Intellectual Property Laws Amendment Bill: deliberations; Gambling Review working group update

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Trade and Industry

30 August 2011
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

A brief status report was given by the Gambling Review Working Group of the Committee. The working group suggested that national norms and standards be established so that the Committee was able to standardize gambling in provinces. Other recommendations were that gambling areas be clearly demarcated from entertainment areas to prevent people who were under age from accessing the gambling area, both gambling and lotteries legislation should be amended and there was need for the modernisation of the horseracing industry and bingo.

The discussions of the Intellectual Property Laws Amendment Bill began with a feedback from the drafters on new provisions which had been inserted.

A legal opinion that had been submitted by the International Treaties Committee of the South African Institute of Intellectual Property Law was read out to the Portfolio Committee. The International Treaties Committee’s mandate was simply to comment on whether the relevant provisions of the Traditional Knowledge Bill being section 8L, 28N and 53L fell foul of South Africa’s International obligations in terms of conventions and agreements such as TRIPS. It was submitted that the definition of traditional knowledge or indigenous knowledge had the effect of excluding the national of other member countries from the opportunity of acquiring IP rights in respect of their traditional knowledge or indigenous knowledge. The International Treaties Committee proposed that the Portfolio Committee insert clauses into the Bill to introduce into each IP Act a provision for the Minister to extend the protection rights, in certain circumstances to national of other countries and hence Clauses 8L, 28N and 53L were all worded substantially in accordance with the proposal that had been made.

The discussions of the Intellectual Property laws were at one stage tense when the Chairperson expressed her frustrations in not being able to switch off one of the Members microphones after she had asked him to do so. A number of important issues were discussed such as the issue of royalties, copyrights versus performers’ right and community protocol.

The Chairperson stressed that there was no need to keep going back and forth after one of the Members had requested that Ms Tshepo Shabangu was supposed to say whether she was satisfied with the issue of moral rights. The Chairperson was accused of being confrontational in the way she conducting the meeting and that the Chairperson was assuming that the opposition intended to delay the process as long as possible.

There was a huge debate with regards to the definition of indigenous community. At one stage it was agreed that the definition was too wide such that it would include people who conducted business on the Johannesburg Stock Exchange (JSE).

Meeting report

Mr N Gcwabaza (ANC) said that the working group had met twice and looked at several issues. The Commission dealt with the broad issues as well as specific matters such as the curbing of illegal gambling. It proposed that national norms and standards be established in order to standardize gambling in the provinces. It was suggested that gambling areas be clearly demarcated from entertainment areas to prevent people who were under age from accessing the gambling areas. There was a need to amend both gambling and lotteries legislation. The working group considered the possibility of integrating lotteries and gambling since they felt that the two were identical. The working group proposed that one maintain the limit on the number of gambling licences. Currently there were 40 licences and there was no need to increase this number. The working group was not clear on how to deal with the demarcation between North West Province and Gauteng. Of the 40 licences, only three licences were available. The working group was not sure whether to give the licences to the North West Province since other provinces had not used their licences. There was need for the modernisation of the horseracing industry and bingo. The working group suggested that all gambling machines be registered with specific numbers at a national centre so that monitoring could be done easily. The working group had not yet decided on who was going to be responsible for the centre - whether it was the National Gambling Board or a new entity. It proposed that licences be renewed every five years and conditions had to be attached to the licences such as social responsibility and support to local SMMEs. The working group considered the possibility of increasing the amount that was given out through pay machines because inflation had eroded the payout. The working group had not addressed all of the issues to do with gambling. A proposal was made by the working group that a visit be made to all the gambling destinations especially Gauteng because that was where a lot of gambling was taking place.

The Chairperson pointed out that the report given by the Gambling Review working group was just a status report and it was not going to be deliberated on yet.

Mr Gcwabaza said that the working group needed some assistance from experts.

The Chairperson said that the experts were supposed to be identified before the hearings.

Mr J Smalle (DA) said that the Gambling Review working group had looked at the inclusion of incentives in order to assist the various gambling sectors. They were looking at the report done by the previous Committee in 2009.

Ms C Kotsi-Ramotsamai (COPE) stressed the need to undertake an oversight visit to Gauteng so the working group could see practically about what they were discussing.

Deliberations on Intellectual Property Laws Amendment Bill
Ms S van der Merwe (ANC) said that the Working Group had met on two occasions and some changes had been effected. She added that there were 14 issues that needed attention. The working group was waiting for some replies from experts on a number of issues such as protection from abuse and alternative dispute resolution. She asked Advocate Kweta to point out where changes had been made.
The Chairperson requested that the document with the 14 issues that had been referred to earlier by Ms van der Merwe be distributed amongst Committee Members.

Adv Mongameli Kweta, State Law Advisor, went through the changes:
▪ New definitions had been inserted such as “community protocol”, “indigenous community” and “indigenous performance”.
▪ Clause 8B(2) was amended to separate indigenous knowledge and derivative performance.
▪ Clause 8J(3) was inserted that dealt with legal representation in disputes.
▪ Clause 28A saw a new subsection which was added that said “…nothing in the sections contemplated in subsection (1) shall be construed as granting any rights any person in respect of intellectual property which was not indigenous knowledge or derived from indigenous knowledge.
▪ Clause 28C had three new subclauses added.
▪ Clause 28E(j) was inserted.
▪ Clause 28H saw a new provision in sub clause (3)(a) being inserted which spoke to an agreement between the user of the traditional work and the owner of the copyright in such work.
▪ Clause 28J that related to assignment and licences saw the inclusion of subclauses (2)and (3) that spoke to a copyright reverting automatically upon the death of the last living member of the indigenous community to the National Trust.
▪ The issue of legal representation was again addressed in Clause 28K stating that no person had the right to legal representation unless the adjudicators and other parties consented.
▪ Additions were made to Clauses 28L(4), 28N(1) and (3) which saw the inclusion of the phrase "...multinational agreements, international treaties, conventions or other international agreements..." and “…the Minster may, after entering into an agreement with a specific country as contemplated in subsection (1)…” respectively.
▪ The amendment of definitions was also seen in the amendment to the Trademarks Act.
▪ New provisions were found in Clause 43A(2) which stated that, "nothing in the sections ...shall be construed as granting any rights to any person in respect of intellectual property which is not indigenous knowledge or derived from indigenous knowledge".
▪ Clause 43D saw the inclusion of sub clause (5) that related to details of a community protocol.
▪ Clauses 43H and I saw a number of new provisions.

