Gcwabazo (ANC) briefed the Committee again on the resolutions of the Task Team set up to consider the Intellectual Property Laws Amendment Bill (the Bill). He noted that at a previous meeting, the Committee, after discussion, had resolved that a small team of drafters be set up, to work on a new draft of the Bill, in light of various problems highlighted with the original version. This drafting team should consist of a Parliamentary Legal Advisor, a State Law Advisor, the Portfolio Committee Secretariat, drafters from the Department of Trade and Industry (dti) and experts in intellectual property.

The Chairperson pointed out that it was usual practice with legislation to invite the executive, being the dti, to join the Committee for deliberations. The Committee had also felt that the dti should not wait until the drafters had all been appointed, but should in the meantime proceed to work on the new draft. Resource documents forming the basis for the redraft should include the main Act, the original Bill, the document submitted by the Advisory Council during the public hearings, and the amendments presented at the meeting that Wednesday.

The Chairperson asked if Members had anything to add, and noted that when the Committee took a formal resolution on this, it would go through to the House for adoption.  

Mr T Harris (DA) asked for clarity on how the dti would be involved in the redraft.

The Chairperson replied that the Task Team would invite the dti, just as it could do for any department, to assist and inform the Task team on various issues. Although dti would not be the formal “advisors”, it could be called in to assist. She noted that dti was a great resource both in terms of funds and people who could help, but other experts would also be needed. Because this Committee had the role of oversight over the dti, it could, via the Speaker, invite dti to join the Committee or any structure set up by the Committee.

Ms M Herling, Content Advisor, Parliamentary staff, then read out the draft Committee Resolution, as follows:

”The National Assembly Rule 251 (3)(b) permits the Committee, in its Report, to recommend approval of the Bill with or without amendments, a redraft of the Bill, or rejection of the Bill. In line with the above rule, the Committee resolves that the Intellectual Property Laws Amendment Bill (B8-2010) be redrafted, based on the substantive nature and number of the amendments that would be made to the Bill as introduced. The Committee will determine the drafting team.”

Members agreed to adopt this Resolution, which would be tabled in the House.

Discussion on experts to be appointed to drafting team
The Chairperson said that it was important that experts and consultants were taken seriously. She noted that “experts” comprised a specialized group of people with specialised knowledge. A list of suggested names was tabled, and she asked Members for comments on those candidates.

Mr N Gcwabazo (ANC) said that without seeing the curriculum vitae (CV) of all the people suggested, it was difficult for this Committee to make informed decisions, and he asked that the Committee Secretary should make all CVs available by Monday 13 June, for further discussion on 15 June.

The Chairperson proposed that the Committee should be guided by the principles it had applied in the past, and note that it may be necessary to bring in additional experts in respect of smaller fields or topics, where those who had general expertise might not have specialised knowledge. She added that she was pleased with the keen interest of the legal profession, as it would ensure that both South African and international law were considered during the drafting.

Process of redrafting
Ms S van der Merwe (ANC), Chairperson of the Task Team on the Bill, agreed that in the redrafting process, guidance would be needed from experts, State Law Advisors and dti. Mr Gcwabazo had already outlined that documents to be considered during the redrafting process would include the original Bill, documents prepared by Professor Esme Du Plessis, the Leader of the Minister’s Advisory Committee, the previous amendments suggested, the submissions made at the public hearings and the responses by dti to those submissions, and the agreements reached at the National Economic Development and Labour Council (Nedlac). She reminded Members that two of the key issues raised consistently related to the need to clarify Constitutional issues, and the need to comply more closely with South Africa’s international obligations, especially the Bern Convention.

Mr Harris suggested that three other documents be added in for consideration by the drafters. These were the Parliamentary legal advisor’s presentation of the 1 June 2011, and the Regulatory Impact Assessments of October and November 2009 (SBP and Presidency).

Dr Johanna Von Braun, Intellectual Property Law and Policy Research Unit, University of Cape Town, and representative of Natural Justice, asked if documents and responses from previous meetings could be submitted.

Ms van der Merwe said that during the redrafting process, consideration could be given to all documents previously submitted, as well as the previous discussions by the Committee. All substantive matters would be addressed, on a clause by clause basis. Any issues where there had been disagreement would be revisited.

Mr Mark Donnely, Intellectual Property Unit, University of Cape Town, suggested that the Nedlac report would be useful.

Ms van der Merwe agreed, and added that she had not listed everything that would be taken into consideration. She also suggested that members of Portfolio Committees who had dealt with Indigenous Knowledge Systems (IKS) and Traditional Knowledge should also be invited to participate on the redrafting Task Team.

