Protection, Promotion, Development & Management of Indigenous Knowledge Systems Bill: Department responses to submissions

Science and Technology

15 February 2017
Chairperson: Ms L Maseko (ANC)
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Meeting Summary

The Department of Science and Technology provided the Committee with a summary of all the submissions received and their response to these submissions. In light of the submissions received, the Bill generated a lot of interest from the public. Of importance was that most of the submissions were actually in support of the Bill.
Key issues that were of concern to the members of the public were:

It was alleged that the definition of “indigenous communities” was wide and vague. The Department disagreed with this sentiment and stated that this definition was acceptable and should stand.

There was a concern that the Bill conferred the National Indigenous Knowledge Systems Office with excessive powers insofar as it empowers that Office to enter into licence agreements on behalf of the Knowledge Holders. This comment and the relevant clauses in the Bill were amended to clarify the issue.

Clarity was sought concerning the purpose of registering indigenous knowledge and what would happen if one did not register. The Department replied that registration was voluntary and no sanctions would be imposed should the knowledge holder decide not to register his indigenous knowledge. However, without registration there can be no enforcement.

There was a suggestion that the Intellectual Property Laws Amendment Act be repealed. The Department referred to this issue as the “elephant in the room”, and replied that the repeal of the Act cannot be specifically dealt with in this Bill.  The Act is the responsibility of the Department of Trade and Industry. Therefore, the Portfolio Committee on Science and Technology should engage the Portfolio Committee on Trade and Industry and see how they would go about the repeal of the Intellectual Property Laws Amendment Act.

Meeting report

As the Committee did not have a permanent Chairperson, Ms L Maseko (ANC) was elected as the official Chairperson of the Committee for this parliamentary term.

Opening Remarks
The Chairperson said the meeting was convened to ensure that after the public hearings that were held the Committee received a summary of the submissions and the inputs of the Department of Science and Technology (DST) on submissions received, and how the Department intends to incorporate the inputs on the Bill. She hoped that the Committee would be done with the Bill by next month (March). Thereafter, a following meeting would be between the State Law Adviser and Committee Law Adviser on how to go about the Bill, followed by Committee deliberations, discussions and adoption of the Bill with amendments, if suggested. There would also be a joint meeting with the Portfolio Committee on Trade and Industry, and the DST would be invited to make a presentation so that issues of Intellectual Property Laws Amendment Act(IPLAA) are dealt with adequately, and that a situation of having two legislations dealing the same issue is avoided. Also, how intellectual property rights could be incorporated into the Indigenous Knowledge System Bill (IKS). The purpose of the joint meeting is to have a common understanding and agreement, as well as ensure that the IKS makes the lives of people much easier.

Mr Shaun van Breda, State Law Adviser from the Chief State Law Adviser’s office,was in attendance to listen and provide guidance from a law perspective.

Dr Thomas Auf der Heyde, Deputy Director General, said the Bill generated extensive interest from the members of the public, both concerns as well as some supporting inputs. DST considered these inputs very carefully and where relevant, legal input from the DST legal services division was obtained.

Dr Yonah Seleti, Chief Director: Science Missions, presented the Committee with DST’s analysis of the submissions received. The total number of submissions received was 41, with 20 being written submissions and the rest being oral submissions to the Portfolio Committee on Science and Technology. In dealing with the submissions, DST used an asymmetric approach and simply dealt with issues raised rather than dealing and responding to each submission. In terms of this approach it appeared to DST that there were five to six interest groups and their comments placed emphasis on what they were putting across as part of their contribution. But most importantly, all the comments were constructive with the view of improving the Bill. The presentation would begin by looking at different interest groups, their areas of concern, followed by DST’s response to each of the concerns.

The first group of interest was the industry or business community. Areas of concern raised by this group included the issue of sanctions, exceptions and limitations, issue of ownership, and duration of the protection. But of big concern to them were the issues of benefit sharing and the distinction between permit and licence agreement.

The second group of interest was the legal academia fraternity. Much of their comments were to affirm the Bill. However, they recommended that IPLAA be repealed.

The third group of interest raised the issue of territorial overlap. They pointed out that there was a territorial overlap between different State Departments, namely Department of Environmental Affairs (DEA), Department of Trade and Industry (DTI) and DST concerning some of the issues dealt by this Bill. The overlap was on two areas, that of mandate and that of licence and permit.

The fourth group of interest was the Khoi San. Much of the issues raised by them were not issues relevant to this Bill, but issues pertaining to their self-determination and recognition. Because the Bill is not meant for this purpose, DST did not have a direct comment on any of their concerns.

Knowledge Holders were the fifth category. They were concerned about the process of registering their knowledge as provided in the Bill, and whether it was compulsory or voluntary? DST replied that it was voluntary and should be noted that without registration there can be no enforcement. Thus, although registration is voluntary it is a necessity. Further, there was a concern about different kinds of registrations. They alleged that the Department of Health also requires them to register their traditional practice as traditional health practitioners. DST replied that this Bill requires knowledge holders to register their knowledge not their practice. There is a distinction between registering their practice as traditional health practitioners and registering their knowledge. In other words, they were not required to register the same thing more than once.

