Intellectual Property Laws Amendment Bill: deliberations

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Trade and Industry

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

The Portfolio Committee briefly discussed the need for Members to notify the Whip if they were not able to attend meetings, and the Chairperson asked Members to prioritise their attendance, pointing out that the Committee had been unable to take decisions in the past for lack of a quorum.

The Committee summarised the recommendations of the Task Team around the redrafting of the Intellectual Property Laws Amendment Bill (the Bill), and Members discussed whether it was necessary to call on the World Intellectual Property Organisation (WIPO) to clarify its position on indigenous knowledge protection. It seemed that there was some confusion as to whether WIPO had a definitive position, and the Chairperson, noting that this may have arisen when new Members were appointed to the Committee, clarified that the Committee had undertaken a Study Tour to Geneva, during which it had consulted both with WIPO and with the International Centre for Trade and Sustainable Development. WIPO had outlined the difficulties of trying to produce model legislation that applied across different jurisdictions and systems, and had said that South Africa’s work on protection of indigenous knowledge would in fact assist WIPO in developing its own work further. Experts had also briefed the Committee, and it became clear that some supported a sui generis system whilst others expressed a preference to build on existing intellectual property systems. The Department of Trade and Industry outlined that a whole range of different protective mechanisms were applied elsewhere in the world, and it was desirable to find one that would offer the best protection, although there was no one ideal situation, nor was there any definitive “best practice”. The Chairperson asked that all the reports from the Study Tour should be circulated to all Members, and that the Committee would formally write to WIPO asking it to clarify whether it had, in the intervening time, changed its position at all.

Members then discussed the names of experts who had been proposed to assist the Committee in the drafting process. A large list was compiled, although it became apparent that many of those experts had other commitments and should not be approached by this Committee. The Committee sought three “permanent” (not full-time) experts, with overarching knowledge on indigenous knowledge, and legal expertise on intellectual property in the broad sense. The Committee decide to approach
Professor Pitika Ntuli, University of KwaZulu-Natal, Ms Tshepo Shabangu, President of the South African Institute of Intellectual Property Law, and Dr Johanna von Braun, Intellectual Property Law and Policy Research Unit, University of Cape Town, and representative of Natural Justice, although it was noted that it would not be precluded either from approaching other experts for advice on general issues, or from approaching those with specific sectoral expertise on sub-categories of knowledge requiring protection.

Meeting report

Chairperson’s opening remarks
The Chairperson noted that the meeting would be considering the selection of experts to advise the Committee on the Intellectual Property Laws Amendment Bill (the Bill) following the decision of the Committee that it should be redrafted. It was possible that the Committee may need to meet in July on this issue.

The Chairperson asked the Committee Secretary to read out the written apologies. She urged that Members take attendance at the Committee most seriously, and either provide a written explanation or call the Whip when they were not able to attend.

Ms F Khumalo (ANC) said that she thought it was a better option to call the Whip.

Mr J Smalle (DA) agreed.

The Chairperson pointed out that some meetings had been unable to take decisions because insufficient Members were present to form a quorum, and this was unacceptable because Members were being paid, as public representatives, with taxpayers’ money.

Summary of previous meetings
The Chairperson briefly reviewed previous meetings. She noted that the Gambling Report by the Commission of Inquiry had arrived, and would be tabled for discussion shortly.

Ms S van der Merwe (ANC, Chairperson of Task Team for the Bill) gave a summary of the work and decisions of the Task Team at previous meetings. She reiterated that the Task Team had agreed to a redraft of the Bill, and had discussed its parameters. Members of the Task Team had agreed on the need for a system to protect indigenous knowledge (IK), and the principle that traditional communities should benefit from that system.

The Task Team had agreed that the drafters would deal with small issues first, including spelling and grammar. They would then attempt to achieve greater coherence so that this new draft of the Bill allowed for easier reading and comprehension. The drafters would then draft an amendment to each of the relevant pieces of legislation to make the position quite clear, rather than attempting to deal with everything only through one Bill.

The Task Team also felt that there needed to be links established with the Departments and Portfolio Committees on Science and Technology (DST) and Trade and Industry (dti).  It was important to ensure that this new Bill correlated with and could work in tandem with any proposals being made elsewhere. The Director-General of dti had agreed that the DST should be involved and said that he had close interaction with his counterpart in DST.

The Task Team also discussed the nature of what the Bill was attempting to protect. Members had agreed that there was no one perfect system, but were striving to protect as much as possible under the current Intellectual Property (IP) system. There was some urgency to the matter because ownership of indigenous knowledge (IK) was at risk of being eroded.

