Protection of Traditional Knowledge Private Member's Bill [PMB3-2013]: input from Department of Trade & Industry & Parliamentary Legal Advisor

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Trade, Industry and Competition

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

Dr James presented his Private Member's Bill, namely the Protection of Traditional Knowledge Bill, with the support of an expert in intellectual property law. The Committee was briefed on the differences and similarities between this Bill and the Intellectual Property Law Amendment Bill. The former was based on cultural knowledge, made the community the owner of such knowledge, provided for a Trust Fund if the actual author of a work could not be identified, provided for a simpler and less formal registration process, and placed an obligation for royalties to go back to the community. The Intellectual Property Law Amendment Bill was described as being more focussed on copyright and design. Works had to be reduced to material form to be recognised and would have to be clearly original. A separate application was needed for each design, which would prove to be expensive. The state could expropriate property rights. The process of claiming royalties was cumbersome and there was no guaranteed that royalties would go back to the community.

Prof Owen Dean, Chair of Intellectual Property Law, University of Stellenbosch, said that a specialised Act was needed with appropriate provisions to apply to the separate concept of traditional knowledge. A traditional design could never meet the test of novelty, which was why a separate piece of legislation was needed. This was what was meant by sui generis. A custom-made piece of legislation was needed to deal with this concept. The World IP Organisation (WIPO) had said that the sui generis route should be followed. Square pegs should not be forced into round holes. The Intellectual Property Laws Amendment Bill was fundamentally flawed. It was trying to achieve the impossible. Its principal Act was designed for a completely different purpose.

Members said that there were many embellishments brought about with traditional works. Members questioned the ownership of the Bill, as the expert had been quoted as claiming it as his own. The expert clarified that he had drafted the Bill initially, and had prepared it for presentation on the request of the Democratic Alliance. The expert said that the definition of community was a difficult one, and the two Bills took different approaches. Members commented that there was a problem with the state making laws that it could not monitor. Members felt that fines should be paid to the community. The country was still marked by the damage inflicted by years of colonialism. Members questioned how protection could be afforded without registration. While neither Bill made provision for criminal sanctions, the Protection of Traditional Knowledge Bill would make provision for a community to designate an organ of state to enforce their rights on their behalf. Foreign works should be afforded the same protection.

The Department of Trade and Industry responded to the presentation. It felt that the Bill was following the wrong approach. A historical background to the intellectual property legislation was given. It felt that intellectual property protection was a suitable way to defend indigenous knowledge, an opinion based on international and local expert opinion. The Bill was criticised as being an unsuitable vehicle to protect indigenous knowledge. The Department labelled the Bill as an attempt to misappropriate indigenous knowledge in a disguised way. The Department would not support the Bill.

Questions were posed that would only be answered the following day. The drafters of the Bill responded that the Department was reading things into the Bill that were not there. Many experts had damned the Intellectual Property Laws Amendment Bill as being flawed, and it had been subject to lengthy delays. After five years it had still not been enacted. The Chairperson said that the world was waiting to see the South African legislation. She acknowledged there were many pitfalls. WIPO had made progress, and was in communication. The tabled PMB could not be ignored. It had to be treated with the necessary gravity by all interested parties. Fresh information had been presented, but this might not change one's taste. She noted that the Intellectual Property Laws Amendment Bill was now Parliament's bill and not that of the dti.

Meeting report

The Chairperson welcomed those present. Dr James would be presenting a Private Member's Bill. It would be appropriate that Dr James sit on the side of the room reserved for presenters rather than with other Members while this matter was discussed. Apologies were tabled and the agenda was adopted. Ms Fubbs excused herself for a while for another meeting and Mr Gcwabaza took the Chair temporarily.

Presentation on Protection of Traditional Knowledge Bill
Dr W James (DA) said that the proposed Protection of Traditional Knowledge (PTK) Bill would be in place of the Intellectual Property Laws Amendment Bill (IPLAB).

