Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill: public hearings day 2

Meeting report

The Chairperson said that the public was present to enrich the Bill and to bring to the Committee's attention any areas that should be looked at and perhaps amended. The input that was to be given will be taken into consideration and deliberated upon, and if the Committee agreed, would be incorporated into the Bill. This was an important Bill that cut across many departments such as the Departments of Arts and Culture, Environmental Affairs, Health, Trade and Industry, and Co-operative Governance and Traditional Affairs.

Submission by the South African Rooibos Council
Ms Marthane Swart introduced the South African Rooibos Council as an independent voluntary organisation with the main foci being communication and research that definitely supported better co-ordination and communication between government departments, and between government departments and the private sector on such matters as the protection and management of indigenous knowledge.

The South African Rooibos Council was broadly supportive of the Bill and the comments to follow should be considered in that context. Three broad areas of concern have been identified:
• Possibility of competing jurisdictional responsibility when the Bill was considered in the context of other legislation, or proposed legislation, as well as extra territorial application of the Bill beyond the borders of South Africa. clause 32 of the Bill does not alter the protection afforded. The Bill does not explain how it proposed to co-exist with other intellectual property rights.
• Interpretation and effect of various clauses. It was felt that the Bill could benefit from more specific guidance as the definition of 'indigenous knowledge' in the Bill was very vague. Also where it referred to communities having assimilated indigenous knowledge, this was not clearly defined at all. Here it was highly likely that a judgement call would have to be made by authorities on a case by case basis which could create uncertainty and inconsistency in the application of the Bill.
• Committees in Offices which the Bill sought to establish. The South African Rooibos Council did not have a problem with this but some clarification and specific guidance was needed for the establishment and functioning of these committees.

Ms Swart said that on a point of clarification, clause 2 limits indigenous knowledge to that which is registered under the Act. This is at odds with Chapter 4 which does not make reference to indigenous knowledge having to be registered in order to attract protection. The one was a blanket clause and the other specifically said 'registered'. Thus it was not clear if the Bill had to protect only registered indigenous knowledge, or all indigenous knowledge.

On eligibility and protection, the eligibility criteria in clause 11 were vague so the SA Rooibos Council feared that when applied it would be largely subjective; and it was uncertain how this would be tested by authorities.

The Bill did not illustrate the process and registration for indigenous knowledge, and did not show how such processes would be managed or recorded. Ms Swart advised that there should be some guidance as to how the application for indigenous knowledge should happen. The Bill provided very little oversight over trustees, because it had to be ensured that trustees acted in the best interest of the community.

The National Indigenous Knowledge Systems Office (NIKSO) had absolute discretion to grant licences, so the South African Rooibos Council asked that discretion be observed when considering the maximum threshold.

Ms Swart said that it should be captured in the Bill how an indigenous knowledge practitioner would be accredited.

The third concern dealt with the fact that NIKSO had broad sweeping powers. In a situation where no community has come forward to claim indigenous knowledge, the Bill stated that NIKSO would act as custodian. The concern was how funds were accrued from such ownership and benefits approved. No provision was made as to how decisions would be made by communities. It was unclear whether a consensus or majority was required for decisions.

The SA Rooibos Council was broadly supportive of the Bill, despite the flaws highlighted in this commentary. It felt the flaws could be remedied through careful and considered re-drafting of certain clauses of the Bill

Discussion
Dr A Lotriet (DA) asked for elaboration on why the South African Rooibos Council was in support of the Bill.

Ms Swart replied that the Council had for some time been engaged with the issue of traditional knowledge and were currently in a working group with the National Khoisan and San Council.

Mr N Koornhof (ANC) thanked the South African Rooibos Council for a very comprehensive submission . He noted the interesting remark that a flaw in the Bill was that it did not show how it would co-exist with other intellectual property rights. That was the mistake according to lawyers in the Intellectual Property Amendment Act so there was a big fight about it and it was a very delicate area in terms of intellectual property. He asked if the Bill was passed as is, if it would impact negatively on the Rooibos industry.

Ms Swart replied that she felt the Bill lacked specific guidance on a number of issues and if it was passed as is a lot of power would be in the hands of NIKSO, without any private sector resubmission  and it would have a negative impact on the industry. The reason was related to the loss of power in Committees and sometime there was referral to 'registered' indigenous knowledge and sometimes to just indigenous knowledge. The definition was also very broad and the process for registration was not clear. There were also a number of loopholes that made the Rooibos industry quite vulnerable.

Prof N Kubisa (NFP) said the South African Rooibos Council had spoken about how this Bill competed with other Bills in the area of jurisdiction and this was critical. He asked how it could be narrowed to benefit the Indigenous Knowledge Systems Bill.

