Intellectual Property Laws Amendment Bill [B8B-2010]: input by Department of Trade and Industry and Parliamentary Legal Advisor; Gambling Review Report

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Meeting Summary

The Select Committee on Trade and International Relations (the Committee) met with the Department of Trade and Industry, and representatives of the Parliament’s legal Section  to discuss the Intellectual Property Laws Amendment Bill, with a view to helping the Committee gain better insight into the status of the Bill, particularly its emphasis on the protection of traditional knowledge. The Committee also considered its Gambling Review Report, in order to make a decision on its adoption or further revision.

The Intellectual Property Laws Amendment Bill, which was formerly tagged a Section 75 Bill by the Joint Tagging Mechanism (JTM), had been referred back to Parliament by the Presidency, based on two grounds. Firstly, the Bill, according to legal opinion sought by the Presidency, should have been classified as a Section 76 Bill, owing to the fact that it dealt with cultural matters. Secondly, the Bill should have been referred to the House of Traditional Leaders for consultation and inputs. Parliament, after the referral, had also sought legal opinion on the issue, and the advice received was in consonance with the President’s stand on the issue. The initial tagging of the Bill had been rescinded, and it had been reclassified as a Section 76 Bill. The House of Traditional Leaders had also been consulted, and comments received had been in agreement with the provisions of the Bill.

The Bill sought to protect traditional knowledge, using the present intellectual property system, albeit there were several means of protecting traditional knowledge. Holders of traditional knowledge were losing their knowledge without benefiting from the loss. All the inherent domains of intellectual property, such as copyrights, trademarks and designs would thus be used to protect traditional knowledge. The Department of Trade and Industry would take the lead in the protection of traditional knowledge, with further support from other relevant departments, especially the Department of Environmental Affairs. Several alternative mechanisms for traditional knowledge dispute resolutions had also been put in place in the Bill. A procedure within the current intellectual property system, to ensure that whoever stole knowledge would be caught, was also in place.

Members expressed concern over the conflict that might arise between individuals and communities on the issue of traditional knowledge rights. They questioned the ability of the nation to deal with issues of traditional knowledge theft in foreign countries. They asked if the issue of royalties was covered in the Bill, if the Department had mechanisms in place to punish transgressors and whether the Bill was going to be applied retrospectively. Members questioned whether the Department had consulted extensively with international bodies associated with intellectual property, especially the World Intellectual Property Organisation (WIPO), and if there was any agreement in place with these bodies.

The Committee also considered its Gambling Review Report. The Gambling Review had been considered in the Committee’s meeting on 24 April 2013, and Members had been requested to look through the review report, and send in proposals on the matters or corrections they wanted to be reflected in the report. Members raised concerns on the contents of the report, noting that it did not fully express the views of the Committee on the diverse issues that had been raised. The Committee agreed that Members should be given an extension to send in proposals, and these proposals should be received prior to the next meeting. The Committee noted, however, that the report was adopted, subject to the receipt of proposals on changes that needed to be effected on the report from Members. If no proposal was received by Members by the next meeting, then the report would be adopted as it stood.

Meeting report

Intellectual Property Laws Amendment Bill [B8B-2010]
The Chairperson remarked that the Bill being considered was important, and welcomed everyone present, including members from the provincial legislatures. He noted that the Bill would still go to the provinces for consideration. The Bill, previously known as a Section 75, was now a Section 76, as there was an issue about the tagging of the Bill which had prompted its return.

