Protection of Traditional Knowledge Bill Private Member's Bill [PMB3-2013]: deliberations; Legal Metrology Bill: adoption

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Trade and Industry

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

Before the Committee adopted the Legal Metrology Bill, attention was directed to the importance this legislation played in the ability for police to administer breathalyser tests on suspected drunken drivers. The lack of precision in the Drager Breathalyser Test had led to the state losing a court case and postponing all such cases until certainty about its reliability could be ascertained. The Committee considered the Legal Metrology Bill clause-by-clause, adopting each clause individually. The Bill was then passed by the Committee with its amendments.

For his Protection of Traditional Knowledge Private Member’s Bill, Dr James provided the Committee with visual examples of cultural expressions in an attempt to prove that the Intellectual Property Laws Amendment Bill was insufficient for the protection of traditional knowledge. To register a cultural expression under the IPLAB, it had to be proven that it was both new and original. However, the difficulty was that within the very definition of traditional knowledge, one could demonstrate neither newness nor originality. By contrast, the PTK only required that the cultural expression be known to be associated with a particular community. Registration was not required under the PTKB for protection. IPLAB did not protect traditional designs, the result was that indigenous knowledge products were exposed to plunder. As for the PTK, traditional designs were automatically protected with no registration necessary. The only requirement under PTK was that it was recognised by third persons to be the property of a particular community.

Thorough deliberations were held on the originality and novelty requirements of the registration criterion in the Intellectual Property Laws Amendment Bill. The parliamentary law advisor disagreed with Dr James and the University of Stellenbosch intellectual property law expert. She first explained the difference between an indigenous design and a derivative indigenous design. A derivative indigenous design was not a type of indigenous design but was rather a design that was derived from an indigenous design. In other words, a derivative design was new, hence the requirement. An indigenous design, however, had its own definition because it had different requirements. If one read the Designs Act into the IPLAB, one had to keep in mind the clause that excluded the application of that Act in so far as it contradicted what was contained in the IPLAB. Due to time constraints, discussion would continue at the next meeting on whether such legislation should take the form of a sui generis Bill.
 

Meeting report

Formal Consideration of the Legal Metrology Bill
The Chairperson explained the process for the formal consideration of the Bill. She would read aloud each clause, whether amended or not, and the Committee must adopt each clause individually.

Mr G Hill-Lewis (DA) requested permission to ask a general question on the Bill before the formal deliberations began. He referenced the State vs Hendricks case regarding the Drager Breathalyser Test and stated that the loss of the court case by the state was as a direct result of legal metrology, as the measuring instrument was not 100% accurate. Therefore, he asked if there was an opportunity for this matter to be included in the Bill so that proper measures are taken to improve the instrument so that the South African Police can use breathalyser test again.

The Chairperson added that if the Bill was passed then what implications would it have for all the machines that were found accurate in the past.

Mr Jaco Marneweck, Senior Manager: Inspections, DTI replied that there were some technical issues in the current legalisation that proved problematic for this particular case. Several meetings had been held with the team in order to look at the possible legislative changes required that would address such issues around products. The discussions sought to find ways to improve upon the accuracy of the instruments and to ensure that the necessary laboratories were in place to test all the instruments. The conclusion that emerged from these discussions were included in the proposed Bill. The Bill worked to harmonise all legal metrology requirements into one Act so that provisions for all instruments could be put in place and approved by the National Regulator.

Mr Hill-Lewis was pleased with the response.

The Committee then proceeded with the consideration of each clause.

Arrangement of Sections
The Chairperson asked why the amendment to this section did not include ‘the’.

Adv Charmaine van der Merwe, Legal Advisor, replied that in legislative drafting, articles such as ‘the’ were not used in the headings.

Clauses 1-35 were approved and seconded.

Clause 36
Mr McIntosh asked what ‘prepackages’ meant.

Mr Marneweck replied that there was an international definition in the international dictionary of metrology. Simply put, it referred to products that were already pre-packaged prior to distribution.

Clause 36 was thereafter approved. Clauses 37-42 were also approved along with the schedules.

Having considered the subject of the Legal Metrology Bill B34B 2013, the Committee thereby adopted the Bill with amendments.