Ms S van der Merwe said that she had looked at and had confirmed the 14 issues that needed to be addressed by the Committee. One of the areas that needed to be addressed was that of traditional performance and copyright and whether the Copyright Act and its Amendment addressed all the issues hence there would be no need to amend the Performers Protection Act. The other issue that needed to be addressed was that of compliance with International agreements. This matter had been referred to the International Treaties Committee of the South African Institute of Intellectual Property Law and a legal opinion had been given.

Adv Charmaine van der Merwe, Parliamentary Legal Advisor, read out this legal opinion on whether the relevant provisions of the Bill being section 8L, 28N and 53L fell foul of South Africa’s international obligations in terms of conventions and agreements such as TRIPS. The International Treaties Committee said that it could be argued that the definition of traditional knowledge or indigenous knowledge had the effect of excluding the nationals of other member countries from the opportunity of acquiring IP rights in respect of their traditional knowledge or indigenous knowledge. In other words it could be argued that the Bill gave more protection to the indigenous nationals of South Africa than it gave to nationals of other countries and this was a contravention of the national treatment principle. It was submitted that the Bill could be amended to provide for the extension of protection to the traditional knowledge of the indigenous people of other countries. A proposal was made that the Portfolio Committee insert clauses into the Bill to introduce into each IP Act a provision for the Minister to extend the protection rights, in certain circumstances to nationals of other countries. Clauses 8L, 28N and 53L were all worded substantially in accordance with the proposal that had been made. Therefore, the opininon concluded that the protection rights to the nationals of other countries as envisaged by Clauses 8L, 28N and 53L would constitute substantial compliance with the national treatment principle. There was one dissenting view.

Mr M Oriani-Ambrosini (IFP) said that a legal opinion was crucial and he was thankful for the opinion. He said that the dissenting view could be discarded because it was very technical. Intellectual property law in respect of international law relied on the issue of reciprocity and national treatment.

The Chairperson interjected and told Mr Oriani-Ambrosini that the matter would be fully discussed later in the meeting when the experts arrived. Mr Oriani-Ambrosini replied that the Chairperson was reacting to something that he had not said and he did not mean to say. It was absurd and abusive that the Chairperson was not giving him an opportunity to speak. The Chairperson said that if she had the chance she would cut off Mr Oriani-Ambrosini's microphone. She added that the Committee was not going to deal with technical processes but any clarification that Adv van der Merwe could respond to.

Mr T Harris (DA) asked where the legal opinion dealt with the dissenting view.

Adv van der Merwe responded that the overturning of the dissenting view was dealt with in paragraph 8 where they dealt with the arguments that had been raised in the dissenting view.

Mr Harris requested that the Committee see Article 3 of TRIPS.

Ms Kotsi-Ramotsamai requested that Adv van der Merwe give the Committee her opinion on the dissenting view.

The Chairperson responded that a legal opinion on the matter had been received and the matter would be discussed at a later stage when the experts arrived.

Ms S van der Merwe requested that Members be given an opportunity to study the legal opinion.

The Chairperson requested that the document with the 14 issues referred to earlier by Ms van der Merwe be distributed amongst Committee Members.

Mr Smalle asked when the Members would be given time to deliberate on the amendments raised by Adv Kweta.

Mr Harris requested that a soft copy of the legal opinion be submitted to Committee Members.

Ms van der Merwe suggested that the issues that had been raised by Mr Smalle be dealt with first.

Mr Smalle said he needed clarification with regards to “dispute resolution”.

Mr Oriani-Ambrosini asked what was meant by the term "community protocol".

Adv Johan Strydom, Legal Advisor, Department of Trade and Industry, responded that the in terms of the current law in order to seek the right to register an intellectual property right, one needed to be either a natural or juristic person. In being sensitive to the indigenous community, knowing fully that most of them might never become companies that did not mean that the communities were not well established structures. A protocol was said to be compatible to a company resolution. If an indigenous community applied for a right, the Registrar would ask the community whether the right was going to be conferred upon a natural person or a juristic person. By producing a protocol, the indigenous community would be saying that they might not be companies or juristic persons but they existed as the lawful representatives of their community. They did not want the right to rest in a person but in the indigenous community. A person that arrived with the protocol would not be the proprietor.

The Chairperson said that the issue had been discussed at length in the previous meeting.

Mr Oriani-Ambrosini stressed that his question hinged on the word "establishes" in relationship between the protocol and the right.

Adv Strydom noted that there was a need to change the wording so that it could be made clear that the protocol did not give ‘a person’ a right to the intellectual property being registered.

Mr Harris questioned the appropriateness of a protocol. He asked why a community protocol would be considered to be superior to a co-operative.

The Chairperson said that the issue should be flagged to discuss at a later stage.

