Indigenous Knowledge Systems Bill: legal advisers briefing on its “stand-alone” nature

Science and Technology

16 August 2017
Chairperson: Ms L Maseko (ANC)
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Meeting Summary

The Department of Science and Technology (DST), its legal team and the Parliamentary legal advisor briefed the Committee on the Indigenous Knowledge (IK) Bill. The areas of concern that had been raised from the public hearings were:

  • Permits, licensing and the “One-Stop Shop;”
  • The very broad definition of ‘indigenous communities;
  • The excessive powers of the National Indigenous Knowledge Systems Office (NIKSO);
  • The need to clear up the misunderstanding between competencies and accreditation;
  • The Bill was devoid of offences that dealt with the violation of intellectual property;
  • The transitional arrangement, with 12 months to register.

The legal advisor and the Department provided detailed explanations of how each of these concerns had been addressed in the proposed legislation.

The DTI had raised a particular concern about the effect of the Bill on other law, as they felt the impression had been created that it would repeal the Intellectual Property Laws Amendment Act (IPLA). This had been clarified through a meeting with the Department, and there was an understanding that the scope of the two pieces of legislation was different.

The Committee asked about a statement where it had been alleged that if there was conflict, the IPLA would trump this Bill, but this possibility was rebutted by the DTI. The Committee was also updated about the One-Stop Shop’s role in simplifying the documentation process, and the electronic system developed to give effect to the Bill.

Meeting report

The Chairperson said the Committee’s one objective was to deal with the Indigenous Knowledge (IK) Bill and finalise it. The last time meetings were held, there had been presentations from other departments that were relevant to the Bill, and this had included a legal opinion. She had attended a meeting where the Department of Trade and Industry (DTI) had also requested to come on board to brief the Committee on areas of collaboration where there was common ground for all parties concerned, and a “one-stop shop.” This was to ensure that the life of the ordinary person was not complicated by the processes put in place. Another meeting with the DTI had not been very pleasant, as some arrogance had been evident, but all of the parties had agreed to meet each other along the way. She had had meetings with the Minister, who had thought that the persons who had to present had not been properly briefed. However, she felt that today’s meeting would take the process forward. The Committee had been very courteous in involving everybody in order to move forward as one entity -- as one government that was about bettering the lives of the people, not working in silos but rather complementing each other.

Dr Thomas Auf der Heyde, Deputy Director General: Department of Science and Technology (DST) said an important update had been a letter from the Director General of the DTI, which had confirmed that that Department had no objections to this Bill and wished the DST well in its finalisation of the Bill. This had not been reported to the Minister as yet to seek guidance, but he was sure the Minister would close the loop with the Committee as soon as she was briefed about the letter. Beyond this, the Department was at the Committee’s disposal to assist in any way that it could. His understanding was that the Parliamentary legal team would be leading the discussion today, but the Department was available for support and to take guidance as to how to proceed.

Ms Barbara Loots, Legal Advisor: Parliament, said that the Committee had tasked them legal team to work closely with the Department. She had been e-mailing her state law advisor counterpart, as it had been quite a collaborative process to get a product that was technically sound, ready for the Committee.

The Chairperson interjected, and said she just wanted to clarify an issue. At one of the previous meetings on the Bill, there had been a request for an independent legal opinion after the stance that the DTI had taken. Considering the situation now, there was no need for this as they would just come to the same conclusion.

Ms Loots responded that at that meeting, she had gone back to the office because one of her colleagues was part of the technical drafting team, and she had introduced her to the DTI colleagues. From her office’s side, they could never see a conflict from an implementation perspective, because the understanding was that a bill could not go through Cabinet and get to Parliament without the state law advisors giving an opinion with the certification that there was no such conflict. So they were always quite comfortable with the fact that there was no such conflict.

That part of the work had been done, so it was comfortably passed on to the Members. It had been drafted according to the Committee’s request that the language be plain and understandable, and would facilitate implementation and public participation. They had prepared a document that worked with three columns. The first column compared clause by clause as the clause was tabled; the second column showed  the technical amendments proposed, and indicated the Committee’s comments; and the third column showed how the clause would read if those proposals were adopted. This document would be displayed when deliberations started to show visibly what the amendment looked like once it had been approved.

Mr Tan Suchanandru, Director: Department Science and Technology, said that during the public hearings a number of concerns had been raised, and the first iteration of the Bill had been to address these initial concerns. The first concern raised had been the territorial overlap between different government departments. Here the issues had been streamlined, particularly with regard to the permits and licensing, and then the development of a “One-Stop Shop.” Ms Carol van Wyk, Acting Chief Director: DTI, would provide Members with a first draft of the document on the “One-Stop Shop.” It would be presented to the Department of Environmental Affairs for consideration.

