Intellectual Property Laws Amendment Bill: deliberations

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Trade and Industry

08 September 2011
Chairperson: Mr N Gcwabaza (ANC) (Acting)
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Meeting Summary

No decision was made after a lengthy discussion with regards to whether the Committee was supposed to amend the Performers Protection Act but the Committee did agree to insert a definition of folklore with regard to the definition of "literary and artistic works"

On the registration of indigenous rights in Clause 28D, the Bill did not acknowledge communities as a juristic entities. There was a need for the Committee to look at whether the right was different from an intellectual property right. If a community were not a juristic person, it would mean that the right would float around until it was claimed. This contradicted the Berne Convention which said that if a right was created it would vest automatically. A Member suggested that in order to address the issue, all indigenous communities should be regarded as a legal person for the purposes of the Act. The suggestion was welcomed by the Committee, the drafters and the Department of Trade and Industry.

Another item that was discussed at length was the definition of ‘indigenous community’.

The Committee went through the latest working draft of the Bill with the drafters, Department and legal advisors. The issue of the compliance of the Bill with international agreements would be discussed with the experts at the next meeting.

Meeting report

The meeting was chaired by Mr N Gcwabaza due to the absence of the Chairperson, who was in China, and the Committee Whip. He reminded the Members that the task before them was to protect indigenous knowledge through intellectual property, recognise and protect the creative work of the communities so that those who had not benefited in the past from their intellectual knowledge would benefit from commercial exploitation of indigenous knowledge. There were many communities that had settled within South Africa which were recognised and protected by the Constitution. The Committee was approaching a point where the Bill had to pass through the National Assembly. The Committee did not have the luxury of time on their side and they did not want to undermine Parliament by failing to conclude the Bill. If the Committee failed to process the Bill, the Committee would not only be failing Parliament but the people of South Africa as a whole, in particular the black South Africans. Any benefit that the Act prescribes would begin only when the Act came into effect. The Bill would not be adopted in the meeting because a full sitting of the Committee was not present. He appealed to the sense of duty of the Committee Members to the South African people and Parliament by saying that no Act was perfect. Every Act was subject to amendment at any given point. What the Committee agreed upon would not be cast in stone because legislation always evolved.

Report-back from the Working Group on the Intellectual Property Laws Amendment Bill
Ms S van der Merwe (ANC), Head of the Working Group, said that the working group had managed to have two meetings and a new draft had been submitted which was called IP13A. All the changes were as a result of extensive consultation and cooperation between the drafters, the Committee Members and the experts. In addition a number of issues had arisen for which they sought and received a legal opinion. For example, the Memorandum of the Objects of the Bill was said to hold errors based on the previous renditions of the Bill and two legal opinions were submitted on the matter. Another issue was the constitutionality of the Bill in terms of the expropriation argument and whether it was a money Bill and legal opinions had been submitted. Other issues were international compliance, whether an amendment to the Performers Protection Act was relevant, the definition of ‘indigenous community’ and the notion of indigenous knowledge as a species of intellectual property. She stressed the need to move forward. The question of whether it was supposed to be compulsory to register a copyright under indigenous knowledge or whether the copyright existed by nature of the fact that it was created by an indigenous community had arisen. She said there was no need to disadvantage communities by forcing them to register but at the same time if a dispute arose there was need for the community to prove that the right had been registered. She suggested that a number of issues such as referral to the National Council of Traditional Leaders, constitutionality regarding the money Bill, international compliance not be discussed.

The Chairperson highlighted the three issues that needed to be discussed: the definition of ‘indigenous community’, registration of indigenous rights and the Performers’ Protection Act.

Performers’ Protection Amendment Act and folklore
Ms S van der Merwe said that a number of legal opinions were submitted on the Performers’ Protection Act and the Committee had to be briefed on the opinions.

Adv Charmaine van der Merwe, Parliamentary Legal Advisor, said there were two views namely that the Performers’ Protection Act was supposed to be amended as is and that it was protecting an abstract performance that took place in the past. An opinion had been submitted by Ms Shabangu who was certain that an indigenous performance was already protected including any live performance. Adv van der Merwe said that she had attended an intellectual property seminar at Stellenbosch where it was confirmed that a past performance could not be protected under the Performers’ Protection Act. Also, a performer’s right was not supposed to be confused with a performing right. She had spoken with Ms Mariette Du Plessis who was on the Advisory Committee to the Minister of Trade and Industry who agreed that a past performance could not be protected in abstract. Ms Du Plessis was concerned whether the Act was wide enough to incorporate some indigenous performances. Ms Shabangu was of the opinion that the definition was wide enough to include indigenous performances. Ms Shabangu suggested that the definition of folklore be expanded to include an indigenous performance. Ms Du Plessis was of the opinion that folklore was not defined anywhere, even by the World Intellectual Property Organisation. Adv van der Merwe was of the opinion that there would not be any negative effect if the definition in which “expressions of folklore” appeared was expanded.

The Chairperson asked the Committee if it saw any harm if folklore was defined.

Mr T Harris (DA) asked what the intention was in the
Performers’ Protection Amendment Act of 2002 to add folklore and what was in folklore that was distinct from “music, dramatic and dramatico-music works” which he said covered any type of performance.

Mr A Alberts (FF+) said that the
Performers’ Protection Act should be left as it was because they would be opening a Pandora’s Box if they placed into it any terms that were being suggested. The definition of folklore could be expanded on in order to create certainty. There were certain definition which if placed in the Act could open huge implications to broadcasters in that they would be financially liable to pay actors royalties if there was a rerun of their work. The business model of broadcasters would be destroyed if the one definition were allowed.

