Indigenous Knowledge Systems Bill & Intellectual Property Laws Amendment Act: DTI, DST & CIPC on potential overlaps

Meeting report

Opening remarks

The Chairperson emphasised the importance of the meeting and suggested that government should not work in silos but should collaborate on various issues. Parliament was identified as the best place to iron out any differences. The portfolio Committee on Science and technology has not had the services of a researcher for the past three years and the incumbent content advisor is presently on maternity leave.  The committee also does not have a whip.

There should be a conscious attempt tosynergise the work of government and make sure that a one stop shop is established. There is one national government and no competitors.

Input from Companies and Intellectual Property Commission (CIPC)
Adv Rory Voller, Commissioner, CIPC) briefed the Committee and identified the importance of collaboration in order to ensure that the Intellectual Property Laws Amendment Act (IPLA) and the Indigenous Knowledge System Bill(IKS) be implemented. He alsopromised to make remarks that were the views of the Department of Trade and Industry (DTI) howeverthe presentation was largely basedon the views of the CIPC.

The CIPC is a public entity that operates under theDTI, was established in May 2011, and is a creation of the Companies Act which was promulgated in 2008. The Commission deals with the registration of intellectual property (IP) and companies and acts as a regulator of company and IP issues. The CIPC wants to align both IPLA and IKS in order to foster clarification protection and promotion. The Commission supports the development of the IKS bill. All forms of IP registration are handled by CIPC,i.e. copyright trademarks patents and designs. The CIPC also educates the public on these issues.

 The Patent Act was amended in 2005 in order to include IP indigenous biological resources; indigenous knowledge and genetic resources within the ambit of the act and to place them within the jurisdiction of the CIPC. A similar approach can be adopted for implementation of IKS bill. The CIPCs mandate should, however, be limited to the registration of indigenous knowledge (IK) and should not extend to issues such as commercialisation of the knowledge. CIPC should also establish a register for all derivative property phases for IK.

 The views of the DTI were not part of the presentation given by the Commissioner and as such were not supported by documents distributed to the Committee.

The Chairperson said the lack of documents would curtail the Members’ ability to adequately follow the presentation and would limit the extent to which the Committee would be able to engage in constructive discussion.

The Commissioner undertook to submit a written document outlining the DTIs views in a week’s time.

The Commissioner said from the DTI’s point of view, the IKS deals with the research, development, promotion, education and strengthening of the regime of IK.IPLA provides registration and legal protection of IK under the established IP laws such as copyrights designs and trademarks.

DTI sees the need to align IPLA and IKS to create legal certainty because there are over laps between the two regimes. There were currently are no global agreements on the protection of IKS, although the world intellectual property organisation gives three options to protect IKS and these options are the establishment ofsui generis law, use of the current system of laws or use of a combination of the two. Individual states have to decide what is good for their jurisdiction and all indications point to the fact that South Africa is adopting the third option.

It is recommended that a technical team which ought to work in collaboration with the DTI and DST should deal with the following issues: Trade secrets, management systems between IKS and IPLA with a specific focus on the entities such as the national council and the other committee found in the IKS bill. Ownership of the IK knowledge needs to be addressed as well. It should be kept in mind that the DTI identifies beneficiaries of IK and not owners. As a result some alignment should be done.Overlap issues should be dealt with by the technical team as well

 Input from Department of Science and Technology (DST)

Mr Tom Suchanandan, Director: Advocacy and Policy Development, DST, said he was unable to draw much from the presentation because it focused purely on implementation issues from CIPC perspective. However,a few concerns did exist. Of note was that IPLA was promulgated in 2013 however, to this day, no regulations have been promulgated in order to give effect to it.

Section 56(c)pf the Actrequires communities to register their designs, as a result the DTI has to go back to Parliament in order to get it to amend the amendments.

 Another important point was that much of IK is commercialised without IP how does IPLA protect that? This is a question thatthe IK bill can address.

 IPLA is seen purely from an economic trade perspective and it leaves out a holistic nature interms of the management, development and promotion of IK. It also compromises the protection of IK. This is a holistic approach that can provide such protection. 

The protection of derivatives has been mentioned. But nothing about existing knowledge has been addressed. The IKS bill will address such knowledge. It is not clear whether the database for the registration of IK will be located within DTI or DST. If it will be located within the DTI, it will not address section 28(c) of IPLA so that leaves some ambiguity.

The Director also mentioned that the current version of the Bill did deal with comments that the DTI submitted and as such, they DST are not aware of the overlaps being alleged. The DST would like to address those overlaps

The DST asked the DTI’s Bio Prospecting committee, which feeds information into the patent application process to provide the number of applications that contained IK and the DST was only informed of two such applications from the year 2005 and 2012. These applications were subsequently withdrawn. So, the patent application in terms of IK is non-existent.

 The three requirements as found in section 30 of the Patent Act i.e. disclosure, geographical origin, prime form content and beneficial sharing only deal with indigenous biological resources. So if there is knowledge that is associated with a resource that is not indigenous, it falls outside the scope of the patent application and falls within the IKS bill.