Ms van der Merwe said that the issue had been highlighted as number 8 on the list. She agreed with Mr Oriani-Ambrosini and Adv Strydom that the word "establishes" was inappropriate. In her understanding the protocol was not as complicated as Mr Harris thought. A protocol was an agreement by members of a community between themselves and the person to whom they had given authority so that the person would be able to register a right. She noted that there was a suggestion that had been made by one of the experts to include something in the Preamble to indicate that sui generis legislation may be required in the future. The idea was not appropriate because they could not make any binding decisions about the Preamble in the future.

Mr A Alberts (FF+) said that the Act flowed from Section 30 and 31. What the Committee was trying to achieve was internal self determination hence the whole of the Constitution was supposed to be taken into account especially Section 235 of the Constitution.

Mr Oriani-Ambrosini said that the Preamble was loose language that had to be written with specificity. He did not know what the term ‘international bodies’ meant.

The Chairperson said that the reality was that it was a Preamble and what some would regarded as loose would not be regarded as loose by other people. She added that the amendment bill did not require a Preamble.

Adv Strydom responded that a preamble was not required and it was almost inappropriate to have a Preamble when legislation was being amended. He however said that it did not mean that a Preamble could not be inserted. The Preamble added to the legal status and it was an introduction to the provisions. A preamble did not have any substantive value in law.

The Chairperson said that it was not a decision that the experts had to make but it was a Committee decision. To add or not to add was the question.

Mr Harris suggested that the Preamble be scrapped from the Bill.

Ms S van der Merwe highlighted that the Preamble that was in the Bill had a particular history. The Preamble had been inserted because there was a need to state the broad principles of the protection of indigenous knowledge. She did not see the Preamble causing any harm. The Member stressed that the issue was not about self determination but about indigenous knowledge and the protection of indigenous knowledge and hence the Preamble was there to express this point.

Mr Alberts said that there was a connection between the Preamble and Section 235 of the Constitution hence the two were not divisible.

The Chairperson said that the matter would be noted. There was no need to remove the Preamble. She asked Ms van der Merwe to explain the issue of whether Indigenous Knowledge was a standalone and whether or not it would affect Intellectual Property law.

Ms van der Merwe highlighted that the issue had been addressed in Clause 8A(2).

The Chairperson asked Adv Strydom if other areas in the Bill that dealt with the issue of Indigenous Knowledge would stand alone and not affect Intellectual Property law.

Adv Strydom responded that Clause 8A(2) dealt with the issue and that there were other identical provisions that addressed the issue.

Mr Harris said that page 5 of document IP 11 showed that one of the experts was concerned about moral rights. The lack of moral rights was supposed to be flagged.

The Chairperson asked Adv Strydom whether the point had been taken into account.

Adv Strydom responded that in order to address the concern they inserted subclause (2) in Clause 8A.

The Chairperson said that the clause was clear and hence there was no need to use ‘moral right’. She asked if there was a need to specifically insert the phrase ‘moral right’.

Ms van der Merwe said that the points that had been raised had been dealt with by the drafters. There was a need to know if Ms Shabangu agreed with the new draft.

The Chairperson said that there was no need to keep going backwards and forwards. It was difficult for her to appreciate the point that had been made because she did not see the purpose.

Mr Harris said that he would be interested in knowing whether Ms Shabangu was satisfied with how the issue was addressed.

The Chairperson said that there was no need for them to keep going back to the experts. She asked whether the experts had progress reports on the work that was being conducted by the Committee.

Ms van der Merwe responded that correspondence with the experts was occurring via email.

The Chairperson said that it would be ridiculous to keep on going back to the experts.

Mr Smalle asked if there was need to look at the definition of ‘dispute resolution’ in order to make a ruling.

Mr Harris, addressing the Chairperson, said that there was no need to be confrontational in the way she was conducting the meeting. He said that the Chairperson was assuming that the opposition intended to delay the process as long as possible.

The Chairperson responded that she was assuming nothing of Mr Harris and the opposition party. As for being confrontational, Mr Harris did not know her well enough. She did not conduct meetings on a confrontational basis but there was a need to try and reach consensus.

Mr Oriani-Ambrosini questioned the legal capacity of an indigenous community on page 7 together with the term geographical area which he said was not in compliance with Section 235 of the Constitution. He an example of the Afrikaner community which he said was not confined to a specific geographical area.

Ms S van der Merwe said that the definition of "indigenous community" was one of the controversial areas. A full explanation was supposed to be given by the drafters.

The Chairperson highlighted that there was a need to discuss the issue as a Committee before the matter was referred to experts.

Mr Gcwabaza requested that Mr Oriani-Ambrosini clarify his point about the legal capacity of the community.

Mr Oriani-Ambrosini replied that it was not possible to ascribe any rights, obligations or prerogative to an indigenous community without giving it the relevant legal capacity. The problem did not disappear because of a protocol because a protocol had to be signed by someone. There was need for a legal prescript to determine how such entity spread its evolution.

The Chairperson suggested that the issues that had been raised be given in writing. It was a difficult thing to agree on because there were charting new territory.

Mr Gcwabaza said that he had difficulty in converting a community to a company. A community could approach a legal representative to represent them. The Committee was on the verge of privatizing indigenous knowledge to a few individuals. Secondly, with "geographical area", he said that the Committee was reading the term "geographical area" only. Hence they excluded other communities which were all over. If the phrase ‘historical, social and cultural’ was included then it would make things simpler. The Afrikaner community had a history of having settled in South Africa and practiced its culture throughout the period of its existence and hence it was an identifiable society.

Mr Harris asked what had been decided on the definition of indigenous community.

The Chairperson responded that they had not agreed on the point. Mr Oriani-Ambrosini was supposed to draft a proposal of what he wanted to see changed and the same applied to Mr Harris.

Mr Oriani-Ambrosini said that he had submitted a document that raised six points and the issue of indigenous culture or knowledge being defined by novelty and uniqueness was one of them.

