The Portfolio Committee on Science and Technology received briefings from three academics, who gave their expert opinions on the Indigenous Knowledge Systems (IKS) Bill, and all agreed that it was a good piece of legislation. They spoke with one voice against the idea of placing Indigenous knowledge (IK) under Intellectual Property Law, stating that the two were different. IPL protected intangible material in order to incentivise creation. IPL also had specific time lines. For example, a patent would exist for only 20 years before a product fell into the public domain in order to allow the creator to make a living and gain monetary benefits. IK however was not concerned with wanting to incentivize creation and already existed in the public domain, and therefore could not fall under IPL.
The IKS was concluded to be a credible and suitable way to protect IKS because it was sui generis, was an accessible and self-contained law, was aligned to international and regional approaches, attended to cross-border matters, provided for community ownership, shared ownership and benefit sharing, had an in-built dispute resolution system, and provided penalties for theft.
The academics appealed to the committee to seek a repeal of the IPL Amendment Act in its entirety, and not only sections of it. It was said to have been rushed through, and was fundamentally flawed, very little confidence expressed in its functionality.
They were supported by the Congress of Traditional Leaders (Contralesa) said that IKS had a large range of knowledge practitioners and therefore when defining terms in the bill, open mindedness was required in defining ‘practitioner.’ Although Contralesa had been involved in the development the IPLAA, it had tried in vain to convince the DTI that the bill they had produced did not comply with its requirements.
The DST reported that the department was currently registering IKS within the provinces in order to document key facts about indigenous knowledge in various communities. They had begun progress in the Northern and Western Cape.
Members asked whether there would be interaction with the DTI if it was necessary to repeal the whole of the IPLAA, or only section 43, which dealt the IKS? They pointed out that it would not be easy to repeal it unless full support was obtained from the Department. They also asked if the IKS Bill infringed on the Patents Act.
The Chairperson said the Committee was excited about the Indigenous Knowledge Systems (IKS) Bill. They described it as well thought out, as it would assist other bills in their amendments, and also help other departments to fit in with this Committee.
Professor Sadulla Karjikar, Chair: Intellectual Property Law, University of Stellenbosch, emphasised from the outset that his expertise was in intellectual property law (IPL) and not indigenous knowledge (IK) -- the two were conflated, but were different.
He was in support of the IKS Bill as opposed to the IPL Act, and asserted strongly that it should seek to repeal the IPL Act. The Department of Trade and Industry’s (DTI’s) position with regard to intellectual property was confused, as it was attempting to cram IK into existing IPL, where it did not fit. IK should instead be given sui generis protection, as it was different. IPL had a specific rationale, which IK did not meet and therefore should not fall under IPL.
IPL protected intangible material in order to incentivise creation. IPL also had specific time lines. For example, a patent would exist for only 20 years before a product fell into the public domain in order to allow the creator to make a living and gain monetary benefits. IK however was not concerned with wanting to incentivize creation and already existed in the public domain, and therefore could not fall under IPL. The Bill should be accompanied by a memorandum drafting clearly what it sought to achieve. The legislation should also be put in plain language, bearing in mind the target audience. He re-emphasised his support for the IKS Bill and the importance of a clear divide between what was protected by IPL and IK.
The chairperson expressed excitement about the IKS Bill.
Professor Owen Dean, Specialist Attorney in Copyright Law, University of Stellenbosch, identified the family of laws and statutes protected by IP in the Trademark Act, Designs Act and the Patents Act, which all protected products of intellect. Various statutes existed and were custom made to cater to the different characteristics of intellectual property. IPL existed to give incentive to creators, as well as to give exclusivity of use for commercial purposes.
He identified two forms of IK as being works that operated in the technical field, such as natural medicines, as well as works in the cultural domain, such as folk law. IK belonged in the family of intellectual property, but could not be identified as a sub-species of IPL, and should therefore have its own piece of sui generis legislation.