Discussion
Mr T Harris (DA) added that the Task Team had also discussed the possibility of inviting the World Intellectual Property Organisation (WIPO) to address the Committee on its work on the creation of model legislation to protect IK. He noted that there were many conflicting ideas around WIPO’s position on the protection of IK, and the Committee needed a definitive statement, from WIPO, to assist in the drafting of the Bill in South Africa.

Ms Van der Merwe acknowledged Mr Harris’s comment, but stated that she believed that the group already had enough information from WIPO, following the Committee’s visit to Geneva.

Mr Harris said that if that was so, then he would like to be referred to the specific documentation that did provide information on WIPO’s position. However, if that could not be established with certainty, then he felt that WIPO must still be invited.

Mr B Radebe (ANC) said that he was aware of WIPO’s position, having travelled to Geneva with the Committee’s group. He was surprised that there were different views about WIPO’s position.

Mr X Mabaso (ANC) said that the uncertainty was more likely a result of the change in Committee membership, rather than the Committee not having the right information.  He suggested that all new Members should be brought up to date on all the relevant information.

Mr Harris said the Committee should avoid platitudes about involving DST in the process. DST may have an “open invitation” to attend the process but nonetheless thought that it was necessary to issue a formal invitation.

The Chairperson said that DST was the only department invited regularly. However, she would contact the Chairperson of the Portfolio Committee on Science and Technology, and would also contact the Department’s Director General, to see if there could be consultation. It seemed that the Chairperson of the Portfolio Committee on Science and Technology was happy to wait for a more concrete position from the Portfolio Committee on Trade and Industry before joining in the process. She added that this Bill had been referred, by the Speaker, to this Committee, although he could have referred it to a joint committee if he had wished. This Committee therefore needed to carry out the directions from the Speaker, to the best of its ability.

The Chairperson indicated that the involvement of the DST had occurred prior to the arrival of several new members of this Committee.  It was regrettable that there was not better exchange of information during the handover process, because it was difficult for the new Members to pick up on the issues. She requested that all Members should request their parties that any future handovers should be done thoroughly and effectively.

Ms C Kotsi-Ramotsamai (COPE) welcomed the Task Team’s report. She too questioned exactly where the confusion lay around WIPO. She hoped this could be resolved, although she would not be opposed to extending an initiation to WIPO to make a presentation if it would achieve clarity.

The Chairperson discussed the documentation that was available from the visit to WIPO in Geneva, and asked that the daily reports on that visit be made available to the full Committee as soon as possible.

Mr Harris said that if those were reports provided an accurate record of WIPO’s opinion, then anybody subsequently making any inaccurate statements about the WIPO position should immediately have been questioned, and the correct position set out. There was confusion as to what WIPO believed. Nobody had ever clarified the correct stance. He did not understand why such a big issue was being made about inviting WIPO, although if someone who had attended the Geneva meetings could direct him to the statement of WIPO’s position, then he would be satisfied.

Mr Mabaso wanted to clarify the linkage between the Geneva visit and the Committee’s work on the Bill at that stage. WIPO officials had said they appreciated the initiative South Africa was taking on protecting IK, and hoped that benefits would be produced. WIPO said, at the time, that it had not exhausted every option, nor had it found the perfect product itself, and as a result, WIPO was interested in taking lessons from whatever South Africa might produce. Mr Mabaso said that since WIPO had not created “the perfect solution”, its position should be seen as only one input out of many possibilities.

Mr Radebe did not understand Mr Harris’s concerns about divergence in opinions on WIPO’s position.  He agreed with what Mr Mabaso said. WIPO officials had wanted to see how South Africa would address the challenges in protecting IK. WIPO said that the process of drafting model legislation was complex, because each country was unique, and for this reason it would be impossible to create one law that could apply across the whole world. Mr Radebe felt that the Committee had enough information to allow it to move forward, and that nothing material would change even if WIPO was asked to give input.

Mr Mabaso said that this discussion would probably not have happened if the Democratic Alliance (DA) representative on this Committee had not changed.

The Chairperson wanted to provide some clarification on the Committee’s visit to Geneva. In the time leading up to this, concerns similar to those expressed by Committee Members in the last few weeks had been raised. It was therefore decided that the Committee should do a study tour, and include a visit to WIPO. The unprecedented decision was taken that the whole Committee should go on tour, including the alternate Members, because of the importance of the topic. The Committee followed a heavy schedule, from 08:00 to late at night, but even after meeting with WIPO the Committee was not fully satisfied on all issue. WIPO had told the Study Tour group that South Africa’s work, which was already quite advanced, would help WIPO to take its own work further. The group had also visited the International Centre for Trade and Sustainable Development (ICTSD) to gather more information, since many of the ICTSD members had worked on IK at WIPO. A workshop was convened, at which Members took input from experts working on these issues. Some preferred a sui generis system, while others expressed a preference for legislation that built on the existing IP law.