Deliberation on the Protection of Traditional Knowledge Bill
Dr W James (DA) informed the Committee that he had two quick presentations to cover. The first had to do with what were worthwhile cultural expressions to protect. He referred Members to the document showing photographic examples of such cultural expressions. The question at hand was whether the protection of these happened under the Intellectual Property Laws Amendment Bill (IPLAB) or under the Protection of Traditional Knowledge Bill (PTKB). The IPLAB was an amendment Bill of existing property rights legislation, which then placed traditional knowledge into existing categories and in order to register a cultural expression under the IPLAB, it had to be proven that it was both new and original. However, the difficulty was that within the very definition of traditional knowledge, one could demonstrate neither newness nor originality. For example, if a cultural expression was 200 years old, the originator of it was long gone. By contrast, the PTK only required that the cultural expression be known to be associated with a particular community. He further explained, that registration was not required under the PTKB. Essentially, the examples shown in the presentation prove that such cultural expressions could not be protected under the IPLAB, as it was impossible to demonstrate newness and originality. He explained that the IPLAB was designed for innovation in the current sphere and not for indigenous knowledge.

Dr James moved on to the second presentation on the defects in IPLAB. He explained that because IPLAB did not protect traditional designs, the result was that indigenous knowledge products were exposed to plunder. As such, the cultural expressions provided in that document were subject to plunder with impunity. As for the PTK, traditional designs were automatically protected with no registration necessary. He noted that the only requirement under PTK was that it was recognised by third persons to be the property of a particular community.

Prof Owen Dean, Head: Anton Mostert Chair of Intellectual Property, stated that this was a visible demonstrating of the argument that IPLAB would not work and would not provide the protection in need. The examples pointed exactly what it was that needed protection, which were things that would not be covered under the IPLAB. Therefore, the question arose of what was the use of passing legislation that would not do what was expected of it. He explained that it was this particular realisation that led the team towards the sui generis approach because by means of the sui generis approach, the law could be designed so that it met the specific requirements of the goods at hand. The sui generis approach provided the flexibility to meet the circumstances of the matter at hand. He added that he had difficulty to understand how anyone, after seeing the provided examples, could argue that the IPLAB was a better form of legislation than the sui generis approach.

Dr James concluded that there were many differences between the IPLAB and the PTKB; but the nominal difference was the fact that the requirement in the IPLAB for the registration of traditional knowledge expressions was a requirement that could not be met.

The Chairperson commented that the big issue was that of originality and novelty in comparison with the IPLAB. She stated that she was not entirely satisfied that the IPLAB failed in that regard but wanted more specific examples and comparisons with other countries as to why exactly the IPLAB was failing to protect traditional knowledge.

Dr James responded that firstly, a distinction had to be made between protection and protection in perpetuity. One could not protect something in perpetuity if it was not protected in the first place; therefore, protection preceded protection in perpetuity. Protection in perpetuity could be introduced in any piece of legislation. The PTKB proposed 50 years but any other number could also be proposed, which meant that the timeframe was not the issue. The issue at hand was placing traditional knowledge (TK) under protection in the first place.

Prof Dean further replied that traditional communities were struggling with protecting their traditional works worldwide. There was not a single country, to his knowledge, that was able to provide rightful protection. He explained that the existing intellectual property laws gave a measure of protection to forms of traditional knowledge. Internationally, one school of thought argued that intellectual property laws did not in fact need any amending as they included certain measures for the protection of traditional knowledge. This particular school of thought argued that why should traditional knowledge have a longer period of protection than other intellectual property. He argued that in some countries, there were certain statutes in place for particular aspects of traditional knowledge. For example, in the United Kingdom, there was a specific sui generis statute that protected the practice of opening parliament.

The Chairperson wanted clarity on the argument that protection was based on the notion of ‘if everyone knows.’

Prof Dean replied that the term ‘if everyone knows’ was a handy phrase for conveying what the real criterion was, which was whether the design was known by third persons to be the property of a particular community.

The Chairperson noted that there was much convergence in certain areas. Was there any way that the PTKB was moving closer towards the IPLAB?

Dr James replied that analytically, the one area that required resolving was that of registration. Under the ILPAB, the system was quite cumbersome whereas the one in the PTKB was quite simple; however, agreement could be reached on that issue. There also could be agreement as to whom the royalties ought to be paid. He believed that the royalties should be paid to community-based organisations with minimal state involvement. He was certain that there would be other areas where convergence could also be reached; those two were the initial ones he was able to think of.