Mr Gary Rhoda, Legal Adviser to the Committee, stated that the Intellectual Property Laws Amendment Bill was initially advised to be tagged a Section 75 Bill by the Legal Adviser of Parliament. This had been agreed to by the Joint Tagging Mechanism (JTM), which comprised the Speaker and the Chairperson of the NCOP, and was further referred to the Portfolio Committee on Trade and Industry. The Portfolio Committee had raised different concerns on the Bill, which considered such issues as whether the Bill needed to be sent to the House of Traditional Leaders for consideration, whether it was a money Bill, and whether it should be referred to as a Section 76 Bill, because it pertained to cultural matters. Various legal opinions had been sought thereafter, and the legal department of Parliament was advised that the Bill was not a Section  76 Bill, but rather a Section 75 Bill, while the traditional leaders had also been consulted.  The Portfolio Committee and NCOP had agreed to the recommendation and the Bill had been sent to the President. However, there was a referral back from the President on 19 September 2012. The President, after seeking legal opinions, had reservations on two grounds -- that the Bill should have been classified as Section 76 Bill, based on the fact that it dealt with cultural matters and secondly, the Bill should have been referred to the House of Traditional Leaders. The Parliament, after the referral, also sought legal opinion on the issue, and the advice received was congruent to the President’s stand on the issue. On 21 February 2013, the Bill was reclassified by the JTM as a Section 76 Bill, and a letter requesting the reclassification was sent to the Portfolio Committee on Trade and Industry and the Speaker of the NCOP.

Mr Rhoda noted that the formal referral of the Bill to the Portfolio Committee, as a Section 76 Bill, had taken place on 15 March 2013, during the second reading of the Bill in the National Assembly, when the initial tagging had been rescinded and the new tagging had been adopted. The Bill was also re-sent to the House of Traditional Leaders, and the comments received from the House on 10 April 2013 were exactly the same as the initial comments.  The House of Traditional Leaders had proposed no formal amendment to the Bill. On 4 June 2013, the Bill was passed by the National Assembly and referred to the NCOP for concurrence and consideration of the President’s reservation. What the Committee needed to decide was whether to request from the NCOP leadership what was procedurally correct in terms of dealing with the President’s reservation, so that the Committee could proceed with the process in terms of Section 76, and the Bill could go to the provinces for consideration.

Mr Simphiwe Ncwana, Director, Department of Trade and Industry, briefed the Committee on the importance of protecting traditional knowledge, using the intellectual property system. The Indigenous Knowledge System policy had been developed in 2004, and it mandated several departments to protect traditional knowledge. The Department of Trade and Industry (the Department) had to protect traditional knowledge through the intellectual property system, while the Department of Environmental Affairs would use the National Biodiversity Act. The consensus of opinion had been that there was no single way of protecting traditional knowledge holistically. Hence, several departments had roles to play in ensuring the protection of traditional knowledge. The Department had also come up with a policy in 2006, which sought to protect traditional knowledge using the current intellectual property system. The Department had expected other departments to collaborate in its effort by playing their roles in protecting traditional knowledge as it had been misappropriated before, using the intellectual property system.

The approach of the Department, under the present intellectual property system, sought to respect the knowledge holders and acknowledge them as the holders of the knowledge. The Department made use of all the inherent domains of intellectual property, such as copyrights and designs. This was done in conjunction with the Department of Environmental Affairs, using the National Biodiversity Act, where individuals could work together with the community and there were beneficiary agreements in place. In the event of an application for a patent by an individual or community and the patent had an element of traditional knowledge, the application would be sent to the Department of Environmental Affairs, where there was an expert committee in place to consider such applications. If all the requirements were met, the patent application would proceed. The patent system was being used around the world to protect traditional knowledge.

Mr Ncwana indicated that the Department, through the Bill being considered, hoped to protect traditional knowledge using trademarks, copyrights and designs. The Department also disagreed with the notion that traditional knowledge was in the public domain. Traditional knowledge was not in the public domain, as it was knowledge held by individuals, and remained private knowledge as long as they had not given the knowledge away. However, with the intellectual property system, everything had an expiry date, especially if it was not renewed. After some years, the derivative work would expire, while the pure, original traditional knowledge would revert back to the community.

Several alternative mechanisms for traditional knowledge dispute resolutions had also been put in place in the Bill. There were systems in place whereby applications would be published, which would give the public the opportunity to object within three months of the publication. A procedure within the current intellectual property system, to ensure that whoever stole knowledge would be caught, was also in place. It would be good if the Bill proceeded, as it would protect traditional knowledge holders.

Discussion
The Chairperson asked what traditional knowledge entailed. He requested the presenters to clarify what traditional knowledge meant and to give examples of it for the benefit of those who were present in the meeting and not familiar with the term.