The Chairperson requested that a proposal be forwarded that tackled the issue. She asked Ms van der Merwe whether the issue of the database had been concluded.

Ms van der Merwe replied that the matter of the database had been canvassed and resolved fully.

Mr Harris said that he agreed with Ms van der Merwe that the issue of a community forming a trust and setting up a protocol was in 8C(3). He requested that an opinion be given by the drafters on the issue.

Adv Strydom responded that the foundation of South African law was found in Roman-Dutch law and English law. It was not simple in South Africa because there was customary law, customary use and customary expression that had to be considered. In discussing the issue they were supposed to be guided by such. They were supposed to be sympathetic and sensitive to how indigenous communities had been conducting themselves in customary parameters over the years. Mr Oriani-Ambrosini was correct in setting out the legal principles but there was a need to go beyond that. It is not fair for Parliament to compel communities to form a juristic structure in the legal sense. The indigenous communities were well structured irrespective of their not conforming to a strict juristic person. He was attempting to put forward to the Committee a proposal based on the protocol. If a traditional community having a traditional leader approached the Registrar and decided to register their indigenous intellectual property right, the leader would do so based on a protocol that was granted to him by the community. If an application was refused on the basis that IP rights could only be granted to natural or juristic persons, the indigenous community could approach a court of law and apply for a review of the decision. There was a 100% chance that the court would direct the Registrar to grant the right. He read out Section 235 of the Constitution to the Committee. The Committee should not compel communities to form juristic persons but respect their current structures.

Mr Harris said that a formal juristic structure would not capture the realities of a community.

Ms Kotsi-Ramotsamai reminded the Committee about the public hearings that had occurred in the Eastern Cape where a strong appeal was made to Parliament that they recognize the traditional structures. Traditional structures were not supposed to be undermined because they were there long before Parliament had been established.

Ms S van der Merwe responded that Clause 8C(2)(b) was the operative position. The clause had been neatly placed and structured in order to account for the nature of indigenous communities. She said that the clause had to be supported.

Mr Alberts noted that juristic personality was implied and hence an inference would resolve the problem.

Mr Oriani-Ambrosini said that he did not want to disagree with the spirit but rather the conclusion that had been given by Adv Strydom. He did not see the problem if an indigenous community was to become a traditional community as contemplated by law. On the other hand, he saw an enormous problem if such an indigenous community did not do so, since it would undermine traditional leadership and split communities.

The Chairperson asked what the word ‘peregrination’ meant.

Adv Strydom responded that it was a derivative from a Latin word which meant foreign.

The Chairperson suggested that the drafters say what they meant when they draft legislation and use plain English.

Adv Kweta responded that the phrase would be simplified.

Adv C van der Merwe said that the word meant a ‘journey which was long or meandering’.

Ms S van der Merwe suggested that the numbering in Clause 8G be corrected.

Mr Albert said that the National Trust fund did not refer to any audits.

Ms van der Merwe said that the DTI was supposed to explain how the Trust was going to function.

Mr MacDonald Netshitenzhe, Chief Director: Policy & Legislation, the dti, responded that a proper response would be provided in writing but the principle was that a Trust was supposed to be formed in terms of the Trust Act. In terms of sustainability, advance funds would be given to the Trust as a kick start and for the governance.

Ms van der Merwe said that the Committee needed to hear how royalties on page 19 worked.

Mr Smalle noted that Clause 8J(5) on page 20 said that the "Minister shall prescribe the processes and formalities relating to the institution and the adjudication of dispute resolution proceedings." He asked whether the rights were going to be captured under regulations of some sort. He asked what kind of security was offered by the Bill if a dispute arose.

Adv van der Merwe responded that whoever adjudicated over a dispute had to look at the Act. Whatever happened in the dispute resolution was supposed to be taken into account. The drafters attempted to establish a simple dispute resolution mechanism which would keep the costs low.

Ms van der Merwe said that it was one of the issues that had been flagged and they were still waiting for a response from the experts.

Mr Smalle noted that after every dispute there was an appeal process. He asked if it was necessary to refer to the sections of the appeal process.

Adv Kweta referred the Committee to Clause 8G(2) which allowed a person to go to court.

Mr Oriani-Ambrosini had two concerns on page 18 and 19. On Clause 8H(1), he said that he was awaiting a legal opinion on whether the Bill was considered a Money Bill. The other concern was in Clause 8J where he felt that the Committee was moving beyond the Labour Relations Act and hence the issues of constitutionality had to be looked at.

Ms van der Merwe said that she had heard the argument and an explanation had been given by the legal advisors. The Bill had been through the parliamentary process of tagging in which the Bill was declared not to be a Money Bill.

Adv Kweta responded that section 77 of the Constitution explained what a Money Bill was. A Bill was a Money Bill if it appropriated money, imposed national taxes, duties and surcharges. The confusion emanated from the fact that people paid something for the use of indigenous knowledge and this was not appropriating money. The Bill had been tagged as a section 75 Bill. He explained that a Bill was said to be a section 75 Bill if its provisions fell in a certain category in a substantial manner. In a substantial manner the provisions of the Bill did not talk about the appropriation of public money. In terms of legal representation anyone had the right to legal representation but the rights were subject to limitations. Clause 8J was only limiting the right to legal representation and not disallowing legal representation.

Adv van der Merwe cautioned the Committee by saying that only arrested, detained or accused people had the right to legal representation in terms of the Constitution. The objective of Clause 8J was to attempt to limit costs. An adjudicator had the powers to decide whether or not their legal representation was allowed. The provision was an attempt by the drafter to level the playing field. She added that courts were not being excluding but an internal process had to be followed first.

