Intellectual Property Laws Amendment Bill: Task Team meeting

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Trade, Industry and Competition

25 July 2011
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Task Team met to resume discussion on the redraft of the Bill to protect indigenous knowledge (IK) through the intellectual property system. The Task Team chairperson hoped to address some of the key concerns and issues in preparation for the full Committee meeting, however the task team did not go beyond discussing the concerns about which approach was the right way to take in order to effectively protect IK. The drafters made the case for using the current intellectual property system because IK was a form of knowledge that was similar to those types of knowledge that were already afforded protection through intellectual property laws. However, the opposition party members felt like there was sufficient difference between IK and traditional intellectual property that it would be more appropriate to craft a new principal act and utilise sui generis legislation.

The Committee also discussed the latest on the World Intellectual Property Organisation negotiations regarding the effort to create model legislation for the protection of IK.

Meeting report

Task Team chairperson, Ms S van der Merwe (ANC), wanted to make a proposal for the task team's agenda, which would include returning to issues raised in previous meetings. One of those issues was the World Intellectual Property Organisation's (WIPO) report, as well as a document produced by 19 developing countries, including South Africa. Those countries submitted the report to WIPO in pursuit of protecting IK.

The second task was to examine what the Committee was doing with the draft, which would include both its structure and purpose. She hoped to begin looking at the redraft in order to flag the issues members were uncertain about.

Adv Charmaine van der Merwe, Parliamentary Legal Advisor, had previously presented a document outlining the major issues that had been raised. The Task Team chairperson hoped to address those issues.

The Task Team chairperson had circulated a number of documents and news articles related to the negotiations that were ongoing at WIPO. These documents were significant. They indicated that the process was far from complete, and that WIPO aimed for a diplomatic conference in 2012. That said, the discussion had been narrowed. WIPO's negotiations also included a number of issues, including genetic resource protection, that South Africa was not considering in this bill.

Adv A Alberts (FF+) said he had tracked down copies of the WIPO draft legislation and thought they were both interesting and broad. He wanted all Committee members to have copies of the drafts, which were the negotiating texts. The Committee should ensure that its work was consistent with the WIPO text. He noted that it seemed that WIPO, as well as the international community was still contemplating that sui generis protection should be emphasised, and that the draft text from WIPO referenced other fields of law in addition to intellectual property. Likewise, the Committee should have a broader view.

Mr T Harris (DA) thought it was fascinating that South Africa was one of the 19 countries involved in submitting the report to WIPO. Given that involvement, the Committee should have been briefed by the person that was there. The Committee should know to what extend the representative from South Africa felt they compromised on the draft text or if they were fully in support. If the representative from the Department of Science and Technology (DST) was involved, these departments and the Committees should be talking together.

Ms S van der Merwe noted that she had spoken with the Director-General of the DST, and that he indicated there was an intergovernmental task-team working on issues related to IK. Apparently the work they were doing was shared in that context. She felt that the Committee should follow up on this process and see what they could determine from this. She had no objection to having someone brief the task team on those discussions.

Mr Harris said it was great that she agreed to do that. He thought it was odd that if he had not opened the newspaper in Indonesia which relayed the information about the submission to WIPO, they would not have known about it. He did not trust the government enough to relay this information, and felt the Committee needed direct access to the processes going on in the government since it could be relevant to the work they were doing on intellectual property.

Ms van der Merwe acknowledged his point and urged the Department of Trade and Industry (dti) to give up-to-date information on this subject matter. She asked the task team members to make sure they go through the documents that she had sent them.

She then asked to move onto tackling the redraft. She believed that it was a draft text upon which the Committee could work. The Committee was approaching this matter as specific protection for IK through the insertions of specific clauses under each of the identified sections. It was amending the foundation of Intellectual property through these special protections. The redraft went a long way towards achieving the objectives the Committee set out to accomplish, namely protecting IK in South Africa. She wanted to know if the task team felt that it could proceed on that basis and look specifically at areas where there needed to be further discussion and debate.

Mr Harris felt the redraft was a vast improvement from what was previously produced. Practically, it recognised that the Committee was dealing with something quite different here than traditional intellectual property. But that recognition raised the question of whether it was most efficient to amend four separate laws or to write a new law to complement those four pieces. It was a matter of practicality. He thought it was simpler to add a new law, which would solve many of the existing problems in the redraft.