IK was different from IP, because in IK there was no incentive to create, since work in IK had existed for decades. Putting non-creative material in an act that covered creative material would damage the existing law. Minimum requirements existed in international legislature, but if IPL did not work in step with the rest of the world it risked losing international reciprocity. He was in support of the IKA Bill, as it gave sui generis protection and provided automatic protection. The major benefit of the IKL Bill was that it was compatible with international systems, unlike the IPLAct . The bill was also tailor made to meet the requirements of communities.
Professor Caroline Ncube, Commercial Law Department, University of Cape Town (UCT), affirmed that she and her colleagues from Stellenbosch spoke with one voice in support of the IKS Bill.
She addressed questions which had been raised in previous Science and Technology Portfolio Committee meetings, one of which had been what would happen in the case of any conflict between the IPL Amendment Act (IPLAA) and the IKS Bills, should both be passed. She expressed discomfort with section 32 of the IKS Bill, which stated that the bill did not seek to detract from or alter the protection that existed in other bills. This section suggested that in the event of both laws coming into force, the IPLAA would still come it play. Section 32 should be revisited in later amendments of the bill. Traditional health practitioners were already registered under other acts, and would be required to register again under the IKS bill.
She addressed a concern over the ownership of intellectual property rights and the potential of the IKS Bill to create a battle ground between ethnic communities by highlighting that ownership under the IKS bill would belong to the community. A trustee would be appointed who would take the appropriate approach to protect the community, according to their specific practices. If this was not possible, the National Indigenous Knowledge Systems Office (NIKSO), which prioritised the community, would act as custodian. The IKS Bill provided for multiple ownership, so benefits would be shared equally among communities if there were multiple claims to ownership.
She said that the IPLAA did not deal with trans-border issues, while IKS addressed them in section 29 (1), stating that indigenous knowledge originating in a foreign jurisdiction must be given the same protection given to indigenous knowledge originating in the Republic: Provided that the laws of that foreign jurisdiction provide reciprocal protection to indigenous knowledge originating in the Republic; and section 29 (2): In instances where indigenous knowledge originates in one or more indigenous communities in foreign jurisdiction and in the Republic, NIKSO must assist the relevant foreign authorities and the indigenous community of the Republic to conclude an arrangement to share the ownership of that indigenous knowledge. The IKS Bill, unlike the IPLAA, had an international alignment to international and regional developments.
In addressing dispute resolution, the IPLAA requires commissions to accredit ‘certain institutions’ to adjudicate; legal representation is generally not allowed (except with the parties’ consent or adjudicator’s permission). It therefore did not have a clear dispute resolution channel, unlike the IKS Bill, which has an in-built dispute resolution system outlined in section 27-28 of the bill, with clear penalties.
She flagged that the definition of ‘indigenous community’ in the IKS Bill was too broad and did not consider co-vulnerable communities that had been displaced and scattered, and drafters of the legislation should take this into account. Exceptions of limitations in the IKS Bill should also be revisited in certain circumstances.
She concluded by stating that the IKS Bill was a credible and suitable way to protect IKS, because it was sui generis/outside IP law, was an accessible and self-contained law, was aligned to international and regional approaches, attended to cross-border matters, provided for community ownership and shared ownership, benefit sharing had an in-built dispute resolution system, and it provided penalties for theft.
Mr Ntuthuko Khuzwayo, former Vice President of the Congress of Traditional Leaders (Contralesa) said that IKS had a large range of knowledge practitioners and therefore when defining terms in the bill, open mindedness was required in defining ‘practitioner.’ He was proud to have been involved in the development the IPLAA, but had tried in vain to convince the DTI that the bill they had produced did not comply with the requirements of Contralesa. Intellectual property could not be produced outside a specific culture or community. Contralesa was in support of IKS Bill, and was actively engaging with the various sections of the bill. From 2010, it had been involved with Department of Science &Technology (DST) to pilot a system of regulating the process of registration, and identifying the standards already existing within the various practitioners.