Mr M Oriani-Ambrosini (IFP) said that the Committee was in an unusual situation. There was a need to refer any questions that arose to the law advisors, the Department and the experts. He defined folklore as something that was rooted in mythology. It was difficult to identify. In addition, the problem with folklore was that the stories were the same across the world. There were practical consequences to not knowing what they were capturing. He asked what would happen, when the Bill came into effect, to bookstores that sold folklore books and whether the books had to be removed from the shelves. The Committee had not made provisions for companies which would be caught in between.

Adv van der Merwe responded by reading to the Committee the definition of folklore as it was in the Oxford dictionary which was the traditional belief, customs and stories of a community passed through the generations by word of mouth or a body of popular myths or beliefs relating to a particular place, activity or group of people. In her opinion the definition was wide enough. The DTI was supposed to respond on what the intention was for adding “expressions of folklore” in 2002. She referred Mr Alberts to the definition of ‘performance’ and said that the definition of ‘performance’ specifically excluded cinematographic films from a performance hence the intention was to exclude that consequence. The Bill acknowledged the right of any person using, performing or publishing, using a trademark and design hence they could continue doing what they were doing. There was a duty to approach a community within six months and negotiate royalties placed on such people or companies. Bookshops would keep the books on their shelves. She referred the Committee to Clauses 28G(3) and 28B(4)(b) and (c).

Mr Oriani-Ambrosini said that the way the Adv van der Merwe had advised the Committee was wrong. He asked what would happen if they did not pay royalties within six months. In addition, there was need to have an economic impact assessment. Furthermore he did not agree with the legal opinion given on TRIPS. There was an agreement between South Africa and Israel that enabled Israel to claim royalties on all Bibles that were sold in South Africa.

The Chairperson said that the essence of the Bill was to protect the indigenous communities, recognise them and ensure that they received commercial benefits. Other groups might have benefited through conventional IP. The other groups were not excluded but there was need to emphasise that the essence was to deal with the black majority and Africans. There was no need to quote any other communities outside the country. Lastly the logic of law meant that if one did not do what was required, then one would be subject to prosecution.

Mr Oriani-Ambrosini said that he was addressing the issue of folklore. By sticking in folklore they could end up with the unintended consequences of the whole of South Africa paying royalties to a huge number of foreign countries for a huge number of derivatives based on foreign folklore.

Adv van der Merwe responded that she had tried her best to answer the questions asked and she had done so. After she had done so, another question had been asked in relation to what would happen if a person failed to enter into a royalty agreement. She referred the Committee to Clause 28G(2) which alluded to a civil claim. It would be a policy decision whether or not failure to pay royalties was supposed to be a crime. The Bill had a civil remedy. There was need to avoid confusion between the right of an author in an indigenous work and the right of an author in a derivative work. In addition the authors would remain the copyright owners of the books. The content of the book which reflected an indigenous story was owned by an indigenous community. Hence there were two different ownership rights that they were talking about. With regards to TRIPS, a professor was concerned that America had not signed the treaties hence the USA would be able to exploit the biodiversities, intellectual property and genetic resources of South Africa. It was an issue that had to be solved by agreement and not by the Bill.

Ms S van der Merwe said the question was whether or not they could include an amendment to the
Performers’ Protection Act (PPA). An input was given by Mr Harris and Mr Alberts. There was a need to solve the problem of the PPA.

Mr Harris submitted that the adding of “expressions of folklore” in 2002 was unnecessary since “music, dramatic and dramatico-musical works” covered everything including folklore.

Mr MacDonald Netshitenzhe, DTI Chief Director: Policy and Legislation, said the issue had been heavily debated in the previous meeting. There was need to close the discussion. If the PPA and the related issue of the definition were amended, the Bill would not be negatively affected. If there were various views, the Committee had to make a decision. The amendment was as a result of a decision that performers also performed folklore hence they also had to receive revenue. The performers were supposed to receive royalties flowing from their performance of folklore and this was borrowed from WIPO legislation. There was a need to take care of the perfomer.

Mr Harris said that he was unconvinced that one could perform any performance and not be protected by “music, dramatic and dramatico-musical works”. He requested that an example be given.

Adv Johan Strydom, DTI Legal Advisor, said that he had spoken at length on the issue. In law sometimes agreement was impossible. There were some matters in law where it would be impossible to arrive at consensus despite the number of experts consulted. He agreed with Mr Harris to some extent. It was not helpful to read the current principal definition. Logically speaking one would expect to find the definition of performer and performance in the PPA but only the definition of performer was found in the PPA and the definition of ‘performance’ was found in the Copyright Act. The divergence of opinion was still there and hence a stance had to be taken with regards to the PPA. He was not convinced that the definition that was referred to by Mr Harris covered all performances. If the Committee simply relied on the Copyright Act and the amendment to the Copyright Act they would not have protected all indigenous performance. He advised the Committee not to omit any amendments to the PPA.

Adv van der Merwe referred the Committee to the definition of folklore as defined by WIPO. Ms Du Plessis had said the definition was not practical since it would not apply to performances such as basket weaving.

The Chairperson asked if there would be any harm in including the definition of folklore. He suggested that the Committee include the definition of folklore. The question of protecting the performers was a central issue.

