Redraft 1.3 of Intellectual Property Bill: briefing by Task Team and Legal Advisers

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Trade and Industry

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

Normal 0 The Committee received a progress update from the Task Team on the Intellectual Property Bill. Thereafter, the Committee had a briefing from the legal advisers on the latest version of the Bill, Working Draft 1.3.

The Task Team was in agreement that the new redraft of the Bill was a vast improvement on the introduced Bill. It spoke about developments emanating from the World Intellectual Property Organisation (WIPO) conference taking place in Switzerland and proposed that the Committee be kept informed by the Department of Trade and Industry on WIPO conference developments as these impacted on the Bill.

The legal advisers explained Version 1.3 of the Bill had incorporated the comments and inputs of key stakeholders in the field of intellectual property. It incorporated protection for indigenous knowledge in its clauses and also addressed the outstanding issues which previous versions had not addressed. One of the minor issues addressed was that the “traditional” nature of intellectual property sometimes required different treatment; the legal advisers had created “hereditary” and “derivative” intellectual property and distinguished between those. A major issue which had been raised was that the self governance of communities would be affected by a fund ‘being owned’, it had been suggested that a custodian role for the trust would be more appropriate and less intrusive. The Bill would now distinguish between hereditary traditional intellectual property being owned by a community (per a representative), derivative traditional intellectual property being owned by an author or creator and if the author or creator was unknown, the traditional intellectual property would be owned by a trust. The new version of the Bill included changes to many definitions such as “author” which addressed concerns raised in previous versions of the Bill.

The Committee adopted Version 1.3 of the Intellectual Property Bill as the working document from which the Bill would be formulated.

Meeting report

Normal 0 The Chairperson said that it was high time the Intellectual Property Bill be concluded and enacted for the benefit of the citizenry.

Task Team briefing on Progress made on Intellectual Property Bill
Ms Susan van der Merwe (ANC), Task Team Chairperson, briefed the Committee on the progress of the Task Team which had met twice thus far. The legal advisers in conjunction with the Task Team had drafted Version 1.3 of the Bill and that version be used in future.  The Task Team had discussed developments emanating from the World Intellectual Property Organisation (WIPO) conference taking place in Geneva, Switzerland. There had been a meeting of 19 developing countries at the WIPO conference which had led to an agreement on text pertaining to intellectual property.

South Africa had been part of the WIPO conference and timeframes were being developed at the conference to enact regulations around intellectual property.
The Task Team proposed that it be kept informed on WIPO conference developments as it impacted work on the Bill. The Task Team was in agreement that the new redraft of the Bill was a vast improvement on the introduced Bill.

The redraft of the Intellectual Property Bill could not and did not exceed the parameters/scope set by the original Bill. The redraft included discrete clauses relating to the protection of indigenous knowledge. The Task Team proposed that the Department of Trade and Industry (DTI) keep them informed of developments emanating from the WIPO conference. It also proposed that the documents presented to the Committee be numbered.

Discussion
The Chairperson thanked the Task Team which he said was progressing well. He asked whether any other member of the Task Team wanted to add to what Ms van der Merwe had said.

Mr T Harris (DA), a member of the Task Team, proposed that the Department of Science and Technology (DST) brief the Team on international conventions pertaining to intellectual property related to science and technology. He also proposed that the DTI brief the Committee on the status of a WIPO report pertaining to South African laws around intellectual property. The Committee could go to the Speaker of Parliament should it become necessary to exceed the scope of the initial draft of the Intellectual Property Bill during the Task Team’s work. He proposed that the costing around regulatory impact assessments for the proposed database be presented to the Committee. He voiced support for a proposal raised by Adv A Alberts (FF+) that the redraft of the Intellectual Property Bill be made available for public comment. One of the experts appointed to assist the Task Team in its work, Ms Tsepho Shabangu, would not be able to attend Task Team meetings for 2 weeks as she was out of the country. He proposed that she be replaced for the two weeks of her absence.  

