Protection of Traditional Knowledge Private Member's Bill [PMB3-2013]: public submissions; Legal Metrology Bill: Department response to submissions; Department of Trade and Industry Budgetary Review and Recommendations Report

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Trade and Industry

18 October 2013
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Committee received the Department’s responses to the public submissions on these matters:
- Functions of the National Regulator
- Designation of verification bodies
- Designation of repair bodies
- Registration of persons responsible for repairs
- Re-licensing of professionals.

The Chairperson was not satisfied with the responses and requested the provision of examples in order to enhance members’ understanding of the different provisions of the Bill. Detailed examples were then provided on the segregation of functions as well as land measurements.

During discussion, Members’ questions included:
- Woolworths comment on product registration
- Resolving of issues through National Regulator for Compulsory Specifications regulations
- The starting point of quality control
- Segregation of repair and verification functions
- Power to issue certificates
- Shortage of staff.

The Committee also received a summary of submissions on the Traditional Knowledge Private Members Bill. Overall, many concerns were raised about the relationship between the Traditional Knowledge Bill and the Intellectual Property Laws Amendment Bill. Likewise, it was suggested that Traditional Knowledge was in need of an independent, standalone Bill and should not be done in association with the Intellectual Property Bill. There was also many comments on the importance of regional and international coherence and that it was inappropriate for South Africa to go against the common practice on a global scale. As such, it was argued that the sui generis approach was the right approach for the Traditional Knowledge Bill as this approach was supported both nationally and internationally. Discussion by the Committee on this Bill was postponed to a later date.

The Committee approved its Budgetary Review and Recommendations Report with amendments.

Meeting report

The Chairperson informed the Committee that there was a time issue in the National Assembly with regards to the second reading of the Lotteries Amendment Bill. Due to a lack of time, she and Mr B Radebe (the chair whip) proposed that the Bill be tabled in the National Assembly and go through a declaration process where any party with opposition to the Bill would have three minutes to declare their opposition. The Committee agreed that the Lotteries Amendment Bill would become a declarations issue. (This decision was later withdrawn as Mr Hill-Lewis was out of the room during the decision and given his opposition with certain aspects of the Lotteries Bill, he was not happy with a declarations process. This was due to the fact that the opposition was only allotted three minutes to present on their opposition to the Bill).

Department Response to Submissions on the Legal Metrology Bill
Dr Tshenge Demana, DTI Chief Director: Technical Infrastructure, Industrial Policy Development Division presented to the Committee the responses of the DTI to the submissions made on the Legal Metrology Bill.

On general issues, Dr Demana explained that both Klerkscale and SAGI were concerned with the lack of the Department’s consultation on the Bill. The DTI replied that workshops were held in Cape Town, Durban and Johannesburg that consulted on the policy proposal named “The Move from Trade to Legal Metrology.” Once the Parliamentary process was completed, the DTI and the National Regulator for Compulsory Specifications (NRCS) would undertake an awareness campaign to inform all parties.

Clause 4
The South African Council of the Scale Industry (SACS) were concerned that the NRCS should not be involved in verifying measuring instruments as it could result in a conflict of interest. Rather, they suggested that it should focus on supervising laboratories and end users in the industry. SACS suggested clarifying some wording from clause 4(1)(f) and verifying measuring measurements from clause 4(2) (d).

Dr Demana replied that the NRCS fulfilled the verification function when the sector was not willing or able to, which was mostly the case in rural areas due to cost or lack of verification bodies. As a regulator, the primary responsibility of verification remained with the NRCS.

Clause 7
Klerkscale stated that the relationship between the repairer and the verification officer must be clearly defined to determine future operations. It was argued that separation would involve substantial direct costs as well as create an administrative burden, which would mainly affect smaller companies.

Dr Demana explained that the Bill did not require the two functions to be separated; however, the Bill enabled the Minister to prescribe requirement to restrict verification officers from repairing prescribed measuring instruments in certain scenarios. This segregation was to be implemented in particular situations where new fields of measurements were added.

Clause 9
Alec Stoltz, in his submission, was unclear as to why all repair bodies should be designated by the CEO.

Dr Demana replied that all repairers should be registered in order for the NRCS to have control over all repairers so that NRCS can ensure that the rules were followed.

Clause 10
Alec Stoltz commented on clause 10, which had to do with the registration of persons responsible for repairs, and proposed some changes. The suggestions on clause 10(1) said that the Chief Executive Officer may, in the prescribed manner, register any person who had the prescribed competencies and who wished to issue a guarantee as provided for in section 27(2)(b), as a person responsible for repairs of any particular kind in accordance with this Act. The suggestions on clause 10(2) were that the Chief Executive Officer must furnish a person registered under subsection (1) with a certificate stating that such person may undertake repairs in terms of this Act.

Dr Demana replied that the DTI did not agree with this submission. Dti stated that it was more important to register the person, as he or she should know that he or she should leave the instrument complying with all types approved requirements, and not fit unapproved components which would not be picked up during the verification process.

