Traditional Knowledge Private Members Bill [PMB3-2013]: discussion & voting; Committee Report on Trade Workshop

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Trade and Industry

05 November 2013
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

Committee Report on Trade Workshop: Members said this was an important document as a new bill on trade would soon be introduced. The Committee agreed to include in the report that beneficiation had not reached the stage of adding value to exports. There was a need to put a lot more effort into this while acknowledging the designation for the localisation of content. It discussed the Goldman-Sachs figures on labour productivity which showed an 11% compounded annual growth. It deliberated on the regional integration of trade and the trade imbalance. The Committee wanted more information on the Southern African Customs Union (SACU)- India preferential trade agreement and how it aligned with BRICS and the SA-India trade agreements. It deliberated on South Africa’s access to European Union (EU) markets. Members said the report had to include the activities of the Committee, especially the attendance at the 8th Ministerial Council Conference in December 2010 as well as its attendance at Nedlac meetings to adopt a position for that conference.

Protection of Traditional Knowledge Bill: The Committee received a copy of the input by Professor Owen Dean of the University of Stellenbosch who was supposed to be present at the meeting. They heard a response to it from the parliamentary legal advisor.  Dr Wilmot James (DA), who had put tabled the private members bill on the Protection of Traditional Knowledge (PTK) also gave an input.

The deliberations centred around whether the definitions to the Copyright and Designs Act in the IPLAB (Intellectual Property Laws Amendment Bill) would succeed in protecting traditional or indigenous knowledge.  A further matter Prof Dean had been concerned about was that there was no provision for indigenous designs to be registered.

Dr James said that there were fundamental flaws in the trademark part of the IPLAB. He was concerned that IPLAB would cancel the majority of South African Geographic Indicators (GI). He said the key characteristic of the PTK Bill was that it was sui generis and would not affect any other pieces of legislation. The IPLAB was a vague formulation which would plunge all the IP laws into uncertainty and end up in court.

With no apparent agreement, the Chairperson put the Protection of Traditional Knowledge Private Members Bill to the vote. The Committee found the Bill not desirable  and rejected it.

The minority opinions were: 
- The DA said there was sufficient argument that PTK Bill desirable and the IPLAB would be damning for SA. - COPE was deeply disappointed that rationality had not prevailed and a sui generis bill had not been accepted.
- The ACDP said it favoured the PTK Bill because it was a stand-alone bill, it was sui generis and therefore easier to implement.
 

Meeting report

Committee Report on Trade Workshop
Mr Mackintosh (COPE) said the report was an important document as a new bill on trade would soon be introduced.

The Committee agreed that the report include that beneficiation had not reached the stage of adding value to exports. There was a need to put a lot more effort into this while acknowledging the designation for the localisation of content.

It also discussed the Goldman-Sachs figures on labour productivity which showed an 11% compounded annual growth.

Mr W James (DA) said the labour figures were the average of productivity in the private sector, which was high, and the public sector, which was low, and had occurred in an environment of job shrinkage or low meaningful jobs growth.

The Committee also deliberated on the regional integration of trade and the trade imbalance. SADC had adopted industrialization as a key policy to building complementarities. It wanted more information on the Southern African Customs Union (SACU)-India preferential trade agreement and how it aligned with BRICS and the SA-India trade agreements. It deliberated on SA access to EU markets.

Mr Mackintosh said SA should endeavour to match the EU standards. The nature of trade was changing and SACU was an old colonial phenomenon which would also have to change.

Mr B Radebe (ANC) said the report had to include the activities of the Committee especially the attendance at the 8th Ministerial Council Conference in December 2010 as well as its attendance at Nedlac meetings to adopt a position for that conference.

Protection of Traditional Knowledge Bill
The Chairperson said that the submission before the Committee by Professor Owen Dean of the University of Stellenbosch was not in fact a submission by a Committee appointed advisor but an input by an advisor to Dr James on his Private Members Bill on the Protection of Traditional Knowledge (PTK).

Adv C Van Der Merwe, Parliamentary Legal Advisor, responded to Prof Dean’s submission.  She said the contents were a similar argument to the one Professor Dean had made the previous week. The submission said the IPLAB (Intellectual Property Laws Amendment Bill) amendments to the definitions in the Copyright and Designs Act were such that where the IPLAB amended the Copyright and the Designs Act it would not succeed in protecting traditional or indigenous knowledge in the Bill because the design or work would have to be new. The reason being that in the definitions of indigenous works and designs in the IPLAB, there was reference to the definitions used in the Design and the Copyright Acts which required novelty or newness. She did not agree with this opinion.

She dealt with the terms ‘indigenous work” and “work” in the Copyright Act and the amendments to it in the IPLAB and on the term “indigenous design” and on registration in the Design Act and the amendments to it in the IPLAB (see presentation by Adv C Van Der Merwe).

