Indigenous Knowledge Systems – Legislative Update: Department of Science and Technology (DST) briefing

Meeting report

Indigenous Knowledge Systems legislation: Department Science & Technology update
Mr C Mothale (ANC) was appointed as Acting Chairperson.

Mr Tom Suchanandan, Director: Advocacy and Policy Development, Department of Science and Technology, briefed the Committee on the Bill for the Protection, Development and Management of Indigenous Knowledge Systems (the Bill). He outlined the historical background and reasons for the creation of such a Bill. He explained that the Department of Science and Technology (DST or the Department) had now established the National Indigenous Knowledge Systems Office (NIKSO). This was the first instrument to protect indigenous knowledge systems in the world.

Mr M Paulsen (EFF, Western Cape) asked whether the Bill was about indigenous knowledge, or indigenous knowledge systems.

Mr Suchamandan answered that the Bill primarily concerned indigenous knowledge (IK).

He briefly outlined the drafting process (see attached slides for further information). He said that there were various reasons to introduce the legislation. The current legislation did not provide adequate protection of indigenous knowledge. It  was necessary to enshrine international conventions, such as the Nagoya Protocol and the guiding principles of the World Intellectual Property Organisation (WIPO) into domestic law.

Mr Suchamandan summarised the main differences between the current relevant legislation (The Intellectual Property Amendment Act) and the proposed Bill. The main differences were that the new legislation would focus on protection of knowledge rather than the knowledge itself. There would be an addition of trans-border provisions. The expiry period that applied to the rights under the original legislation would now be omitted.

He outlined that the Bill had a very broad scope with defensive protection, preventing a third party from exercising IP rights. It also had positive protection, authorising the use of IP rights.

The main functions of the proposed Bill were outlined, as follows:
- Management of rights
- Establishment of an Advisory Panel where required
- Setting the conditions for access to and conditions of access to knowledge
- Setting the conditions for the registration, accreditation and certification of practitioners and holders of IK.

Mr Suchamandan proceeded to outline the substantive content of the Bill, briefly outlining each clause.

Clause 1 provided the definitions of concepts. He said there were 37 definitions in this part.

He said that clause  2 had to do with interpretation. Clause 3 concerned the application of the Act. This was in line with the Constitution, and set out that everyone in South Africa could benefit and all knowledge could potentially be protected.

Clause  4 was concerned with the purpose of the Bill and what the DST hoped would be achieved by its enactment.

Clause 5 established NIKSO and Clause  6 provided for the functions and duties of this office, including protecting IKS, facilitating redress of indigenous communities, managing the national recordal system and mobilising indigenous communities.

Clauses 7, 8 and 9 were concerned with administrative areas of NIKSO, as well as setting out the intention to establish an Advisory Panel and the role of this Panel.

Clause 10 contained details on:
- indigenous knowledge
- indigenous cultural expressions
- indigenous knowledge associated with natural and genetic resources

He explained what the eligibility criteria were for protection under the Bill, as set out in clause 11. Clause 12 outlined the scope of the protection in detail, and set out what exactly the beneficiaries would have exclusive rights to.

Clauses 13 and 14 concerned periods of protection ad beneficiaries.

Ms Carol Van Wyk, Director: Knowledge Management (KM), Department of Science and Technology presented on the accreditation, certification, documentation and recording of IK. This was concerned with recognition, standardisation and professionalism of indigenous knowledge holders.

Mr Suchamandan then continued to outline the Bill. Clause 19 concerned development, commercialisation and processes. Clause 20 was an especially important part of the Bill, providing directions on the way in which the application to IKS would work through NIKSO.  Clause 21 provided that any third party wishing to access IKS must enter into a benefit sharing agreement.

He said that clauses 27 to 29 were standard for legislation in South Africa.

Discussion
Mr N Koornhof (ANC) wanted further information on the costs involved. He asked for an estimate of costs to the Department of Science and Technology, noting that this would come out of next year’s budget.

Mr Koornhof suggested that it may be possible to merely amend the IP Amendment Act currently in force, instead of creating new legislation entirely. He asked why the DST had decided to follow this route. He felt it might be easier to make some changes to the current laws. He then asked for an explanation of what types of matters this Bill would specifically protect.

Mr Koornhof raised concerns about clause 20 of the Bill (access to indigenous knowledge systems). He wondered if this would in fact lead to more red tape, when this was already a big problem for the government to deal with.

Mr Koornhof asked if the Department would also protect the rights of those who were already using the indigenous knowledge, prior to the commencement of the proposed Act.

Mr M Paulsen (EFF) understood that the issue of indigenous knowledge had come a long way and that, previously, a number of bodies had been involved with the subject. He wished to know what had happened to the previous body that had been established by the DST and what its role was now. He was also aware that there was funding for indigenous knowledge systems from the National Research Foundation (NRF), and therefore made the suggestion that this body should be present at the meeting and should be more involved in the process generally.

