Intellectual Property Laws Amendment Bill: Report back by Working Group; Planning: Committee Steel Report; Working Group on Gambling Review Commission

Meeting report

Working Group Report Back on Intellectual Laws Amendment Bill
Ms Susan van der Merwe (ANC), Head of the Working Group on the Intellectual Laws Amendment Bill (IP Bill) briefed the Committee on the progress the Group had made in deliberating on the Bill redraft. Ms van der Merwe explained that the Committee would classify the Task Team as a Working Group so that it might be exclusively limited to members of the Group and appointed experts and exclude members of the public from attending its sittings.

The Working Group had sent a list of queries to three experts in the field of intellectual property. The Group had received two reports responding to those queries thus far and expected a third the following day. The two reports had come from Dr Johanna von Braun (report tagged as IP 5) and Ms Tsepho Shabangu (report tagged as IP 6) and the third was expected from Professor Ntuli. The Working Group had requested that representatives from the Department of Trade and Industry (DTI) study the reports from the experts and give the Group its opinion on the reports.

The Working Group requested that the Committee delay the date of the formal deliberations and voting on the IP Bill as it needed time to consider the reports from the epxerts and the complicated issues still outstanding. The Working Group proposed that it move its meeting day from Tuesday to Friday in order to allow time for it to report back to the Committee after having assessed all relevant reports and information in the week.

Discussion
Mr T Harris (DA) supported the proposal to await Professor Ntuli’s report prior to proceeding with the Working Group’s work on the IP Bill. There were outstanding questions which had been sent to the Department by the Working Group which were yet to be answered.

The Chairperson agreed with Mr Harris and asked the Department representatives to address those questions.

Mr Lionel October, Director-General: DTI, responded that the Department had commissioned a report on copyright laws as they related to music and artistry. The report had been completed and the Department was in possession of it. The report did not directly relate to IP but more focus was placed on the copyright industry and the economic impact of copyrights. The Department had been part of a conference held in Bali which had dealt with biodiversity. The Department was of the view that IP needed to be protected through various means and that the Biodiversity Act of 2004 was an example of that. The Department appreciated the seriousness with which the Committee had taken the IP Bill and would in turn study the reports submitted by the appointed experts. The Department would also engage with other government departments on the reports, including the Department of Science and Technology (DST) with which the DTI had a bilateral committee. The IP Bill did not necessarily provide extensive protection for indigenous knowledge (IK) but it offered some level of protection which was a necessary start. IK needed to be acknowledged as a subset of IP because currently IK was not protected at all. It was important to establish who would be best protected within the protections offered to IK. There were several indigenous initiatives which could use protections, there was a recent initiative called “Wear Only South African (WOSA)” which was an example of that. The European Union was in the process of issuing Geographical Indicators (GIs) which it wanted protected. The GIs numbered 250 and included such things as feta cheese, olives, champagne and other products which originated from Europe. The GIs would ensure that fees were paid to the EU for use of those terms/names. The EU’s actions showed that it was important that South Africa take similar action to protect its own IK.

The Chairperson said that the DG’s response had been illuminating.

Mr Harris asked which Department and people had represented South Africa at the conference held in Indonesia on traditional knowledge and folklore. He spoke about the report which had been produced by the World Intellectual Property Organization (WIPO) on the original policy framework and IP Bill and reiterated that the Committee needed to be briefed about that report. He reiterated the need for the Committee to see the formal Regulatory Impact Assessment on the cost of the proposed database in the IP Bill. He asked what progress the Chairperson had made in her promise to write to WIPO to attain a viewpoint on the redrafting of the IP Bill. 

Mr October replied that the Department would forward all documentation including delegation lists for the Indonesia and Bali conferences to the Committee. The Department would present the cost benefit analysis on the IP Bill when it next met with the Committee. The Department was of the view that the cost of providing protection for IK would be minimal as opposed to that of providing no protection at all.

The Chairperson responded that she would work with Mr Radebe on how to word the letter to WIPO to gain their viewpoint on the Committee’s work on IP.

Mr McDonald Netshitenzhe, Chief Director for Commercial Law and Policy: DTI, replied that what had been discussed at the Bali conference would be relayed to the Committee as stated by Mr October. One of the most salient points as stated by WIPO was the mandatory disclosure of genetic resources and the Patent Amendment Act of 2005 and the Biodiversity Act of 2004 were in keeping with that spirit. Therefore South Africa’s position on IP was not contradictory to WIPO.

Mr Harris appreciated the proposed tabling of all documentation on the Bali and Indonesia conferences. He asked whether the WIPO comment on the IP Bill shared with the Department would also be tabled to the Committee and whether the Regulatory Impact Assessment report would also be tabled to the Committee.

Adv A Alberts (FF+) commented that he was glad that documents would be made available to the Committee on the conferences and IP. He asked if the Department and Committee were going in the right direction by seeking to provide protection for both IK and IP in one sui generis Bill. He qualified that by stating his appreciation for the amount of work that had gone into the redraft of the Bill from its original version. He wanted to know whether the Bill would work.

Mr October replied that WIPO had no stated position on the issue of whether there should be sui generis protection for IK and IP. Different experts had different views on IP and IK and the protections provided to them.