There was a concern regarding the very broad definition of indigent communities. Unfortunately, that definition was aligned with the Intellectual Property Laws Amendment Act (IPLA). The state law advisors had recommended that one could not move away from a definition that was already in existence, so the definition of ‘indigenous communities’ had been maintained.

The other concern which was evident from the public hearing submissions was the excessive powers of the Natural Indigenous Knowledge Systems Organisation (NIKSO). This had been toned down and had placed the functions of NIKSO, particularly in respect of licensing, into more of a facilitative role, rather than being involved in the signing of the licensing agreement.

The concern regarding the misunderstanding between the competencies and the practice and the role that NIKSO played in accreditation and certification, had been resolved with language that clarified the role of NIKSO. The words ‘accreditation’ and ‘certification’ had been changed to the ‘recognition of prior learning’.

The issue of permits and licensing, and the burden of acquiring documentation in these two areas, had been clarified through the One-Stop Shop.

The other area of concern was that the Bill was devoid of offences that dealt with the violation of intellectual property. This issue has been referred to the Regulations where, for example, the Minister would regulate in terms of these offences and penalties.

Another concern raised -- particularly by the DTI -- was the Bill’s effect on other law, as they felt the Bill created the impression that it would repeal the IPLA. It would be recalled that in the sub-clause ‘Effects of Law,’ it was stated that the Bill did not detract from a certain number of laws. This clause had been streamlined so that it stated that it did not detract from any law.

Transitional arrangements were another area of concern which came from practitioners and right holders, who said that 12 months to register was too onerous. This had now been made open, so there was no longer a restriction on when one could register indigenous knowledge.

With regard to the registration and non-registration of IK, language was in place for this in terms of the reinforcement of the right.

What had not been addressed were the issues of land, indigenous people and traditional leadership. The Bill did not address these issues because it was outside of its scope. These issues had been raised by the San and Khoisan communities.

Ms Loots said that Mr Suchanandru’s presentation was a very accurate summary of the work that had been done. She said that the Bill was certified by their office. During the scrutiny and drafting of the Bill, among the key issues identified from their side had been the issues of clarity required from the Department on implementation with regard to the IPLA. Clarity was needed here so that when moving forward there would be certainty of no overlaps between the functions, and also no issues of conflict between the two pieces of legislation.

The clarity given to Parliament by the Department was that the Bill was a result of a consultative process, and the DTI was among the stakeholders involved. The other indication was that the Bill was a result of the IKS policy, which provided for the establishment of NIKSO in order to implement the indigenous knowledge systems policy.

One had to get the understanding of the difference between the DTI’s legislation and what this Bill did. This had been clarified through the meeting with the Department, and there was an understanding that the scope between the two pieces of legislation was different. Most important, from Parliament’s side, was a Cabinet statement which read: ‘the Bill will complement the intellectual Property Laws Amendment Act 2013’. This confirmed that there was no conflict between the two, hence the certification.  

Mr Suchanandru said that the initial concern raised by the State Law advisors was on the definition in the Bill which detracted from the IPLA definition, so the IPLA definition had been taken and stuck into it so that there would be no conflict.

The other issue was that there were offences but no penalties, but this had been rectified. The state law advisors had also said that this Bill was a Section 76 Bill.

Mr N Koornhof (ANC) said that he remembered the clause that had stated that if there was a conflict; the IPLA would trump this Bill. He asked if this was still the case, or if this had been resolved.

Mr Suchanandru replied that there never was such a clause. The 2015 version of the Bill had made no mention of the IPLA. The 2016 version had said that it would not detract from those amendments which made up IPLA, like the amendments to the copyright, design, Act and trademark. So there had been no mention that IPLA would take precedence if there was a conflict.

Ms Van Wyk provided an update on the One-Stop-Shop and the model developed with the Department of Environmental Affairs (DEA). The model had been developed through the existing documentation centres and the National Recordal System to support the DEA and the DTI in examining patents. The first draft of the One-Stop Shop had been presented to the DEA on June 20, and they had been quite excited about it. Feedback was still awaited from them. They had also been supportive in developing the electronic system in this area. The electronic system had been developed, but it was offline, as the finalisation of the Bill was awaited. They were also looking at training the DTI patent examiners in October on how to use the system.

Ms Shumi Pango, Director: DST, said that partial fulfilment of the imperative proposed by the Bill was the establishment of the national office. In line with that, the DST had taken the route of a special delivery unit which was the same model that had been used by the DST in the establishment of a national IP management office. In pursuit of this, the Government Technical Advisory Centre (GTAC) in the National Treasury had been commissioned to assist with a feasibility study. The feasibility study had been conducted and the report of the study had been received. This year, a business case had been received from GTAC which confirmed that the right instrument had been chosen to effect the Bill when it became an Act. The business case proposed the structure of the office and the relationship between that office and the DST, and the relationship between that office and other government departments.

The Chairperson thanked everyone, and said that the bulk of the work would start next week

The meeting was adjourned.


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