The Chairperson suggested that an opinion on the issue be given in writing.

Ms van der Merwe said that the issue had been raised earlier through various processes and a response had been submitted from the experts.

Ms van der Merwe said that the working group requested that they have a discussion on whether it was necessary to amend the Performers Protection Act. The matter was not resolved but the DTI had been asked to provide some examples of how indigenous performance could be protected.

Adv Strydom responded that the words hereditary and derivative would be substituted with the word indigenous on page 25.

Mr Smalle asked if the use of the phrase "characterised by the occupation and use of a specific territory" on page 25 meant that a community had to be in a specific area and what would happen to a community that relocated.

Adv van der Merwe responded that the question of territory spoke to the geographical areas and hence the experts were supposed to respond to the question.

Mr Oriani-Ambrosini asked what was meant by the word ‘phonogram’.

The Chairperson asked what the relevance was of keeping the word in the Bill.

Mr Netshitenzhe responded that it was a recording of a sound and if a recording company wanted to reduce the song into a sound, the recording company would own the sound, the performer would hold the performance and the broadcaster would own the broadcasting rights so there were three rights.

The Chairperson said that the issue of ‘phonogram’ was supposed to be flagged.

Mr Alberts alerted the Committee that a new Bill was going to be introduced by the Minister of Water Affairs that spoke to the issue of a National Trust Fund that the Committee was trying to address.

The Chairperson asked the DTI to keep an eye on the matter that had been raised by Mr Alberts. She asked why some issues had been replicated.

Adv van der Merwe responded that there where four different Acts that were being amended. They were trying to treat indigenous knowledge the same in each different Act while acknowledging that some forms of it would be in a performance, others in a design or in a trade mark.

Ms van der Merwe stressed that she had a problem with the use of the word "must" on page 46 in Clause 28L which dealt with the Minister consulting a certain group of people when appointing members of the Council. She said that cooperative governance addressed the issue of the Minister consulting other ministers. In addition she asked who ‘academia’ was and how the academia would be consulted.

The Chairperson said that the Committee first had to decide on whether to use the word "must" and thereafter they would decide on the list.

Mr Smalle suggested that the word be changed from "must" to "may".

Adv Strydom said that he had expressed his reservations on the use of the word "must". The provision was not supposed to be made cumbersome for the Minister. He suggested the use of the word "may".

The Chairperson said that the word "may" was supposed to be retained.

Adv Strydom responded that one possibility was to revert to the word "may" which would then oblige the Minister.

Mr G Selau (ANC) said that the categories were not supposed to be treated differently. All of the people and organisations that had been identified were key and important.

Ms van der Merwe suggested that the Committee use the word "may" and in so doing list all of the people and organisations which they believed to be important. She added that the list was supposed to guide the Minister.

[The Committee was joined by the experts]

The Chairperson highlighted that there were a number of issues that the Committee could not decide on. She said that one of the issues that the Committee had grappled with over and over was the issue of community protocol.

Ms van der Merwe said that the discussion was supposed to start with the definition of indigenous community followed by the differentiation between Indigenous Knowledge and IP and the issue of moral rights. She went on to outline other issues that were supposed to be discussed.

Dr Johanna Von Braun, Post doctoral fellow at UCT's Intellectual Property Law and Policy Unit and Staff Policy and Advisor at Natural Justice, said that there were concerns with respect to limiting communities to geographical areas. The idea of the concept was to emulate international best practice such as the ILO convention and the African Commission. It was an attempt to provide a definition that was open enough to include communities that were not defined by ethnicity or by geographical areas.

Prof Pitika Ntuli, Poet, writer and sculptor, agreed with Dr Van Braun. He gave an example of the traditional food pap which was made out of corn. The corn did not originate from South Africa but from the United States of America but then it was traditionalised. If an indigenous community had something to offer it was not supposed to be disadvantaged.

Mr Smalle asked if, whether a community migrated from one place to another, was it still recognised as indigenous.

Dr Von Braun asked if the Member intended to ask whether it made sense to say "...social, cultural or economic..." or "...social or cultural or economic.." in defining "indigenous community". She responded it was relevant that the community identify itself as a community.

Mr  Alberts said that the definition mirrored international law to a certain degree and some of the unintentional consequences would be that communities would be sliced into smaller bits. He added that an argument could be raised that the Johannesburg Sock Exchange (JSE) was a community based on their economic conditions.

The Chairperson said that the use of "or" would create something else hence they were not supposed to be inserted in the definition of "Indigenous Community"

Mr Harris asked if the experts had the latest definition because the definition had changed numerous times. He said that a concern had been raised by Adv Strydom in the previous meeting that if a group covered a whole country then the group would not be recognised as a community because the definition did not recognise very large communities.

Adv C van der Merwe said that an amendment had been made but it was not intended to address the concern that had been raised by Mr Harris. The problem was the two words ‘geographical area’ and ‘specific territory’. The territorial argument could be resolved by the insertion of the word "or" so that the definition would read "...characterised by the occupation or use of..." instead of "..characterised by the occupation and use of...".

The Chairperson said that the point had been raised earlier on. She was under the impression that everyone was happy with the clause. She asked if any of the Committee had a problem with the Clause.

Mr Selau said that he was satisfied with the Clause.

Ms van der Merwe said that the issue was about the Afrikaner community because they were not found in one specific area.

The Chairperson asked if the issue related to the replacement of "and" with "or".

Mr Harris responded that the issue was about communities that were dispersed.

Dr Von Braun suggested that they use the phrase "having settled in the Republic of South Africa” rather than limiting the definition to a geographical area.

Mr Selau suggested that that the definition be reworded to use both "and" and "or".

The Chairperson said that if the definition included both "and" and "or" then it would include the JSE.

