Protection of Traditional Knowledge Private Member's Bill [PMB3-2013]

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Trade and Industry

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

The parliamentary legal advisor provided her comments on the submissions made by the public on the Protection of Traditional Knowledge Private Member’s Bill. In general, the Bill was constitutional with no conflict to any laws and the only concern that was raised that there was a similar law already in Parliament. She argued that there were three major policy concerns that the Committee had to address:
- Whether the protection of traditional knowledge was uncompetitive
- Whether protection of traditional knowledge should be taken out from the umbrella of intellectual property
- What form should the traditional knowledge Bill take (sui generis or not).

Professor Owen Dean, Head: Anton Mostert Chair of Intellectual Property Law, reiterated that intellectual property was a family of property rights, which primarily consisted of patents, trademarks, copyright and designs. Traditional knowledge was therefore a new member of that family; new in the sense that for the first time, there was an attempt to protect traditional knowledge within intellectual property. It was wrong to suggest that somehow the Protection of Traditional Knowledge Bill (PTK) was not seeking to use the intellectual property system, as it was quite the contrary. The main difference between it and the Intellectual Property Laws Amendment Bill (IPLAB) was the question of what form the protection should take. He noted that there was an enormous amount of commonality between the two Bills to the extent that he was in full agreement with the PowerPoint presentation provided by the dti at the previous meeting. He stated that the difference in form was important for two reasons. Firstly, if one was attempting to inject traditional knowledge into the existing statue, then one came up against concept and principles with which traditional knowledge cannot comply. For instance, a design was required to be new and original under the IPLAB; however, there was no item of traditional knowledge that would ever be able to be new and original. The same rule applied to other items as well. As such, IPLAB was fundamentally flawed, as it was attempting to protect things in the statute, which could not be accommodated. This was why he was arguing that a new sui generis Bill was needed where the conditions that must be met for protection, could be customised. He had yet to come across any valid arguments as to why sui generis was unsuitable and was unsure what the issue was with sui generis legislation. He was willing to put his own legal profession on the line by stating that no successful case will ever be brought under the IPLAB.

The discussion resolved matters that were raised in the previous meeting about the confidentiality of the Regulatory Impact Assessment report as well as the ownership of the Private Member’s Bill. The Committee also discussed whether the PTKB should be a standalone Bill or if it should be part of the IPLAB. Concern was also raised that this Bill did not belong in the Trade and Industry portfolio but was more geared towards Arts and Culture. The Committee discussed at length the three policy matters raised by the legal advisor. While progress was made on some of the issues, deliberations were to be continued in another meeting.

The Chairperson opened the meeting with a brief update on the Trade Workshop Committee Report. She stated that every party agreed that something needed to be done about exports, as the country could not carry on building trade deficits. During the brief discussion, Members raised the importance of trade diplomacy and need for the assessment of the impact of the government’s industrial planning policy. Given the time constraints faced by the Committee, discussion on the Trade Committee Report was postponed until a second draft of the report was completed.
 

Meeting report

Deliberations on the Protection of Traditional Knowledge Bill
Adv Charmaine van der Merwe, Parliamentary Legal Advisor, began her contribution with comments on the public submissions that were received on the Bill. In general, the Bill was constitutional with no conflict to any laws and the only concern that was raised that there was a similar law already in Parliament. The Bill did not have many legal concerns, but the few that existed may require a lot of work. Firstly, one of the high level concerns that emerged in the public submissions within several clauses (Clauses 2, 3, 4, 9, 13, 14, 17, 26, 29, 30, 31, 38 and 41) was that the Bill made reference to the Copyright Act. The public submissions stated that if this Bill were to be a standalone Bill, it would be better for those definitional aspects to be also included in this Bill so that it could be read fully by itself. Adv van der Merwe’s office agreed with this submission, as it was preferred that rather than make reference to a current Principal Act, the Bill should provide what was applicable. She stated that it was a necessary exercise to include any protectionist measures that were applicable from the Intellectual Property (IP) Act in this Bill. She stated that the Committee needed to be a hundred percent certain that Traditional Knowledge was as protected as can be should this Bill be implemented. Another aspect was the issue of published versus unpublished work, as from the legal services side, there was a concern that there may be some confusion on that matter. If the legal definition of ‘published’ was taken into account, it became a policy decision.