Clause 11
The South African Geomatics Institute (SAGI) commented that geomatics measuring professionals should not have to be re-licensed in terms of this Bill. Furthermore, Woolworths was also concerned with this clause and commented that that proposal to register all products would place an administrative burden on retailers and would impact consumers through added costs.

Dr Demana replied to SAGI that since they were responsible for measurements, the Bill and its registration process implicated them. As for Woolworths, there was a misunderstanding, as the Bill did not require the registration of products, but that of role-players.

The Chairperson interrupted the reading of the responses and she was concerned that the Committee was not fully grasping some of the concepts. She expressed that not everyone present had expertise in matters relating to Legal Metrology and simply reading the responses of the Department to the submissions was not at all sufficient. She requested that the Department provide the Committee with tangible examples in order to enhance their understanding and grasp the concepts.

Mr Jaco Marneweck, Senior Manager: Inspections, NRCS, told the Committee that he would provide examples. He started with the issue of segregation of functions. The submissions made showed concern regarding the segregation of repairing and verifying as it was expected to increase overhead costs and to also work against the benefit of small businesses. The Amendment stated that segregation was up to the discretion of the Minister on a case-by-case basis. He provided the example of a tot, which was an example of an easy measurement that did not have any further implications. It was a very simple instrument to use and required a fairly basic process. As such, this particular form of measurement did not face segregation in functions. This meant that the same individual who performed the repair was able to perform the verification. On the other hand were instruments such as those used for measuring blood pressure and they could have further implications if they were not repaired and verified properly. As such, he explained that it was the responsibility of the Minister to assess the importance and the degree of impact of each instrument and based on this assessment, decide if the repair and verification process required segregation.

With regards to issues on land, Mr Marneweck explained that it was a very sensitive matter that required great attention. Because the measurement used for land is a length measurement, it fell within the scope of this Bill. However, that was not to say that there were no other Bills that included requirements on the matter. He explained that it was required by government to have an overarching Bill that brought together all matter of Legal Metrology. As such, land measurement was required to be in the Bill. The instruments used to measure land by Geomatics will be verified under a very strict process in order to guarantee that land measurements were accurate. Furthermore, he explained that the Metrology Bill took into account the requirements made in other legislation and was conducted in consultation with them. Ultimately, the role of this Bill was focused on the technical aspects of measurements. He explained that the aim was to ensure that whenever an instrument was used to measure a piece of land, that it was accurate.

The Chairperson sought clarification on the submission made by Woolworths about registration of products.

Mr Marneweck explained that the Bill only sought to register the role players. In this regard, role players included manufacturers of products or providers of a service. He explained that one of the biggest shortcomings in the old Act was that there was never a requirement that an operator within the scope of Legal Metrology need to be registered. Therefore, NRCS did not have a scope of the operators of South Africa or who they were required to operate. The implementation of this Clause was to enable the NRCS to establish a regulatory model based on the various operators.

Dr W James (DA) pointed out that Woolworths misinterpreted the intention of the Clause and that he was now very satisfied with the clarification.

Mr X Mabasa (ANC) asked that if all instruments were administered and verified within the regulations of the NRCS, would unresolved issues then be resolved?

Mr G Selau (ANC) noted that quality control must begin with the manufacturer of the instrument; as such, what specifications were in place to ensure that those qualifications were being met from the early stages?

Mr Marneweck replied that the process of legal metrology begins when legal metrology is made a technical regulation. During the entire process, all manufacturers and role players at large were included in the discussion and were consulted. Only when all role players were consulted, was the process continued. With regards to the instruments specifically, there was market surveillance done on the matter.

Mr Z Wayile (ANC) asked if Clause 27(2) on the segregation of repair and verification functions, did not lead to a conflict of interest. He noted that there also needed to be a balance established between the administrative and regulative aspects and the needs of the consumer.

Mr Marneweck replied that this section meant that the repairer and verification officer may work for the same organization, provided that the person who repairs or verifies carried the necessary qualifications and was deemed competent. In addition, that person was required to be registered with the NRCS and the organization he/she was working for was also required to be registered.

Mr G Hill-Lewis (DA) asked that when other agencies were licensed or empowered to issue certificates, was it the agency or individuals within the agency that were empowered to do so?

Mr Marneweck replied that it was the organization itself that was assigned for that role but the personnel within the organization must be registered.

The Chairperson was concerned on who was to conduct all the work when there was currently not enough staff as it was. There was no mention of a plan for internships or vacancies.

Mr A Moodley, CEO at the NRCS, replied that in the current organizational structure, there was a position for candidate inspector, whereby a lot of people are trained as candidate inspectors. There were also discussions taking place with the human resources team with regards to the implementation of the internship programme. Furthermore, the board was looking carefully at the inspection for the surveillance capacity, in order to potentially incorporate the private sector inspectors.

Public Submissions on the Traditional Knowledge Private Members Bill (P
The Chairperson officially welcomed the return of Dr Oriani-Ambrosini and expressed the Committee’s great delight at his return.