Mr Alberts said that things were changing in the global world we live in. There was no reason to penalise people who lived in South Africa. He suggested that the phrase "...the occupation and use of a specific territory and whose.." be removed so that the definition would read "...characterised by social, cultural and economic conditions...".

Mr Smalle agreed with Mr Alberts.

Prof Pitika said that there was once an Afrikaner republic hence there was a territory. He added that the international society was shifting and moving. He suggested that the phrase "specific territory" be removed.

The Chairperson agreed with Mr Alberts. She said that the definition was supposed to read: "...characterised by social, cultural and economic conditions which distinguish them..."

Dr Von Braun suggested that the whole sentence be removed so that the definition would say "...as at the date the intellectual property was created, whose social cultural and economic conditions...".

The Chairperson agreed with what Dr Van Braun had said.

Mr Harris asked if there was no contradiction in the definition because the Republic came about in 1961 and on the other hand a lot of intellectual property was established well before 1961.

Dr Von Braun responded that intellectual property did not refer to indigenous knowledge.

Adv van der Merwe said that the proposal came from the Institute of Intellectual Property Law. She agreed with Mr Harris hence it was supposed to be reworded to say "as at the date of commencement of this Intellectual Property Law Amendment Act, 2010”.

Mr Harris said that the fact that a community was supposed to originate in a geographical area located within the borders of the Republic precluded a community that was not geographically limited. He gave an example of an indigenous community such as a Jewish community which did not have a geographical origin from the borders of South Africa. His concern was that such communities would never be recognised.

Ms van der Merwe asked if the Jewish community was an indigenous community.

The Chairperson requested that the experts look at the matter of whether the Jewish community was an indigenous community.

Mr Alberts was of the opinion that the Jewish community in South Africa had been in the country long enough to have a unique characteristic of their own. He said that the Committee risked opening up a Pandora’s Box because the Constitution was based on equality hence this would give an opportunity to other groups to challenge the legislation.

The Chairperson said that the discussion was becoming a philosophical debate. She stressed that the Committee were not there as philosophers but as legislators. The issue was whether a community that could be regarded as indigenous was excluded.

Prof Pitika said that no indigenous community was excluded.

Ms Kotsi-Ramotsamai said that if the Committee considered what Mr Alberts had said then everyone would be considered as indigenous. There was supposed to be a distinction between a South African and indigenous.

Mr Harris highlighted that how the Committee define communities was the most critical question. He proposed that the Committee delete the words "...in a geographical area located...".

Mr Selau appealed to the Committee members that they reach consensus.

Ms van der Merwe said that the phrase "historically settled in a geographic area located within the borders of South Africa..." covered everyone.

Prof Pitika commented that if the Committee removed the word ‘historical’ then it becomes a mockery because the purpose of the Act was to redress people who were once exploited.

Ms van der Merwe said that everyone was covered in the paragraph. She suggested that the phrase be left as it was.

The Chairperson highlighted that Afrikaans as a language was truly a modern language and it evolved in South Africa and hence it was indigenous to the country.

Dr Von Braun said that the phrase ‘indigenous community’ was a phrase that was internationally debated.

The Chairperson said that the intention of the Bill was to deal with indigenous knowledge. She cautioned all members to keep on track.

Mr Harris said that Mr Selau was out of order by attacking him. The Member expressed his concern that specifying an indigenous community to a geographical area within the Republic was too restrictive.

The Chairperson stressed that there were no personal attacks that had been made but the points were being made strongly. It was important that the Committee reach some consensus. The Constitution itself does not exclude everyone. The intention of the Bill was to protect the indigenous knowledge. In addition the discussion on the Bill was not meant to be a party political issue.

Mr Alberts clarified that his intention was not to try and include or exclude people from their position. He agreed with Mr Selau and said that there was supposed to be a cut off line and that not everyone was supposed to be included. By not limiting themselves to a specific date and having a cut-off date, the country could benefit more.

The Chairperson said that the point that had been raised was an interesting one. She stressed the need to resolve the definition because it affected many other areas. The Chairperson flagged the issue for further deliberation.

Prof Pitika said that the Act was supposed to capture things as they were and it was up to the courts to define the issues.

Ms van der Merwe asked if there were examples of cases were community protocols had been used.

Dr Von Braun said that the concept of community protocol came up in the last ten years from indigenous communities around the world. It was a tool for interacting between customary law and national and international law. Community protocols were used in international law and they had been used in the draft Namibian Bill.

Mr Harris questioned why a ‘protocol’ was superior to a community being a ‘cooperative’.

Dr Von Braun responded that the issue arose as a result of the concern to prevent abuse in the event that one person would say that he represented a community. In terms of whether a protocol was superior to a community being a cooperative, she did not have an opinion.

Prof Ntuli responded that communities had systems where they could choose someone to represent them unlike cooperatives where there would be a clash of egos.

Ms van der Merwe said that the question of international compliance could not be dealt with in the meeting because an opinion had been submitted recently and the two experts had not read the legal opinion yet.

The Chairperson asked the experts to explain the issue of royalties.

Dr Von Braun responded that there were instances where non monetary benefits could be of better value than monetary benefits to the communities.

Mr Smalle said that the benefits were supposed to be listed.

Ms van der Merwe stressed that they were not talking about deleting anything that referred to royalties. She asked the drafters to show the Committee other provisions that dealt with royalties.

Adv van der Merwe responded that Clause 8B(2)(c) dealt with a benefit sharing agreement. She suggested that the word ‘royalties’ be substituted with the word ‘benefit’.

The Chairperson asked if the word benefit passed legal muster.

Adv van der Merwe said that the word royalty had a specific meaning in law which was a monetary amount. She advised the Committee to use the word benefit.