The Chairperson said that MPS were not elected because of their legal expertise, but were elected as representatives of the people and their parties. Legal advisers were available in Parliament to help with the drafting of legislation and to ensure that this was done within the Constitutional framework. Committee members also had the power to decide to redraft legislation, which was the route that this Committee had now taken. The Committee had not hesitated to bring in experts in the past. It had not ever regressed, and would not be doing so now. She therefore had decided to make a ruling, which was that the ‘raw material’ from the meetings in Geneva with WIPO must be made available. The Committee would write a letter to WIPO requesting whether there had been any change to its position as expressed in Geneva. She would make WIPO’s response available to all Members.

List of possible experts to advise the Committee
The Chairperson asked that Members now move on to discuss the selection of experts to assist the Committee.

Ms
van der Merwe noted that the most important issue before was to agree on the process of redrafting, and once a draft was made available, the Committee would then consider each clause in turn.

The Chairperson suggested that the drafters should then proceed with their draft, and produce something so that the Committee could get an understanding of what the drafters had done, seek clarity where necessary, and hear what was included and raised. She thought that then Committee Members would be able to make further suggestions in July.

Ms van der Merwe said the drafters could be given a week to produce their draft, and that the Committee could then begin deliberations on 29 June, with additional meetings in the first two weeks of July.

Mr Smalle asked if all the curriculum vitae (CVs) were available for the Committee Members.

The Chairperson said that the Committee needed to decide a final date for accepting any new proposals of experts. The list contained 25 names, despite her desire to keep it down to 12 names, and the Committee had 18 recommendations. This was unwieldy. Some of the people on that list were already advising other groups. For instance, Professor Julian Kinderlerer, Director of the Intellectual Property Unit, University of Cape Town, was already advising the Portfolio Committee on Science and Technology, and should continue to be available for that Committee.

Professor Kinderlerer acknowledged that the DST was producing a policy in relation to databases for indigenous knowledge, on which he was giving advice.

The Chairperson said that these databases were bound up with this legislation. She then returned again to the lists, and said that if those already giving advice to other bodies were excluded, the list would be reduced to eight.

Mr Lionel October, Director-General, Department of Trade and Industry, said that Cabinet had agreed to use the current IP system to protect IK, and that there were multiple instruments involved in that process, including the use of databases. The European Union (EU) had a database of over 4 000 Geographical Indicators. South Africa similarly needed to explore multiple tracks for protection of IK. The General Assembly of WIPO had said that all treaties should use a sui generis system, an IP system or a combination of the two, to protect IK. In the European Union, countries were using IP systems, trademarks, trade agreements, common law, and other tools to protect IK. The dti wanted to do something similar. Mr October said that it would be valuable to get input from many experts, but the Committee should not expect that the “ultimate truth” would be obtained from them.

The Chairperson thanked him for this input.

Mr Andre
Hermans, Secretary of the Committee, said that of the eight names mentioned by the Committee, two did not have their CVs filed with the Committee.

Mr Mark Donnely, Intellectual Property Unit, University of Cape Town, said he could speak to certain aspects of collecting societies, as well as to the sui generis system as applied in Canada. He was also connected to the music industry both in South Africa and internationally.

The Chairperson suggested that the Committee should also look at profile-representative experts, critically in the areas of IK and music, which, although not necessarily falling squarely in the broad ambit of the proposal, may be raised from time to time. She said that the person advising on IK should be available regularly, and should provide written responses for Committee Members to read, study, and deliberate. 

Dr M Oriani-Ambrosini (IFP) responded to the Chairperson that an expert who was available regularly should have expertise on what IK was, what must be protected and how to achieve this, and he also thought that this person should also have expertise on trademark and copyright law.

The Chairperson said that the general expertise would not be deliberated, as the people had been screened, but she also underscored the need to have a panel that reflected the population profile of South Africa. Given the objectives of the Bill, the IK expert must be seen as someone dealing with this fulltime. Experts on broad areas of IP were also needed, and experts on copyright or music may be called in from time to time. She asked for proposals.

Mr Radebe suggested limiting the panel of “regular experts” to three individuals, and leaving the option open for the Committee to seek advice from others, as and when needed, during the process.

The Chairperson asked for agreement on that principle.

Dr Oriani-Ambrosini asked for clarity whether there must be three permanently-appointed experts, and the remainder would be called in ad hoc.

The Chairperson said that she did not see “permanent” as meaning that they must be available at every meeting.

Dr Oriani Ambrosini then agreed in principle with Mr Radebe’s proposal.

Ms van der Merwe said that when the Committee had been deliberating on the Companies Amendment Bill, it had flagged queries as they arose, to be dealt with later, so that it was not necessary to have all experts present at all times. She suggested that this process could apply equally to this Bill.