Adv Strydom responded that even without the amendments, the rights of a performer were protected under the PPA. There was no need for amendments in relation to performers. The primary objective of the Bill was to go back to the indigenous community who were the original authors of a song or work. The PPA adequately protected performers. However amendments in the Bill were necessary in order to grant protection to the indigenous community in terms of a performing right.

Mr Harris said that the PPA was sufficient to protect any performance. He agreed that they could add the definition of folklore and not do too much damage.

Ms Zodwa Ntuli, DTI Deputy Director-General: Consumer and Corporate Regulation, said that there was a need to make amendments in order to provide clarity There was not a single definition of folklore hence there was a need to include the definition of folklore. There was a need to make sure that the law was clear and that there was no need to omit certain issues.

The Chairperson said that there was need to agree to exhaust the subject.

Ms S van der Merwe said that there was a need to get advice from lawyers on whether they were providing adequate protection. There was no need to go into details which would confuse the issue rather than provide clarity. The whole folklore argument was not for the Bill because it existed in the PPA. The folklore issue was in existence and it appeared to work. The question was whether there would be greater or lesser clarity if the Committee removed the issue of folklore. There was a need to decide on whether or not the Committee was supposed to include the protection of “
rituals in sacred places and peregrinations”. She was not convinced that the section in the PPA added anything to the protection of performers.

Ms Ntuli said that it was important to get into the text. There was a need for clarity.

Mr Harris asked again which performances were not covered by “musical, dramatic and dramatico-musical works”.

The Chairperson said that there would be no harm in including the definition of folklore.

Adv Strydom said that if Mr Harris was correct that it would be assumed that the existing definition of ‘literary and artistic works’ in the PPA included indigenous performances.

Mr Harris clarified the question he had raised earlier on. He was of the opinion that indigenous performances were covered by “musical, dramatic and dramatico-musical works”.

Adv Strydom read the definition of ‘literary and artistic works’ in the PPA. Merely by reading the definition he did not see how indigenous performances were covered. He went on to read the definition of ‘indigenous performance’.

Mr Alberts agreed that Adv Strydom had made a good argument. The definition in the PPA vague. A musical work could not be protected in the PPA. He proposed that the Committee include indigenous performance to clarify all the forms of expression that were supposed to be protected and that they amend ‘indigenous performance’ since it conflated copyright works with performances.

Adv van der Merwe proposed that the Committee and the drafters discuss the issue further if they were to include the definition of folklore.

Adv Strydom asked if it meant that they would rest the issue or whether they would stick to the amendments in the PPA.

Adv van der Merwe responded that they would insert the definition of folklore and include issues that related to indigenous performances.

Ms S van der Merwe said that performers of anything were protected by the PPA. An indigenous or traditional work would be protected under a copyright. She asked if they were creating a new right when it came to performances and who had a right to the performance.

Adv Strydom responded that what had been said by Mr Alberts did not refer to the removal of the amendments to the PPA. There was need to reach consensus with regards to the amendments in the PPA.

Mr Alberts said that the criteria one would use in deciding whether or not the amendments were supposed to stay was to determine the use of each of the amendments and whether they clarified the rights in the PPA. He stressed the need to keep the PPA as simple as possible.

Ms S van der Merwe said that the definition of ‘indigenous community’ did not sound any different to a work.

Ms Ntuli suggested that the issue be left for the drafters to look at the definition again.

The Chairperson suggested that the drafters re-look at the definitio. He suggested that the Committee clarify the issue relating to the registration of copyrights.

Ms S van der Merwe said that the DTI had a possible solution on the PPA.

Adv Strydom said that it was difficult to defend a position that was indefensible. He referred the Committee to Clause 28D(1) which related to the definition of indigenous work. There was no logic in having the definition of perfomer and not performance in the PPA. He recommended that the drafters be allowed to effect certain changes so that they could clearly delineate what was protected under the Copyright Act and the PPA and in so doing ensure that what was protected in respect of indigenous performance was located where it suitably belonged in the PPA and not in the Copyright Act.

Mr Alberts agreed with Adv Strydom that there was need to clearly delineate the issue. The PPA was a strange animal because the Act defined literary and artistic works but they were not even used in the Act. The Act spoke about performances being protected as opposed to literary artistic works.

The Chairperson suggested that the Committee deal with the issue of registration of copyrights.

Registration of copyrights / indigenous rights in Clause 28D
Ms S van der Merwe referred to Clause 28D and said the right could only vest in an author if the process of the protocol was implemented. The difficulty was that a right could only vest in a traditional author or the community if the community had gone through the process of protocol implementation. Some commentators were of the opinion that the Bill would fall foul of the Berne Convention. She asked if an additional responsibility was being imposed on communities to create a protocol before the copyright was vested.

Adv C van der Merwe responded that the Bill did not acknowledge communities as a juristic entity and the drafters did not want to do this because they were warned against forcing communities into trusts or associations. Hence by avoiding one pitfall, they were creating another. There was a need for the Committee to look at whether the right was different from an intellectual property right. If a community were not a juristic person, it would mean that the right would float around until it was claimed. This contradicted the Berne Convention which said that if a right was created it would vest automatically.

Mr Alberts suggested that in order to address the issue all indigenous communities would be regarded as legal personae for the purposes of the Act.

Advocate Mongameli Kweta, State Law Advisor, agreed that the suggestion that had been given could work.

Adv Strydom agreed that it could be a good idea to put in a deeming provision.

