The Portfolio Committee on Science and Technology and the Select Committee on Communications and Public Enterprise held a joint workshop. The Department of Science and Technology (DST) and the Department of Trade and Industry (dti) presented on Indigenous Knowledge Systems, and explained the new Indigenous Knowledge Bill. The DST noted several important achievements in the commercialisation of indigenous knowledge based products and the development of SMMEs who held and could commercialise indigenous knowledge. The various protocols and treaties to which South Africa was a signatory were outlined, as well as some of the challenges and differences of opinion around genetic resources. The Indigenous Knowledge Bill mirrored the discussions happening at WIPO, and was mainly to do with setting up systems for benefit sharing of the access to and use of indigenous knowledge. It was emphasised that it was preferable for communities with traditional knowledge that could be commercialised to enter into joint venture agreements, since royalty agreements in fact provided few tangible benefits. The requirements for knowledge to be recognised as traditional knowledge were outlined and explained.
Members said that some information had not been included in the presentation. In particular, they asked for clarity on some of the poor regulations in the current legislation, the matters handled by the Department of Environmental Affairs, how traditional healers would be licensed and assisted, and how many jobs had been created since recognition of traditional knowledge. It was noted that the mandate of the DST did not lie with job creation but it was focused on research; only in the last three years had any jobs been created. DST aimed to find a qualification within the National Qualifications Framework for traditional healers and practitioners, based on a skills and competency assessment. DST had been working with traditional healers in drawing up the criteria. New courses had been established in conjunction with universities. It was explained that although access to finance remained a major issue, the DST was trying to assess the market demands when deciding which of the products it could help to commercialise.
The Department of Trade and Industry noted that it had adopted a phased in approach to delineate the immediate issues, and establish a framework for an agenda to deal with the whole intellectual property rights policy formulation. South Africa had till now followed a system of formal examinations of rights, which was not ideal, and it would be moving, after having researched and bench-marked against other countries, to a system of substantive examination, with the differences between the two being explained. It was noted that patents themselves were not anti-competitive, but that certain conduct, such as a refusal to licence, or preventing others from entering the market, could create anti-competitiveness. Dti was engaged in consultation with the World Trade Organization (WTO) and the United Nations (UN) and it was hoped that a framework would be finalised by April 2017. The Companies and Intellectual Property Commission further explained the substantive search and examination process and noted that until now, South Africa had lacked capacity in this area.
Members asked what lessons South Africa could learn from others, and noted that a hybrid model incorporating good features from several other countries was being proposed. Members asked if the DST was seeking public private partnerships, and felt that not enough had been said about any links to processes at the Department of Health, particularly to the new Traditional Health Practitioners Council, and the Department of Economic Affairs. Members asked how the DST decided upon research products and product choice, asked about the land issues in the Mokgola region, and whether DST intended to establish processing centres. They asked for further details on the National Office proposals, and for clarity on jobs actually created, as well as how the DST would ensure that tangible benefits actually would ensue. They wanted to know more about the inter Ministerial Committee and the trustee's role.
The Department of Agriculture, Forestry and Fisheries (DAFF) gave a presentation on two Bills that it was presenting: the Plant Breeders Right (PBR) and the Plant Improvement Bill (PIB). Each one of these Bills was replacing existing legislation by similar names, which had become outdated. The Bills were not directly concerned with intellectual property rights under the IK Bill but would complement it in the sense that there were some instances where plant breeders may have used traditional knowledge to create new varieties. The two plant bills covered similar topics, but the PBR Bill gave plant breeders a way to get financial remuneration for their efforts and applied to novel intellectual property, whereas the PIA Bill applied to varieties without novelty. Clauses 9 and 11 of the IKS Bill spoke to agriculture so to that extent they could be linked, and the DST and DAFF had checked that there would be no conflicts in the regulations. Members were not satisfied that the PBR and PIA Bills would necessarily strengthen or enhance the IKS Bill, and it was further explained how clause 26 would apply if a plant breeder used traditional knowledge or methods to discover a new variety. However, permits or licences would be provided by the relevant authority. Members asked the departments to be careful to ensure that the bills did align.
Workshop on Indigenous Knowledge Systems, Global Context, Intellectual Framework, Indigenous Knowledge Bill
Department of Science and Technology (DST) presentations
The Chairperson said that the Indigenous Knowledge Bill came at an opportune time and was a very important Bill.
Dr Thomas Auf der Heyde, Deputy Director General, Department of Science and Technology, outlined the content of the presentation.
Ms Carol Van-Wyk, Acting Chief Director: Science Missions, Department of Science and Technology, said that Cabinet had approved the Indigenous Knowledge Systems (IKS) policy in 2004. This policy's overarching objective was to enable the recognition, affirmation, promotion, protection and development of indigenous knowledge systems and to strengthen the contribution of IKS' s systems to the social and economic development of the country.