Prof Owen Dean, Chair of Intellectual Property Law, University of Stellenbosch, said that what was really being addressed in the proposed Bill was cultural knowledge. The principal kinds of works considered by the IPLAB were copyright issues and registered design. The PTK, which he termed the "James Bill", dealt with similar matters in a different way.

Prof Dean said that Ndebele art was a good example. There could be copyright and design issues. Under the "James Bill" this would be termed a traditional work. IPLAB dealt with copyright as it existed in a material form or was capable of substantiation from collective memory. The work had to be original. In traditional work, he did not think this test could be met. The work must be indigenous. The community was both the owner and author of the work. The community was deemed to be a juristic person. Where the author could not be determined, the Trust Fund created under the Act, essentially the state, became the owner.

Prof Dean said that protection existed where certain conditions were met. It must exist in a material form, be recognisable as being from a community and the person nominated by the originating community could nominate the owner of the work.

Prof Dean gave some examples of design in the form of shoes and bangles. The IPLAB said that each design must be registered separately under the Copyright Act. A separate application was needed for each application. This could cost up to R10 000 for each application. An aesthetic design must be clearly new. He did not know how an indigenous item could be regarded as new. It also had to be original

Prof Dean said that under IPLAB the state could expropriate a design. Under the "James Bill" design was understood to exist immediately provided certain conditions were met. There was no requirement for registration, originality or novelty. Under no circumstances would the state own a design.

Prof Dean said that both Bills made provision for licences to be granted to third parties to use the items on payment of royalties. Under IPLAB, an agreement had to be submitted and approved by government in advance. This was a cumbersome process. Under the "James Bill" the procedure was very informal, and verbal authority could be given.

Prof Dean said that both Bills made provision for royalties. Under IPLAB, there was no guarantee that any royalties would be paid to the community concerned. According to the James proposal, the trust fund would be obliged to pay the money to the community. The community could own the items they created and should reap the benefits they deserved.

Mr G McIntosh (COPE) said that in certain colours there were traditional colours, such as blue and white in Pondolond. There were certain forms of dress used in specific communities. There were special names for the traditional items with a related cultural expression for various traditional items. While retaining the general form, different clans added all types of embellishment to their costumes. He asked how PTK would handle this situation.

Mr B Radebe (ANC) said that Prof Dean had visited the Committee when dealing with the IPLAB, At the time he had said that the PTK Bill was his idea and not that of Dr James.

Mr G Selau (ANC) asked how 'community' would be defined. An item might belong to a particular village, but not all would be vendors. There was a kind of dress known as seseshwe throughout South Africa, and was a traditional attire of the Basotho people. The use of a blanket as a jacket was particular to this community together with typical styles of headgear. The whole of Africa understood these to be the designs of the Basotho. There were also traditional Zulu dress styles. The Zulu people considered this to be the intellectual property (IP) of all Zulu people. His second question was on the role of the state. It was a problem that the state could make laws which it could not monitor. The implementation could not be left to chance, and the state had to play a role in this. What was more important was that the presentation made by Prof Dean was not designed in a manner that the two Bills could easily be compared. It was at too high a level for scholarly comparison, and was not easy to follow.

Rev W Thring (ACDP) said that his party had long spoken about restorative justice. Fines imposed by bodies such as the competition tribunal should find their way to the communities affected, and there was a similar concern over the royalties due to the communities.

Mr Z Wayile (ANC) said that Members had been exposed to international experiences. South Africa had its own history and some traditional values had been undermined. There was now a transitional process. Not all the damage done during the colonial years had been repaired. An impression was being created that South Africa seemed to have a grey area in terms of national identity and the uniqueness of the nation. South Africa had eleven languages and related cultural dynamics. The Xhosa people had different clans, and the clans sometimes had their own unique cultures. In some areas in the Eastern Cape, culture had been violated due to ignorance. People were not always aware of the commercial aspects, and stole the property of the community.

Mr D Swanepoel (ANC) noted that the "James Bill" had no registration requirement. Without registration he did not know how an item could be deemed to be protected. Perhaps there might be some lesser form of recognition than the normal copyright system.

