Documents handed out: CLSO Wording Document [awaited]
The Parliamentary legal team and the Department of Science and Technology (DST) briefed the Committee on the proposed amendments to the Indigenous Knowledge Bill.
Details were given of all the proposed changes, and the rationale behind them. Members of the Committee made comments and suggestions, some of which were accommodated in the amendments.
At the conclusion of the deliberations, the Department commended the Members for the depth of their engagement, and said that this piece of legislation had been significantly improved through the interaction of this Committee. The political commitment to seeing it through was clearly evident by the Ministry’s presence at this meeting.
Indigenous Knowledge Bill: Proposed amendments
The Chairperson said that everyone had version two of the Bill, and the Parliamentary Legal Advisor, Ms Barbara Loots, would take the Committee through the proposed amendments.
Ms Loots said that most of the clauses had been tinkered with following the comments received from the public hearings and the instruction to make it a plain language bill that was easily readable and accessible. After consultation, it was clear that the rules allowed for a Committee to either do an A-List, with small amendments which indicated that to the House, or to do a re-draft. The proposal was that the Committee should rather table a re-draft than an A-List. With the Chairperson and the Committee’s permission, following inputs at this meeting, the legal team would prepare a draft.
Page 1 – Long Title
Concern had been raised with the use of the word ‘system’. This was taken out throughout the Bill, except for where it referred to a structure that was in place. The idea of ‘holders’ also created some confusion, because one spoke about the community as the owners, trustees as custodians and ‘licence holders’ when there was benefit sharing. Hence the word ‘holders’ was taken out and clarified when it referred to the ‘community’, or when it was a ‘trustee,’ or when it was someone who held a ‘licence’.
Chapter 8’s title was not inserted, so the title ‘Enforcement of Rights’ was inserted as a title.
A title change in Clause 30 was ‘Co-ownership,’ which was changed to ‘Multiple claims’.
The terms ‘natural’ and ‘juristic persons’ were clarified. The proposal from the definition would be pulled into Clause 14 and 15. ‘Agent’ was first addressed as the person who got accreditation from the National Indigenous Knowledge Systems Office (NIKSO) to recommend and evaluate, and had to get a certificate to be regarded as an indigenous practitioner
Dr A Lotriet (DA) asked what the motivation for using the term ‘agent’ was.
Mr Tom Suchanandan, Director: Advocacy and Policy Development, DST replied that there was no motivation for this. This term was used so that it would not create any confusion between an accreditor and a certifier.
Dr Lotriet said that she was a bit worried, because on a first reading an agent was just a go-between, or standing for someone.
Mr Suchanandan said that that was precisely what the intention was. The ‘agent’ was a ‘go-between’ between NIKSO and the practitioner.
Dr Lotriet said that the agent had to assess and verify, so it could not be the ‘go-between’. The ‘agent’ had to make sure that it happened, so could not be the person who actually did it.
Dr Yonah Seleti, Chief Director: Science Missions, DST, replied that this was a delegated responsibility to an ‘agent,’ because NIKSO could not be seen to be doing the certifying, as NIKSO were not practitioners. The ‘agent’ acted on behalf of NIKSO.
Mr N Koornhof (ANC) asked whether there should be a definition for ‘juristic person’. He preferred the word ‘legal’ person. On ‘agent’, he asked whether one should one not use ‘qualifying authority’.
Ms Loots said that could ‘assessor’ should rather be used, instead of qualifying the term ‘agent’.
Ms A Tuck (ANC) said that according to her understanding, the ‘agent’ could make or break this process. She asked if the guidelines came from NIKSO and whether NIKSO should not put a system in place for verification.
The Chairperson said there was also the issue now of changing the wording to ‘assessor’.
Mr Martin McKay, Special Advisor to the Minister of the DST, said that if one spoke of a qualifying authority, what it actually meant was a qualified person. An assessor was a qualified person accredited and assigned by NIKSO. The South African Qualifications Authority (SAQA) was actually the authority.
Ms Loots said that benefit sharing was also a complex matter, and had been simplified to focus on the broader monetary benefits and non-monetary benefits that could encompass all that was listed and just meant the fair and equitable sharing of monetary and non-monetary benefits in terms of a benefit sharing agreement between the trustee of the indigenous community and the licence holder.
‘For commercial use’ meant the use of indigenous knowledge for financial gain. The word ‘exploitation’ sounded very severe and created a negative meaning, which was not the intention of the Bill. Then benefit sharing would protect the standard for the indigenous community.
Mr Suchanandan said that in terms of changing the word ‘registrar’ to ‘curator’, it was felt that the word registrar was too technical and would have caused confusion. The mandate of the curator was smaller.
Ms Loots said that the word ‘holder’ would be deleted completely to avoid ambiguity.
With regard to ‘Indigenous cultural expression’, this had been streamlined because cultural and social identity was already defined.
Mr McKay referred to the previous clause, ‘indigenous community’, and asked if the three sub clauses could be separated by ‘or’. This was because it meant all three criteria had to be met. He felt that the intention should be that one of those criteria should be met.
Ms Loots said that in the Intellectual Property Laws Amendment Act (IPLA) it was ‘and.’ She recommended that this should be maintained.
Dr Lotriet said that ‘indigenous knowledge’ and ‘indigenous cultural expression’ seemed to have been separated, without the examples given in the IPLA.
Ms Loots said that ‘licence holder’ was clarified to mean any person who successfully entered a licence agreement with an indigenous community in order to use indigenous knowledge.