Mr Rhoda replied that traditional knowledge, based on the legal opinions sought, was seen as all knowledge forming part of customs, and included such things as paintings, rock art, folklore, dances, and songs which had never been recorded in other areas.

Mr Ncwana added that traditional knowledge referred to knowledge that was indigenous and had meaning, so that if  it was used wrongly, it would send a wrong message that could be insulting to the originators of the knowledge.

Mr K Sinclair (COPE, Northern Cape) noted that all the provinces had been invited, but not all were in the meeting.  He asked why all the provinces were not represented.

The Chairperson replied that all the provinces had been informed and invited, but it would be impossible for the Committee to answer for the provinces on their absence.

Mr Sinclair stated that a look through the memorandum gave an indication that there was a very structured legal framework to deal with issues relating to traditional knowledge. He expressed concern, however, on the conflict that might arise over the issue of traditional knowledge rights between individuals and communities. The constitutional court might end up answering the basic question of whether the right of the individual superseded that of the community.

Mr Ncwana replied that there were mechanisms in place which dealt with disagreements between an individual and a community, and this was also in accordance with World Intellectual Property Organisation (WIPO) standards.

Mr Rhoda added that if it was up to a court to decide on the issue of traditional knowledge rights between an individual and a community, it should not be a problem, especially in a democracy.

The Chairperson also added that it was important the Committee did its work to ensure that the matter did not go to court. If it went to court, however, it was still part of a democratic process and therefore not wrong if the issue ended up in court.

Ms E van Lingen (DA, Eastern Cape) asked if the recommendations of WIPO and the world intellectual property community on issues relating to traditional knowledge, had been considered.

Mr Ncwana replied that there had been extensive consultations on the Bill, and WIPO had also been consulted.  Discussions and negotiations were ongoing with WIPO presently and WIPO was also in support of the Bill, as it was in line with what WIPO stood for.

Ms Van Lingen asked for the documents from WIPO that stated that the body was in agreement with South Africa on the Bill.  It was important that the Committee understood WIPO’s stance on the legislation, and whether the body had any reservations on any part of the legislation.

Mr B Mnguni (ANC, Free State) asked how indigenous knowledge would be protected in a case where a traditional dance was copied from South Africa, and performed overseas.

Mr Ncwana conceded that the use of traditional knowledge in another country was a difficult issue to deal with. However, international consultations and negotiations with relevant bodies were still ongoing to address this. The plan was to have some agreements with countries, via the World Trade Organisation (WTO) in a bid to counter this happening.

A member representing the Gauteng provincial legislature at the meeting, asked whether the Bill covered the issue of royalties, and if the law would be applied retrospectively.

A member representing the Eastern Cape provincial legislature, asked if there were institutional mechanisms in place to take care of transgressions whenever they occurred.

Mr Ncwana replied that royalties were covered, as the Bill was based on the current intellectual property system, and also prioritised benefiting from traditional knowledge. The law would not be applied retrospectively.  It was expected that whenever traditional knowledge was used without consent, the entity involved in the use must come to the fore and accept that they had used traditional knowledge without consent. Going forward, however, the Department would start dealing with issues of royalties for traditional knowledge.

Mr Rhoda added that Section 26(I) of the Bill envisaged the establishment of two offices that would be responsible for issues related to royalties and benefits, etc.  The National Trust on Indigenous Knowledge would assist communities with the protection of their intellectual property rights, while the National Fund on Indigenous Knowledge would administer funds received from royalties and the commercialisation of indigenous knowledge.

A member representing the Free State provincial legislature, remarked that there was an urgent need to move from agreements or disagreements on the Bill, to a more proactive process that would ensure that people benefited from their traditional knowledge.

Ms Van Lingen noted that the registration of intellectual property was a very important issue. Valid points had been raised on royalties, hence her emphasis on WIPO’s role. She disagreed with the Department’s opinion that the nation could only protect itself in some countries or regions, noting that the country would only be selling itself short by adopting such strategy.

Mr M Maine (ANC, North West) stated that the Department needed to take the Bill to the provinces. The Committee could engage with the Department in subsequent meetings.