Dr James had introduced the Bill in Parliament, and it was thus a Private Member's Bill (PMB) under his name. Prof Dean had assisted him and had been the principal drafter.

Mr Radebe said that it was an abnormality that Prof Dean had claimed the Bill for himself, as reported in the press.

Ms Fubbs had returned to the meeting. IPLAB had been introduced by the Ministry. There seemed to be a statement that Prof Dean had claimed the Bill as his, but Dr James had explained the situation.

Dr James confirmed this.

The Chairperson had not seen this in the press, and could have been published on the newspaper's website.

Mr Radebe was still not satisfied. It would set a bad precedent if private citizens were seen to be using Members as conduits to create their own Bills. If Prof Dean had been misquoted then this must be put right.

The Chairperson instructed the Committee Secretary to obtain a copy of the article in question.

Prof Dean replied that he had done the initial draft of the Bill in 2010. When IPLAB was before the Committee he had appeared before the Committee in three different capacities. He had argued that IPLAB was not good legislation and had pursued the argument. He later illustrated his argument by drafting a Bill which he gave to the Committee as an example of what was meant by a sui generis bill. Some two years later the DA had asked him to assist with drafting a PMB. He had suggested that the draft used then be used as a starting point. If the newspaper had quoted him, then he had said that he had conceptualised the Bill but the decision to introduce the Bill was that of the DA alone. He was not a member of the party.

The Chairperson said that the draft bill could not be accepted at the time. She now had a reasonable explanation on record and would pursue the matter of the newspaper article later.

Prof Dean replied that registration could play two roles in this kind of situation. The first was the registration to create the right. Patent legislation was an example of this. This was only granted when the application was filed. The other type was a catalogue of facts. The "James Bill" made provision for this type of voluntary registration. Any person laying claim to such a traditional item could record his ownership. This would be prima facie evidence that could be used in court. IPLAB would make it necessary for registration to take place to create the right. There was no design right until it was registered. The "James Bill" said that there must first be an existing article. While it may be common knowledge that a certain community had a particular style of dress, the registration would be purely for record keeping.

Prof Dean said that the definition of 'community' was a difficult one. Countries around the world had struggled with this. Both Bills had definitions of 'community' but it was difficult to pin down. He read the definition contained in the "James Bill". The IPLAB definition was different but on similar lines. If some grouping of people had an item which they felt particular to them, they could register this.

Prof Dean said that neither Bill provided for criminal sanctions. Only the civil law could be invoked. Owners of property would have to enforce their rights through the courts where necessary. The state provided the courts. The "James Bill" made provision for a community to delegate its civil law rights to an organ of state. There was an enforcement division within the Department of Trade and Industry (dti) which should be empowered to do this, relieving the community of the burden. Communities might otherwise feel helpless to enforce their rights. He was not aware of any similar provision in IPLAB.

Prof Dean admitted that IP law was a complicated area. He felt that the layout of the presentation was a clear enough comparison. One needed a good knowledge of the statutes involved, and he felt that IPLAB was lacking. There was only a handful of lawyers who properly understood this area of legislation.

Prof Dean said that there was applicable international treaty. Each signatory to the convention had to introduce enabling legislation. Foreign works had to be treated in the same way as domestic works. Each country would adopt its own traditional knowledge legislation, and would have to provide what was termed 'national treatment' to foreign works. Such legislation had to be in accordance with the treaty. A sui generis piece of legislation was needed to keep the South African legislation in line with the treaty, and IPLAB would not achieve this.

Prof Dean said that there could be rights in artistic design if everyone accepted that these rights were characteristic of the originating community. One of the strengths of the "James Bill" was that it set the requirement for protection as the practical test. IPLAB would require the applicant to show that a design was new at the time of application. The applicant would also have to prove that it was original. There was much more complex and unworkable.

Mr Selau said they had not had an opportunity to read the document before the presentation had been made. He had now looked at it. In many cases the difference was merely a matter of detail. He found three serious differences.

Dr James felt that Mr Selau was using the document circulated by the dti. There was a single document outlining the difference between the two Bills. It had not been distributed to Members yet.