The sixth group was those of innovation and invention. Basically, should the knowledge holder seek to innovate his/her knowledge what is the protection afforded to the inverter and knowledge holder.

The last group was on education and promotion- Professors from different Universities. They suggested curriculum extension.

Dr Seleti remarked that this was the context in which DST was providing the responses to the submissions. Most of these inputs serve to improve the clarity and legal certainty of the Bill.

The following issues were raised by more than one organisation/interest groups. In the presentation issues raised and the organisations or interest groups that raised the issue are clearly stated, as well as DST responses (see document).

Concern that the definition of “indigenous communities” is wide and vague.
DST replied that the definition as provided in the Bill is acceptable and will not be changed or revised. This definition is also consistent with the definition provided in IPLAA (see document).

The perceived excessive powers conferred on NIKSO by the IKS Bill.
DST noted this issue and therefore amended the wording provided in clause 26.2 to make it clear that NIKSO is a facilitator, and cannot enter into licence agreement. People that should be entering into these agreements are knowledge holders not NIKSO (see document).

Eligibility and Protection
This issue is important not only for the purpose of this Bill but is also an international concern. The concern was that criteria as provided in the Bill must be changed because it is vague and subjective. DST replied that the criteria will not be changed. It is better to provide a definition or criteria that are tight enough but allows for flexibility (see document).

Accreditation and Certification
This is an important pillar within the Bill. It emphasises the fact that indigenous knowledge practitioners do not go to formal schools which certify. DST noted this issue and clause 15.1 of the Bill proposes an amendment to provide clarity and legal certainty (see document). Another issue was if the company has registered indigenous knowledge and has a licence agreement, does it qualify as an indigenous knowledge practitioner. DST replied that it cannot because it is not a knowledge holder. The eligibility criteria cannot qualify a company as an indigenous knowledge (see document).

Registration of Indigenous Knowledge
Here the issue was whether or not registration is compulsory and what is protected by registration. DST replied that registration is voluntary and if the knowledge is not registered there are no sanctions, but will lose the benefits that come with registration (see document).

Registration within 12 months
Here the issue was if the knowledge had already been used in commercial exploitation and this Bill comes into force, what happens to that knowledge. DST replied that if within 12 months they continue to use the knowledge in a commercial sense then they must use a transition period to enter into benefit sharing agreement and getting into new licence agreement with knowledge holders. The purpose is to benefit both the exploiter and the community (see document).

Accessing the Register by the public
DST replied that the public cannot access the content because this is what is protected. However, they can only access the catalogue and know what it is (see document).

Funds in the Trust
The Bill itself does not focus on the money. It has four legs: development, promotion, protection and management. However, a current fund has been established in the Department of Environmental Affairs. This fund grants access to the biological resources. Therefore, in this Bill there is no proposal of building new funds (see document).

Penalties and Sanctions
Here a point was made that in intellectual property they do not normal refer to criminal because these are civil issues. DST noted this point, acknowledged this point and made appropriate amendments (see document).

Trans-border application
DST replied that if the knowledge is protected in South Africa but being used in Lesotho, and South Africa has bilateral agreement with Lesotho that knowledge will still be protected in Lesotho. The same if such knowledge is protected in Lesotho and used in South Africa it is still protected in South Africa (see document).

Areas of concerns: Territorial Overlap
Here a concern was raised that there is a territorial overlap between the IK Bill and various other national legislations. DST noted this concern and clauses 9.1, 15.1 and 2 of this Bill have been revised to address the issue (see document).

Preservation of heritage
The proponents of this issue were worried about their culture being preserved for posterity. DST replied that this Bill does address the issue of preservation of culture for posterity (see document).

Exceptions and limitations
It was alleged that exception for academic purposes in clause 26(4)(e) is too narrow and it should include publishing and republishing of works that consist of or include indigenous knowledge resources. DST replied that the exceptions as provided in the Bill are standard copyright exception. Therefore, DST does not accept or agree with the concern raised on this issue (see document).

Health Regulations
DST replied that this Bill does not deal with health and medicines related matters (see document).

Repeal of IPLAA
The suggestion was that in the interest of the country IPLAA should be repealed. DST replied that this issue cannot be dealt with in this Bill. The repeal of IPLAA is the responsibility of the DTI. The Portfolio Committee should probably engage both the Ministers of Science and Technology and that of Trade and Industry to initiate this process (see document).

Realignment and issues of clarity
Here it was suggested that the definition of Indigenous knowledge should refer to functional/cultural. DST agreed with this comment and the definition will be amended (see document).