‘Prior informed consent’ meant the consent in respect of indigenous knowledge granted by an indigenous community trustee which had been obtained:
(a) free from any manipulation, interference or coercion;
(b) after full disclosure of the intent and scope of the activity; and
(c) in a language and process understandable to the community.
A ‘juristic’ person, according to Mr Koornhof’s input, should be changed to ‘legal’.
Objects of the Act
Ms Loots said that at the application of the Act was not changed. The object of the Act was re-phrased to bring in accreditation and certification aspects and to recognise indigenous knowledge as prior art under intellectual property laws.
National Indigenous Knowledge Systems Office
Ms Loots said that this was the only place where ‘systems’ was actually kept, because that was where it referred to an office and not a structure that was applied to a community.
Clause 4: Establishment of NIKSO
This was rewritten and put in brackets, as it was more to do with a contractual style than a legislative drafting style.
Clause 5: Functions and powers of NIKSO
Here the word ‘agent’ would be changed to ‘assessor’.
Clause 6: Administration of NIKSO
This was kept the same. NIKSO was established within the Department, so it was included in the Public Service Act.
The Head of NIKSO’s responsibilities defined as being: (a) responsible for the administration and general management of NIKSO, subject to directions and instructions issued by the Director-General or Minister; and (b) must report to the Director-General on all matters relating to the management of NIKSO. Sub clause 3 was taken out.
Mr McKay said that clause (a) gave the Director-General and the Minister equal powers.
Ms Loots replied that it would be changed to ‘…issued by the Director-General as delegated by the Minister’.
Mr Koornhof said that on the Advisory Panel, one saw different relevant government departments. He asked if these persons were remunerated and if not, this should be made clear.
Ms Tuck asked if the term of office was going to be three years, with reappointment for another three years.
Ms Loots replied that the proposal was for a maximum of two years, with an additional qualification.
Mr McKay referred to sub Clause 6 and said it was therefore irrelevant, or could not work unless it was stated that ‘despite sub-Clause 5, for the sake of continuity the Minister may appoint a core of at least three members’.
Mr Koornhof asked if a person could then serve for six years. He felt that there should be a discretionary period.
Ms Loots proposed that Mr McKay’s suggestion be accepted, and that it should state: not withstanding sub-Clause 5, for the sake of continuity the Minister may appoint a core of at least three members’. This meant there would be a knowledge transfer and not a completely new advisory panel.
Clause 10: The protection of indigenous knowledge
Some of the archaic principles were removed and the issues of ownership and custodianship were cleared up. This Act therefore protected registered indigenous knowledge. In terms of protection, Clause 10 therefore stated in sub-clause 2: ‘If indigenous knowledge ceases to meet the eligibility criteria set out in section11, it falls into the public domain with effect from the date of proven ineligibility’. Section 11 sets out to prove originality and ownership.
Clause 13: Rights conferred
Dr Lotriet asked if there was an agreement about who would be signing such an agreement.
Ms Loots said that a clause could be added that stated that that person should have an agreement with a trustee. who would then be a representative.
Recognition of Prior Learning
The previous title here, “Accreditation of Indigenous Knowledge Practitioners,” was changed to “Recognition of Prior Learning,” as this was one of the aims of the Bill -- to get professional recognition of prior learning as a qualified skill.
Registration of Indigenous Knowledge
Ms Loots said that this chapter looked at the registration of indigenous knowledge and had some form of record of everyone accredited as an assessor, who was then certified as an indigenous knowledge practitioner. NIKSO had to establish a Registration Office for Indigenous Knowledge, of which the curator would be the head and in control of that office. The curator was introduced here to avoid a registrar being spoken of. The curator had to oversee the documentation and the database of historic knowledge This had protection for the community, as it would then be known if someone was qualified or not.
This clause was deleted.
Clause 20: Registration of Indigenous Knowledge
The Trustee of an indigenous community may apply to the curator in the prescribed manner for the registration of indigenous knowledge.
Ms Loots said that sub-clause 3 stated that ‘the Curator must, within 30 days after the registration of the indigenous knowledge – (a) issue to the applicant a certificate of registration in the prescribed form; and (b) publish, in the prescribed form, a notice of registration in the Indigenous Knowledge Bulletin and any appropriate publication’.
This clause allows for someone to apply and amend the register.
Clause 28: Offences and Penalties
This was basically to safeguard against a person who was a third party who knowingly makes commercial use of indigenous knowledge in a manner which was not in accordance with an agreement entered into with the indigenous community.
Mr Koornhof asked who determined the fines that had to be paid if offences were committed.
Ms Loots replied that this was determined through the regulations.
Clause 33: Transitional arrangements
The only proposal, in order to not have the Bill acting in an exclusionary manner, was to delete in sub-clause 1 the phrase ‘within 12 months from the date of commencement,’ but if someone wanted to register, they had 12 months from commencement. This was because one did not want to limit the effect of a piece of legislation that was actually there to offer protection.
Dr Seleti indicated that indigenous knowledge was dynamic and evolving, so if one limited this it would ‘freeze’ it.
Clause 34: Short title commencement
Ms Loots said that this Act ‘was called the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Act, 2016, and shall come into operation on a date determined by the President by proclamation in the Gazette’.
Dr Seleti commended the Committee, as he said without it there would not have been engagement on the depth which was experienced here. The political commitment to seeing it through was clearly evident by the Ministry’s presence at this meeting.
Mr McKay said he wanted to reiterate what Dr Seleti had said, and added that this piece of legislation had been significantly improved through the interaction of this Committee.
Mr Seleti assured the Chairperson that the Committee would not be let down.
The Chairperson thanked all involved in this process.
The meeting was adjourned.
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