The policy was embedded upon four pillars shared across various government departments. The first key policy driver was the affirmation of African cultural values in the face of increased globalisation. It would dictate how the Department of Science and Technology (DST or the Department) would redress the loss of indigenous knowledge systems that were a link to heritage and culture in South Africa. The second pillar was the development of services by traditional healers. This aspect of the policy links the Department of Health to the creation of services for traditional healers. The third pillar deals with how indigenous knowledge contributed to the economy. The Department of Trade and Industry (dti) was in the main responsible for this. The fourth pillar dealt with how to interface indigenous knowledge systems with other knowledge systems. On this pillar the DST played a key role.
When the IKS policy was implemented the DST became the lead department. The National Indigenous Knowledge and Systems Office (NIKSO) was developed in in 2006, at which time it had three directorates. The first directorate dealt with advisory and policy development and institutional collaboration, the second directorate dealt with indigenous knowledge product development and the third directorate dealt with indigenous knowledge management and systems. The office was responsible for the implementation of the IKS policy within the DST, and developed appropriate mechanisms detailing how the Department related to holders of indigenous knowledge and what role the DST played within the national system, in science councils, and within higher education institutions.
She outlined the key achievements. The institutional collaboration platform consolidated collaborative research to initiate agreements with strategic partners, domestically, regionally and internationally. There was an inter-departmental committee, where fourteen departments participated, to update and inform each other in terms of policy, legislation and collaboration initiatives.
The main driver in the regional achievements had taken place in the Southern African Development Community (SADC) where DST had assisted various SADC countries on their policy development. The IKS policy of 2004 was first to have passed a policy on indigenous knowledge and its affirmation.
In regard to international achievements, she noted that the Department had collaborations with India, Indonesia, Brazil and China and at a multilateral level engagements with World Intellectual Property Office (WIPO) were made.
The departments involved had established an ethics policy which sets the scene on how research should be conducted in partnership with communities. She noted that when research was done in the past, researchers would go to communities and get information but no ethical protocol was established. The new ethics policy looks at how the DST could assist communities and their knowledge to be recognised and protected.
She said that the database protection policy was established when the DST initiated a national audit in 2008 to determine the state of indigenous knowledge systems in South Africa. The outcome of the audit found that most documented information was either sitting at universities, or that much of the information collected had been obtained without any prior consent forms signed between the collectors of the information and communities. DST believed that was where the trust relationships had broken down and this needed to be addressed.
The DST had a number of advocacy initiatives. Five national IKS Expos had been held in different provinces and there was work with the provincial government, national Departments, universities and communities to participate in these expos. IKS had been mainstreamed into the National Science Week, with its main objective being to make young people aware of the importance of science. Within SADC the Department had also established some awareness initiatives and workshops and an international conference which spoke of the value of indigenous knowledge in the 21st century.
DST had established a research chair at each of the University of KwaZulu Natal, Tshwane University of Technology and University of Johannesburg, which focused on traditional medicine and traditional medical research.
Speaking to knowledge capacity building within the country, she said that the DST had been administering a fund, which DST would transfer to the National Research Foundation (NRF) annually. The aim of the fund is to promote human resources and development of the necessary facilities that would facilitate the creation of knowledge and innovation within the IKS field. A review on the Fund had illustrated that many communities complained that they could not access funds directly and thus the Department had now looked at a new model with the NRF. Currently, communities were able to access funds to do their own research.
DST had established a DST-NRF Centre on indigenous knowledge, which was a virtual hub in partnership with four universities; UKZN, University of South Africa (UNISA), University of North West and University of Venda. The institutions had developed a Bachelor of Indigenous Knowledge Systems which is registered through the South Africans Qualifications Authority. Honours, Masters and PHD degrees had also been registered. In 2013 there was an intake of 20 students enrolled in the Bachelors of Indigenous Knowledge Systems at the University of North West, who should be graduating next year. Currently 54 students were enrolled in the programme.
A major achievement was to put in place an information infrastructure that would hold indigenous knowledge systems in oral format. She said that between 2008 and 2016, they DST had developed the system and put in place documentation centres in eight provinces excluding only Gauteng, where a centre would be established this year. These centres served as a footprint for the DST to institute the work of documenting indigenous knowledge systems.
Over the last four years, the centres had documented a total of 1 870 indigenous knowledge holders registered in the system. 9 200 claims were documented and 1 200 full records of those claims were now developed. Currently there were only 56 communities participating in the initiative, which linked up with the Department of Environmental Affairs' bioprosthetic permit applications process.
DST have also developed a digital database which digitised information on books of traditional medicines that brings together open journals, thesis, books and monographs that are linked to indigenous or traditional plants in South Africa. This was an online research-enabling resource.