In addition, a customised law would create simplicity of understanding for the public. The redraft would require individuals to not only read the discrete sections in the four bills related to IK, but the entire body of intellectual property law. This would be complicated for the layman's understanding. The Committee needed to consider the simplicity of the law in this process. Amending four laws could make understanding prohibitive, especially for these indigenous communities.

Adv Alberts wanted to know when the experts would come into the process. While they would need to look at the details, he did not want the experts to come in late and suggest redoing some of the work they had accomplished. He also wanted to mirror Mr Harris' comments. Because the law was protecting people that are poorer and in rural areas, understanding was important. One would need to understand intellectual property to the fullest extent in order to understand the rights related to intellectual property. It would be more practical with one law that would contain regulations similar to intellectual property, but that would take IK out those norms.

While speaking with WIPO, he realised that South Africa was at a threshold to make history. The last time an intellectual property form was created was several hundred years ago. If South Africa created a separate law with the characteristics of intellectual property and included other characteristics relating to competition, and product regulation, then it would be making history by creating a new protectable interest as was the case with copyright in England 200 years ago. This would be the more responsible way of going forward.

The Task Team chairperson said the question of accessibility for communities was very vexing. It had been a concern for Parliament for several years. It had tried plain language and other approaches to solve the problem. But ultimately, law was complex. The Committee needed to make sure the Bill explained carefully and simply what was required to ensure protection for the communities.

Second, she felt that what the Committee was considering provided “stand alone protection” for IK. These discrete clauses would form the protection the Committee was looking for. She then asked the drafters for their comments.

Adv Mongameli Kweta, State Law Advisor, said that the accessibility of legislation to the layperson was a touchy matter. He noted that one clause in the redraft would allow the Council to step into the negotiations if the agreement was not beneficial to the community. He thought that this provision might have been based on the communities not having a complete understanding of the complexities of IK protection. He also noted that the redraft was different from the original proposal, and that the amendments were now confined to specific sections. He agreed that the Committee must consider the effect of the legislation – whether it was one piece or amendments to four pieces of legislation. He felt that it would be appropriate to move forward with the current approach, because it would protect IK.

Adv Johan Strydom, dti Legal Advisor, said that he tried to shy away from expressing himself on matters of policy, because he was not a policy maker. He also acknowledged the concerns of Mr Harris. He opined that while the different bills dealt with clearly distinguishable and severable types of intellectual property, the same was not true with IK, which could fit into each one of those types of intellectual property. The redraft approach did make it simpler. It added inconspicuous chapters to each act, rather than dealing with multiple sections in each of the acts. The redraft approach was close to providing sui generis legislation, and all the categories of IK were dealt with in cohesive units in each principal act.

Adv C van der Merwe said that the Committee could accept, reject, or redraft the Bill that was presented. With the introduced Bill that amended specific sections, there were a number of problems, including whether the Bill was achieving its objective to protect IK. It was decided to use current systems to protect IK, which meant that there could have been conflicts with other areas of traditional IP law. The Committee decided to do a redraft, which limited the drafters to the areas of focus already before the Committee. As a result, the redraft could not become a new principal act. The Committee would need to reject the Bill and start a new one. The legislation was a continuation of a policy that had been approved, stating that IK would be protected within each sphere of law. This was how the policy was accepted. If this was rejected, that whole policy must be reconsidered.

That said, she felt that the redraft did create a sui generis system on intellectual property. The question was whether it would afford adequate protection. A decision to pursue a new separate bill would require them to consider whether that delay would be justified, particularly when the current redraft would provide protection.

In addition, she felt that the redraft would assist this area of focus better than a separate law. The dti would have to bring in the current intellectual property system even with a separate bill, and that would not create simplicity for people to access and understand the bill.

The Task Team chairperson said that this was an interesting debate, and there were compelling points on both sides. She did not know where to go from that point. There was sufficient information in front of the task team if there was agreement that this was a good enough document to go forward. The opposition parties brought out issues that needed to be considered, but the draft sufficiently dealt with the protection of the IK through the intellectual property system.

She wanted to start looking at where the task team could draft questions for the various experts in order to get their opinions on the unresolved matters.