She said ‘indigenous work” when read within the Copyright Act did not require originality. Section 28A of the IPLAB was only applicable insofar as they could be applied to traditional works. Section 28A of IPLAB could be applied to traditional works as it excluded the Copyright Act regarding indigenous works.

Regarding the word “work”, Clause 28A (1) together with clause 28B (1) and (3) of the IPLAB made it clear that section 2(1) of the copyright law was not applicable to indigenous law.

Regarding the term “indigenous design” and the Design Act, the same applied. Nowhere in the definition of aesthetic design and functional design in the Design Act did it require originality. As for the rest of the Design Act, this was excluded by section 53(A) of the IPLAB where the provisions of the Designs Act would be applicable only insofar as they could be applied.

A further matter Prof Dean had been concerned about was that there was no provision for indigenous designs to be registered.

Adv Van Der Merwe said section 53(B)(5) of the IPLAB allowed for registration to take place and a community could apply for a design to be registered.

Mr James said the IPLAB placed indigenous designs into a subset of aesthetic or functional designs to meet entrance requirements to that category if it sought protection yet to qualify for protection it had to be original.

He added that with regards to copyright, a traditional work had to qualify as being original. He said there were fundamental flaws in the trademark part of the IPLAB. IPLAB provided for registration under the Trademarks Act but to be registerable as a GI, a mark had to be a collective mark or have a certification mark. He was concerned that IPLAB would make it impossible for SA wine regions to register as GIs, with only rooibos meeting the requirements.  IPLAB would thus cancel the majority of South African GIs. He said the key characteristic of the PTK Bill was that it was sui generis and would not affect any other pieces of legislation. The IPLAB was a vague formulation which would end up in court.

Mr W Thring (ACDP) wanted Adv Van Der Merwe to comment on Dr James remarks.

Adv Van Der Merwe said she could not see that the IPLAB not working. The Committee had deliberated on the Bill and had consulted widely including input from the SA Intellectual Property Association (SAIPA).  She did not agree on the argument of geographic marks. It had received input from the SAIPA on this matter as well and no concerns had been raised. She disagreed with the argument that one was dealing with a subset of a design. She said the IPLAB was excluding it. Part of the requirement of aesthetic design was that it had to be defined and  similarly for indigenous design. Section 14 of the Design Act dealt with the registration of the design. If it was new and original one could register it. The IPLAB provided for the registration of a design  and of derivative designs. She said the difference between the IPLAB and the PTK Bill was that although the concepts were similar both were sui generis but that the PTK stood on its own feet while the IPLAB relied on relevant, current, existing acts. Both could work but the question for the Committee was whether it wanted a standalone Bill.

The Chairperson said the PTK Private Members Bill had been tabled in April 2013.

Mr James said the PTK Bill would work while the IPLAB would plunge all the IP laws into uncertainty and government cases. The majority of submissions had supported the sui generis approach and was supported by Prof Dean and Judge Harmse. He said the custodian of traditional knowledge was the Department of Science and Technology (DST) and the DST supported the sui generis approach.

The Chairperson said it appeared there was no agreement on the matter.

Mr Simphiwe Ncwana, dti Director: Commercial Law and Policy,  said that the IPLAB was meant to benefit communities and that criteria had to be met. It was not about registering pure indigenous knowledge but about getting benefits through derivative works. Regarding trademarks, he said many jurisdictions around the world were using bits and pieces of IP legislation that they had. There was no country which had put all their IP legislation into one Bill. The Department had consulted widely and there had been overwhelming support for the Bill from around the world, so the Department was sticking with the IPLAB. The current Act was being misused to misappropriate knowledge and benefit other people and the Department wanted it to benefit the communities.

Regarding the DST supporting a sui generis approach, he said there was nothing wrong with that. The DST supported the IP system. The Department needed to focus on what the patent laws amendment bill did as the IPLAB was a follow-up bill to that.

The Chairperson then asked the Committee whether it would go forward with the Protection of Traditional Knowledge Private Members Bill.

Mr Radebe said it was not desirable as there was no change in the initial IPLAB’s conditions, there had been wide consultation for the IPLAB and so IPLAB had to remain on track while the Private Members Bill should not be taken forward.

Voting on Protection of Traditional Knowledge Private Members Bill
The PTK Bill was put to the vote.

The Committee found the PTK Bill not desirable  and rejected it. The minority opinions were:
- The DA said there was sufficient argument that PTK Bill was desirable and the IPLAB would be damning for SA.

- COPE was deeply disappointed that rationality had not prevailed and a sui generis Bill had not been accepted.

- The ACDP said the PTK Bill was favoured by ACDP because it was a stand-alone Bill, it was sui generis and therefore easier to implement.

Mr Radebe raised an issue on the voting process. He said the comment by Mr Mackintosh  about a certain member being “voting cattle” was insulting. He said this was not new as Professor Dean had made similar disparaging remarks.
 
The Chairperson said she would take up the former matter with the Speaker.

The meeting was adjourned.
 

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