She went on to discuss indigenous knowledge practitioners, and recognised that most of traditional healers did not have formal schooling. The system was a competence based system which aimed at assisting practitioners to be a part of the knowledge-based economy. The DST had created a regulatory policy framework for the accreditation and certification of indigenous knowledge practitioners and holders. She added that the practitioners had assisted in writing this policy, which was the first of its kind, and that the DST was helping them in establishing competence norms and standards within their field.
Mr Ankh Chabalala, Director: Indigenous Knowledge based Technology Innovation, DST, said that his division’s role was to create an innovation value chain to interface indigenous knowledge with other knowledge systems, to come up with products. This work was aligned with the National Development Plan (NDP) and Vision 2013. His division's main objective is to mainstream and thereafter interface indigenous knowledge systems; promote applied research for knowledge generation and technological innovation; promote inclusive technological innovation for social and economic development; and establish community-based technology transfer for manufacturing and commercialisation
He noted that one of the key achievements was established a model called Ubuntu Based Commercialisation of Business Models, with the idea of creating actual development at community level.
He acknowledged that when DST had started this work in 2006, there was nothing in place, but after travelling to China and India it was realised that these countries had achieved what they did because they had a standing philosophy on how they do things in business. Now, ten years later, the DST had over 50 candidate products. DST had changed its former Bioprospecting Product Development Platform to an Indigenous Knowledge-based Technology Innovation platform because the DST did not necessarily do bioprospecting. The programme had seven programmes: traditional medicines, indigenous foods, cosmeceuticals, technological transfer, manufacturing, ,marking, and commercialisation.
In the traditional medicines field, DST had been working on eight products, four focusing on HIV and Aids. Three of the projects were at clinical trial levels, but there was no money to progress this any further.
He noted that the last time DST had appeared before the Committee, questions had been asked about the role of marijuana in health. Last year, the DST had explored the importance of medical marijuana for health, and for other cosmetics or food-based products. DST was now doing the various lab tests and that there were licences in place from the Department of Health which allowed scientists to propagate, in a small scale, marijuana for research purposes. He noted that whilst South Africa was caught up in some legal squabbles, marijuana was a multi-million dollar industry which had benefited other countries, such as the United States of America and Israel.
DST had launched one product with Kalahari, which benefited communities. DST had organised communities into Small Medium and Micro-Sized Enterprises (SMMEs). Instead of paying them the royalties which would have been minuscule, the DST was rather encouraging a model whereby it organised communities into SMMEs who would then enter into tight joint venture agreements with bigger companies such as Kalahari. Sometimes, through lack of funding, the communities would have to settle for royalties, but this was effectively “ selling out” as far as the community was concerned.
DST had produced a lot of Masters and PHD graduates, some of whom went back and impacted on their communities. DST was setting up an extraction facility in Mamelodi, but faced a challenge in getting access to land. This had been going on for almost ten years.
In the area of nutraceuticals, ten products were developed, ranging from various indigenous vegetables, with various multivitamins, capsules and food ingredients being designed. There had been the launch of a two-minute noodle product, in collaboration with Nestle, which contained the Morogo vegetable. DST managed to persuade Nestle to build a processing plant in Hammanskral where communities would bring in, and be paid for, pre-processed materials.
The Honeybush project was another in which his division had just started discussions with local royal family who had made land available for the propagation of teas and coffees. The DST had taken the prototypes throughout the world and people were very excited about these health beverages, with commercial and manufacturing agreements being signed both domestically and abroad.
In the area of commercialisation, there were five products that DST was branding with Proudly SA and Brand South Africa. These were tissue oils, HIV/AIDS boosters, immune products and various medicines. Entrepreneurship skills were combined with indigenous knowledge. All products were SA Bureau of Standards (SABS) approved. Since 2006, the division had over 50 candidate commercial products, over 80 Masters and PhD students, over 30 published peer reviewed articles, 15 rural and local SMMEs developed, 300 jobs created and 12 production and commercial agreements with local and international industries.
Mr Tom Suchanandan, Director: Advocacy and Policy Development, DST, noted that one branch of the World Intellectual Property Organisation (WIPO), the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), was more focused on the issues of traditional knowledge. The IGC had authority to initiate norm setting discussions and propose international law for diplomatic conferences. e IGC had three instruments negotiated for diplomatic conferences; on traditional knowledge, on cultural expression and on genetic resources associated with traditional knowledge.
The first two of these instruments were fairly well-matured and according to the African Group these could go towards a diplomatic conference. However, there was still disenchantment and contestation with the third instrument which had both process and substantive issues. In relation to the process, developing countries proposed that the burden of providing information must be on the user and not on the provider. Developed countries had a tendency to separate genetic resources from associated traditional knowledge. Developed countries also wanted to exclude derivatives from the text, and were asking for protection of databases. The main substantive issue related to whether to have voluntary disclosure, involuntary disclosure or mandatory disclosure. The issue of mandatory disclosure had split developed countries. The EU countries had aligned themselves more with developing countries whilst there was a non-mandatory group consisting of the United States of America (USA), Russia, South Korea and Australia.