Prof Dean replied that in his previous attempt at the sui generis Bill, he set out to make it as close as possible to the IPLAB and it was no coincidence that there was convergence between the two, as it was deliberate. The areas in which there was a difference were where he thought there were shortcomings in the IPLAB, namely the criterion for protection. He argued that the was most the fundamental part of the entire system, as it was a departure point that could be either treated as part of the existing legislation or treated as a new type of property with its own rules and regulations. It was not just a minor difference of detail but a major difference of principle with a ripple effect. For instance, under IPLAB, for both designs and trademarks, registration was an absolute requirement in order to create the ownership right, whereas under the PTKB, there was no registration necessary to create the right. He explained that that particular gap could never be bridged because it was fundamental to the whole principle. Registration under the PTKB had a different purpose to that under the IPLAB because as far as PTK was concerned, it was a registration for the purpose of information that was entirely voluntary. Another slight difference was that the IPLAB attempted to make the community a legal personality, which was a very forced contrived situation. This was pointed out to the Department of Trade and Industry and they had added a provision that said that for the provisions of this law, a community was deemed to be a legal personality. Whereas in PTK, each community appointed an individual that owned the property as a trustee for the community as a whole, making it much easier to work with the property.

The Chairperson thanked the team for the clarifications. She raised an issue that was in the questions posed to the DTI in writing. The question asked for an explanation on why South Africa had been supporting a sui generis approach at the World Intellectual Property Organisation but sought to adopt a contrary approach through the IPLAB. She requested the parliamentary law advisor to comment on this in relation to the registration requirements.

Adv van der Merwe replied about the criterion, saying she was not aware of any aspect of the IPLAB requiring novelty or originality. The definition for indigenous design only required that it was created by persons who were currently or historically members of an indigenous community. The IPLAB did however require registration in order to receive protection and could be registered as either an aesthetic indigenous design or as a functional indigenous design in order to draw it into the Designs Act. Therefore, she emphasised that no aspect of the IPLAB required newness or originality and in fact, when the IPLAB was served before this Committee in the past, it served as a pure amendment bill. With that amendment bill, it was highly confusing to understand what the overall objective was. As such, the Committee then considered the aspect of a sui generis bill versus incorporation. As a result, the Committee redrafted the IPLAB into a sort of hybrid form where some sections were stand-alone sections.

Mr D Swanepoel (ANC) commented that the crux of the issue was whether registration required newness and originality. His understanding was that Adv van der Merwe disagreed with Prof Dean on this. If it was true that IPLAB did accommodate traditional knowledge, then the need for PTKB fell away. If the Committee could get clarity on this matter, then the issue would be resolved. If it was incorporated, then PTKB could be discarded as he believed that one piece of legislation was always better than two.

Mr G Selau (ANC) stated that it did appear that the presentation was not intended to consolidate but to rather replace. If the issue of sui generis was removed, then the remaining issues could easily be resolved.

Dr James commented that he had a fundamental disagreement with the comment made by the parliamentary law advisor. All the other issues were easily open for discussion except for that on the requirement and he could not agree that IPLAB was able to protect traditional knowledge.

Prof Dean alerted the Committee to the following section of the IPLAB:
53B(1) The author of a derivative indigenous design which is –
new


He explained that this was for a derivative indigenous design and that the requirements were even stricter for indigenous designs.

Mr Hill-Lewis asked, given the clarity of the reference in the IPLAB, why did the parliamentary law advisor argue that traditional knowledge did not need to be new and original?

Adv van der Merwe replied by first explaining the difference between an indigenous design and a derivative indigenous design. A derivative indigenous design was not a type of indigenous design but was rather a design that was derived from an indigenous design. In other words, a derivative design was new, hence the requirement. An indigenous design, however, had its own definition: "design means an aesthetic design, a functional design or a traditional design" because it had different requirements. If one read the Designs Act into the IPLAB, one must keep in mind the clause that excluded the application of that Act in so far as it contradicted what was contained in the IPLAB.

The Chairperson appreciated the explanation but due to time constraints asked that further discussions be held until the next meeting on the matter.

The meeting was adjourned.
 

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