Ms S van der Merwe asked if there were other laws that provided for deeming provisions.

Adv C van der Merwe said that it would be deemed for the purposes of this Act and the provision was supposed to be inserted in Clause 28D(1) and remove the word "vest" from it.

Mr Netshitenzhe asked if the protocol would still be a requirement. He asked why the term "vest" had been removed.

Adv van der Merwe responded that a copyright and a performance protection would vest automatically in a community that was deemed to be a juristic person.

Ms Ntuli agreed that the suggestion that had been put forward by Mr Alberts would make sense because they did not want to prevent a community from owning a right because they did not have a representative.

Ms S van der Merwe said that the Committee had to agree to disagree on the constitutionality issue of the money Bill. She was not convinced by the opposition argument that the Bill was unconstitutional and that it was a money Bill.

Definition of ‘indigenous community’
The Chairperson suggested that the Committee deal with the definition of ‘indigenous community’.

Ms S van der Merwe said that she had asked Committee Members to submit to her any arguments that they wanted to propose in terms of the definition of ‘indigenous community’. Mr Harris had suggested that the Committee remove the words "...in a geographical area located within..." and ensure that live communities only were referred to. Mr Oriani-Ambrosini had proposed a much longer amendment including a long story about the indigenous community having to be defined in a way that Mr Harris had envisaged and also to provide that a traditional community be recognised in terms of a national framework on traditional leadership. There was a broad disagreement from most of the IP working group members in relation to the suggestions that had been put forward by Mr Oriani-Ambrosini. She suggested that the Committee address the issue of live, living and dead communities and that of the geographical areas.

The Chairperson was of the opinion that the Committee discuss only new issues.

Adv van der Merwe said that Dr Johanna Von Braun had responded that the reason for removing “living” was that the intellectual property of communities that were no longer alive had to be protected for the good of the nation by the government. This was supported by Prof Pitika Ntuli. Another question under “living” was whether they were going within the area of national heritage. There was protection of natural heritage sites under the Natural Heritage Act but there was not provision for any replications of the natural heritage if they were to be sold for commercial purposes. Hence there would be no benefit for the country. However in the end it was a policy issue. Dr Von Braun was concerned that if records were to be required of proof of a community, too big a burden would be placed on communities.

The Chairperson said that the Committee had discussed the question of historical records.

Mr J Smalle (DA) asked what impact would it have if a community migrated or urbanised and how would it impact the beneficiation.

Adv van der Merwe responded that the definition of ‘
indigenous community’ said “originated in or historically settled in a geographic area” hence the fact that further migration would not disqualify a community.

Mr Alberts asked if the income from extinct communities was going to be distributed equally amongst other communities.

Adv van der Merwe responded that there was no specific provision in the Bill. The funds would be used for relevant communities. There was however a gap between the Bill and the eventual regulations.

Mr Alberts said that the provision had to be inserted in the Act for equity sake and not to be left up to the Minister. There was supposed to be logic between the income derived and how the money used. If money was derived from a certain area, then it was supposed to be used in that area.

The Chairperson responded that it was where the geographical question became more important hence the state had to develop the geographical area where the community existed.

Adv C van der Merwe referred the Committee to Clause 28I(6) which related to how the income that was derived by the National Trust was supposed to be used for the benefit of the indigenous community. If there was a need to tighten the provision on how the money had to be ploughed back into the communities, then the Committee had to tighten the provision.

The Chairperson said that it would not be wrong for the state to exercise its mandate and prerogative to spend the money where the need arose hence there was no reason to tighten the provision.

Mr S van der Merwe said that there were some issues that could not be placed in the law and hence the regulations had to deal with the issue.

The Chairperson suggested the Committee agree to leave the definition of ‘indigenous community’ as it was.

Mr Smalle asked whether or not communities that came into South Africa would be recognised and if they were not recognised, there was a clash with the Constitution.

Ms S van der Merwe said that communities which historically settled in South Africa were considered as indigenous communities. The definition did not however include individuals who migrated to South Africa but only communities.

Mr Alberts said that if the clause excluded Portuguese then it would leave them in a twilight zone because they would not be either a South African or Portuguese community. In addition they made unique contributions to the country. The definition was supposed to be broad enough to prevent other groups from going to the Equality Court. Hence in order to play it safe the clause had to be broadened. Some groups had not settled in one geographical area but had spread out all over the country. He was scared that the Bill would be referred to the Equality Court if the Portuguese or other excluded communities wanted to register a right and they could not.

The Chairperson said that the Bill did not exclude any community. Moreover other communities had benefited through the conventional IP.

Adv Strydom said that the words "...in a geographical area located within the borders..." meant that a community was supposed to be located in an area within the borders of the Republic of South Africa. He asked if the term meant that a community had to be settled anywhere within the borders of the Republic as opposed to being located within a smaller area in the Republic.

The Chairperson said that his understanding of the phrase was that a community had to be settled anywhere within the borders of the country as opposed to being located within a smaller area in the Republic.

Mr Smalle said that he understood the definition to say that a community was supposed to have settled within a smaller area of the Republic as opposed to within the borders of South Africa.

The Chairperson responded that it was not possible that a community could not have existed in a particular geographical area. He requested that the Committee debate new issues that had been raised as opposed to issues that the Committee had heard.

Mr Alberts suggested that the Committee change the term from "...settled in a geographical area..." to "...settled in geographical areas..."

Adv Strydom responded that if the Committee accommodated the plural then there would be a problem in that they would be excluding the singular.