Mr Harris thought it would be useful to get an explanation from the drafters on the differences between the three documents which were handed out. Secondly, he noted that while there were some strong arguments made from the drafters on the merits of the proposal, he was still not convinced. The argument from Adv Strydom that the different areas of intellectual property were distinct was the same argument he believed showed the need to create a stand alone law, since IK was distinct from traditional intellectual property. He thought that this argument might need to be ventilated to see if there was sufficient difference between IK and traditional forms of intellectual property. But since the redraft dealt with IK as a new species, and went far in creating a sui generis system, the argument that a new Bill was needed was stronger.

As for the concerns about causing a delay, he felt this was not something the Committee should worry about. If the policy from dti said that each government department needed to deal with its own types of property, then it would be compatible with sui generis. While this would cause a delay, much of the work from the redraft could be put into the new principal act. While WIPO's time-line was not ideal, waiting for that organisation would ensure that South Africa was in step with it and with the international community. He did not want to delay that long, however.

Adv Alberts wanted to hear the view of the experts on the whole law, not just the outstanding issues. He knew there was debate on the issue – that some experts supported sui generis while others did not. Whatever the Committee decided, he wanted to ensure that it would work, and that it would not cost extra money for taxpayers. He recognised that there was logic in the redraft, and that it was much better than the original proposal. But he did not have the background necessary in intellectual property to know all the complexities and wanted that expert input.

The Task Team chairperson said that the most compelling guideline was whether or not the proposal would work. Based on her discussions with the drafting team, that seemed to be their focus as well.

She then asked Adv C van der Merwe for an explanation on the documents provided to the task team.

Adv C van der Merwe said the latest document only dealt with the unresolved issues and identified who needed to be consulted. The other showed where additions had been made to Draft 1.2.

Adv Strydom said he was concerned regarding the future process of this legislation and urged the task team to bear that in mind. He felt it was important that a policy or political stance be adopted on the future approach to the bill. He said that the work they did could change dramatically because the processes being discussed were different.

He also expressed a concern that the intellectual property community was a high profile and well-heeled fraternity, and their opinions might differ from an average reasonable person. He felt that a reasonable person would see that the redraft was protecting and recognising IK as a species of property.

Finally, he noted again that intellectual property and IK were related, and should therefore be dealt with jointly.

The Task Team chairperson had hoped to come to an agreement that the Committee could use this Bill going forward, but noted that there was no agreement so the full Committee would need to make that decision. “We obviously do not have agreement, so the Committee will have to make that decision”. While the task team did not get to the issues, the meeting was fruitful, especially regarding the discussion of the WIPO negotiations. It was also useful to note that Adv Alberts and Mr Harris acknowledged improvement in the Bill, though Mr Harris said it did not go far enough. Adv Alberts wanted to know if it would work, and it might be shown in deliberations that it will work.

Mr Harris said he was much happier with the redraft and that it was a big improvement. The redraft raised the question of whether or not IK was a separate species of property in need of unique protection, and he felt that the Committee could structure it as a separate Bill to create greater simplicity and effectiveness. But if the Committee went forward with the redraft, it was much better.

Adv Alberts told the drafters that he appreciated the work they had done and agreed that it was a huge improvement. He wanted to know how the stakeholders would respond to the redraft, which would provide a more democratic response going forward.

The Task Team chairperson said that in doing the redraft, the drafters considered all the documents that had been submitted. By looking at the inputs and changes made, it was clear these submissions were used as sources and had been incorporated. In other words, there was significant attention paid to the remarks of the key stakeholders.

As for bringing in the experts, they would be there for the key issues. But there needed to be a document that the Committee and the experts could work on. While there was a more positive attitude towards the redraft, it was now up to the Committee to finalise the process, which would happen at the next meeting.

Mr Harris made three additional points. First, he would follow up with Committee Chairperson Fubbs whether Mr McDonald Netshitenzhe, Director: Commercial Law and Policy, dti, would be invited to brief the Committee on the WIPO report. Secondly, he wanted to follow up with her on whether she had contacted WIPO directly to see if they wanted to add any comments about South Africa's progress. Finally, he wanted to formally introduce the regulatory impact assessments from National Treasury related to the implementation of the mechanisms of the redraft.

The Task Team chairperson noted that the Committee Chairperson had been ill and that the next meeting might be chaired by the whip.

The meeting was adjourned.


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