Ms van der Merwe agreed with Mr Harris that the DST and the DTI brief the Task Team on intellectual property as it would be useful. She said that a redraft had to remain within the scope of the original Bill and reiterated that Version 1.3 be adopted as the working document for the Bill. The DTI would brief the Task Team on the status of the WIPO report which pertained to South Africa. She did not support the idea of opening up the redraft process for public comment.

Adv A Alberts (FF+) commented that the redraft had been well done and that a lot of good work had gone into it. He said that it was important that the Bill be effective on the ground level and proposed that experts be included in every aspect of the redrafting of the Bill. He asked that the Committee be briefed on the current position of WIPO on intellectual property.

Ms van der Merwe agreed that the Bill must work effectively and that Version 1.3 should be adopted by the Committee. 

Mr N Gcwabaza (ANC) commented that South Africa was a sovereign state and as such had the responsibility to draft laws which worked for the country regardless of WIPO. Laws could always be amended and fixed but the Task Team and the Committee must proceed with its work on the Intellectual Property Bill. 

The Chairperson commented that the redraft was fair and substantive. He said that communication with the DTI needed to be improved. The Intellectual Property Bill had come through Cabinet and as such all concerned Departments had had the opportunity to comment on the Bill. He suggested that the DTI and the DST brief the Task Team. The Bill needed to be enacted as soon as the redrafting process was complete and should it become necessary; the enacted Bill could be amended depending on what happened at the WIPO conference. He commented that the Task Team had done a wonderful job in working on the redraft. The redrafting process could be commented on by the public but public hearings on it would be difficult to undertake.   

Mr X Mabaso (ANC) commented that the Task Team had done a wonderful job in redrafting the Bill. There would always be the opportunity to amend the enacted Bill should it become necessary. The DTI and the DST needed to be closer and have improved interaction in common areas of interest.

The Committee adopted Version 1.3 of the Bill as the working document for the Intellectual Property Bill. Mr Harris voted against the proposal.

Mr Harris suggested that the WIPO report should be linked to the process of making regulations for the Intellectual Property Bill.

The Chairperson agreed with Mr Harris. He proposed that the Shabangu matter be postponed until the next day’s meeting. 

Parliamentary Legal Advisor briefing on Version 1.3
Adv Charmaine van der Merwe, Parliamentary Legal Advisor, briefed the Committee on the work done by the legal advisers in developing the latest version of the Intellectual Property Bill. She gave a general outline on the work that had gone into developing Version 1.3 which had incorporated the comments of several key stakeholders in the field of intellectual property. Some of the stakeholders who had given input were:
Academic and Non-fiction Authors’ Association of SA (ANFASA)
African Centre for Bio safety – representing the Masakhane Community
Dramatic, Artistic and Literary Rights Organisation (DALRO)
Free Market Foundation of Southern Africa (FMF)
Inhlangano Yababhali Usiba Writers’ Guild
Law Society of South Africa (LSSA)
Legal Resources Centre (LRC)
Licensing Executive Society of SA (LESSA).

The new version had incorporated protections for indigenous knowledge in its clauses. The new version also addressed outstanding issues which previous versions had not addressed. One issue was that the “traditional” nature of intellectual property sometimes required different treatment. The legal advisers had created “hereditary” and “derivative” intellectual property and distinguished between those. Another issue was the nature of copyright and exceptions and the need to have them expanded. That had been resolved through the inclusion of the exact wording proposed in the submissions, as well as wording in certain sections of the Copyright Act that were excluded initially. On the issue of live performances, the Bill provided that a repeat performance was not new, but was protected as if it was the original performance. On the issue of the Council and the Registrar providing support to indigenous communities, that role had been allocated to the Trust and the Fund, which resorted under the Registrar.

Amongst some of the major issues which had been resolved was
that the self governance of communities would be affected by a fund ‘being owned’, it had been suggested that a custodian role for the trust would be more appropriate and less intrusive. That had been resolved through making sure that hereditary traditional intellectual property was owned by the community (per a representative), derivative traditional intellectual property by the author / creator and if the author or creator was unknown, it would be owned by the Trust. Another major issue was state intervention in transactions involving traditional knowledge, being clarified in the Bill. That had been addressed through stating that only hereditary traditional intellectual property could not be transferred and agreements for royalties were to be registered with the Council, who may require re-negotiation. Also amongst the major issues was that the Bill should not be retrospective, should make provision for transitional arrangements and administrative arrangements to be in place before it was enacted. That had been addressed through the statement that the Bill would have no retrospective application and the DTI would confirm transitional arrangements and administrative arrangements. 