The Chairperson added that consideration of the Bill was a process, and the meeting was the first since the presentation of the Bill.  The presentation on the Bill had been done before, but the Bill had been returned because of the issue over the tagging. The Bill would still go to the provinces, while the Committee would still have further meetings with the Department. The Committee would have the opportunity, in subsequent meetings, to engage with the Department on issues such as the nation’s consultation and agreement with WIPO, and WIPO’s role in protecting traditional knowledge.  

Mr Sinclair called for a structured process which would ensure the consideration of the Bill at the provinces.

Mr F Adams (ANC, Western Cape) proposed that the Committee Secretary liaise with the provincial liaison officers at Constitution House, while Members played the role expected of them in their respective provinces.

Ms M Dikgale (ANC, Limpopo) seconded the proposal.

The Committee adopted the proposal.

Gambling Review Report
The Chairperson stated that the Gambling Review had been dealt with during the Committee meeting of 24 April 2013, and members were requested to look through the review report and send in proposals of what they wanted to be reflected in the report. What needed to be done was to approve and adopt the report, or to effect editing or changes, if there was need for that. He asked for comments from Committee members on the adoption of, or reservations with, the report.

Mr Maine moved for the adoption of the report, noting that Members had not shown any reservations with the report in the meeting.

Ms Van Lingen requested that the Committee ask the Department if there was any issue the Committee had left out, since the Department was also present in the meeting.

The Chairperson replied that the Department, after the last meeting, had given the impression that it had concluded its work. The Department was just waiting for the decision of the Committee, and all that needed to be done was to adopt or edit the report.

Ms Dikgale expressed concern about the notion of social responsibility in the report that made rehabilitation a pre-requisite for gambling companies, noting that this would give the impression that people could gamble and their rehabilitation would be a given. This would be at the expense of people and communities that needed the funds, and support from social responsibility.

The Chairperson replied that the issue of social responsibility had been agreed upon by the Committee. If Ms Dikgale proposed a change, however,  then it could be considered and deliberated upon by the Committee.

Mr Mnguni added that social responsibility was a pre-requisite to opening a gambling franchise, noting that this was not different from the social responsibility pre-requisite for mines. Gambling companies or enterprises had to take responsibility for the side-effects of gambling.

Mr Sinclair commented that there were issues with the report which needed to be corrected before the report could be adopted. The mandate of the commission that was set up to review gambling was not entirely reflected in the report. The Department, and not the commission, needed to develop proposals for illegalities in online gambling. A more comprehensive input by the Committee was needed, regarding social responsibility pre-requisites for the gambling enterprises.

The Chairperson replied that apart from the commission’s recommendation, the Committee was going to have its own recommendations so it was up to the Committee to add to the recommendations.

Ms Van Lingen noted that the report did not entirely reflect the views of the Committee on illegal gambling. She had told the Committee earlier that the review consideration was going to take time, and no one objected to her opinion then. A case whereby the Committee was being dictated to by the Department would not augur well for the Committee. She suggested the Committee should devote more time to considering the report and decide on it in the next meeting.

Mr Adams replied that the report was the Committee report, and the Department should not be blamed for it. The Committee had to own up for whatever mistakes were in the report.

Ms Dikgale agreed with Mr Adams on the need for the Committee to accept the report as its own. She seconded Mr Maine’s motion for the adoption of the report.

Mr Maine withdrew his initial proposal and suggested that if the Committee was not satisfied with the contents of the report, the Committee should review the report and decide on its adoption at the next meeting.

Ms B Abrahams (DA, Gauteng) seconded Mr Maine’s new motion.

Mr Adams remarked that Members had had ample time to go through the report. since they had received the report earlier. He asserted that it was wrong to have a meeting and not reach decisions, noting that this was recurring in the Committee.

Mr Sinclair replied that all that was being demanded was to have a better report. He supported the proposal that the Committee should revise the report and meet at a later date for the adoption of the report.

The Chairperson noted that it was his duty to collate all the viewpoints of Members and take a stand that was acceptable to every member.

The Chairperson stated that the report was adopted, subject to the receipt of proposals on changes that needed to be effected on the report from Members. If no proposal was received by Members by the next meeting, then the report would be adopted as it stood.

The meeting was adjourned. 

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