Adv van der Merwe went on to discuss submissions made with regards to Clauses 2, 3, 4, 40 and 41. There were proposal to align the Bill with the Swakopmund Protocol; however, having read each of these Clauses, she did not see any concern in including them in the Bill. In relation to the Swakopmund Protocol, it was a policy decision for the Committee but the Sections that were quoted seemed to be highly beneficial and she recommended that the Committee considered it. The issues covered thus fair were the legal concerns that emerged from the Bill; however, the bigger issues on the Bill were in regards to policy decisions. These policy decisions included the definitions proposed for traditional customary expression, traditional knowledge, traditional leader, traditional mark as well as the aspect for provision for secret and sacred traditions, reducing traditional knowledge into writing in order to qualify for protection, limitations on youths, the perpetual protection, formalities of the Bill, the creation of a Council, the fund, a separate registrars office apart from the Companies and Intellectual Property Commission (CIPC), alternative dispute resolution and several others. She stated that those were all policy decisions that related to the content of the Bill; but there were also a few other policy decisions that affected the Bill as a whole.

Adv van der Merwe stated that the first policy decision that affected the whole of the Bill was whether the protection of traditional knowledge was uncompetitive in accordance to the comment submitted by the Competition Commission. This was a very significant policy decision, as it would determine whether it should be protected at all. The second policy decision of the like was whether the protection of traditional knowledge should be taken out from under the umbrella of IP. In previous discussions, she indicated that Professor Own Dean said that he did in fact regard traditional knowledge as a type of intellectual property. If that were the decision made by the Committee, it would be a complete departure from the Bill that was currently before the Committee. Thirdly, whether the PTKB sufficiently provided protection for traditional knowledge was another policy issue for the Committee to address. The last policy decision was the fact that there was currently before Parliament, a Bill that dealt with the protection of cultural expressions, which was what was dealt with in the PTKB.

Adv van der Merwe explained that the aim of the document presented was not to provide a comparison; rather, it was her attempt to show Members that the PTKB and the Intellectual Property Laws Amendment Bill (IPLAB) were trying to achieve the same objectives with minor policy differences. As such, the biggest policy decision that the Committee would have to make was how PTKB would be implemented; should it be as part of IPLAB or should it be as a stand alone Bill as it was presented to the Committee. She stated that this was the crucial question in need of an answer before any progress was to be made. Each Bill contained a little bit more than other in relation to different aspects, which was why she conducted a comparison between the two Bills as found in the attached document.

The Chairperson thanked the Advocate for her significant input. There were a few matters that required dealing with; one of which was in regards to the Regulatory Impact Assessment (RIA), which was raised in the previous meeting. The Hansard clearly indicated that the RIA report was a confidential document for members only until the DTI made it public. The Chairperson noted that she was to follow the necessary processes of Parliament in order to deal with this matter and will indicate whether the document was in any position to be referred to. She requested that the document not be used until further notice.

Professor Owen Dean, Head: Anton Mostert Chair of Intellectual Property Law, stated that Stellenbosch University had sought legal advice on the confidentiality matter. The advice they were given was that it was possible to declare certain documents confidential; however, there was a certain parliamentary procedure that had to be followed in order to do so. He stated that they were unable to find any evidence whatsoever that this procedure was followed in the case of the RIA report. In terms of the parliamentary procedure, as Prof Owen was advised, it was not sufficient to simply stamp ‘confidential’ on the document, as there was a specific procedure to be followed. He therefore suggested that the Chairperson must approach the issue from this point of view when she was looking into the matter.

The Chairperson replied that that was exactly why she consulted the Hansard, in order to ensure that the process was in fact followed.

Mr M Oriani-Ambrosini (IFP) pointed out that no organ of state had the power to declare a document confidential, as it was in the power of the Chairperson and the Committee to decide if a document was confidential.

The Chairperson added that her ruling of the document as confidential was not in the Department’s writing but rather was in fact a Parliamentary decision.

Mr N Gcwabaza (ANC) commented that this issue was discussed in a previous meeting when the report was issued and that much debate was held on whether or not the document should be made public. It was decided that the document in question was a contractual agreement between the DTI and the service provider; as such, it could not be published without the agreement of both these parties. The question arises whether there was an agreement reached between the DTI and the service provider for the release of the document.

Ms Zodwa Ntuli, DDG: Corporate and Consumer Regulation, DTI replied that there was not any request or permission to circulate the document outside the realm of the Committee and the DTI was actually surprised that it was in fact circulated. Ms Ntuli wanted to clearly note that the Department had nothing to hide in the document but as a matter of principle, the terms of how the document within the contract with the service provider were respected. The document was only presented to the Committee in order to maintain transparency between Parliament and the DTI.