Discussion
The Chairperson commented that a lot of work had gone into the redrafting of the Bill and the issue of the constitutionality of the Bill had been addressed.

Mr G Selau (ANC) asked whether the concept of royalties would not lead to people wanting to sell everything. He commented that South African laws should apply to South Africa and take international law into consideration. He asked whether or not the lack of retrospective action in the Bill would lead to conflicts.

Adv van der Merwe responded that royalties were specific to intellectual property and that they came with regulations and requirements. The intellectual property that existed before the Bill was enacted would be recorded and noted as the Bill was not retrospective.

Mr Mabaso sought an explanation on the difference between hereditary and derivative. He commented that Trusts should include an education focus so as to inform the community on the value of intellectual property. He asked what could be done to protect traditional dresses as it related to indigenous knowledge. 

Adv van der Merwe responded that “hereditary” would be defined as the performance of a musical work or expression or term or design which was recognised by an indigenous community as such having an indigenous origin and a traditional character and which has always existed in the memory of the living members of a community. “Derivative” would be something which had been derived from a work which was taken from a particular community/owner. Educating communities on intellectual property was necessary and would be a key part of the Intellectual Property Bill. Law enforcement would be important to stop the sale of traditional dresses or other goods where Intellectual Property ownership could not be proven.

The Chairperson agreed with Mr Mabaso that educating communities on the value of intellectual property was important

Mr Harris said that the Democratic Alliance thought the redraft was excellent. The party advocated for a stand-alone law to address intellectual property and a separate one to address indigenous knowledge. He asked whether it would be possible to have a stand-alone law on intellectual property. He asked if enough experts in the intellectual property field were involved in drafting the Bill. He commented that reciprocity on indigenous knowledge might open the door for people from other countries to seek protections in South Africa for fields which were not acknowledged or accepted in their own countries. He voiced his scepticism over the constitutionality of the expropriation clause whereby intellectual property would revert to the state where no owner was identified. He commented that the Bill infringed on the essence of copyright and sought further clarity on the issue. He noted that one stakeholder had voiced unease over a commission which the Bill would create and said that was still in the Bill and might be an area of concern.

The Chairperson said that all stakeholders would follow the law as it was written.

Adv van der Merwe replied that protections for intellectual property or indigenous knowledge for people from other countries could only be protected in South Africa if that intellectual property or indigenous knowledge was officially acknowledged and protected by the person’s country of origin. If ownership could not be proven then the intellectual property would revert to the state and where there was a right to take from. The Committee could reject the Bill if it felt a separate stand-alone law for intellectual property or indigenous knowledge was necessary. The only problem would be that there would be a delay in implementing the Bill for a few years. There were enough intellectual property experts involved and where necessary more could be requested.   

Adv Alberts supported Mr Harris’s proposal to have a stand-alone law for intellectual property. He suggested that an overarching law be created to bridge indigenous knowledge and intellectual property along with other related laws in current South African legislation. Cultural preservation laws along with other issues were not touched upon by the Intellectual Property Bill thus it would be useful to have indigenous knowledge protected by a separate Bill.      

Adv van der Merwe responded that the Committee could reject the Bill if it felt a separate stand-alone law for intellectual property or indigenous knowledge was necessary. The only problem would be that there would be a delay in implementing the Bill. An overarching act could be done in future after the Intellectual Property Bill had been enacted. 

The Chairperson commented that the legal advisers had done a wonderful job on the draft. Indigenous knowledge needed to be protected. The Intellectual Property Bill might not be perfect but it was the case in every law that not everything people wanted in the Bill could be included but the Bill or needed to be enacted. 

The meeting was adjourned.

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