Ms Swart asked if areas of jurisdiction were being referred to. The SA Rooibos Council had attended a workshop on the Intellectual Property Amendment Bill in Pretoria where the idea of a one-stop shop was spoken about for this kind of legislation. Reference was made at this workshop to a transitional committee that would have resubmission  of both the Departments of Science and Technology and Trade and Industry, and would look after how knowledge and intellectual property coincide.

The Chairperson asked how the SA Rooibos Council saw this Bill outside the Rooibos arena.

Ms Swart replied she was referring to the wider natural product industry. When working with the wider natural product industry, they were much smaller than the Rooibos industry, and in many instances not as well organised, so this again spoke to the need for the Bill to be specific in its criteria, and specific as to how it will be managed by NIKSO as a management committee of the Bill and also how communities would be engaged with.

Ms C King (DA) thanked the SA Rooibos Council for the submission. She asked if the Bill might cause conflict between different tribes because as things stood requests had to be put in to say that they were the actual holders of this knowledge. She asked if the Rooibos Council thought that a dispute resolution committee could assist with this because such a committee only came into play after NIKSO had made a decision.

Ms Swart replied that she thought this was a valid point as there would be a number of groups who could come forward and claim indigenous knowledge. If enough guidance was given as to how this committee was put together with proper resubmission from the State, practitioners and claimants, then it could play a valid role should a dispute arise. There also may be an argument for certain groupings coming together collectively and making these arguments.

Ms N Ndongeni (ANC) asked for clarity about the Rooibos Council’s concern about the funds accruing from ownership to NIKSO.

Ms Swart replied that she was speaking off the cuff here. If indigenous knowledge was assigned to a product and it was vested in NIKSO rather than a community, the benefits that accrued would obviously go to NIKSO. If NIKSO could identify the community then the benefits could then go to the community. That was a possibility, or a fund could be established to assist people with their processes. There were a number of ways that trust funds could be applied. The Rooibos Council’s concern was a situation arising where funds would be lying there and there was no community that these funds could be earmarked for. All suggestions were dependent on the existence of a community who could be the beneficiary of the funds, being identified. This was something that had to be looked at in the Bill.

Ms Ndongeni said that this was where the trustees came into the picture.

Ms Swart agreed that this was where the trustees came in. However, this specific point was talking to where there was no community so Bill referred to a situation where indigenous knowledge was identified and registered, but there was no community, then the indigenous knowledge rested in NIKSO. From the private sector benefits would then be paid to NIKSO, so the question was what would be done with this money. It could be made available to other parties applying for indigenous knowledge or to the Department of Social Development. Or NIKSO could be tasked with identifying the appropriate community that was entitled to these funds.

Submission by the Publishers Association of South Africa (PASA)
Mr Nicholas Vassen said that PASA represented book and journal publishing in South Africa in the field of non-fiction, fiction, education, academic and trade publishing. PASA’s well over 180 members comprised the vast majority of South African publishing houses, for profit and not-for-profit, University Presses, small and medium sized companies and multinational publishing enterprises. PASA therefore welcomed this new initiative to consider the status and future of the protection of indigenous and traditional knowledge and wished to continue engaging with the Committee.

On definitions of 'indigenous knowledge holders', Mr Vassen said that the definition referred to the “primary sources of community knowledge”. It was submitted that the word “primary” was not well suited as it was vulnerable to diverse interpretations. It was therefore suggested to remove the word primary and replace it with: main, principal, contemporary or current sources of indigenous knowledge.

On access, the definition of  'access' referred to use, which should be defined separately since these two terms were referred to individually throughout the Bill.

On exceptions and limitations relating to the access of the indigenous knowledge resources, Mr Vassen said that PASA’s predominant interest in the Bill lay with the exception for “academic purposes” as included in clause 26(4)(e). This exception was too narrow and should specifically include publishing and re-publishing as an outright exception, i.e. no prior informed consent is required for publishing and republishing of works that consist of or include indigenous knowledge resources. Arguing that publishing and re-publishing forms part of “incidental use” as included in clause 26(1)(f) constituted an unfair burden of proof. If the Bill were to become law, any current and prospective published works in the indigenous genre would be vulnerable to violation and to penalties as listed in clause 28. Also, permission clearance for these works would be difficult and co-incidently create legal uncertainty.

Mr Vassen said that the Bill granted NIKSO the authority to impose fines on violators of the Act. Therefore should publication and republication not be listed as exceptions under clause 26(1), the threat of fines would have a chilling effect on the publication and consequential disseminating and preserving of indigenous knowledge.

On the protection of existing intellectual property rights of or containing indigenous knowledge resources, the Bill was deprived of a clause addressing protection of intellectual property based on indigenous knowledge resources that came into existence before enactment of the Bill. This omission has the potential to result in great legal uncertainty. PASA thus recommended inclusion of a clause which would explicitly guarantee continued use and protection of intellectual property rights consisting of or containing indigenous knowledge resources that came into existence before enactment of this Bill, for the relevant stakeholders.