The Chairperson felt that this was a serious omission from a Member of the Committee who should know how much timely distribution of documents was needed.

Mr Wayile said that laws were made in a particular context. Society and the law were not static. The South African context had to be taken into consideration. There was a history of colonialism. As government sought to redress these imbalances, government had to ensure that the law was understandable. There must not be an impression that there was something above society. The law should empower people. There were different roles to be played in society. People who stood to benefit should understand their own destiny so that they could preserve what belonged to them.

The Chairperson said that the Private Member's Bill should correctly be referred to as the Protection of Traditional Knowledge Bill. She asked what protection the Bill would offer for design.

Dr James responded that the complexity of law was a test applied to every law. This Bill was no more complex than any other law.

Prof Dean said that one must distinguish between creating and enforcing a right. The examples raised by the Chairperson of spending millions of Rand in following up on products such as rooibos tea and the song 'The Lion Sleeps Tonight" were an enforcement issue. In fact, he had handled the latter case. Solomon Linda had written the song but had given the copyright to Gallo Records. When a copyright or any form of IP right was given away there was no longer a claim. Mr Linda has given up all his rights for the original song. In trying to get some relief for Mr Linda, a colonial British statute had been invoked. This made provision for the copyright to revert to the heirs of the creator 25 years after his or her death. The PTK bill would create the right. Property would be given to the communities, but they would have to fit into the system for enforcement. This would have to be through the courts, and would be expensive. This was why the PTK Bill would allow a community to delegate its enforcement rights to a state department. There was no equivalent provision in IPLAB, unless the state had appropriated the property from the community. IPLAB would leave it up to the community. The design mentioned by the Chairperson might have been an adaptation of Ndebele artwork, and if the PTK Bill had been in force at the time the community would have been able to apply for royalties.

The Chairperson said that the dti and some of the submissions had been that a form of adaptation might be seen as insulting. She asked where the line would be drawn. She had hoped to have heard how the PTK Bill would have guarded against that. The Afro-centric approach should not be lost. The case of rooibos tea was an example.

Prof Dean replied that the PTK Bill would create property rights and design rights. In adaptation, a new form of property was being created. The proprietor could exercise exclusive rights. There was a bundle of rights, including reproduction, publication, public performance, broadcasting, adaptation and distributing copies. The owner would have the exclusive right to perform these activities. The right created by PTK would be as good as any other right compared to a trademark or a patent. It was a complex subject. He showed a copy of the draft Bill, which contained all the applicable information. IPLAB was an extremely complex document that would be hardly understandable to communities.

The Chairperson asked how many Members had visited Geneva. The issue of sui generis legislation had been tackled. She was surprised to hear that there were many nuances to this. Several workshops had been involved, with the assistance from local and overseas experts. She was still not fully convinced that IPLAB was the right "sui generis" route to have followed. Not all the Members were familiar with IPLAB. PTK did bring a fresh approach. She asked Dr James to forward the comparative document for distribution to Members. If possible she would like Members to deliberate on the PTK the following day.

Prof Dean was surprised to hear that that someone thought that there was more than one interpretation to sui generis. This denoted that the Bill was custom designed to deal with a certain type of property. The first type of IP legislation was patent legislation, followed by copyright. Lawmakers at the time might have thought that the Patents Act could have been amended to accommodate copyrights. The same could have been done for trademarks, and then designs. However, legislators were wise enough to realise that specialised Acts were needed. Appropriate provisions were needed. Designs had a lot in common with patents, but legislators had felt it fitting to have separate legislation to deal with the new concept. The PTK Bill would carry this process forward. The same should apply to the separate concept of traditional knowledge. A traditional design could never meet the test of novelty, which was why a separate piece of legislation was needed. This was what was meant by sui generis. Generally legal experts had found IPLAB to be flawed. A custom-made piece of legislation was needed to deal with this concept. The World IP Organisation (WIPO) had said that the sui generis route should be followed. Square pegs should not be forced into round holes. Judge Harmse had said that the IPLAB was fundamentally flawed. It was trying to achieve the impossible. The principal Act was designed for a completely different purpose.

