Revised Intellectual Property Amendment Bill: Department of Trade and Industry briefing

Meeting report

Revised Intellectual Property Amendment Bill: Department of Trade and Industry briefing
Mr Lionel October, Director-General, Department of Trade and Industry, said that several countries in the world recognised that indigenous communities had a depth of knowledge that needed to be protected.  The World Intellectual Property Organisation (WIPO) had determined that intellectual property legislation presented the best way to protect indigenous knowledge (IK). The South African Cabinet had endorsed that process. The proposed Intellectual Property Amendment Bill (the Bill) attempted to use South Africa’s current system to provide that protection. In addition, the legislation attempted to provide for a royalty system, so that the indigenous communities that produced the IK would receive a benefit. The Department of Trade and Industry (dti) was concerned that those communities should not be exploited by private actors. 

Mr October said it was difficult to define the parameters of an “indigenous community”, but that the system needed enough flexibility to create protection for those people.  For example, it would be possible to consider establishing trusts, to ensure that the relevant communities were the beneficiaries of the use of IK by third parties.  The proposed Bill would regulate those trusts, and ensure that benefits did accrue to the communities. 

He therefore summarised the dti’s objectives as being, firstly, to use the current intellectual property (IP) systems to protect IK, and secondly, to ensure that there were real benefits to indigenous communities. 

Mr October urged the Members to avoid going the route of many European countries, which used trade agreements to protect IK, and stressed again that the intellectual property system was considered the preferable option, as this was also consistent with international law, and guidelines of the WIPO. This would also ensure that there would be multilateral, rather than bilateral regulation, and would put strong and weak nations on an equal footing.

Discussion
Ms S van der Merwe (ANC, Chairperson of the Task Team) thanked Mr October for his comments, and introduced him to the Task Team members, Parliamentary Legal Advisors and State Law Advisors present in the meeting.

Adv Mongameli Kweta, Senior State Law Advisor, Office of the Chief State Law Advisor, reminded Members that at the previous meeting the Committee had resolved on a redraft of the Bill. He had prepared an initial draft, based upon the version of the original Bill that incorporated some amendments suggested to date, and that attempted also to address some issues raised at previous meetings.

Adv Charmaine van der Merwe, Parliamentary Legal Adviser, said that she saw the new draft as not substantially changing either the substance or content of the original Bill, but as providing greater clarity. She suggested that Adv Kweta, a representative from the dti and herself should, together, produce a document for the task team that would, firstly, eliminate the duplications in the original Bill and correct any mistakes in wording or grammar, secondly, make the proposed Bill more coherent, and thirdly, examine how best to deal with the separate categories of intellectual property.

Adv van der Merwe suggested that a sui generis system, as suggested by some commentators, should be avoided, because it would create a system separate from that applying currently in South Africa. She mentioned that her proposal and the new draft would be based on the existing IP systems, and look at how best to protect IK. She suggested that it could be possible to add in a chapter that dealt specifically with IK into four existing pieces of legislation, to make the process together. Alternatively, if the Committee would prefer that the amendments be confined to only one piece of legislation, then the Bill should be restructured for improved coherence.

Ms Fubbs asked for clarity on this point.

Adv van der Merwe confirmed that even if the Committee decided to keep all the amendments in the Bill, she would still propose that it needed to be restructured.

Mr October said that the dti wanted to ensure that the policy objectives were achieved.  He reiterated the dti’s suggestions that the current intellectual property law should be used to protect IK.

Dr M Oriani-Ambrosini (IFP) said that this was an important matter on which there must be progress. He said that there was no point in pursing a route that would present problems along the way.

Dr Oriani-Ambrosini took issue with some of Mr October’s statements. He said that WIPO had not, in fact, made a decision on the best way to protect IK. Protection via trade agreements happened in some countries that did not have an intellectual property system in place to protect IK. Dr Oriani-Ambrosini reiterated that he believed the proposed Bill was not in line with the Berne Convention, and posed constitutional problems.  He wanted experts on each category of intellectual property to provide a legal analysis of these issues. 

Dr Oriani-Ambrosini added that there was also an issue around cost-effectiveness. He believed it would cost more to run the processes than the amounts that would be received from them. He believed that there were alternatives to vesting rights in the State, including the option of vesting those rights directly with the communities. It was also possible to have formal agreements between the communities and end-users. These possibilities should be fully analysed and addressed.