Adv van der Merwe suggested that they say, "...settled into geographical area or areas..."

Ms Ntuli said they did not want to have unintended consequences by making a law too broad such that it trivialised the whole intention. She asked for an opportunity for the DTI to reflect on the definition of ‘indigenous community’.

Adv Kweta suggested that the phrase "...in a geographical area..." was supposed to be left as it was. In terms of the Interpretation Act, the singular meant the plural and the plural meant the singular.

Ms S van der Merwe said that the Committee was defining an indigenous community as opposed to "South Africans". Speaking English did not make one any less South African.

The Chairperson said that the definition would be left as it was on the understanding that the word area accommodated the singular and the plural.

Other issues and changes in the latest Working Draft 13A
Ms S van der Merwe listed the definitions that the working group had agreed to such as the definition of "author", "collecting society", "Commission", "council". The group had not agreed on the definition of ‘indigenous community’ in their meeting but the Committee had agreed to a new definition subject to changes. The working group also agreed on "indigenous work" and that wherever "indigenous cultural expression", the Committee should add the phrase "or knowledge". The working group agreed on "infringing copy" and "National Trust". The group only agreed to substitute the word "granting" with the word "conferring" in Clause 28A(1) but it failed to reach consensus on the clause. There were some changes in Clause 28C(3).

Adv van der Merwe said that in Clause 23C(4) the drafters had deleted the word "not".

Mr Netshitenzhe said that the sentence had to say that there was no compulsory registration.

Ms Ntuli said that the sentiment that had to be echoed was that registration was not supposed to be compulsory.

Ms S van der Merwe said that the group had agreed on 28C(5), (6) and (7). She pointed out that Mr Harris had suggested that the Bill be consistent hence they had to use the term "natural person" or "person". The entire subcause (11) had been removed because it was a duplicate from combining two issues. Subclause (15) had to be redrafted. In Clause 28D a deeming phrase would be added.

Adv Kweta asked whether or not the issue of the extinct indigenous community was not supposed to be catered for in 28D(2) because its ownership would vest in the National Trust.

Ms S van der Merwe suggested that the definition of ‘indigenous community’ be left as it was then it would include extinct communities because it did not specify living.

Adv van der Merwe agreed that Adv Kweta had a point. For clarity sake the drafters could add “cannot be determined as extinct” thereby making a provision for extinct communities. In Clause 28C(7) a provision was going to be inserted which would allow for a person to apply on behalf of an extinct community.

Ms S van der Merwe suggested that a provision regarding extinct communities be added in Clause 28D(2).

Adv van der Merwe said that 28D(1) was supposed to change in light of the fact that they were deeming a community to be a juristic person.

Ms S van der Merwe expressed her concerns regarding the meeting because at this stage of the meeting there were only two Committee Members including herself.

Mr Netshitenzhe agreed that 28D(1) was going to be improved.

Ms S van der Merwe asked for the drafters to remind the Committee why Clause 28E(1)(j) had been inserted.

Adv van der Merwe responded that a number of issues had been deleted from (J) because the sub clause did not make sense. There were however no additions to the current wording of the sub clause.

Ms S van der Merwe put forward a comment that had been raised by Mr Oriani-Ambrosini that no law had ever protected intellectual property rights in perpetuity. She however raised a counter argument that even the 50 year mark in the Copyright Act could be renewed hence it was in perpetuity.

Mr Netshitenzhe added that the issue of in perpetuity was in relation to indigenous work but with regards to derivative works there was a life span.

Adv van der Merwe said that the experts were concerned about the discrimination between the conventional system and the indigenous system. However, the experts had expressed their view that it was now in order. A generation could not own a right since they were holding it for the next generation hence there was no reason to make it time limiting.

Ms S van der Merwe said that the way the issue was dealt with in 28E(1)(f) was also found in the long title hence the argument held water.

Mr Netshitenzhe suggested that they remove the letter “d” from “acquired” in Clause 28G(4).

Mr Smalle said that the DA had proposed that Clause 28E(1)(d) was supposed to refer to literary and artistic works and cinematography.

Ms S van der Merwe read out the argument that had been submitted by Mr Harris with regards to Clause 28E(1)(d).

The Chairperson said that the Committee had agreed to Clause 28G(3), (4), (5) and (6).

Ms S van der Merwe said that Clause 28G was an area that Mr Oriani-Ambrosini had disagreed on.

Adv van der Merwe said that the argument by Mr Oriani-Ambrosini would only relate to sub clause (5) of Clause 28G and Clause 28H that dealt with royalties. There was a need to have a clause that dealt with the permission that had to be granted to a person to perform certain works. She read out the sub clause that she had drafted which would be inserted in Clause 28G as sub clause (7). The Clause would read "where a person derives commercial benefit from the use of traditional works, the value of which is below a prescribed ceiling, such a person shall be excluded from the requirements of sections 28B(4), 28C and 28H.

Adv Kweta noted that in Clause 28H(3)(b) they did not have the status to enforce the decision of the institution. He suggested that a provision be inserted in Clause 28K(4).

Adv van der Merwe agreed with Adv Kweta. The drafters were supposed to highlight in Clause 28H(3)(b)(i) that the institution was the one referred to in Clause 28K.

Ms S van der Merwe suggested that Adv Kweta submit a written response of the matter that he had raised.

Mr Smalle said that the DA would not agree to any changes in Clause 28K until he had seen a written response from Adv Kweta.

