Intellectual Property Laws Amendment Bill: formal consideration and adoption

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Trade, Industry and Competition

15 September 2011
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

Some Committee Members were against adopting the meeting agenda to formally consider and adopt the Bill as they believed that deliberations on the Bill were not complete. Also, in their opinion, the Committee would violate section 18 of the National Framework on Traditional Leaders which stated one had to consult with the National House of Traditional Leaders.
 
The Chairperson was adamant that the Committee was in compliance with the Constitution because a legal opinion had been submitted that they were in compliance s
ince the Bill did not contain provisions on customary law and customs of traditional communities. She said there had been deliberations and decisions made - even though they might not be to every Member’s satisfaction.

Some of the opposition parties were of the opinion that the Committee had to deliberate at this meeting on an alternative Preamble which the Chairperson had requested one of the Members draft. The Chairperson decided that the alternative Preamble was not appropriate and said the debate on the Preamble would not be reopened. However she did point out that Members had the right to suggest amendments until such time as the Bill was passed in the National Assembly.

When it came to the adoption of the Bill, the ANC and COPE voted for the adoption of Bill. The Democratic Alliance voted against the adoption of the whole Bill. The IFP voted against the majority of the clauses but abstained from voting on Clauses 7, 14 and 15. The Freedom Front Plus voted against all the clauses but abstained from voting on Clause 8. The opposition parties were of the opinion that a sui generis approach to legislation was needed when it came to protecting indigenous knowledge.

The dissenting views of the opposition parties were provided and included in the Committee Report. The Bill was set for adoption in the National Assembly on 21 September.

Meeting report

Adoption of Agenda
The Chairperson asked the Committee Members to adopt the agenda which was to vote on the Intellectual Property Laws Amendment Bill.

Mr M Oriani-Ambrosini (IFP) objected to the adoption of the agenda because in his opinion it violated section 18 of the National Framework on Traditional Leaders. The Intellectual Property Laws Amendment Bill process had not consulted them.

Mr T Harris (DA) was in agreement with Mr Oriani-Ambrosini that the Committee was not supposed to consider the adoption of the Bill.

The Chairperson said that a legal opinion had been received which said that the Committee was in compliance with the Constitution. She was confident that the Committee was not acting outside the law.

Mr G Selau (ANC) said that no individual Member of the Committee had veto powers over the decisions that the Committee had made in the absence of the Member.

The Chairperson said the objections raised had been noted.

Mr N Gcwabaza (ANC) proposed that the Committee adopt the agenda.

Mr Harris was of the opinion that the Committee had not exhausted deliberations. Hence there was no need for formal consideration until the deliberations were done.

The Chairperson responded that deliberations had been done and the matters had been addressed and deliberated even though it might not be to every Member’s satisfaction. The DA's objections were noted. The Committee would consider the formal adoption of the Bill.

The majority of the Committee seconded the adoption of the agenda.

Intellectual Property Laws Amendment Bill: formal consideration
Preamble
Members were asked to comment on the Preamble.

Ms S van der Merwe (ANC) was of the opinion that the Preamble should stay as it was. The Preamble that had been suggested by Mr Alberts raised other issues that were not relevant. In addition, this was a very late stage to start dealing with the issue of the Preamble. The current Preamble left the door open for future work to be done in respect of protection of indigenous knowledge.

Mr Harris objected that it would be unfair if the Committee were of the opinion that it was too late to consider discussion on the Preamble.

Mr X Mabasa (ANC) seconded the proposal that the Preamble stand as it was.

Mr J Smalle (DA) asked if there was room for amendments on the issue.

The Chairperson replied that there was room for amendment until the Bill was passed in the National Assembly.

Mr Oriani-Ambrosini said that he had a constitutional right to suggest any amendments to anything. He was not going to not object or not exercise his right to correct the flaws. Minority views were supposed to be recorded in terms of Rule 261(3) of the Rules of the National Assembly.

The Chairperson said that Mr Oriani-Ambrosini's objection was supposed to be in writing. They were not opening the matter up for debate.

Mr A Alberts (FF+) explained the background to the proposed Preamble. The Bill was one aspect of protecting indigenous knowledge and the point had not been made clear in the Bill. The Chairperson had asked him to draft a new Preamble. The clauses were drafted with the Constitution in mind and international law. There was nothing new in the proposed Preamble. He had narrowed the Preamble to the specific rights that they were dealing with. The Preamble verbalised what had been verbalised in the Committee by the ANC, DA and other parties as well as the state law advisers and the Department of Trade and Industry.