Dr Von Braun agreed with Adv van der Merwe. The Bio-Prospecting Agreement listed benefits that could be received.

Mr Oriani-Ambrosini said that term royalty could mean anything. He was of the opinion that the word royalty was not supposed to be substituted

The Chairperson was of the opinion that the term benefit sharing could mean a financial benefit.

Dr Von Braun agreed with what the Chairperson had said.

Adv van der Merwe said that she would respond at a later stage about whether the term royalty was known in the South African Law for anything other than monetary value.

Mr Harris asked if collective societies were allowed because the term "holder of the performer's right" seemed to limit collective societies. The royalty was supposed to be paid to someone else on behalf of the performer.

The Chairperson said that the Committee would wait for a report from the experts.

Mr Oriani-Ambrosini said that he was concerned about the plain reference to the Arbitration Act without the premises on which the Arbitration Act worked in Clause 8G(7).

Adv Kweta responded that the idea was to ensure that if the two parties approached arbitration proceedings in which adjudication focused on benefits then the Arbitration Act was supposed to be used to determine the proceedings.

Mr Oriani-Ambrosini said that the answer that he was given was not responsive to his question. Clause 8G(7) operated in the absence of an agreement. He faced enormous difficulty in relating sub clause (7) to the Arbitration Act hence there was a need to fill in the gaps.

Adv van der Merwe responded that
Clause 8G(7) was referring to the agreement in 8G(6). If parties could not reach an agreement with regards to benefits, they had three options, namely going to an Institution created by the Commission, the Copyright Tribunal or using the Arbitration Act.

Adv Kweta read out to the Committee part of the long title of the Arbitration Act which said that the intention of the Act was to provide for the settlement of disputes in the absence of an agreement which was what was in sub clause (7).

Mr Selau said that parties could not enter into an arbitration agreement until they had agreed as parties to go to arbitration.

The Chairperson welcomed Members who brought specialised knowledge to the Committee.

Ms Kotsi-Ramotsamai said that the advantage was that parties had three options. She suggested that the Committee settle with what Adv Kweta had said.

Adv Kweta said that the confusion was that there was an absence of an agreement. The absence of an agreement was only in relation to royalties and not arbitration. There was an agreement in relation to arbitration.

Mr Oriani-Ambrosini clarified his question, because he did not want to sound like an imbecile, that he had not raised the concern on the existence of an agreement.

The Chairperson expressed her frustration because she could not switch off Mr Oriani-Ambrosini's microphone from her position. The issue raised first by Mr Oriani-Ambrosini was the absence of an agreement in which he had referred to the Arbitration Act.

Mr Oriani-Ambrosini reiterated that in order to utilise the provisions of the Arbitration Act, there was supposed to be an arbitration agreement between the parties.

The Chairperson requested that when she ask Mr Oriani-Ambrosini to switch off his microphone, he was supposed to do so. She added that the Member was supposed to recognise the Chairperson.

Adv Kweta responded by referring the Committee to the Arbitration Act. Parties were supposed to agree to refer their dispute to arbitration.

The Chairperson suggested that the issue be left as it was.

Ms Zodwa Ntuli, Deputy Director-General: Consumer and Corporate Regulation, Department of Trade and Industry, said that there would be a problem in settling a dispute when one party to the contract refused to settle the dispute through the Arbitration Act.

The Chairperson suggested that the drafting committee look at the issue again.

Mr Harris asked what if there was a community that owned a work and a particular member of that community performed that work, would the person pay royalties?

Adv van der Merwe responded that the sub clause that dealt with the exception had been deleted by mistake.

The Chairperson asked which area had been inadvertently deleted.

Adv van der Merwe responded that it was in Clause 8G(2). She suggested that the section be reinserted.

The Chairperson agreed that the sub clause be inserted.

Ms van der Merwe requested that Prof Ntuli should explain Clause 8J on disputes.

Prof Ntuli said that the word "any" in Clause 8J(5) was misplaced and it was supposed to be removed so that the Clause read "Any adjudication must take into account existing customary dispute resolution mechanism".

The Chairperson asked if Committee Members had understood the point that had been made

Mr Oriani-Ambrosini stressed the point that having disputes adjudicated by people who were not within a community often lead to decisions that were not accepted. There was need to look at the Traditional Courts Bill.

Adv van der Merwe said that they could not speak about Bills that were not yet in effect. In addition, customary dispute mechanisms did not refer to courts. The provision referred to any dispute resolution. There was need to avoid a situation where a multinational organisation would refuse to adhere to the rules of a Zulu king. An adjudicator was supposed to take cognisance of any customary dispute mechanism.

The Chairperson said that the explanation seemed very clear.

Ms van der Merwe gave an opportunity to all the advisors to read the opinion that the Committee had received on international agreements to discuss the issue at a later stage.

Mr Harris referred the Committee to paragraph 4.8.7 of the NEDLAC report on dispute mechanisms which said that dispute resolution mechanisms were not be supposed to be made mandatory.

Adv Strydom responded that Mr Harris was correct that the dispute mechanism in the Bill was mandatory but the solution was in Clause 8J(2). It was not advisable to exclude the ordinary jurisdiction of the courts of law.

Mr Harris said that the response that had been given by Adv Strydom confirmed his suspicion that ADR was mandatory. He said that it was up to the Committee to decide whether or not to adhere to the recommendation made by NEDLAC.

Mr Oriani-Ambrosini pointed out that he was more concerned on the constitutionality of the section.

Ms Kotsi-Ramotsamai suggested that the Committee concentrate on sections for which the special input of experts was needed.

Ms van der Merwe asked if the mandatory nature of the dispute mechanism was hampering mechanisms because from what she understood, it was only mandatory before one went to court.