Mr T Harris (DA) hoped everyone understood the limits of what the Bill would achieve. He pointed out that there were already other systems that could provide some protection to aspects of IK, including bio-processing and patents. This proposal was aimed at protecting cultural items that all parties believed should be protected if they were commercialised. He agreed that using the IP system would be preferable to trying to enter into international agreements. However, he did not believe there was anything preventing South Africa’s IK protection running with other international systems. Mr Harris thought that the Committee should try to limit the scope of the proposal, and deal with what was genuinely possible. The debate between using the current IP system or a sui generis system was largely semantic. The Committee could add to the current intellectual property system anything that was not incompatible with it. He agreed that all the legal advisers and experts to be involved in the highly technical process of drafting the new Bill. He also added that the DA believed very strongly that the Portfolio Committee on Science and Technology should also be involved in the process, as some of that Committee’s members felt excluded, although they believed they should be involved.

Mr Harris also pointed out that the Committee had received much second- and third-hand information about the WIPO processes, and suggested that it would be useful for WIPO representatives themselves to explain the WIPO stance and model legislation.

Mr October said all stakeholders were in agreement that IK should be protected, and that the best legal mechanism to achieve that was intellectual property.  He agreed that experts should be invited, and that a proper debate on the issue was appropriate.

Mr N Gcwabaza (ANC) asked Committee Members to refrain from continuously raising the same issues, such as the arguments around constitutionality of the Bill. The legal advisors would deal with those issues, and would also be able to comment on compliance with international conventions.

Mr Gcwabaza, addressing Mr Harris’ point on protection of cultural items, thought that the Bill would in fact go further and protect a whole body of ideas and indigenous creativity.

Mr Gcwabaza agreed that it would be useful to include the Portfolio Committee on Science and Technology in the process, and suggested that it might also be appropriate to involve the Portfolio Committee on Arts and Culture. They would be able to enrich the input into the process, but it must be borne in mind that they had their own committees and tasks to attend to.

The Chairperson asked that the Task Team now try to reach a succinct statement of the issues to bring to the full Portfolio Committee. She did not expect to have consensus, but hoped that an agreed statement of issues could be reached.

Dr Johanna von Braun, Intellectual Property Law and Policy Research Unit, University of Cape Town, and representative of Natural Justice, said that WIPO had done a lot of work over the last ten years, on IK, and it would be worthwhile to review the limitations on how IP systems protected IK.

Mr October urged the Committee to avoid extremes. It was not possible to come up with anything perfect, because there was no one foolproof system. However, it would be possible to improve upon what had been in the original Bill. There was immense depth of knowledge, and IP law should be used to protect it in the best manner possible. 

Dr Oriani-Ambrosini agreed with Dr von Braun on the need for expertise. He urged Members to adopt a practical approach to integration of systems to protect IK, and again reiterated the need to address the concerns around constitutionality and international obligations.

Ms S van der Merwe said the Committee would consider the proposals on experts who may be asked to assist in advising on the legal issues. The Committee Secretary was presently compiling a full list. Dr von Braun participated in a workshop on this during 2010, and had been asked to advise the Task Team because of her expertise in the area.

Ms van der Merwe suggested that a draft should be tabled before the Task Team held more discussions. She recommended that Adv Charmaine van der Merwe’s suggestion of having additional chapters inserted in the different pieces of legislation would be useful, as it would provide greater clarity. However, it would not be possible to deliberate the issues further until they had seen a redraft.

Dr Oriani-Ambrosini asked what types of knowledge would be eligible for protection under the proposal. 

Mr October said that WIPO dealt extensively with IK.

Ms S van der Merwe requested that members focus on providing guidance for the redraft.

Mr Harris asked for clarity on the process of selecting experts.  He also sought an indication of whether the Task Team would support his suggestion to ask WIPO to address the Committee. 

Dr von Braun said there was no definition of IK from WIPO, and that this was a problem.

Ms S van der Merwe asked for an update on the process of selecting those experts.

Mr Andre Hermans, Committee Secretary, indicated that the full Committee would discuss the curriculum vitae of each of the suggested experts, and finalise a list.

Ms S van der Merwe agreed that even though the Bill may not solve all problems, it was necessary to achieve something better than was currently in place. She agreed that Adv C Van der Merwe, Adv Kweta, and Mr Johan Strydom, the Legal Adviser for the Department of Trade and Industry, should meet to provide some clarity on problematic issues, suggest a coherent approach to the Bill, and look at amending all the relevant legislation with the insertion of a new Chapter, to protect IK.

The meeting was adjourned.