Mr B Radebe (ANC) voiced his dissatisfaction with the tardiness of the Ntuli report and the fact that it had not been submitted yet. He said that the Committee should set timelines for experts to ensure that they delivered their work in a timeous fashion as the Bill redrafting process had taken long enough. He asked what contractual arrangement existed between the DTI and WIPO with regard to the report WIPO had been commissioned to do on copyrights. He voiced support for the idea to pass legislation to provide perpetual protection of the country’s IK in response to the EU’s action on GIs.

Mr October responded that all relevant documentation would be sent to the Committee. After all the research and analysis was complete, the Department would have to take on the task of incorporating those views for the protection of IK.

Mr Netshitenzhe replied that the commissioned report would be sent to the Committee as part of the documents mentioned by Mr October.

Mr Radebe asked what terms of reference the DTI gave to WIPO in the commissioned report. The DTI had the responsibility to mandate the terms of reference when it commissioned a report - such as, it should be confidential. That report was made public without the approval of the Department.

Mr October replied that all reports which had been commissioned by the DTI would be presented to the Committee as they were not confidential. The DTI’s interactions with experts on the Bill were not based on reports and were not official in the sense that a report-back was necessary.

Mr J Smalle (DA) sought clarity on the cost analysis for provisions in the Bill. He commented that it was unfair to expect the Working Group and the Committee to debate the Bill in full when the reports from the experts had only been recently received.

Mr October replied that the Department would present the cost benefit analysis on the IP Bill when it next met with the Committee. In principle the Department was of the view that the cost of providing protection for IK would be minimal as opposed to that of providing no protection at all.

The Chairperson commented that deadlines that were set for the experts needed to be enforced. Tardiness in submitting reports hindered the progress of the Working Group and, by implication, the Committee.

Ms van der Merwe reiterated that the Working Group and Committee had agreed that there was a need to have all the expert responses on IP prior to proceeding on the issue. She proposed getting someone to replace Prof Ntuli if he was too busy to submit the report. She supported the Department’s proposal to send all reports and documents to the Committee and iterated the need for it to happen expeditiously.

The Chairperson said that progress on IP did depend on when the expert’s report arrived if it was not submitted by noon of the following day; the Working Group’s scheduled meeting on Friday 5 August would be postponed. All reports on IP needed to be made available to the Committee so that the process could move forward.

Consideration of Draft Steel Committee Report
The Chairperson said that the Committee had been considering this report for a prolonged period, to the extent that some members who had been on the Committee at the time of the report’s conception had been replaced. The Committee had gone on an oversight visit to Kumba Steel plant but had not received an adequate response to its various queries.

Mr Harris said that supplementary questions had been sent to ArcelorMittal Steel and the responses were inadequate.

The Chairperson said that the Committee had expected responses the previous day but had yet to receive them. She proposed that ArcelorMittal be asked to report to the Committee on outstanding issues and on information the Committee needed. She noted that there was greater demand for steel from the motorcar industry which was not being met, she asked the DTI to comment.

Mr Radebe commented that the Committee’s oversight visit to Kumba had been successful “content wise” but not “logistics wise”. He said that the Committee should conclude the Steel Committee Report. He commented that ArcelorMittal was not forthright in responding to the issues raised by the Committee. ArcelorMittal took a passive stance because it had a monopoly on the steel industry. The DTI should consider supporting smaller steel companies to provide competition to ArcelorMittal. Magnetic extraction of iron ore was an important source of extracting iron ore and should be further studied and pursued.

Mr October replied that the DTI was concerned about how much “downstream”/ordinary people had to pay for steel. South Africa had some of the highest steel prices in the world. ArcelorMittal had been smart enough to buy into the steel industry when prices were low and now had a monopolistic control over the industry. Concessions had had to be made to keep the steel industry in the country vibrant and iron ore had been sold to ArcelorMittal at a cheap price. There needed to be lower prices for the motor industry and other industries in light of the cheaper price of iron ore being sold to ArcelorMittal.

The Chairperson agreed with the DTI that prices in the value chain needed to be fairer and the Committee had expressed concern about that.

Mr October said that the DTI was working on a long term solution to the issue of a monopoly in the steel industry. The Department had been working with India and China to look into bringing in competition into the steel industry.

Mr Smalle suggested the DTI look into the viability of the Saldanha steel project. He suggested that the Department take steps to provide protections to South African inventions in the steel industry in light of other countries doing the same for themselves.

Mr Harris asked when the full Committee Report on Steel would be available.

The Chairperson said that the report would be considered in full when the oversight report was ready as well as the response to questions from ArcelorMittal. Deadlines had to be enforced in order for the work of the Committee to progress. The report would be complete in the following week.

Terms of Reference & Finalisation of Working Group on Gambling Review Commission Report
The Chairperson gave an overview on the need to review gambling. Gambling needed to be assessed with respect to several aspects of the industry especially economic revenue and contributions to the state. A Working Group chaired by Mr N Gcwabaza (ANC) had been established to look into gambling. The drafting of the Working Group’s terms of reference had been assigned to the Committee Content Adviser and would be an ongoing process with amendments instituted where necessary.

Mr Smalle said that looking at regulations around gambling would be important in assessing gambling and legislation around it.

The Chairperson agreed with Mr Smalle and said that looking at regulations would be important.

The Working Group would also be made up of Mr Smalle and Ms F Khumalo (ANC) with Ms C Kotsi (COPE) to be confirmed at a later date. The Working Group report on the Gambling Review Commission report would be finalised on 16 September 2011.

The meeting was adjourned.