Dr James said that legislation was normally introduced by the Minister and would be presented by the relevant Department's legal team. He was introducing the Bill. There had been many favourable comments when it had been introduced. Various government entities had also expressed their compelling support for this approach. This option was a simpler and more consistent way of ensuring that communities received what was due to them. Prof Dean and Dr Ncube would be unable to attend the meeting the following day.

The Chairperson said that it was difficult to accommodate different requests due to pressure of time. It was important to make a start.

Prof Dean felt strongly on this matter, and undertook to cancel his prior arrangements in order to attend the Committee.

Input from the dti on PTK Bill
The Chairperson understood that the input would be a preliminary one.

Ms Zodwa Ntuli, Deputy Director-General (DDG): Consumer and Corporate Regulation Division (CCRD), the dti, was grateful for the opportunity to provide an input. Ordinarily this was not a right that the Department could claim. Difficult issues had been raised in the Bill, but these had been dealt with in 2010. She was grateful that the Committee had taken the approach that they had in considering the IPLAB. She thought that PTK was following an incorrect approach and would not consider the technical aspects.

Ms Ntuli said that it was important for the state to offer protection. Legislation was in response to problems. She was pleased to see the Ndebele art depicted as this was her culture. The origin was clear but the originators were not credited. Some designs could only be used by the royal family. She understood why protection was necessary and why the government had adopted policies accordingly. Some aspects were confusing. She noted that some confidential documents had been circulated. This impacted on the contractual arrangements with the contractor in question. Shw was referring to the Regulatory Impact Assessment (RIA) document. Permission had not been granted to circulate this. The dti had indicated that other mechanisms could achieve the same function as IPLAB, but this had been drafted to recognise the commercial aspects. There could be proper coordination. The dti had never been under the impression that the IP aspects would protect all aspects of traditional knowledge. Another Department could have introduced legislation to protect traditional knowledge. IPLAB would not resolve all the issues. The IP system should exploit indigenous knowledge, and this gap should be closed. Every law was informed by circumstances. The law addressed problems being experienced at a particular time. Traditional knowledge continued to be stolen. While the IP laws needed to be updated, certain areas needed to be expedited. The Patents Act had been amended. All of the other laws needed to be amended in time. It was sad that there were delays for valid reasons, but the theft continued

Ms Ntuli said that South Africa paid its membership fees to WIPO. There had been an impasse over indigenous knowledge (IK) since 2000 despite an agreement to work on the text. The process was continuing. To say that there was an agreement to take a particular route at WIPO would be misleading. She had never seen a submission that IPLAB was in conflict with WIPO.

Mr McDonald Netshitenzhe, Chief Director, Policy and Legislation, CCRD, the dti, had read the Bill and IPLAB. The latter had been redrafted and was now the Committee's Bill. The original version of IPLAB had been flawed. The dti had gone to the National Economic Development and Labour Council (Nedlac) for comment. Dr Dean had come with a Bill which was supposedly an improvement. He did not want to mislead the Committee, but the Bill presented by Prof Dean had been rejected. At WIPO in 2000 a letter had being written by the UN Environmental Programme. When professors were enlisted to assist communities with diseases, they took patents and no longer shared the innovations with the community. The issue of protecting IK had started there. This had also gone to the UN organisation for food and culture. The conclusion had been that IP laws could be used to protect IK. The issue of protecting IK was not peculiar to IP but could come from various areas. The dti had chose to approach Parliament to outline the difference between IP, IK and folk lore. It was up to the Committee to chose the appropriate term.

Mr Netshitenzhe said that 'Traditional Knowledge' had been the first term chosen. The then Department of Arts, Culture, Science and Technology (DACST) had reminded them that the policy of 2004 spoke to IK. In 2000 the dti had started a process with an inter-departmental committee led by DACST. The document that emerged gave the dti a mandate to protect IK according to its own mandate. The mandate of the dti was IP. A Frenchman or other foreigner should not expect protection of his traditional knowledge.