South Africa was a signatory to the Convention on Biodiversity (CBD), and Article 8J was the most crucial. This stated that member states must respect and protect indigenous and local knowledge. Although it was not the custodian of the Convention, the DST managed the agenda item on article 8J.
South Africa was also a signatory to the Nagoya Protocol on Access and Benefit Sharing. Article 28 of the CBD had given birth to the Protocol, and its legal relationship with CBD was regulated by article 32, which stated that no member state can become a contracting party of the CBD if was not also a signatory to the CBD. By implication the Nagoya Protocol had created the situation whereby anyone accessing a resource, or traditional knowledge, or accessing the resources with the knowledge must enter into a benefit sharing agreement.
He noted that the Food and Agriculture Organization (FAO) was another point to consider. A very important instrument of the FAO was the international treaty on plant genetic resources for food and agriculture. South Africa was not a signatory, because the treaty had an annex listing 13 plant genetic resources, none of which applied to South Africa.
He finally discussed issues around the World Trade Organization (WTO), and noted that there was a tension between the CBD and WTO on issues of disclosure. In 2006 a disclosure proposal was submitted by various states, with some, including South Africa, proposing an amendment to article 29 of the Trade-Related Aspects of Intellectual Property Rights (TRIPs). This proposal was that member states disclose the source of origin, disclose evidence of prior consent and evidence of actual fair individual benefits. These were additional criteria to the patent application. He added that there were some countries who had legal protections on traditional knowledge.
IKS Bill: DST briefing
Ms Shumikazi Pango, Deputy Director : Advocacy and Policy Development, DST, said that the Indigenous Knowledge Systems Bill was a mirror image of the discussion happening at WIPO and because South Africa was a members of WIPO it was bound by those deliberations. She added that the DST wanted to make sure that the IKS Bill was aligned with the Nagoya Protocol, the Intellectual Property Law Amendment Act that the Department of Trade and Industry (dti) oversaw, and other legislation. It established a number of intergovernmental and bilateral engagements to ensure this alignment, and the drafts were reviewed by a team of international experts.
Ms Pango then took Members through the Bill itself.
Clause 1 of the Bill dealt with definitions and concepts, clause 2 dealt with the application of the Bill, and clause 3 the objectives of the legislation. The main backbone of the Bill was to do with benefit sharing and it was stressed that if an individual or institution accessed indigenous knowledge, there should be benefit sharing in place. She made the point that IK was commonly owned and thus benefits would accrue to more than one individual and shared within the whole community.
Clause 4 of the Bill dealt with the establishment of the National Indigenous Knowledge Systems Office (NIKSO). She said that this made the office an establishment on its own with a legal character, which was important because the Office would be able to co-ordinate cross cutting fields in indigenous knowledge without fear of stepping outside the mandate of the DST.
She noted that there was some confusion between licences and permits. DST was aware that there was research which included natural resources or genetic resources, that then moved over to fall under the mandate of the Department of Environmental Affairs. However, the Bill said that if a researcher was accessing indigenous knowledge for purposes of any commercialisation, the licence then became operational.
Clauses 6, 7, 8, 9 and 10 of the Bill dealt with administrative aspects of the NIKSO, the establishment of the advisory panel, perpetual protection of knowledge and subject matter of protection. Clause 11 dealt with criteria for the eligibility of protection. Essentially, the crux of this was, firstly, that knowledge, in order to be indigenous knowledge, needed to have been passed down from generation to generation. It should not be new knowledge. Secondly, the knowledge was to be something with a cultural and social community context. Thirdly, that knowledge needed to have been maintained, used and developed.
Clause 12 covered one of the main aims of the Bill; to give new indigenous rights to communities. There would be a community appointed trustee, who would be responsible for the protection of the IK rights. She emphasised that this trustee was not the owner of the knowledge, but held it on behalf of the community.
The Chairperson said this was an important Bill and thanked the DST for its presentations.
Mr K Mileham (DA) noted the comment that many innovations lacked funding. He asked why then the DST was not looking at public private partnerships, or a commercialisation process, to bring the private sector on board. He commented that nothing specific had been said about linking the regulatory framework to the Department of Health’s accreditation process, and specifically to the Traditional Health Practitioners Council, which was established precisely for that process. In addition, there had been nothing mentioned about consultations with the Department of Environmental Affairs, nor was it apparently part of the intergovernmental committee. He noted that there were some poor regulations in place, which spoke specifically to genetic resources, such as the bioprospecting, access and benefit sharing. DST had not mentioned any historical context to these, and he had found that part misleading.
Mr J Julius (DA) asked what were the factors that influenced research products and product choice. He asked if the DST was looking at markets or contemporary economic climates as factors.