The Chairperson thanked the DDG for the clarification. As with respect to the article referenced by Mr Radebe in the previous meeting on the issue that Prof Dean was the one who wrote the Bill, the Chairperson stated that the articles was found. It was stated in the article written by Prof Dean that “Dr Wilmot James, the DA’s spokesman on trade and industry, tabled my draft bill in Parliament as a private member’s Bill.” Having studied this matter, she made the ruling that if Dr James wanted to engage with Professors, etc. that Bill may be tabled in Parliament. The concern was whether or not the Bill may be tabled. As for who’s Bill it was or who could claim it, was a matter between Prof Dean and Dr James; however, she pointed out to Prof Dean that it was not in fact his draft bill as he stated in the article and was rather Dr James’ draft bill. The Bill was officially before the Committee as a private member’s bill made by Dr James and the Committee was obliged to maintain it as that.

Mr G McIntosh (COPE) agreed with the Chairperson’s ruling, as it was clear that it was a member’s Bill.

Mr Selau stated that there were two arguments before the Committee. The one argument was that indigenous knowledge should be separated from intellectual property in the form of sui generis Bills. In that case, there was a need for a Bill that dealt with the protection of traditional leaders outside of the IPLAB. On the other hand, the second argument was that the Trade and Industry Committee did not want to deal with traditional or indigenous knowledge law but rather wanted to deal with IP law, which had certain areas that needed improvements. He continued on to say that the second argument also stated that an interdepartmental discussion had taken place with the committee on agriculture as well as the arts and culture committee. During these discussions, an agreement was entered into that covered that the department responsible for dealing with the traditional knowledge law was arts and culture. He argued that all other departments were responsible for this law to the same extent as its impact on their mandates but ultimately, arts and culture was responsible for the principal Act. It was important to note that the different departments had certain areas where different areas of tradition impacted the work of each particular department. As such, he stated that this was perhaps a matter that did not belong to the Trade and Industry Committee. Lastly, he agreed that there was a need for a sui generis TK Act but that Act did not belong to Trade and Industry and should be referred to where it belonged.

Mr Oriani-Ambrosini commended the Chairperson and the ANC Whip for their work due to the fact that this was the first time in South African history that Parliament was considering two Bills that covered similar aspects. He argued that there was a national consensus that something needed to be done on this matter and that there was a national cry for the protection of TK. If this Bill did not get passed, there would be legislation that worked well for TK; however, if it were not passed, the national issues would not be addressed. It was very rare in Parliament to have a Bill that received support by all the public submissions and argued that this was an opportunity in Parliament that cannot be missed.

Mr D Swanepoel (ANC) asked if the Committee was looking for more legislation or less legislation? If the TK Bill were made into a standalone Bill, cross-referencing and such would be required with IPLAB.

Mr Gcwabaza requested an explanation with regards to the issue of competitiveness and whether the protection of TK was competitive or not. He agreed with Mr Selau that the Committee should be dealing with TK issues only with regards to the mandate of the DTI. Furthermore, given the argument that both the PTKB and IPLAB sought to achieve the same objective, why was the new Bill being tabled? Was it part of the agenda to delay the passing of the IPLAB beyond 2014? And if so, who’s interest was therefore at the core of this agenda; was it truly the most vulnerable that required the protection of TK?

The Chairperson noted that the one common comment from everyone was that there was a convergence between the two pieces of legislation.