Ms S van der Merwe advanced the argument that had been submitted by Mr Harris that there was a need to make Clause 28I clearer.

Adv van der Merwe pointed out that an argument had been raised by Mr Oriani-Ambrosini about the constitutionality with regards to the National Revenue Fund in Clause 28i(6). She disagreed with the argument and added that there were a number of trusts that existed outside the National Revenue Fund. A trust was the only acceptable legal way that one could use to bypass the National Revenue Fund.

Ms S van der Merwe asked if the National Treasury had been consulted.

Mr Netshitenzhe responded that if they wanted money for a trust from National Treasury, they had to make a business case and submit it to National Treasury.

Ms S van der Merwe said that the DTI had submitted a report on the issue hence they were supposed to speak about the document.

Ms Ntuli said that she shared the same sentiments as Adv van der Merwe that there was nothing that violated the Constitution.

The Chairperson gave Mr Harris the platform to raise his point on the National Trust.

Mr Harris said that there was a report from NEDLAC in which it was suggested that the National Trust fund itself and at the same time there were views to the contrary which said that the National Trust was supposed to be funded by the fiscus.

Mr Netshitenzhe responded that the issue had been debated at NEDLAC and the DTI had decided that the Trust fund itself. There was no reason why the Trust could not fund itself. In addition the Trust had to be allowed to retain a certain percentage for sustainability of the Trust. The DTI maintained that the Trust would be viable on its own.

Mr Harris said that the Committee had to decide whether or not to spend the money that had been paid for royalties for the benefit of the Trust. He suggested that the funding was supposed to come from the fiscus rather than impose it on monies that could benefit the communities.

Ms Ntuli said that the issue of the Trust had been decided based on what was available. The model that they had proposed was based on practical examples.

The Chairperson said that the issue had to be left as it was until such a time when there was need for the state to intervene.

Ms Ntuli said that the DTI had made a reservation such that they would approach the fiscus for start-up capital for the Trust.

Mr Harris requested that the issue be raised at the next meeting with the experts and see what they said.

The Chairperson agreed that the issue be discussed further in the next meeting.

Ms S van der Merwe highlighted that Mr Alberts wanted to raise a point with regards to Clause 28J.

Adv Strydom said the issue related to whether it was supposed to be prescribed to the indigenous community that hereditary or indigenous intellectual property could not be disposed or sold.

Mr Netshitenzhe responded that the DTI agreed that the ownership which communities were holding in custody for the next generation was under no circumstances supposed to be sold to any person including another community. Such a provision would not be unconstitutional.

Mr Harris said that the DA was concerned about the issue especially with regards to the balance between moral and economic rights. The economic rights were substantially limited. He asked what would happen to the ownership right of the work an individual. Secondly, what would happen if an author emerged and demanded the return of the IP given the limitation in Clause 28J(1).

Adv Strydom responded that there was one exception which was in Clause 28J(1). There was no right assignment save that the copyright of an indigenous work could be assigned to a collecting society or a representative of a community protocol. He did not see the right of a person falling within Clause 28J(1) since the clause referred specifically to the indigenous community.

Adv van der Merwe responded that over and above the assignment, the use of a copyright could be authorised and this was where the economic right would come in. The issue of a community wanting its rights back would be resolved in Clause 28C that dealt with databases. The provision that deemed a community to be a juristic person would be amended consequentially. A community was supposed to be allowed to transfer rights to a legal representative and this was supposed to be inserted in the clause that dealt with a community being a juristic person.

Mr Harris said that the answer to both of his questions were the same. Clause 28J(1) did not allow for the rights to be transferred after an individual passed away.

Mr Smalle asked what would happen if an author claimed his or her rights back from a Trust.

Adv van der Merwe responded that in respect of a natural person holding the right of a protocol, if that person died then Clause 28J(2) would solve the problem. If a natural person claimed a right from the Trust, the protocol would only come into play if the community was applying on the database.

Adv Kweta responded that a person could use Clause 28K that would allow a person to approach an institution.

Mr Harris was concerned about how to deal with the issue if the author was an individual because the response he had received had not answered the question. The law was well written if the author was a community.

Adv van der Merwe responded that Bill had not provided for the return of the derivative rights to an individual person. If it however happened then the normal principles of copyright would apply.

Mr Harris asked if the Committee could not limit indigenous works to Clause 28J.

Adv van der Merwe said that Clause 28J(1) only applied in respect of indigenous works and not derivative works.

Mr Harris said that NEDLAC was of the opinion that the dispute resolution mechanism was not supposed to be made mandatory. Hence it was a question of whether or not the Committee was opposing the views of NEDLAC.

Adv van der Merwe responded that because one was dealing with indigenous communities, they would have a disadvantage in a normal court hence the dispute resolution was a way of trying to help the communities deal with their disputes without having to face unnecessary legalities. To make it not mandatory would force communities to approach the courts.

Mr Harris asked what motivated NEDLAC to make the recommendation.

Adv Strydom responded that there were two issues in the provision. The first one being that Mr Harris was correct in pointing out that no court of law would have jurisdiction unless the dispute had been referred in terms of Clause 28K(2). It was up to the Committee to settle the policy decision. The drafters would not attempt to insert a provision in the Bill that would exclude legal representation. All that the Bill was saying was that parties had to go to a first forum and it was in that forum that there was no right to legal representation. He pointed out that Adv Kweta was of the opinion that the provision was too strict hence a new qualification was inserted that if a party approached an adjudicator and furnished reasons as to why there was supposed to be legal representation, then legal representation would be granted.