Mr O Sefako (ANC) noted that this presentation had touched on his own home village. He asked whether the original community members of Mokgola, which had a rich history of land struggles and migration in the prior dispensation,had rights in the rich historical indigenous knowledge in the area and could benefit from it. He further asked if there was any intention of establishing a processing centre near the rich indigenous plantations in the Mokgola area.
Mr C Mathale (ANC) asked if the DST was serious about the land space issue, which stood unresolved after 10 years. The accreditation of traditional leaders would subject people to a good but long process, and he encouraged the DST to look into how this process could be integrated with those of the Department of Health. He asked what was the thinking behind the NIKSO proposal, where the Head of Administration could remain in office for an apparently non-determined time frame.
Ms J Terblanche (DA) asked if DST could clarify the numbers of jobs actually created through the research and development since 2006.
Mr N Masondo (ANC) asked how the DST could ensure that the benefits from the Indigenous Knowledge would actually be realised, how DST would ensure that the commercialisation and attendant benefits happened. He asked for a broad indication of whether the product which dealt with hair-loss and regrowth really worked, and where such products could be accessed.
Ms E Prins (ANC) asked where people with knowledge of traditional medicines could go to evidence that. She wanted to know how DST would determine the original legitimate ownership of the indigenous knowledge. She asked if there was to be a system in place which recorded indigenous knowledge, if there were criteria to issue the licences, and what will happen to people who fall outside the criteria.
The Chairperson asked that the focal people whom the DST was bringing together should form an intergovernmental body for better collaboration. She asked where the trustee fitted in the whole process. She noted that some communities had found trustees dishonest and disloyal, and what could be the remedies for that.
Ms van Wyk answered that the DST aimed to find a qualification within the National Qualifications Framework for traditional healers and practitioners, and this would be through a skilled competency based system. DST had scoped the competencies, which were culturally based, and had worked from one province to another to understand the cultural practices and ascertain the first and last level of entry for a person to be accredited under a specific traditional practitioner’s role. Those competencies had never been documented or written up, but the DST was now facilitating in recording them for the first time. The DST was working with the Interim Health Council and with the Department of Cooperative Governance and Traditional Affairs (COGTA) and was hoping that the two systems would be streamlined. The accreditations system was to look at all domains of IKS in South Africa.
In relation to the locations of people wanting to register their knowledge, she said that the Bill made provision for the registration of knowledge at all established documentation centres. The contact details of these centres were to be made available to the Committee.
Mr Chabalala made the point that in South Africa it had been rather difficult to get the private sector to invest in new products; some were now willing to invest, but the DST had not been lucky in all cases. Currently, the private sector invested a little in research and development (R&D) but he hoped that through the efforts of the Minister more private companies would invest in R&D.
He then spoke to product choice, and said that one of the most important factors was market-pull. DST did not merely do research for its own sake, but would prioritise on the basis of what the market wants. National interests also played a part in determining product choice.
In relation to Mokgola, DST indeed hoped to instal a processing plant and had met with various tribal leaders in the area, who had given assurances to DST on the land. Scientists had gone there to inspect the land and some funds had been made available to build a fence to demarcate the space. However there was nothing else that DST could do unless someone came in with a decent financial contribution to take the project further.
He noted the comment on job creation, but said that the mandate of the research division of the DST was not to set up farms or manufacturing plants. The DST had spent seven years diligently doing research, with some experiments having to be repeated up to three times, which accounted for time and money being spent. The job creation aspects had only really started to come into play three years ago.
It was very difficult for the DST to predict whether a product would make it in the market and although DST trusted in the science and the message that the products carried, there was no guarantee of success. So far, however, it was sure that the market would be amenable to the products being developed.
The DST had documentary proof of the struggles which were faced in accessing land in Mamelodi. The minister would intervene and it was hoped that the land would be obtained.
On the licences, he explained that here were different commercialisation models. Where there was no money, the technology would have to be licensed. DST hoped to organise the communities into proper SMMEs, to enter into joint-venture agreements with bigger companies. He made the point that licences were not a proper development strategies.
He also explained that the DST was working hard on proof of concept and it would then hand over to appropriate departments and bodies. There had been sufficient research done into funding needed but without funding, it was a fact that some of the initiatives would collapse. One clinical trial was already ;projecting costs of R50 million, but the DST only had a budget of R4 million. The community became disgruntled when initiatives were not carried out in full but the DST was constrained in its resources.
Mr Suchamandan made the point that indigenous knowledge did not belong to the current generation but to future generations. Article 30 said that if there were bona fide beneficiaries then benefit sharing must accrue to them as well.
Mr Suchamandam said that the Bill did not specify whether NIKSO would be a special service delivery unit or a government controlled body. The DST had commissioned the National Treasury and Department of Public Service and Administration (DPSA) to do a feasibility study of what the role of NIKSO should be. The feasibility study leaned towards a special service delivery unit, which came with its own prescripts. He speculated that the Head of NIKSO would probably thus be appointed on a contractual term by term basis, but was not in a position to give a definitive response.