Mr Oriani-Ambrosini was of the opinion that the Committee was supposed to start with a motion of desirability.

The Committee Secretary responded that it was not necessary to do a motion of desirability.

Mr Harris asked if there were any differences in content between the documents that had been distributed in the previous meeting and the documents distributed in the current meeting.


Adv Johan Strydom, DTI Legal Adviser, responded that there were no differences in content.

Adv Mongameli Kweta, State Law Adviser, responded that the substance of the Bill as decided on by the Committee had not been changed, only technical items.

Mr Oriani-Ambrosini noted that the wording of the Bill on the first page "as presented" was incorrect and it was supposed to be "as redrafted"

Mr Gcwabaza responded that the Bill was going to be presented to the House hence it was correct to state, "as presented"

Mr B Radebe (ANC) noted that there was a change in the Bill number because the Committee was working with B8B-2010 as opposed to B8-2010.

The Chairperson noted the Committee Secretary would reconfirm page 1 of the Bill.


Mr Oriani-Ambrosini said the Committee had to be informed of any changes made.

Ms S van der Merwe asked if Mr Oriani-Ambrosini had the correct document in front of him.

The Chairperson said any objections would be noted at the end of the meeting.

Adv Strydom said that in proof reading the drafters were not supposed to make any changes that were substantive in nature or changes that related to matters of policy or of law. The drafters did not have the capacity to amend the Bill with the exception of typographical errors.

The Chairperson repeated that Members had the right to make amendments until such time the Bill was passed in a sitting of the House.

Mr Smalle supported the Preamble that had been drafted by Mr Alberts.

Mr Harris seconded Mr Smalle.

Mr Radebe objected to Mr Smalle and Mr Harris proposal.

Mr Selau seconded Mr Radebe.

The Chairperson read out the proposed amendment to the Preamble drafted by Mr Alberts.

Mr Alberts formally proposed an amendment to the Preamble. Mr Harris, Mr Smalle, and Mr Oriani-Ambrosini seconded this proposal.

Mr Radebe proposed that the Preamble be adopted as it was in the Bill. As it stood, it united the people of South Africa whereas the other Preamble would fracture South African communities since it emphasised on self determination.

The majority of the Committee was not in favor of the amendment to the Preamble (namely Mr Selau, Mr Gcwabaza, Mr Mabasa, Mr Radebe, Ms van der Merwe, Ms Kotsi and Ms Khumalo.

Mr Harris said that the Democratic Alliance was of the opinion that the process of amending the four Intellectual Property laws altogether, in particular the Performers Protection Act, was the wrong approach.

Clauses of the Bill
The majority of the Committee (namely Ms S van der Merwe, Mr Selau, Mr Radebe, Mr Gcwabaza, Mr Mabasa, Ms Kotsi and Ms Khumalo) agreed to the adoption of all the Clauses in the Bill.

Mr Harris and Mr Smalle were against the adoption of all the clauses in the Bill.

Mr Alberts and Mr Oriani-Ambrosini were also against the adoption of the majority of the clauses. Mr Oriani-Ambrosini however abstained from making a decision on Clauses 7, 14 and 15. The same was true for Mr Alberts with regards to Clause 8.

The Chairperson was concerned about the numbering on page 19.

Adv Kweta responded that the wrong numbering was a technical issue that could be addressed by the drafters.

The Chairperson gave a platform to the Committee Members to make their objections in writing.

Mr Harris said that with regards to section 5 of the Memorandum on the Objects which dealt with the financial implications of the Bill, the DA was of the opinion that following the approach they had done would cost the country more than what they were supposed to benefit. It was the DA’s view that a regulatory impact assessment had not been taken into consideration. It was impossible to keep track of the new document because of the different numbering from the previous document. Hence the DA voted against the adoption of all of the clauses.

The Chairperson said that the amendment on page 1 was correct. She read out the Committee Report approving the Bill and then asked the Members to adopt the Committee Report.

Mr Oriani-Ambrosini noted that the report should state that the Committee “had passed the Bill”, something that the Committee had not done. In addition, the minority views were supposed to be noted in the Report.

Ms S van der Merwe noted that the Chairperson had introduced the Bill as B8-2010 instead of introducing it as B8B-2010.

The Chairperson agreed with Ms S van der Merwe and re-introduced the Bill.