In engagement, they had discovered practitioners dealing with types of knowledge that had been suppressed, and even considered ‘evil’. The accreditation given by the DST had set a space to affirm what had been suppressed. Gaps existed in South African Qualifications Authority (SAQA) registration, compared to other forms of knowledge. By nature, traditional knowledge practitioners were entrepreneurs, as they became fully involved in their practice and obtained a sustainable livelihood from it.
Mr N Koornhoof (ANC) asked if Contralesa agreed with the IPLAA, as it was a controversial act. Would there be interaction with the DTI if it was necessary to repeal the whole of the IPLAA, or only section 43, which dealt the IKS? He pointed out that it would not be easy to repeal it unless full support was obtained from the Department of Trade and Industry.
Dr D Lotriet (DA) said that she also shared the concern regarding the IPLAA. She asked Professor Dean if the IKS Bill infringed on the Patents Act.
Ms Lotriet asked how Hoodia, an indigenous product, was dealt with in the IKS Bill, compared to other acts.
The Chairperson asked if there was a board that certified and accredited traditional healers.
Prof Karjiker responded that the IPLAA should be repealed in its entirety. The purpose of the IPLAA was to introduce IKS protection. It was politically sensitive to cancel the IPLAA, as it involved one department canceling out the work of another, and it may be difficult for the DST to repeal it. He felt that the IPLAA had been rushed through primarily because state departments had been incentivized the wrong way. Legislation should not be made targets -- having legislators’ bonuses determined by passing particular acts such as the IPLAA.
Hoodia had been addressed in patent legislation, and not IKS. Drug companies were often seen to be exploiting indigenous communities, but this was not necessarily true as they could in fact be setting a trend for the indigenous community. Large pharmaceuticals developed synthetic products using the natural ingredients, and this might then create a market for the natural product which would benefit the indigenous community.
Mr Khuzwayo said that a traditional healer would be accredited. NIKSO had called for a professional community of practice that existed to sets standards and norms. A certificate could be obtained from community of practice.
Prof Dean urged the Committee to support repeal of the IPLAA. The IPLAA and the IKS Bill dealt with the same subject matter, but were different. If both IPLAA and the IKS Bill were implemented, there would be a risk that both pieces of legislation would not be followed because of too much red tape and loopholes. The entirety of the IPLAA, and not just one section, should be repealed. The IKS Bill was good law, and the IPLAA was bad, and it would be a travesty to IKS if both legislations were to run concurrently. If Contralesa was not in support of the IPLAA and favoured the IKS Bill, this was another reason to repeal the IPLAA.
The current section in the IKS Bill said it would not detract from any rights in any other act. The Patents Act was not explicitly mentioned in the list of acts, and his committee appealed for this to be included in the amendment of the bill. It would therefore be a wrong perspective that patent rights would be diminished by the IKS Bill.
The Chairperson said that Contralesa had supported the IPLAA in the absence of anything else, but she understood the shift to support the IKS Bill now that they had it to compare against the IPLAA. The Committee was trying to ensure that departments did not work in silos, fighting for only the legislation they had worked on, and should be ready to move to the best legislation available.
Mr Khuzwayo said that in principle, Contralesa raised concern over the issue of consultation and stake holder participation.
Ms Carol van Wyk, Director: Knowledge Management, DST, addressed the vulnerability of societies. The Department was registering IKS within provinces. It was approaching young people in particular communities to document what indigenous items they were using, what they were used for, how they were used and who used them within a community. They had so far been working among communities in Upington in the Northern Cape, and in the Western Cape. Other communities were enquiring when the DST would visit them. The DST was looking to expand, but were limited by funding.
Mr Tom Suchanandan, Director: Advocacy and Policy Development, NIKSO, said that Hoodia was protected by the Patents Act. There were four conditions that an applicant had to satisfy: disclosure of geographical origin, knowledge, evidence of benefit sharing, and the bill giving effect to the evidence.
The DST had identified the 16 areas for IKS as astronomy, genetic resources, education, health, architecture, agriculture, forestry, business methods, dances, songs, cultural expression of folk law, dispute resolution, traditional leadership and storytelling.
The meeting was adjourned.
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.