Mr Netshitenzhe said that the Patents Act had been amended in 2005. In 2007 the dti had written the policy for the protection of traditional knowledge through the IP system. In 2004 developed countries had urged other to develop their policy at home. A national position was needed before undertaking international negotiations. WIPO had a voluminous text to act as a guideline. The mandate for the dti was to determine if the benefits outweighed costs. Rooibos products were being exported but there was no benefit to the country. R2 million had been given to the Khoisan descendants to defend the case in America. WIPO was a United Nations agency with a mandate for nothing but IP. It was not in their mandate to pronounce on traditional issues.

Mr Netshitenzhe had a problem with Parliament describing the Bill as flawed. Two experts from the same university had different opinions. In law there was a case for both a majority and a minority opinions. Judge Farlam had given an opinion that it was possible to protect IK using IP rights. This Bill had not gone to the Constitutional Court for justification. A string of countries used IP to protect traditional knowledge. Derivatives were taken from the original using an innovative process. He failed to see the same clause of appreciating local communities in the PTK. The PTK would not stop the issue of bio-piracy.

Mr Netshitenzhe said that it was not true that everything should be reduced to materiality. He quoted an example from Indonesia which said that not everything had to be in writing. In the Berne Convention there was also provision for unwritten agreements. Both sides of the argument should be presented to the judge. Traditional knowledge should be seen as a standalone issue. He did not want to see informal arrangements as the power relations were not the same anyway. A German company had discovered a medicinal plant and patented it in Switzerland. The community had come to the dti and asked them to intervene. Rooibos had been registered by a South African in the United States of America (USA). The arguments were becoming circuitous. The dti had not wanted to compare the two Bills, but IP rights were being used to steal the traditional knowledge.

The Chairperson noted that the majority of the current Members had not been serving on the Committee when the process had started in 2010.

Mr Simphiwe Ncwana, Director: Commercial law and Policy, the dti, said that the PMB sought to introduce a new category of IP. A new registration office of traditional knowledge would be established. There were already tried and tested methods of protecting IP. There was enforcement legislation in place. The Bill sought to provide protection for works reduced to material form.

Mr Ncwana said that chapter 1 of the Bill sought to limit the period of protection. The knowledge should remain in the community domain. By imposing a time limit, traditional knowledge would be eroded in time. The IPLAB provided for registration. The licensing should be in a pure form. If more than one person used traditional knowledge then all should make a contribution.

Mr Ncwana said that the PTK would make provision for all rights to lapse if one person registered a right. The dti believed that there was only copyright in the cinematographic arena. The traditional knowledge would revert to the community. Creative work would revert to the community fifty years after the death of the creator, but original work would always remain with the community.

Mr Ncwana said that the PTK would make provision for the lapsing of traditional trademarks. The dti felt that trademark protection could not lapse as it should subsist indefinitely.

Mr Ncwana said that PTK would make provision for the establishment of an office for the registration of traditional knowledge. The dti believed that the Bill did not focus on the commercial aspects but only sought to use the IP in a limited manner that would take away the commercial rights currently used when misappropriation took place.

Mr Ncwana concluded that traditional knowledge could be protected in several different ways. IP was cross-cutting in its nature and the dti had been given the mandate on IP matters.

Mr Ncwana said that the main focus of the dti was commercialisation by using the IP system. Co-operation between different departments would ensure effective protection. The proposed Bill would pay lip service to the holders of IK. The PTK would limit the rights of holders of indigenous knowledge would have under current IP laws. The PTK Bill fell outside the focus area of the dti. The Bill was an attempt to extend misappropriation in a disguised form. It would take away all the rights of IK holders on registration. Appropriate legislation would enhance protection of IK.