The majority of the Committee Members agreed to the adoption of the Bill with the exception of Mr Smalle, Mr Harris, Mr Alberts and Mr Oriani-Ambrosini.

Mr Oriani-Ambrosini said that he had submitted a written objection to the adoption of the Bill on behalf of IFP.

Mr Harris read out his objections to the adoption of the Bill. He said that in the definition of 'indigenous work' the term ‘recognize’ was too vague and it was supposed to be substituted. In the definition of 'indigenous community' the community was supposed to be defined as living and this was supposed to be evidenced by historical or other records, and it was supposed to include the requirement of a community protocol. In the definition of 'indigenous cultural expression or knowledge' the term knowledge was supposed to be removed. In addition the word "regarded" was supposed to be substituted with the word "historically proven to be" in the definition of 'indigenous work'. The references to ‘copyright’ were supposed to be replaced with the words "indigenous knowledge rights" or "indigenous copyrights" because the term copyright was a universally accepted term that applied to works that were original and had a fixed term. The conditions required for registration in Clause 28B(4) were overly onerous and would not incentivise the use of traditional knowledge. The DA was of the opinion that high hurdles were being placed in the clause. The benefit sharing agreement was in contravention of the Berne Convention and the regulatory impact assessment had not tested the benefit sharing agreement and prior informed consent. The “12 months” inserted in Clause 28G should be changed to 24 months because 12 months were not sufficient. In Clause 28H the word "benefit" was redundant because the “royalties” included benefits. In addition Clause 28I(e) should specify which indigenous community was to benefit. In Clause 28N dealing with international compliance, the phrase "community recognised in a specific country" would open a Pandora’s box hence it should be deleted. Lastly Clause 53C(9) created enormous uncertainty with respect to derivative users who could be people from communities and who would be faced with royalty payments. They should not walk away from benefit sharing agreements which were seemingly not fair.

Mr Alberts said that the FF+ supported the idea that there was a need to protect indigenous knowledge and the FF+ was of the opinion that a sui generis approach was much better. In an ideal world the Committee would have needed more time to deliberate on the Bill. He disagreed with the mechanism that had been used to protect the rights and the obligations for indigenous knowledge. Hence the issue should be rectified in the future. He had drafted the Preamble at the request of the Chairperson very late in the evening. What happened earlier in the meeting was a distortion of the process due to the lack of time. Not enough deliberation was done on the matter. He expressed his unhappiness that no deliberations were entertained even though he had done a favor to the Committee. He was not proposing a breaking up of the Republic of South Africa as suggested earlier on by one of the Members. Self determination was not Sudan breaking into two. However, there were concepts such as internal self determination which was an affirmation of the individual and the communities within a country. The Preamble would have added to the richness of the Bill and would have opened the door for the opposition Members who supported the sui generis approach to see that there was an opportunity in future to deal with the matter. The joint enemy of the Committee was time. He emphasised that there was a need to deliberate on the Preamble some more.

Ms Kotsi (COPE) said that the Bill was transformational legislation as required by the Constitution. Indigenous people had been ignored for a long time. The Committee had reopened numerous debates. There could be legal areas where the Committee might have faltered even with the assistance of the legal people. The Bill was legislation that was much needed. The Chairperson had given equal opportunity to all Members of the Committee to address their views.

Mr Harris said that the DA was not of the opinion that traditional knowledge was supposed to be protected in a manner that was given to classic intellectual property. The view of WIPO was that a sui generis approach was supposed to be taken. A large number of problems that existed had been solved and the legal advisers needed to be credited. The hours spent in the Committee were long and the work was hard. At the end of the day the DA had serious misgivings about the product but this did not take away the effort that had been placed in trying to solve a number of problems which were eventually solved. He thanked the Chairperson for the manner in which she chaired the meetings.

The Chairperson said that the process had been a complex one. The Committee had to go to Geneva, Switzerland on a study tour in order to deal with the issue. All Committee Members had applied their minds and dedicated themselves with commitment when deliberating on the Bill. She added that there had not been a written response from WIPO despite the Committee's efforts to contact WIPO both electronically and telephonically. She had no doubt that the Members would expand their views in the National Assembly when the Committee presented the Bill. She acknowledged that the Chairperson as well as other Members of the Committee had asked Mr Alberts to re-draft the Preamble. However there was a need to be realistic that one had to come to a conclusion in the end. She thanked everyone who was involved.

The meeting was adjourned.



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