 The IK bill is not an IP rights bill but simply an IP bill which is separate and distinct concept. If a practitioner elects to upload his knowledge in the system, it is protected in any event.

 IK is protected by the Nagoya Protocol which is an international agreement. Negotiations around IPR are underway with the World intellectual property rights and South Africa serves on that committee. The IK bill does not grant ownership to anyone. The knowledge is borrowed from the future generations as suchownership is not claimed by the communities.

Discussion

Mr A Williams (ANC) said previously it was recommended that a technical team be established, obviously, this has not been done. This is why today’s meeting has to deal with unresolved issues.

The Chairperson agreed with this concern and reiterated that the team should be functional by now.

Mr N Koornhof (ANC) said that the present meeting was not necessary if the issues raised by DST have been ironed. It is wrong for the two departments to be pulling in different directions before committee meetings. The IPLA is not in force and academics have expressed an opinion in support ofrepealing IPLA and that IKS should do that. The technical teams should get a legal opinion that either confirms or rejects that position. He was of the opinion that the IKS bill does not deal with patents adequately and at the same time The DTI can function sufficiently without IPLA. The need for legal certainty was emphasised. The IKS bill previously stated that if there is a conflict between IKS and IPLA that latter will trump the IKS. This has since been amended.

Mr N Paulsen (EFF) said that the CIPC system is fraught with errors.He questioned the CIPCs capacity to enforce the IKS once it is passed into law. At present, the CIPC is failing to provide a proper service for companies.

Ms A Tuck (ANC) said during her community meetings, some people asked for IPLA to be repealed. Have the two departments acceded to that request?

Mr J Esterhuizen (IFP) supported the suggestion that the departments get legal opinion.
Since the IKS bill seeks to amendthe existing property framework in order to provide for the protection of indigenous knowledge, the bill should exist separately. He also wanted to know what criteria will be used to identify the groups. If there are not sufficient, can amendments be made?

Ms J Terblanche (DA) reiterated the need for an independent legal opinion which should be able to eradicate clashes. The loss of IK takes place on adaily basis. This happens when illegal mining takes place without environmental impact assessments being carried out and when wetlands are exploited in the absence of finalised studies. New species of animal forms are being discovered on a daily basis as confirmed by her husband, who is a butterfly collector. There is a dire need to protect these new species.

 Mr C Mothale (ANC) said Parliament tried to address a vacuum by promulgating the Patent Act and the Cinematography act which are nevertheless silent on a lot of issues. The Biodiversity Act and the Patent Amendment Act of 2005 were promulgated in order to address a further vacuum that existed at that time. The IKS will further close that vacuum. However, all these acts will have to be dealt with. The country needs a one stop shop and not a plethora of Acts addressing the same concepts. As a result, a few Acts may have to be repealed or amended. Consultations between Trade and industry and Environmental affairs will have to be carried out. Institutions of government always have a capacity to defend themselves in the face of their shortcomings. He also stated that the CIPC does not just account to DTI but also to parliament. They are parliament’s agency as well.

Ms J Fubbs (ANC) said the President assented to the IP law bill and made an Act. The failure to promulgate regulations under the Act made the act impotent. It amounts to a mockery of the legislative process. The Act should have been operative in 2014. DST and the Department of Arts and Culture together with five other committees were present. The IP bill was to act as a foundation. She said Intellectual property is leaking from South Africa and gave an example of the Rooibos incident. There is a need to develop the law. She was concerned that the establishment of trusts may cause a problem if the trusts are not regulated adequately.

Ms Fubbs asked whether the DST has a policy on this Bill.There is no policy document on the Copyright and the Performers Bill which is why the Performers Bill was rejected by the Committee. Committees cannot pass laws that contradict each other. The Committee is anticipating a policy in two weeks and will not start the legislation process until policy has been presented.

The Chairperson said the Committee had presentations from various departments on the bill and public hearings had been held. She noted that the bill cuts across 16 disciplines and convergence should be achieved. Ordinary and indigenous people need to be protected and providing a one stop shop achieves that. The technical committee meetings need to be expedited. She noted further that policy has existed since 2004 and this bill has to be promulgated quickly. Most academia and lay persons have suggested the repeal of IPLA and the findings from the public hearings will be shared with the departments.

Adv Voller supported the recommendation that legal opinion should be obtained in order to create unison. Time frames need to be established in order to finalise this issue. He committed to establishing communication with the Director Generals of the DTI and DST.

Mr Suchanandan responded that the DST has notreceived a submission for the repeal of the IKS bill. The IKS speaks to different cultures. As long as the culture meets the requirement of eligibility,i.e. passed from generation to generation, linked to a social identify and the knowledge is still used and maintained. The IKS bill does not establish trusts. The establishment of trusts are left for the licensing agreements. He agreed with the proposal from CIPC to come up with clear time frames. The IP policy that was developed by DTI was a result of the considerations of the substantial inputs made by DST.

Adv Voller promised to send to Parliament written replies in a week’s time in order to commit to specific time frames.

The Chairperson said she would write to both Ministers and Director Generals in order to fast track the process as she felt Parliament is hamstrung.

 The meeting was adjourned.