Dr Von Braun welcomed this suggestion, and added that members of the Department of Science and Technology could give input on the World Intellectual Property Organisation (WIPO) agreements and members of the Department of Environmental Affairs (DEA) could also give input on the Bio-prospecting Framework, and protection of IKS.

Mr Harris said that while he agreed with the principle of including other Departments, he wondered if genetic or bioprospecting issues were relevant to this Bill.

Dr Von Braun replied that the challenge, in the past, was the way in which the holistic aspects of IKS had been segmented. Those departments involved in getting consent to the use of landscape or natural resources of indigenous communities could offer useful input.

Ms van der Merwe said that the Department of Environmental Affairs would be requested to assist with information on issues that were flagged. The WIPO negotiations would be taken seriously. Both the Departments of Trade and Industry and Science and Technology would work to complement each other, nationally and internationally.

Ms van der Merwe added that it would also be important for the Task Team to continue its practice of submitting carefully drafted questions to experts for advice, since the responses had, in the past, been useful in tackling the issues. She asked who was to be responsible in the first place for redrafting.

Adv Mongameli Kweta, Senior State Law Advisor, Office of the Chief State Law Advisor, said that he would lead the drafting of the new Bill, which would reflect that it was “redrafted by the National Assembly’.

Mr Harris suggested that it might be more appropriate for the Parliamentary Legal Advisor, as an employee of the legislative arm of Parliament, to lead the drafting of the Bill.

Adv Charmaine van der Merwe, Parliamentary Legal Advisor, said that the drafting expertise lay with the State Law Advisors and dti legal advisors, and she thought it appropriate that Adv Kweta lead the team, although she did indicate that the Parliamentary Legal Advisors worked closely with the State Law Advisors.

Ms Fubbs said that substantive submissions should be tabled to the Committee. She pointed out that it was usually only the Minister who tabled bills, so the previous references would need to be changed. Once the documents had gone through the correct technical channels, the panel of experts could decide how to address the issues.

Dr M Oriani-Ambrosini (IFP) said that the issues raised related to the process and not the outcome. It was necessary first to set out what types of values should be incorporated in the Bill, assess the value of the options contained in submissions, and use the best to answer the challenges in line with the Bill’s aims. It was important to define the difference between policy, and what was used to implement the stated policy objectives.

Ms van der Merwe added that the fact that the Bill was being redrafted did not imply that policy decisions made at Cabinet level had changed. Members’ comments would be taken into account. She asked if the Legal Advisors could give an indication of what time frame was required for the redraft.

Adv Kweta replied that the Portfolio Committee still needed to reach agreement on what must be captured in the redraft, to be presented on 14 June.

The Parliamentary Legal Advisor said that as a first step there needed to be clarity on how the dti intended to work on the Bill.

Ms Fubbs said that much time had been spent in Parliament discussing structural issues, and the process of the Bill, even before Ms van der Merwe chaired the Task team. Some substantive issues had been overlooked, and there might still be outstanding Constitutional issues. She confirmed that the Committee agreed with the policy and this would not change. The problems lay not with the policy, but in the drafting.

Dr Oriani-Ambrosini agreed with the Parliamentary Legal Advisor that once the issues were identified and agreed, it was not that time-consuming to draft the Bill.

Ms van der Merwe requested that the Parliamentary Legal Advisor be given the opportunity to hear submissions on what the dti, who had drafted the original Bill, and the new drafters believed to be the main purpose behind the redrafting.

Ms Fubbs requested that the Parliamentary Legal Advisor brief the Director General and Deputy Director General of the dti, an that the senior officials from the dti, experts and Members of other relevant Committees should attend the Task Team meeting on 15 June.

Mr Harris pointed out that the experts’ CVs were only to be discussed on 14 June and doubted whether it would be possible to invite the relevant people to attend on the following day.

Dr Oriani-Ambrosini agreed that experts must be part of the process of redrafting, saying that even something like changing a definition involved consideration of policy objectives and constitutional implications.

Mr Gcwabazo said that experts had already made inputs and the legal advisors had a basis on which to start the redraft. The process should move forward.

Mr Harris suggested that the experts should be consulted before going forward with decisions.

Ms van der Merwe said experts would not advise on the drafting aspects, but would be involved on the substantive issues.

Mr Gcwabazo added that the experts would advise on issues contained in specific clauses, where necessary.

Ms Fubbs concluded that the Task Team could utilise experts when necessary.

The meeting was adjourned.

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