The most robust consultation had been with the Technology Innovation Agency (TIA) but there was no overlap between the TIA and DST functions.
He clarified that the permit was for the resource, and the licence was for the knowledge.
He added that clause 11 of the IKS Bill set out the criteria for the eligibility of protection under the Bill. Anyone who fell outside of those criteria would have to take a more mainstream route using the general system of intellectual property.
Mr Suchamandam spoke specifically to rooibos tea, and said that the EU had a directive to implement the Nagoya Protocol and would need to get a permit. That meant that anyone who was processing rooibos from South Africa would need to have a permit. There were cases in which the EU countries were stopping rooibos from entering Europe because there were no permits.
Department of Trade and Industry, and Companies and Intellectual Property Commission presentations
Mr Marumo Nkomo, Representative, International trade, Economic and Development division, Department of Trade and Industry, said that in 2008, Cabinet mandated the dti to establish the Intellectual Property Rights Policy. In 2013 a draft policy was released for public comment. Following that session and deep introspection, the dti had then adopted a fresh approach to intellectual property formulation. He said that the dti’s new approach, since November 2015, was based on three main pillars; the extent to which stakeholders have been engaged and consulted, the enhancement of government capacity that existed on intellectual property, and the degree of intergovernmental coordination.
The main issue in intellectual property (IP) generally was finding the correct balance between the interests of innovators on the one hand and the public, who do have, at times, competing interests in accessing the innovation.
The intellectual property policy had been eagerly awaited. Recently, the dti had been at an international AIDS conference in Durban, where it was suggested that it was urgent to finalise the policy. The dti needed to ensure that these key issues were addressed. That urgency could not happen at the price of an insufficient level of research, for this was a very complex and cross-cutting areas. In order to strike a balance, the dti had adopted a phased approach which delineated the immediate issues and came up with a framework for an inbuilt agenda.
He described the immediate issues as being, for instance, local pharmaceutical manufacture and the role of the intellectual property system, which was key to the economy. He too spoke to the formal examination of patents that had pertained until now, and said it was not an ideal system, so that the dti was working very hard to capacitate a new generation of substantive patent examiners.
He noted some exceptions to patent rights and added that the dti had worked very closely with the Department of Health, who in turn was working very closely with the pharmaceutical sector with regard to voluntary licences. The Department of Health ensured that where medication was not affordable, that Department would work with pharmaceutical companies to make the medicines available at lower prices.
He noted that a person holding a patent had an exclusive right to manufacturing that product. This did not mean that the patent was anti-competitive, although it was true that certain conduct linked to that patent, such as a refusal to licence or preventing others from entering the market could be anti-competitive. He said that there was no systematic way of dealing with anti-competitive cases of this nature. EU and USA came up with guidelines to ensure that intellectual property was not used as anti-competition. They had found that some of the anti-competitive practices by the pharmaceutical companies actually led to over expenditure on pharmaceuticals by the governments, to the tune of about 9 billion Euros.
Other issues to be dealt with in the immediate term pertained to the dti's engagements with international forums and various treaties, and how these would be leveraged to promote the national interests. He noted that the dti had recently signed a product agreement with the EU which had a protocol on geographical indications. Three of the indicators which are protected by the EU include honey-bush and rooibos teas, which prevented other companies in Europe from using this brand name.
He then spoke to the Inter Ministerial Committee (IMC) on Intellectual Property, established by Cabinet approval of 6 July. Intellectual property was an area which cross-cut the work of many departments and it was impossible for the dti alone to address all of the intellectual property related issues. An IMC, supported by senior officials who do substantive day to day work, was needed in order to ensure domestic and international coordination pertaining to intellectual property policy of the country.
Mr Nkomo wanted to speak to the in-built agenda. This was a medium term issue, where the dti had identified issues of intellectual property rights in agriculture, biotechnology, genetic resources, climate change, environment, the informal sector, commercialisation of intellectual property, branding of South African goods and services, government policy making and capacity building as being of importance. The dti was presently seeking input from all stakeholders and players on the inbuilt agenda.
He then spoke to monitoring and evaluation, There were some legislative initiatives under way. There was a need to ensure that resources were not duplicated and to assure the public that, in the event of any incongruities, the dti would monitor and align its efforts to the broader policy framework. This was a consultative framework, rather than a prescriptive one. Useful input had been given by other Departments, civil society and international bodies. In September, two workshops were to be held; the first was with the WTO, who would give a capacity building workshop to the IMC. The second was a United Nations (UN) workshop on trade and development, which would serve as the stakeholders' consultative engagements. By April 2017, it was hoped to conclude the policy formulation process that deals comprehensively with immediate term issues and sets the framework for an inbuilt agenda for the future.