The Chairperson said that the argument was not new hence there was no need to discuss it in detail.

The Chairperson suggested that the numbering be amended in Clause 28K.

Mr Harris was concerned indigenous communities were not well represented on the council in Clause 28L.

Ms S van der Merwe asked whether or not it was Clause 28L(6)(b)(1) and (2).

The Chairperson asked Mr Harris where the Bill was running short of representation.

Mr Harris responded that the provision was very broad. He would address the issue in detail at a later stage.

Mr Smalle said that Clause 28L(6)(b)(1) and (2) spoke about the actual knowledge that the people were supposed to have. The sub clause did not state that any person that sat on the council was supposed to be part of an indigenous community.

Ms S van der Merwe replied that the issue was covered by the word "...patronage..." in sub clause (6)(b)(i).

Adv Strydom agreed with Ms S van der Merwe that sub clause (6)(b)(i) addressed the issue that had been raised by Mr Harris.

Adv van der Merwe said that the Committee Members were also supposed to look at sub clause (6)(a). She suggested that they reword sub clause (6)(a) to say that "...be broadly representative of indigenous communities from different cultures in the Republic...".

Mr Harris agreed that the rewording would solve the problem.

Adv van der Merwe said that in regards to the sustainability of the Trust, the Council was supposed to manage the Trust but this was not the case with the Bill because the Council met only seven times a year.

Mr Netshitenzhe said that the DTI would address the issue in the next meeting. He asked if Members of the council were supposed to assist communities in the dispute resolution.

Mr Smalle said that there was supposed to be a clear indication of the role of the Council especially when the Council played two roles. In addition he foresaw a problem with the issue.

Ms Ntuli said that the issue had been discussed during the initial stages of the draft and the issue had been resolved. The referral process would be useful because some people would want to approach the Council with their problems and hence the Council would refer the problem to adjudicators.

Ms S van der Merwe said that the majority of the Committee had agreed that the Bill was in compliance with international agreements and obligations.

Mr Harris said that he did not agree with the area of international agreements.

The Chairperson said that only new issues were supposed to be raised when it came to international compliance in the next meeting.

Ms S van der Merwe said that the point of international agreements was of considerable contention between the DA, IFP and the ANC hence there was need for the experts to make a decision.

The Chairperson said that the experts would address the issue in their next meeting.

Mr Netshitenzhe said that the DTI had given all the evidence that the Bill complied with international treaties.

Adv Strydom said that the expert who had furnished an opinion with regards to the international compliance of the Bill would be present in the next meeting to address the issue.

Ms S van der Merwe said that there were consequential amendments on pages 52 to 54.

Mr Smalle agreed with Ms S van der Merwe that the amendments continued to page 54.

Adv Strydom said that on page 53 in paragraph (cB), a new provision empowered the Minister to make regulations.

Mr Harris said that he felt as if their rights were being restricted because some of the Committee Members were saying that they had agreed to a number of issues.

The Chairperson said that no one was being stopped from raising issues and that was why he had allowed Mr Harris to raise an issue on a page after the Committee moved on.

Ms S van der Merwe asked if the phrase "derivative indigenous term or expression or knowledge" was correct.

Adv van der Merwe said that the term “or knowledge” was not correct hence the term "or knowledge" was supposed to be removed.

Ms S van der Merwe asked if the issue of sacred places were supposed to be dealt with under trademarks.

Mr Netshitenzhe responded that what Ms van der Merwe had said was correct.

Adv van der Merwe said that the drafters had incorrectly included the word "traditional" in all the definitions of indigenous performance, work, term of expression and design. Hence the term "traditional" was not supposed to be included in the definitions. Clause 43A(2) was a recurring amendment in which the word "granting" was going to be substituted with the word "conferring".

Mr Harris asked if the justification for the community as an indigenous community was going to be provided for.

Adv van der Merwe said that a proposal had been made on page 32 of IP 16 on how to do a validation. It was however implied that if an indigenous community identified itself as a community then they had to prove why they had to be considered as an indigenous community.

Adv Strydom said that there was no substantial change on page 67 in Clause 43D15(a).

Adv van der Merwe said that in Clause 43F there was a wrong reference. The correct clause was Clause 35 and not Clause 36.

Ms S van der Merwe asked why the change had been done.

Adv van der Merwe responded that the provision had been deleted because a person could not steal from him or herself.

Adv Kweta said that there would be an addition in Clause 43F(4)(c)(i) for “an institution accredited by the Commission” as contemplated in Clause 43I(1).

Adv van der Merwe said that there would a change on page 78 from prospective users to intended users.

Mr Harris asked if the definition of design carried through to the definition of a derivative indigenous design.

Adv Strydom responded that there was a new insertion in the definition of design in paragraph (d) to mean an aesthetic design or a functional design. There was no reason why traditional design would be excluded from reflecting both aesthetic and functional designs.

Mr Harris said that the threshold for the qualification of indigenous design was very low as opposed to aesthetic or functional designs.

Adv Strydom responded that the definition of indigenous design referred specifically to traditional designs and no reference was found on aesthetic or functional in the definitions. Traditional designs could not be registered in a certain part of the Designs Act.

Ms S van der Merwe said that Mr Harris had raised an interesting point because a design was not a song, book or poem. A design could be a house or a wheelbarrow.