Adv Strydom responded that as far as the comments made by NEDLAC in respect of the procedure being mandatory, it was up to the Committee to consider its recommendations. He pointed out that an imbalance would be found regularly. If communities were confronted by businesses, the matter would be dealt with in a court of law but the specific procedure in the court of law might be wholly inappropriate for the indigenous community.

Mr Oriani-Ambrosini said that Adv Strydom had introduced a policy that was very important. There was a flip side to the argument. They were trying to achieve the promotion of indigenous knowledge. The only place money comes from was from the industrialist. The Committee had to keep in mind the consideration that they were not supposed to make indigenous knowledge inaccessible.

Mr Selau said that there was no need to argue hence there is no need to follow the argument that had been raised by Mr Oriani-Ambrosini.

Mr Harris said that Adv Strydom had raised a good argument which he accepted.

Ms Ntuli said that the provision of alternative dispute resolution was meant to provide the vulnerable people access to redress but, in practice, the services were found to be more costly such that the debt became bigger. She suggested that a provision be inserted which would allow a Minister to regulate the tariff.

The Chairperson said that the suggestion would be considered.

Ms van der Merwe requested that Dr van Braun talk to the issue of the Preamble.

Dr van Braun said that in order to reflect some of the issues that had been discussed, it was supposed to be acknowledged in the Preamble that there were some limitations in the protection of indigenous knowledge and that other mechanisms would be needed.

The Chairperson requested that the issue of the Performers’ Protection Act be discussed in brief.

Ms van der Merwe asked the Department to give examples of where they could prove that performances were not only protected by the Copyright Act.

Adv Strydom responded that the matter was considered to be very important and if what Ms Shabangu had said was correct then the simple legal consequence would be that all the work that had been done in respect of the amendment of the Performer Protection Act would fall by the wayside and this would make a mockery what they were doing. A lot was said by the name Performers’ Protection Act. The term did not speak to the person who was the author of the artistic work. In addition, the definition of performance was not to supposed to be found in the Performers’ Protection Act but in the Copyright Act for the protection of performers. He stressed that it was difficult to hear arguments in a vacuum as opposed to arguments related to the Bill. He then referred the Committee to Clause 28B(1) and the definition of "traditional work".

Mr Netshithenze added that Adv Strydom fell short of saying that the definition of performer was in the Performers’ Protection Act. The issue was that they wanted to protect the creator of the work and the creator of the work was the indigenous community. The Performers’ Protection Act allowed a performer to receive royalties for the hereditary work. However, the creator of the hereditary work was not appreciated in the Performers’ Protection Act as opposed to the performer.

Mr Oriani-Ambrosini said that the issue had been discussed several times. He agreed with Adv Strydom that the issue was a core issue and a definitional issue. He requested that the DTI submit 20 practical examples of indigenous knowledge at the derivative level.

Mr Harris suggested that an alternative view be given by the experts.

Mr Gcwabaza asked if there would be any harm if they retained the Performers’ Protection Act as amended. What would a court decide if a performer went to court and lodged a complaint that he or she was not protected.

Adv Strydom responded that the intention of the Performers’ Protection Act was to protect performers. If a dance was performed by a person, it was the right of that performer to be protected. If there was a second or third or fourth performance of the dance in a slightly different manner, then the performer of the different dance would be protected. The concern was that for the portion on performance protection to be deleted from the Bill, it had to be shown that that dance (that was being performed by other performers) was a dance that originated from an indigenous dance in which the author was an indigenous community. The focus was on the indigenous community together with the author.

Mr Netshithenze added that, in the alternative, there was nothing wrong if their argument did not hold water. In addition, if courts ruled that there were no provisions that protected a performer, then it would take a year or two to amend the Act, hence it was an alternative argument.

Ms Ntuli emphasised that they did not believe that the amendments were superfluous. It was important to make sure that a number of issues were made certain. She said that there was value to having the provision.

Adv C van der Merwe stressed that it was necessary that the opposing side be inserted. If an amendment was made when it was not supposed to be made, then Parliament would have provided a provision that was not applicable in practice. They would run the risk of the provision being applied in a way that they did not intend it to be applied. In addition, there were regulatory impact assessments that were done. She added that no one had a problem with the fact that the rights should be protected. Ms Shabangu said that all traditional performances which were literary, artistic or musical works were all already protected in terms of the Performers’ Protection Act. She added that Adv Strydom had put across the argument that she wanted to raise. There was need to look at what the Act was trying to protect. An example was given of a reed dance. She added that tradition indigenous performances were protected in terms of the protection that was given under the Performers’ Protection Act.

Mr Gcwabaza reiterated that the protection was not there but was legally implied. He asked if an issue was legally admissible if it was implied.

The Chairperson said that she was not convinced with the argument raised by Adv Strydom.

Adv Strydom responded by saying that that the rights that Parliament attempted to grant were not supposed to be on the basis of necessary implication. Rights were supposed to be specified in very pertinent and specific terms. There was a need to make sure that the rights they wanted to protect were already in existence. People would be concerned if the provision was deleted

Adv van der Merwe said that she agreed with Adv Strydom that a right was not supposed to be implied. She said that the Performers’ Protection Act worked closely with the Copyright Act and the two Acts were supposed to be read together. She added that in other countries the protection of performers and the Copyright Act were not separated as in South Africa.

Mr Oriani-Ambrosini suggested that the response given by Adv van der Merwe be submitted in writing to the Committee because it was clear.

The Chairperson noted that the legal advisors were expressing two different schools of thought and in the end it was up to the legislators to decide on a position.

Committee Oversight Report on Steel
The Committee considered its report.

The meeting was adjourned.

 

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