Dr W James (DA) presented a brief summary of all the public submissions made on the Traditional Knowledge Bill. Firstly, the Law Society of South Africa stated that it had consistently opposed the principle of the Bill that proposed to protect Traditional Knowledge (TK) by way of inclusion in, and amendment of, existing Intellectual Property (IP) Acts. They argued that TK did not simply equate with conventional forms of IP and the requirements of IP Acts. Furthermore, the Law Society argued that other countries in South Africa adopted their own sui generis laws to protect TK and it was appropriate for South Africa to come in line with these countries. A second public submission came from the National Indigenous Knowledge Systems Office (NIKSO) at the Department of Science and Technology which stated it was in a position to accept the general intention of the Bill but did not necessarily agree with it.

Dr James continued with the submission made by Edward Nathan Sonnenbergs. This submission argued that any bill dealing with TK recognizes the importance of TK and that it should be an independent bill. It was urged that Parliament did not attach such an important Bill to other existing Acts such as IP Acts as it was in their view that the whole concept of Traditional Knowledge was in conflict with IP pillars. From the Competition Commission of South Africa, it was noted that the Protection of Traditional Knowledge Bill (PTKB) provided a dedicated piece of legislation that intended to recognize and protect traditional or indigenous knowledge. Ultimately, the Commission embraced the spirit of the PTKB as legislation that sought to protect TK but the Bill did raise some competition concerns. Another submission was made by DM Kisch Incorporated who fully supported the overall intention of the Bill to provide sui generis protection for TK. However, they argued that the Bill took the wrong approach by linking much of the protection and making much reference to the existing IP Acts. Furthermore, they noted that on an international level, the term “Traditional Knowledge” was incorrect as it was used to refer to the technological traditional matters only; whereas “Folklore” was used internationally to refer to all other aspects of ceremonies, music, songs, poems, designs, etc.

Dr James also referenced the submission made by Bryce Tyler Matthewson who argued that the South African legislature had a duty to provide adequate means for the protection of TK and that it was widely acknowledged amongst academics that the existing IP regime was inappropriate for the protection of TK due to its unique characteristics. Mr Matthewson noted that it would be inappropriate for South Africa to adopt an approach that was contrary to what was being promoted at the international level. As such, a sui generis approach to the protection of TK was the right approach as it was supported at both the national and international levels. A submission by Jean Mcivor noted that SA has the potential to be a front-runner in the field of TK but this was only possible once the legislation had the support of all stakeholders. Jean Mcivor further explained that the proposed amendments to the existing statutes would lead to uncertainties as well as collateral damage to both the existing laws as well as the present objectives.

In a similar sense, Dr James explained the Dramatic Artistic and Literary Rights Organisation Limited also welcomed the fact that the PTKB set out to provide sui generis protection. They were also aligned with other submissions in the argument that the existing IP law frameworks cannot be appropriated for the protection of traditional works. Several other submissions were made with similar arguments (see documents).

Prof Owen Dean, Head: Anton Mostert Chair of Intellectual Property Law, Stellenbosch University, presented on why the PTK Bill was the preferred option. He explained that TK was a new member within the IP family but required its own customized statute. The sui generis TK Act enabled TK to be properly dealt with as a unique and special form of IP and treated TK as property of equal status to patents, copyright, etc. Essentially, the PTKB was preferred as it was customized legislation dealing solely with the protection of TK and treated TK as an independent member of the IP family. Moreover, the PTKB was designed within the parameters of the Intellectual Properties Laws Amendment Bill (IPLAB) in order to achieve similar objectives; however, it did not attempt to enforce a joining of TK and IP. Prof Dean noted that the PTKB included very important elements such as ownership, duration, scope of rights, enforcement, licensing, register and institutions. In a comparison between IPLAB and the TK Bill, he noted that the PTKB was more than possible to succeed in practical terms whereas IPLAB was less likely to succeed. As such, he recommended that the PTKB be amended according to the public comments and thereafter approved. Lastly, he noted that from his meeting with the National Council of Traditional Leaders, it appeared as that they did not want IPLAB.

Prof Caroline Ncube, Associate Professor, Department of Commercial Law, University of Cape Town, presented to the Committee on global and regional approaches to the protection of TK. She explained that in setting an appropriate approach for South Africa, it was important to look to global and regional approaches as SA’s approach needed to be compatible with regional and international stances in order to achieve coherence and integration. In this sense, the international approach had been sui generis, which was what the PTKB was based upon. Furthermore, as an observer at the African Regional IP Organisation (ARIPO), it was important for South Africa to coincide its approach to TK with what was done in the region. To conclude, she argued that the PTK Bill was compatible with South Africa’s position in Africa and was consistent with the current sub-Saharan African position.

The Chairperson decided that due to the lack of time and in order not to compromise engagement with the Bill, discussion should be postponed for a later meeting.

Budgetary Review and Recommendations Report
Ms Margot Herling, the Content Advisor, presented the latest draft of the Budget Review and Recommendations Report (BRRR). Members alerted Ms Herling to some technical errors in the Report and various changes were made accordingly. In a substantive matter, the recommendations made by COPE were removed from the report as it was argued that these recommendations were for matters that took place in the new 2014 financial year, which began after March 2013.

The Committee adopted the BRRR on the basis that the changes would be completed before publishing the report.

The meeting was adjourned.

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