Ms Ntuli said that the dti had deliberately chosen not to compare the Bills directly. The issues of licensing had been raised by Prof Dean. This informal process was a trap. People would prey on the community and perpetuate the abuse being addressed. Vulnerable communities would not be able to protect themselves fully, and the state would have to intervene. The state had to be involved in negotiations to mitigate against power imbalances. In all policy intervention where there was vulnerability the state would afford protection. It was not in the interests of the communities to make informal arrangements. The thick book shown by the Professor should not be so complicated. The law had to be understandable. IK had been abused for years. The practicality had to be assessed. The dti had seen the abuse and misappropriation. The theft would be stopped even if it was not a perfect solution. The IP system was allowing the abuse. IK was not the 'new kid on the block'. It fell under IP. Prof Conrad Visser had covered a whole lot of international experience, ad how IP had been used to protect IK in other countries effectively. Tweaking the IP law system should achieve the goals. New legislation would have to look at the gaps that IP could not close. The role of the state was to educate and protect the community. In fact, the Companies and IP Commission (CIPC) had already made plans for this and a budget was in place. The systems were in place

Ms Ntuli said that Prof Dean had raised the point of the difficulty of defining a community. For a community to be protected they should not be put in a box. If they could not create a Trust the law should step in to declare a legal entity. The error was in forcing people to fit into the law. Where a system or a practice could be recognised the law should allow for this. The courts were there to interpret the law.

Ms Ntuli said that it was not true that the IPLAB had no mechanism for protection. There was a function in CIPC. Counterfeit goods were seized all the time. Dr James had referred to policy bases. She would like to see the policy basis and the regulatory impact of the PTK Bill. If there was no cost effectiveness study this could not be determined. This might give a better picture. At present she was only seeing arguments. The experts had addressed the Committee. WIPO had been consulted. The dti had done its duty on this Bill, and it was the same Bill as had been offered in 2010.

The Chairperson suggested that Members pose questions, but the answers could be presented at the meeting the following day.

Prof Dean would like to comment more comprehensively the following day. Listening to the comments of the dti, he felt that much of what had been raised such as rights lapsing upon registration, were not to be found in the PTK. There was no provision for registration. He requested that the criticisms of the PTK refer to specific sections. It seemed that the dti was proceeding on the assumption that IPLAB was an IP Bill while the PTK bill was outside the IP spectrum. Many of the principles applied equally to the objectives of the PTK Bill. PTK was as much about IP as the IPLAB was.

Dr James said that there was nothing in either IPLAB or PTK dealing with bio-piracy. He knew something about the patenting of pharmaceutical products, and this had also nothing to do with bio-piracy. He had found the presentation incoherent. It was immensely costly to pass a bad law, which he believed the IPLAB to be, and fix the consequences than it would be to get it right from the start. IPLAB had been floating around for five years. He believed that this was because IPLAB was a bad law. There had not been a single comment questioning the quality of the PTK Bill.

Mr Radebe said that universities had arrived at different opinions. This was a normal academic tendency. One of the best expositions made was from Prof Visser. IPLAB had been suspended purely on commercial grounds. Commercial interests from outside the country had said that IPLAB would not be a reality before 2014. He would like to see the monetary aspect quantified. Parliamentary process should be followed.

The Chairperson felt that it would be counter-productive to continue given the late hour. The IPLAB had been returned for three reasons. The Committee had said that it was not a money bill, but the President had decided otherwise. The tagging issue had been raised, and the issue of the referral to the National House of Traditional Leaders (NHTL). The President's constitutional advisers agreed that it was not a money bill. However, the tagging had been incorrect. After legal advice had been taken, she had been told that it was correct to sign a letter to the NHTL. In fact, the first invitation had to be signed by the Secretary of Parliament. These were not substantive issues, and the work of the Committee had never been criticised. The process of getting the Bill back on track had taken eighteen months. She had not heard any updates on the status for a full year.

The Chairperson had done some research because of the complexity of IPLAB. There were many pitfalls and she had requested the overseas visit in order to obtain more objective points of view. One of the first things said at WIPO was that they were waiting for South Africa's Bill. WIPO had made progress, and was in communication. Adv Alberts had recently visited Geneva, and it was unfortunate that he was not present at this meeting. However, this did not mean that a tabled PMB could be ignored. It had to be treated with the necessary gravity by all interested parties. Fresh information had been presented, but this might not change one's taste. IPLAB was now Parliament's bill and not that of the dti.

The meeting was adjourned.


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