The Chairperson asked that the experts present at the meeting leave the room during the Committee’s deliberations.

Mr Radebe said that, following his proposal to include people with “every day” knowledge of IK, he proposed that Professor Pitika Ntuli, from the University of KwaZulu Natal, be asked to assist. Although he had never met him, he was familiar with his work.

Dr Oriani-Ambrosini agreed that, on paper, Prof Ntuli seemed to be exactly the type of person needed by the Committee, but was a little concerned that Mr Radebe had not met him, as it might be useful to have some knowledge of the personality and character of the experts. He quipped that perhaps Mr Radebe should arrange to have a drink with Prof Ntuli. In answer to the Chairperson’s question if the Committee should be seeking to socialise with candidates instead of examining their CVs, he said that individuals may have a speech impediment that made it difficult to communicate with them.

The Chairperson said that the Committee would not exclude someone with a language impediment.

Mr Mabaso urged Members to be more sensitive and avoid making jokes.

Mr Radebe reiterated that he was familiar with Prof Ntuli’s work, and Dr Oriani-Ambrosini supported the proposal.

Mr Smalle also supported that proposal. In addition, he proposed that Ms Tshepo Shabangu, President of the South African Institute of Intellectual Property Law, be appointed. She had knowledge of intellectual property, trademarks, and technology. She also was with
Spoor and Fisher, one of the leading intellectual property law firms.

The Chairperson said this was a good proposal.

Mr Mabaso proposed adding Dr Johanna von Braun,
Intellectual Property Law and Policy Research Unit, University of Cape Town, and representative of Natural Justice.

Mr Radebe suggested closing the list at this point, since three names had been proposed.

Dr Oriani-Ambrosini noted that this process had selected IK experts and he wanted to make a proposal for a legal expert.

The Chairperson asked him not to proceed further, pointing out that Ms Shabangu’s name had already been tabled.

Dr Oriani-Ambrosini said that was Mr Smalle’s proposal, not his, and that he wanted to make his own proposal.

The Chairperson said she was reminding him of the names that were on the table.

Dr Oriani-Ambrosini said that he still wanted to make a proposal.

The Chairperson asked him if he was proposing to add a fourth name.

Dr Oriani-Ambrosini asked if he could talk, and expressed his displeasure at the style of chairing the meeting, saying that he did not appreciate being interrupted while speaking.

Mr Mabaso raised a point of order. He said that Committee Members should not undermine each other and should respect the position of Chairperson of a committee. He asked Mr Oriani-Ambrosini to tone down his speech, saying that this was not advancing the work of the Committee.

The Chairperson noted this point of order.

Dr Oriani-Ambrosini then proposed including Dr Owen Dean, an Intellectual Property Consultant. He said that this would involve no extra costs, and Dr Dean had specialised knowledge in copyright and trademarks. Ms Shabangu, on the other hand, had expertise in constitutional law, with professional experience in intellectual property and trademarks.  Dr von Braun had an extraordinary academic resumé, but did not have the legal expertise in the specific field tasked to the Committee.

The Chairperson noted that Dr Oriani-Ambrosini had extracted that information from the CVs, and asked for consensus on the appointment of Prof Ntuli.

All Members agreed fully that Prof Ntuli be approached.

Ms van der Merwe supported the nomination of Ms
Shabangu, as she appeared to be a trademark expert, and was a partner of and had work experience at Adams and Adams. She was also the Chairperson of the Institute of Intellectual Property, which was an added benefit. She had also advised Ms van der Merwe of her willingness to assist the Committee on the process.

The Chairperson noted that there was no opposition to the inclusion of Ms Shabangu.

The Chairperson then noted that five people were supporting Dr von Braun.

Dr Oriani-Ambrosini said that all the suggested experts were wonderful people, which meant their value could only be determined by looking at opportunity costs, which he explained as the value of the third person being determined by the opportunity cost of the fourth. The value that Dr von Braun could add to discussions would be lower than the value added by an expert in copyright and trademark law. He wanted to hear on the academic dimensions of copyright. Dr Dean had been influential in developing computer intellectual property in South Africa, where he had broken new ground, and he thought that this experience would be valuable also in the groundbreaking efforts that were required for IK.

Ms Kotsi-Ramotsamai noted that while the Committee had agreed on having three permanent experts, it was not suggesting that any others be discarded and they could still be available as needed.

Mr Smalle wanted to suggest that when the Committee received the redraft, Dr Dean should be invited to guide the Committee through the copyright portion.

The Chairperson summarised the decisions. She noted that the Committee Secretary would distribute the remaining CVs of experts. The Committee had decided to select three “permanent” experts and would send terms of reference to them. The Committee would also notify the administration that it would be necessary to consult other experts in addition to those three.

The meeting was adjourned.

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