Dr James was appreciative of all the comments made. He noticed that there was a thread running through the commentary that questioned his personal motives and attempted to discredit the Bill through remarks on what interest he may be serving. He explained that his involvement in this particular area began when he served on a special committee to former President Nelson Mandela that worked on three projects. The first project was to come up for a new name for Westbrook and it was Dr James’ principal responsibility. The President had requested a name that would be an expression of gratitude to the contribution of coloured South Africans to the building of the nation. Throughout the process of researching a new name, Dr James explained that he had to do deal with the question of intellectual property and the Heritage Act. The second project he worked on was to pursue the recommendation that the Department of Arts, Culture, Science and Technology should be divided into two. President Mandela had accepted this recommendation and one could see that during the separation, the Department of Science and Technology became the host for the indigenous knowledge systems. Therefore, the key Department for such issues was that of Science and Technology, but because the trading rights around the intellectual property was an important aspect of dealing with the exchange of goods, it was essential that the Bill came to the DTI. Based on various experiences with different communities, Dr James explained that a valuable lesson was learnt with regards to the role of the state. He argued that that the state’s role in the facilitation of the transfer of money should be limited. As soon as the state was provided with interest in extracting any benefits, a set was set up whereby government officials and politicians were in control of a community-based programme. He explained that sharing these stories was done in order to show that he had long-standing interest and expertise in the matter. He further explained that South Africa needed to be very careful to stop bio piracy by having patent protection for the local heritage that may be exploited. However, the issue at hand was not relevant for bio piracy as it was not a biological product at hand. The PTKB was an effort to protect cultural expressions not biological properties or pharmaceutical products; it was nothing to do with science but all within the arts. Lastly, he informed the Committee that he had no political interest in the matter but purely a personal interest. He took great offence to the comment made in the previous meeting that he was simply a conduit for someone else’s agenda. It was stated in the previous meeting that he was being used by Professor Dean simply as his master’s voice and Dr James took that as an assault to his integrity. He also took profound exception to the comment made that he was serving international interests by delaying the IPLAB. Everything that was put before the Committee was to protect TK and not to allow it to be raided by anyone else. This was an opportunity to introduce a robust piece of legislation that was to look after South Africa’s cultural expressions. 

The Chairperson noted that the goal of the Committee was not to raise accusations but rather to simply raise that this Bill had been presented to the Committee in the past. She explained that any of the commentary made on this issue was not fabricated but was rather information provided through various people within documents sent to the Committee. She requested members to leave behind any of these matters and to only address the substance of the Bill.

Prof Dean stated that he felt as though he was under attack in these discussions and sought to defend his position. All of the work that he had done on this Bill was done simply due to personal interest with no financial interest or remuneration. He stated that his interest in this matter was for the integrity of the law and to ensure that IP Law was in good shape.

The Chairperson interrupted and requested that the discussion was moved towards matters of substance.

Prof Dean carried on to discuss other matters. He explained that several years ago when the Rugby World Cup was to be held in South Africa, he was approached by the Department of Sport and the South African Rugby World to devise legislation to deal with the issue of ambush marketing. The draft that he created was never followed through as the matter was put to rest; however, eight years later in 2003, Mr MacDonald Netshitenzhe approached Prof Dean....

The Chairperson stopped Prof Dean once again due to lack of substance discussion.

Prof Dean explained that the substance must be painted against a background.

The Chairperson emphasised that he was not addressing any substance and that she was unwilling to go against her ruling.

Dr James argued that many accusations were made about Prof Dean and that he deserved the right to officially respond.

The Chairperson stood her ground. She stated that no one was disputing the abilities and qualifications of the Professor.

Prof Dean began discussing the substance matters regarding the Bill. He explained that the comment was repeatedly made in the discussion was that the IPLAB was using intellectual property specifically to protect traditional knowledge. The flipside of the coin, it was suggested that the PTKB was somehow outside of intellectual property; however, this was completely wrong and a total fallacy. He recalled his presentation in the previous week and reiterated that intellectual property was a family of property rights, which primarily consisted of patents, trademarks, copyright and designs. Traditional knowledge was therefore a new member of that family; new in the sense that for the first time, there was an attempt to protect traditional knowledge within intellectual property. It was wrong to suggest that somehow the Protection of Traditional Knowledge Bill (PTK) was not seeking to use the intellectual property system, as it was quite the contrary. The main difference between it and the Intellectual Property Laws Amendment Bill (IPLAB) was the question of what form the protection should take. He noted that there was an enormous amount of commonality between the two Bills to the extent that he was in full agreement with the PowerPoint presentation provided by the dti at the previous meeting. He stated that the difference in form was important for two reasons. Firstly, if one was attempting to inject traditional knowledge into the existing statue, then one came up against concept and principles with which traditional knowledge cannot comply. For instance, a design was required to be new and original under the IPLAB; however, there was no item of traditional knowledge that would ever be able to be new and original. The same rule applied to other items as well. As such, IPLAB was fundamentally flawed, as it was attempting to protect things in the statute, which could not be accommodated. This was why he was arguing that a new sui generis Bill was needed where the conditions that must be met for protection, could be customised. He had yet to come across any valid arguments as to why sui generis was unsuitable and was unsure what the issue was with sui generis legislation. He was willing to put his own legal profession on the line by stating that no successful case will ever be brought under the IPLAB.

The Chairperson explained that the issue was not whether or not sui generis was the right approach but rather what was the best approach to use for this particular matter. She stated that she wanted to address the policy matters raised by Advocate van der Merwe.