The Chairperson said that the Committee would look into all the proposals made by PASA.

Submission by Ms Aishia Pinto
Ms Aishia Pinto, a stakeholder introduced herself as someone who owed her being to the Khoi and San who ‘whose desolate souls haunt the great expanses of the beautiful Cape - they who fell victim to the most merciless genocide our native land has ever seen,…’

Ms Pinto said that this Bill should protect indigenous knowledge, whether it was cultural or functional in nature, or both, including medical, agricultural and scientific practices, knowledge of a scientific or technical nature; knowledge of natural resources; and indigenous cultural expressions; phonetic or verbal expressions; musical and sound expressions; archaeological and historical sites, artefacts, designs, ceremonies, technologies visual and performing arts and literature.

With regard to the accreditation and certification of indigenous knowledge practitioners, Ms Pinto said that NIKSO should educate, initiate and facilitate the applications of indigenous knowledge holders and practitioners; they should be accredited and certified as indigenous knowledge practitioners and recorded in the Register of Designations.

Indigenous knowledge originating in a foreign jurisdiction must be given the same protection given to indigenous knowledge originating in the Republic.

Key recommendations were:
• Short term:  A resourced task team should work with the Portfolio Committee on this Bill. There should be the creation of intellectual property rights law conducive to the protection of indigenous knowledge systems.
•Medium term: Provincial offices of NIKSO needed to be established in each province situated closest to the nearest indigenous community. Partnerships with higher education institutions across provinces should be established.
•Longer term: There should be funding and investment in research with indigenous communities as an equal partner not merely as an object of research.

Discussion
Mr N Paulsen (EFF) said that the Bill was problematic because of the ignorance about indigenous communities. He asked what was being done about ensuring that indigenous communities were acknowledged and that they were consulted because in his view this Bill sought to regulate not only knowledge but the entire culture.

Ms Pinto said that that was not her job it was NIKSO’s job.

Mr A Mothale (ANC) asked what would be the best way to communicate with communities.

Ms Pinto said that the best way would be for NIKSO to go to the ground which meant meet with communities and going through all information line by line – in short, oral communication was the route to go.

Ms King cautioned Ms Pinto about her mention of the ‘going market rate’ because to date they have not actually ascertained indigenous knowledge with regard to monetary value.

Ms King said that Ms Pinto had said that NIKSO would be entitled to 1%. She asked how that was determined.

Ms Pinto replied that she had come to 1% because NIKSO was going to be making so much money so they would only need 1% from every indigenous knowledge holder.

Submission by Ms Thobeka Kentane
Ms Thobeka Kentane said that she was an indigenous knowledge system activist and a practitioner as well. She outlined the different knowledge forms, saying her involvement in accreditation had led her to explore ways that indigenous knowledge could integrated into the South African Qualifications Authority (SAQA). Going through the Bill she had noted challenges with regard to research and innovation of indigenous knowledge systems. One had to embody indigenous knowledge systems when dealing with these.

Chapter 7 of the Bill especially showed that there was no protection of indigenous research and related processes.

Chapter 3: In clause 5(g) "determining the criteria for issuing licences for the use of indigenous knowledge", Ms Kentane said that one should add that processes should include constant consultation with the community of practice in question.

Chapter 3: On clause 6, experience had proven that no matter how qualified a person was, if a person did not identify with indigenous knowledge, many things could go wrong.

Chapter 4: In clause 12, there should be an inclusion of how the trustee should be identified.

Chapter 6: In clause 18(1) and (2), in communities of practice that had other bodies such as councils, it should be made clear how duality should be handled.

Chapter 7: Ms Kentane felt something was missing mostly when it came to commercialisation of indigenous knowledge. This is because the Bill was not saying anything about research of indigenous knowledge.

Discussion
 Prof Khubisa thanked Ms Kentane for such an enlightened submission . Ms Kentane had spoken about the lack of mention of research in the Bill. He asked who should be involved in this research aspect of the Bill.

Ms Kentane referred the Committee to her slide on research and innovation where development was referred to. It indicated that the development of knowledge holders had to be protected and looked into as critical aspects of the process. Even acknowledging the knowledge holder in written articles was very important.

Mr Paulsen said that Ms Kentane had said that this Bill benefitted academics but did nothing for the knowledge holder; also that this Bill would advance and promote indigenous knowledge. Would this not be merely promoting knowledge outside of it and benefitting those outside of the indigenous community?

Ms Kentane replied that Mr Paulsen was quoting her out of context. What she had said was that the Bill needed to have a clause to ensure that indigenous knowledge holders benefitted in the process of research or any information that was taken from them.

The meeting was adjourned.