Ms Nomonde Maimela, Executive Manager, Companies and Intellectual Property Commission, (CIPC) noted that parallel to this process of the dti, the CIPC was also preparing for implementation of the policy and policy content. She reiterated that substantive search and examination had never been done in South Africa, that it lacked capacity, and thus had benchmarked against other countries. CIPC had appointed 20 patent substantive search examiners at the beginning of 2016, and was planning to take on another group of trainers, in 2018, in order to build capacity in this area. CIPC had gone into partnership with service providers like WIPO, various universities and other Intellectual Properties Offices, who had given assistance to build capacity in this area.
She added that the system of formal examinations carried out by CIPC had prevented the CIPC from knowing the types of patents in their register. However, she too described the benchmarking exercise that the CIPC had done in Singapore. CIPC had consultations with key stakeholders, patent lawyers and interested parties. An important discussion area pertained to the type of model which was going to be used in South Africa. CIPC was determined to put systems in place to manage any initial problems with the new system.
Ms Maimela noted that the CIPC was looking to a hybrid system together with a phased in approach. This meant that the CIPC would identify important fields and establish those first, because there were limited resources. It would try to out-source. CIPC had again been speaking with countries who handled this well.
The Chairperson interjected that there was still a lot to do and to put in place the kind of policy that was ideal. Credibility was vital.
Ms Maimela acknowledged that, and said that the success was linked to recognition that everyone wanted to make South Africa a better place economically, for the benefit of all. CIPC had visited Singapore because its programme had amazed developed countries. She noted that Singapore’s project had started just five years ago with 20 people but it had now built a very highly-recognised intellectual property office which now was even helping the region. CIPC had visited all BRICS countries because the level of development was similar to South Africa’s, and by doing this it could try to incorporate several aspects that would make South Africa’s project successful. CIPC had engaged with some of these countries to establish how best to operate these systems, at an affordable price. CIPC did pick and choose what it wanted from various different countries, to incorporate in the new model.
The workshop part of the meeting was concluded.
Plant Breeders' Rights Bill: Department of Agriculture, Forestry and Fishery (DAFF) briefing
Ms Noluthando Netnou-Nkoana, Registrar of Plant Breeders' Rights, Department of Agriculture, Forestry and Fisheries, presented the Plant Breeders' Rights (PBR) Bill. She said that in agriculture, new plant varieties would be bred in order to obtain higher yields, better quality of the products or better resistance to plant pests or diseases. The Plant Breeders' Rights legislation was intended to cover this.
In terms of the Bill a breeder could include individual farmers, research institutes or private companies. The subject matter of protection in the PBR Bill pertained to the variety. Developing varieties of plants took a lot of time, effort and money.
Pertaining to the development of these varieties, she noted that it took time, effort and a lot of money. She further added that a plant breeder’s right was a form of intellectual property that was granted to the breeders of new plant varieties. The PBR gave a breeder a means of gaining financial remuneration for their efforts and would create an incentive to encourage breeders to continue with breeding new and better varieties.
Several conditions needed to be met for a variety to be considered under the PBR, which included:
- the variety needed to have a denomination or a unique name
- the variety must be a novelty which was strictly limited to the date of commercial sale; this was one year in South Africa, and four to six years elsewhere
- The variety must be distinct, uniform and stable (DUS).
In South Africa the PBRs were to be legislated under the Plant Breeders Right Act, and administered by DAFF. This Act was based upon the International Convention on the Protection of New Varieties of Plants which South Africa had been a signatory to this Convention since 1977. The purpose of the current Bill was to give specific protection to the holder of the plant breeder’s right. This would give the holder the right to perform all the activities exclusively, or to be able to grant licences for people who wanted to produce, or sell, export and import these varieties.
There were exceptions. If someone wanted to breed other varieties, using the protected variety belonging to another person, that could happen without a licence, and this was referred to as the breeder’s exception. Furthermore individuals like gardeners and subsistence farmers at home did not need a licence because they had no intention of selling their variety.
She noted that the Bill would be implemented through the historically established Plant Breeders' Rights system in the country, which consisted of the Office of the Registrar, based in Pretoria, and two evaluation centres. She noted that for the first time, this Bill now provided for the appointment of an advisory body. Regulations would be drawn but a consultation process for these regulations would still be needed.
She spoke to the complementary provisions between the proposed IKS Bill and DAFF's PBR Bill. Clause 9 (1) of the IKS Bill spoke of agricultural practices. She said that the IKS Bill would apply where the discovery and development would make use of indigenous knowledge. She noted that clause 26 of the IKS Bill and clause 16(6) of the PBR Bill were compatible. No conflict in the regulations was picked up.
Ms Joan Sadie, Director: Plant Production, DAFF, gave a presentation on the Plant Improvement Act (PIA), also administered by DAFF. She noted that the PIA and the PBR were inter-linked; both dealt with plant varieties and the requirements to register varieties were the same across both. The main difference was that the PBR was intended to deal with intellectual property, which had a novelty requirement, whereas the PIA did not deal with novel varieties.