Mr Paulsen wished to know who owned the intellectual property rights. He asked whether it would be the community or the individual person who captured it who would benefit from this legislation.

Dr Thomas Auf Der Heyde, Deputy Director General, Department of Science and Technology,  answered the questions on the costs and structural issues . He explained that there were three directorates within NIKSO and these were established subsequent to the policy on indigenous knowledge systems in 2004. The new Act was needed to govern NIKSO and to structure it legally with rules and procedures, as this was lacking previously.

He mentioned that the structure and funding was already in place in the Department. DST  was engaging with the National Treasury to identify the best type of structure for NIKSO. The Department felt that it may be too expensive to establish NIKSO as a separate body with its own Boards and administrative sections. The costs at this present time were absorbed internally by the DST and it was currently unable to justify creating an entirely new structure. For this reason, the DST had felt that it was better to establish NIKSO within the Department, but at arms length, in a similar way to the body currently controlling intellectual property within the Department. This would allow for substantial reduction in costs. He advised that the DST remained in discussion with the National Treasury as to the exact structure.

He added that the Knowledge Fields Directorate still existed within the NRF, managing not only indigenous knowledge but also research in marine and arctic models. The IKS research programme was managed through this, by providing a R10 million annual grant to universities to conduct research. He mentioned that the Department had a number of partners, including universities, in addition to the programme with the NRF.

Mr Suchamandan added to the point why the DST felt that there was a need for a separate Bill. This new Bill was far more holistic than the old legislation, which focused on economics. He used two specific examples to clarify his point that the current IP law was not wide enough. Firstly, patent law did not cover IKS because it required elements of inventiveness and loyalty to be proved. Secondly, copyrights required originality, which IKS did not have as an essential element. He also made the point that the new Bill, unlike the former legislation, did not prescribe a period of expiry of protection, so indigenous knowledge could potentially stay secret forever.

Mr Suchamandan made the point that the legislation aimed to protect this knowledge that came from generations of culture. It did not belong to the public without benefit to the community, and therefore the new Bill was required to protect this.

Dr Auf der Heyde added that the social contexts of the earlier and later legislation were completely different, and there were a number of legal and technical difficulties that could not be reconciled by amendments alone.

Mr Suchamandan then addressed what the Bill protects, noting that it covered designs and knowledge that communities developed. This legislation meant that when this knowledge was used, a benefit to the community would accrue. 

Mr Suchamandan felt that section 20 did not impede protection being offered by the Bill. He asserted that the section was already in place in relation to Environmental Affairs and merely followed protocol, giving effect to the Nogoya Protocol.

Mr Suchamandan addressed Mr Koornhof's question around retrospective effect, outlining that no legislation could be applied retrospectively, although in a sense IK was by its very nature retrospective. However, when the Act came into force, any activities after the commencement of the Act to use that knowledge would be subject to benefit sharing, but not any activities or applications dating to a time prior to commencement of the Act. He clarified again that the indigenous knowledge rights were deemed to vest in the community.

Mr Koornhof made the point that this could create some difficulty, where chiefs, for example, were unable to agree with their community.

Mr Suchamandan replied that clause 22 of the Bill would resolve this issue, through a mediation committee. Further, he talked of the national recordal system, which would formally record the ownership of the knowledge.

Ms van Wyk agreed with this comment on the recordal system, expanding on the details of its use.

Miss N January, Head: Legal Services, Department of Science and Technology, did not wish to comment further on any of the legal issues.

Mr Paulsen enquired as to who owned the IP and how the information got on to the system.

A DST representative outlined the process behind the system. This involved the DST staff going into rural communities and talking with the role players and stakeholders, predominantly Chiefs, and presenting the system to them. A steering committee would be created and the DST would engage with local young people to help with interviewing those with specific indigenous knowledge in healing, farming practices, art and others.  Memorandums of Understanding would be signed and the knowledge logged.

Mr Suchamandan wished to make clear the distinction between IP and IP rights. IP rights would be owned by the person that registered them, but IP itself would have to be decided upon under the legal framework of material transfer agreement and benefit sharing agreements.

The Chairperson commented that it was a very complex process to find out who owned the indigenous knowledge. He enquired whether it was related to language or geographical criteria, as many facets of indigenous knowledge overlapped. He felt it might be difficult to ascertain the source of that knowledge. However, he appreciated the DST's efforts in approaching this matter and coming up  with a good solution to start with.

The Deputy Director General agreed, saying that there were many answers and many ways of getting to the solution and that management challenges had been very difficult. He felt that there were many opportunities to learn and that this was the best start the Department could think of. The Department had taken information from international forums, task groups, working groups and had also drawn on global best practice. He remained confident that this was the best that the Department could put together to manage these difficult issues.

The Chairperson said that the Committee agreed that a new piece of legislation was necessary, that the Committee was comfortable with the progress and wished the Department well in making further improvements.

The meeting was adjourned.