Adv Strydom responded that a design was not something that one could see such as the manner in which a wheelbarrow would function but nonetheless there was need to clarify the issue.

Mr Netshitenzhe said that a design was either aesthetic or functional and hence it was possible that there were traditional designs that were not registrable. If someone wanted to borrow an aesthetic or functional design as long as it qualified to come with the issue of being new then one could have a derivative design for both functional and aesthetic. On the issue of artistic he acknowledged that there was a problem of cut and paste in the provision.

Mr Harris said that the definition of aesthetic design and functional design were very technical and this was not the same with the definition of derivative indigenous design. He suggested that there was a need to tighten this loophole and increase the need for creativity.

Adv van der Merwe agreed with Mr Harris. The definition of traditional design did not define design hence it was clear cut and paste. An indigenous design was supposed to be registered in part T because it was a totally different animal but with regards to derivative designs there was need to amend Clause 53C(11) and indicate that, for a derivative indigenous design to be eligible for registration in either part F or part A, one had to comply with the relevant requirements of the Act relating to part A and part F.

Mr Netshitenzhe said there was only one issue of design. The original design was not in dispute but it was in perpetuity. If a concept was borrowed from traditional or indigenous design and a new design was created in the form of a trademark then it was supposed to be placed in the database as a sub-register of the trademark. No standard had fallen because it was a new thing.

Ms S van der Merwe said that there had been some changes in Clause 53A(3) in that "granting" would be substituted by the word "conferring".

Adv van der Merwe said that Clause 53C(5) was the protocol issue where they were going to remove ‘leadership’ and substitute it with ‘structure’. Furthermore in 53C(8) the Commission was supposed to retain confidentiality. The word "may" would be substituted with the word "must".

Mr Netshitenzhe said that it was supposed to be the other way round where a community felt that they were discussing issues in confidentiality with the Commission. The Commission was supposed to agree to keep the issues confidential. The community was supposed to be empowered to determine its fate.

Adv van der Merwe said that she was in agreement with Mr Netshitenzhe.

Mr Netshitenzhe suggested that the provision be separated to highlight the point he had raised earlier on.

Adv Strydom said that their intention was the same with what Mr Netshitenzhe had suggested.

Mr Netshitenzhe said that the period of protection for functional designs was 10 years and aesthetic designs 15 years. If a derivative design came from traditional aesthetic (TA) the period would be 15 years and if it came from functional the period would be 10 years.

Adv van der Merwe asked if the derivative was only 10 then what would be the period for T.

Mr Netshitenzhe responded that if it was only T and there was no reflection of where it came from, then there would be a problem. TA was supposed to be 10 years and traditional functional (TF) 15 years.

Adv van der Merwe said that she had a problem in that if an indigenous design could only be T then a derivative indigenous derivative was supposed to be only T.

Mr Smalle said that there was a need to clarify grey areas.

Mr Netshitenzhe clarified that if there was a hereditary design that was not registrable, it could be recorded and if there was need for the hereditary design one had to go into conventional IP. The hereditary design could give birth to either functional or aesthetic or both. He acknowledged the need to clarify that the aesthetic design came from H (hereditary) and the functional one came from the hereditary. There was need to have classes to distinguish between functional or aesthetic.

Adv van der Merwe asked if an indigenous design by its nature was supposed to be aesthetic or functional. If it was not the case, then the question would be why it was not possible that the derivative could be aesthetic or functional.

Mr Netshitenzhe responded that a hereditary design could be functional or aesthetic. The hereditary design was not registrable and it was only for recording purposes. Any person who wanted to come with innovation of a design could borrow from the hereditary and come with either functional or aesthetic and the by-product would be derivative or hereditary.

Ms S van der Merwe said that the Committee did not understand the issue and they were in the dark. She asked if the Committee was going to use the words functional or aesthetic in the definition of indigenous design.

Mr Netshitenzhe responded that they would not be inserting the words in the definition.

Adv van der Merwe said that in her understanding, the part T would always have an F or an A and in that case there was need to amend the definition of indigenous design so that they could cover both. She disagreed with the opinion that the words functional and aesthetic were not supposed to be inserted.

Mr Harris requested that Ms Shabangu approach the Designs Committee. He proposed that the Committee write to Ms Shabangu and ask her whether she could get an opinion on the issue.

The Chairperson agreed and added that Adv van der Merwe and Mr Netshitenzhe were supposed to address the issue.

Adv van der Merwe said that an exception in the form of a new sub clause was supposed to be inserted in Clause 53F in respect of the ceiling for economic activity.

Adv Kweta said that the drafters were going to add a reference to Clause 53I(1) in Clause 53F(4)(c)(i).

Adv van der Merwe said that there was need to provide the deeming provision for the community as well as for the transfer to a legal person in Clause 53H.

Mr Smalle asked if there was an oversight part in the case where the Commission failed to utilise the money.

Adv van der Merwe responded that the Minister would prescribe the regularity of funds to be disbursed. However the Committee had to conduct oversight on the Commission.

Ms S van der Merwe requested that the drafters have something by the evening of 12 August and this was supposed to include conferred issues around performers’ protection. The DTI had to give feedback on a number of issues.

Mr Harris stressed that there were a number of issues that had been requested from the DTI in the previous meeting. He asked if the documents had been submitted.

Mr Netshitenzhe responded that the DTI had submitted the response.

Mr Harris thanked the Chairperson for chairing the meeting fairly and with patience.

The meeting was adjourned.

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