Adv van der Merwe briefly reiterated the policy issues that she previously raised. The first one was whether the protection of TK was uncompetitive or not. This comment was raised by the Competition Commission and, to her understanding, they were arguing that if TK was protected others were not allowed to use the same item and that the licence to use was refused, making it uncompetitive. However, that was essentially the very nature of intellectual property. The second policy issue was whether the protection of traditional knowledge be taken out from under the umbrella of intellectual property or not. Thirdly, if it did in fact fall under intellectual property, what form should take? Should it be a stand alone Bill as was currently proposed or should be included within the IPLAB? If it was decided that this was the desirable Bill, certain actions were required.

Mr Selau argued that the issue remained that there were two separate Bills that were addressing two different matters. The one was an amendment Bill on intellectual property and the other was strictly focused on traditional knowledge. The current Bill before the Committee went beyond just Trade and Industry, as it referred to other Departmental areas as well. As for the issue on competitiveness, he was unsure as to how competition was involved as traditional knowledge did not compete with itself.

Mr Swanepoel asked what the process was if the Committee decided that the two Bills should be combined.

Mr Gcwabaza commented that the question could not be whether traditional knowledge should be taken out of IP because if the form were to be changed, the IPLAB would have to be withdrawn from the NCOP, which would set a precedent.

The Chairperson commented in her understanding of the rules, it was no longer in the power of the Committee to make any decisions on IPLAB as it already reached the NCOP. Therefore, there was no point in even discussing this scenario, as it was not plausible.

Dr James commented that PTKB was solid because it protected traditional knowledge and that IPLAB was not because it was difficult to prove the newness and originality of the work, which was the registration requirement. The PTKB protected traditional knowledge properly because in the definition of traditional knowledge, it was neither new nor original.

Prof Dean replied that the competition point was not an issue because intellectual property generally co-existed with competition and all IP was to create a monopoly of sort. The way that competition and IP law co-exist was to say that IP law did not offend against competition principles per say but if one used IP law in such a manner as to defeat competition law it would be a problem. He stated that the bottom line, however, was that competition law trumped IP law. Secondly, it was clear that traditional knowledge was a form of IP, as it had the basic elements of intellectual property and such was recognised by both Bills. Furthermore, he stated that no successful case would emerge from IPLAB not due to any constitutional issues but rather due to the fact that the IPLAB did not meet the basic requirements. It was not plausible to prove that any aspect of TK was new and original.

The Chairperson noted that there were several more issues that had to be discussed at large; however, the time for the meeting was not limiting. She also noted that the Department had prepared some responses for the Committee.

Dr James stated he also had some more questions for the DTI, which he would submit in writing to the Secretary.

Mr MacDonald Netshitenzhe, Chief Director: Policy and Legislation stated that there were two conflicting philosophies within the two Bills that had to be reconciled. The DTI was saying that IPLAB was being amended to have one form of legislation that addressed all forms of property. There were issues that needed to be addressed at the very core of the foundation and the policy.

Trade Workshop Committee Report
The Chairperson gave a brief update on the Trade Workshop Committee Report. She stated that every party agreed that something needed to be done on exports, as the country could not carry on building trade deficits. One needed to ensure that exports matched imports, which meant that all trade agreements needed to be thoroughly questioned. Members were in agreement that the African Growth and Opportunity Act was a very good agreement; however, South Africa could not place all its eggs in one basket. As such, South-South relations as well as South-East relations were of high importance.

Dr W James (DA) noted that the question of industrial planning being the basis for strategic trade was an innovation in policy brought on by Minister Rob Davies over the last five years. It would be very interesting to know if that policy plan had made any difference to trade; essentially, it was necessary to measure trade performance in relation to this particular policy plan. Additionally, the Department of Trade and Industry (DTI) has taken seriously the idea of fostering and promoting economic diplomacy, where officials were now required to have the promotion of South Africa abroad as a high priority. He noted that this topic of trade diplomacy should be featured in the report.

Mr G Selau (ANC) stated that first and foremost, the mandate of the Committee had been trade and industry but the Committee needed to be aware of the global transitions and the changes in international trade policies and trade partners.

The Chairperson explained that the issues raised in the Trade Workshop Committee Report were not receiving the proper time for discussion due to time constraints. She stated that a second draft of the report was still in progress and that further discussions on the report would be held at a later date.

The Chairperson thanked everyone for their contribution and informed the Committee that further discussions were needed on this matter, as the Committee remained in the deliberations stage.

The meeting was adjourned.
 

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