Ms J Terblanche (DA) was concerned about the DST’s response to the issue of territorial overlap (pg. 17-18 of the document). She suggested the Committee should also have a meeting with the Portfolio Committee on Environmental Affairs because most of what is going to happen will affect South African indigenous species. For example, in the mining industry there are illegal mining activities taking place. Permits are issued without proper environmental impact assessment being done. As a result of these illegal mining activities, the country is losing indigenous knowledge about indigenous species not yet discovered. For example, there are new species in South Africa - butterflies, frogs etc. that we are losing on a daily basis. While going through the difficult process of this Bill, the Committee should attempt to tighten up other areas in discussion with other Departments that are supposed to look after our heritage. It was no use in fighting this fight on the one end while losing it on the other.

Mr N Koornhof (ANC) asked when the Committee would get the amended version of the Bill. He said IPLAA itself is not a problem but government officials are. This legislation was enacted under correct circumstances but the indigenous knowledge was wrongly protected in term of IPLAA. Although it is difficult for the Department of Trade and Industry’s officials to recognise this, it must be recognised. As a legislature, we cannot be expected to rule that this Bill which is clearly a good one on the protection of indigenous knowledge, be placed under IPLAA. What is needed therefore is a meeting of minds by the DST and DTI to have independent legal advice on this issue, and present the outcomes to the Committee.

The Chairperson sought clarity on the issue of territorial overlap - whether or not there was a need to also consult the Department of Arts and Culture.

DST replied that the comments were very affirmative and positive. Indeed, there is a need to tighten up on certain areas because we cannot allow a situation where our resources are exploited through fraudulent means. DST has good working relations with the DEA and therefore the issue of indigenous species will be attended to in the shortest time possible.

On the issue of IPLAA, indeed IPLAA is not a problem but officials are. DST stated that the DTI is currently resolving this issue. DST is looking forward to a quick address of this issue within the DTI. DST will do whatever in its power to channel this information until it gets the attention it requires at the highest level. Since this matter is already before this Committee, it should also push the matter.

On the issue of when the amended version would be available. DST replied that they intend to work closely with the Committee legal adviser on the finalization of the Bill. DST was ready to kick off the process as from last Friday and give the Committee a copy of the Bill as soon as possible.

The Chairperson asked what is “soon as possible”.

Mr C Mathale (ANC) remarked that the DST actually thought it is the responsibility of the Committee to make the necessary amendments. What the Committee should perhaps do is to ask the Committee’s Legal Adviser to liaise with the DST to provide whatever input they want to provide.

DST replied that they already had a revised Bill in accordance with the submissions received and will liaise with the Committee Legal Adviser.

Mr Mathale asked what was going to happen to those people who were unable to come to Cape Town to make oral submission to the Committee.

The Chairperson replied that the Committee tried to have wide spread hearing to some provinces. However, there were lot of questions as to why have public hearings only in certain provinces and not in other provinces. It was a case of cost cutting. Anyway, this process is going to provinces via the NCOP. The NCOP can conduct extensive public hearings in their respective provinces, especially in deep rural areas. Committee Members should also spread the word in their provinces/areas that this Bill will be coming to province for comments.

Mr Mathale said it must be noted that the Committee we would have loved to conduct public hearings in all provinces even if it was one public hearing in each province, but due to financial constraints was unable to do so. Hence the hearings were only conducted in Cape Town and the reliance on the NCOP to conduct these public hearings in all provinces. This is an important Bill to our people and therefore we should have been afforded necessary resources to conduct public hearings in all provinces, instead of relying on the NCOP.

Ms Terblanche asserted that this Bill is a section 76 Bill and lies very heavily on the members of the NCOP to conduct public hearings. Not only to inform the Members of the legislature but to also conduct extensive hearings.

The Chairperson said she would schedule a meeting with the Chairperson of the Select Committee on Science and Technology to ensure that when going back the provinces extensive public hearings are conducted especially in deep rural areas. She also promised to have a meeting with the House Chairperson of Committees to discuss this issue of public hearings and financial constraints.

Ms Terblanche asked whether anyone complained that they did not have an opportunity to make submission.

The Chairperson replied that she did not receive any complaints. She clarified that Mr Mathale was only concerned that the responsibility to conduct extensive public hearings does not solely rest on the NCOP. It is also the responsibility of the National Assembly, and this Committee should have been afforded the necessary resources to also conduct hearings not only here in Cape Town but in all provinces; it is an important concern.

The Chairperson thanked the DST for the presentation and for clarifying some of the issues raised by the public. She then released the government officials (DST) from the meeting.

Committee programme
The Committee considered their programme.  On the 22 March, there will be a joint meeting with the Portfolio Committee on Trade and Industry. The Chairperson said the Minister of Trade and Industry has already been invited to attend this meeting and make a presentation. The following week the Committee would have a legal briefing. Then the Committee will deliberate and try to finalise the Bill so that it can be presented to the House.

The Committee Secretary said she listed the oversight period on the programme, which will be from 21 March to 31 March. She also listed the international study tour and this is something Members should apply their minds as to which country they would like the Committee to visit.

The Chairperson raised the issue of the Committee Researcher. The Committee does not have a Committee Researcher, and promised to take up this matter with the authorities to employ a researcher for the Committee.

The meeting was adjourned.





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