Plant improvement was an important part of agricultural production. Climate change and global diseases were important drivers of development of new plant varieties. The quality of plant variety impacted on food security of the country. She noted that the legislation around such propagated materials aimed to create order in the agricultural production sector, to bolster trust in the national systems, to establish international trade and markets, and promote food and job security.
She said that the main objectives of the PIA were the same as that of the Plant Improvement Bill. The review of the Act through the Bill was mainly dealing with structure, and bringing the PIA into alignment with the Constitution. DAFF hoped that the changes made in the Bill would make it more user-friendly than the current Act.
The overarching purpose of the plant legislation was to regulate the quality of plants and propagating material which was intended for cultivation and sale, and systems and bodies were in place to handle this. Not all kinds of plants were regulated; only economically important food crops were covered. Inspection services were set up to inspect different businesses at different times. Inspections were conducted in import, export and certification schemes.
Certain types of businesses could be exempted from the process. The legislation did not regulate seed material that is not intended for cultivation, and she explained that if someone was selling a certain type of grain, for consumption, not for growing, that would not be regulated. DAFF only regulated seed material which was directly intended for planting. Farmers were allowed to clean and condition seeds for their own use but were not allowed to sell those seeds without first having registered as seed sellers.
The Chairperson said that in order to strengthen the IKS Bill, measures were needed that would close any gaps across different departments and pieces of legislation. He noted that the Committee would have to ensure that the Bills across different departments spoke with the same voice and language.
Mr Motale asked for clarity how the DAFF bills strengthened or related to the IKS Bill. The conclusion seemed to hint that there was in fact no relationship between them, and for this reason he thought that the two bills were not strengthening the IKS Bill. He specifically wanted to hear about clauses 9 and 11 of the IKS Bill.
The Chairperson asked for an indication of the alignment of all bills, and how each was compatible with and supportive of the others.
The Chairperson asked who undertook the DUS, and ensured compliance. She asked if the Bills were original bills or amendment bills.
The Chairperson wanted to know what happened to ordinary farmers who came with hybrids for registration, and if there was education for farmers so that they would be fully apprised of the new plant they discovered.
Ms Nkoana said that the subject matter of protection in the PBR Bill was “a variety”, which meant a plant that needed to be developed from the wild into a new variety. During consultation, the DAFF had learned that there was indigenous knowledge in agriculture, as communities would know which traits were suitable for a particular locality. If a person discovered and developed a variety using indigenous knowledge, the PBR stated that that person would have to go via the DST, in terms of clause 26. Clause 16 of the PBR Bill stated that in the event that indigenous knowledge was used, a person needed to obtain permits or licences in terms of other legislation and then attach those documents to the PBR application, in order for the PBR to then process it.
Ms Nkoana said that the DAFF had two evaluative centres and within the centres there were plant evaluative examiners who conducted the DUS tests. DAFF was responsible for the testing and for the granting.
She added that the PBR Bill set to repeal the current Act, No 15 of 1976. In addition, the regulations currently in force would then be amended so that they spoke to the new Bill, once it was passed.
In terms of awareness, DAFF had identified, through consultation within the PBR policy programme, that there was not enough awareness, and although DAFF had done outreach visits to some provinces, it was aware that more needed to be done in terms of the awareness.
Mr Mathale said that he was still not satisfied that these two Bills and the IKS Bill were properly aligned.
Ms Sadie said that the PBR and the PIA were very similar, with the PIA having more focus on the quality of the seed material, and thus being a little wider. The PIA Bill would replace the PIA Act, No 53 of 1976. That Act was currently challenging to read and interpret, because there had been many years of amendments on it. The new Bill would align with the international regulations, and would be more inclusive. She agreed that more outreach was needed to provinces.
Mr Suchamandan said that Ms Nkoana’s interpretation of clause 9(1) of the IKS Bill, in regard to agricultural practices, was correct. Clause 11 referred to a practice which has been passed from generation to generation, being maintained and developed constantly. The PBR did not strengthen the IKS Bill as such, but it was aligned. DST's next phase would be to accredit and certify plant breeders and farmers.
The meeting was adjourned.
- Indigenous Knowledge Systems: Department of Science and Technology & Department of Trade and Industry inputs 1
- Indigenous Knowledge Systems: Department of Science and Technology & Department of Trade and Industry inputs 2
- Indigenous Knowledge Systems: Department of Science and Technology & Department of Trade and Industry inputs 3
- Intellectual Property Consultative Framework
- Intellectual Property Consultative Framework - Consultative Instrument: Dti presentation
- Protection, Development, Management and Protection of Indigenous Knowledge Bill [B6-2016]: Purpose and Key Provisions
- Global Fora on protection of IKS and examples of countries that have legislated IKS protection: DST briefing
- 2004 IKS Policy, Role of Department of Science and Technology in Policy Implementation & Key Achievements of Department’s IKS Programme
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