Intellectual Property Laws Amendment Act & Indigenous Knowledge Act implementation

Meeting report

The Chairperson explained that the Intellectual Property Laws Amendment Act (IPLAA), which amended certain laws so as to provide for the protection of indigenous knowledge as a species of intellectual property, had been assented to 2013, but regulations had not been developed on it because of the uncertainty about the impact of the Indigenous Knowledge Act, which had been assented to in 2019. There had been concerns about certain institutions established by the Indigenous Knowledge Act that would overlap with existing institutions.

Department of Science and Innovation (DSI) briefing
Dr Yonah Seleti (Chief Director: Science Missions, Department of Science and Innovation) said that implementation of the Indigenous Knowledge Act could not be delayed any longer. He stressed that the Act went beyond the protection of indigenous knowledge as intellectual property, and its management would require the cooperation of many departments. This was the main take-home message of the briefing.

Dr Seleti discussed some of the background which had led to the Department’s current stance about the Indigenous Knowledge Act. He explained the difference between traditional intellectual property rights, which the IPLAA handled, and the sui generis system that the Indigenous Knowledge Act used to protect indigenous knowledge, stressing the breadth of the Act beyond the protection of indigenous knowledge as intellectual property. It included a regulatory framework for accessing indigenous knowledge, recognising prior learning and coordinating innovation.

Dr Seleti outlined some of the concerns that the Act addressed, such as bio-piracy, misappropriation of indigenous knowledge and benefit sharing for communities. Section 9 of the Act defined 'indigenous knowledge' as the property of the community in terms of Section 25 of the Constitution, not just as intellectual property. Also discussed was the scope of the protection of indigenous knowledge provided by IPLAA, particularly with respect to the Copyright Act. He looked at some potential conflicts between the IPLAA and the Indigenous Knowledge Act and proposed resolutions to them, which included building legal certainty, developing legislation, and establishing rights for the communities who created, maintained and used indigenous knowledge. He noted that the large bodies of indigenous knowledge held in archives around the world were not protected by the IPLAA. He stressed the need to establish time frames and agreements to ensure that the IPLAA and the Indigenous Knowledge Act were implemented in a complementary way.

Department of Trade and Industry (DTI) briefing
Dr Evelyn Masotja, DTI Deputy Director-General: Consumer and Corporate Regulation Division, spoke on DTI’s view on the alignment of IPLAA and the Indigenous Knowledge Act. DTI’s stance was that with the passing of the Indigenous Knowledge Act into law, the time had arrived to promulgate regulations to put IPLAA into effect. She assured the Committee that the two Acts would be aligned.

Dr Masotja explained that indigenous knowledge would be legally recorded in terms of the Indigenous Knowledge Act, and it could then be registered as intellectual property in terms of the IPLAA. DTI did not foresee capacity constraints within the Companies and Intellectual Property Commission (CIPC), as it already had capacity for intellectual property registration. She stressed the need to develop regulations collaboratively with the relevant departments, and said that DTI had given itself six weeks to develop an action plan, and until the end of June to consult with political principals. Educational awareness would be a key component of the action plan as indigenous knowledge was often held by rural communities.

Discussion
Mr F Mulder (FF+) asked for clarity on what was understood by a ‘cultural group’ or ‘community.’ The cultural element was important– it could not just be a geographical community. He gave a real-life example of a hydrologist, contracted by a municipality to drill for groundwater, being asked to pay an ‘inconvenience fee’ to community leaders. In a similar situation in the case of indigenous knowledge, would it be community members or community leaders who really benefited? He also warned that amendments to Section 25 of the Constitution could have an impact on indigenous knowledge rights, and that a future government might confiscate these rights.

Mr M Cuthbert (DA) asked about the role of traditional leaders in the protection of indigenous knowledge. For example, in the case of the Ingonyama Trust community rights superseded individual rights. In the case of indigenous knowledge, what were the implications for individual inventions that might be considered cultural?

Dr Seleti admitted that the definition of ‘community’ was tricky. Both Acts derived their definition of community from the definition of indigenous knowledge as knowledge (i) transmitted and maintained from generation to generation and (ii) associated with the cultural identity of the group. It was not related to geography. In addition, traditional leaders were not the leaders of any one clan, so they could not own anything on behalf of a clan. Both Acts included protocols for deciding the owner of indigenous knowledge. In the case where the community no longer existed, the state and not a traditional leader would become the trustee of the community's indigenous knowledge.

Mr Mulder asked if the history of a cultural group could be recognised as its intellectual property.

Dr Seleti replied that a lot of traditional knowledge was closely connected the history of a group and the land where it emerged. It was seen as contributing to the social cohesion of the country and the cultural identities of the groups.

Mr S Mbuyane (ANC) asked what the mandate of the National Indigenous Knowledge Systems Office (NIKSO) would be and how the National Indigenous Knowledge Management System (NIKMAS) fitted in.

Dr Seleti explained that NIKSO was an institution, and NIKMAS was the information technology system for managing indigenous knowledge. NIKSO was intended to broaden the management of indigenous knowledge beyond the area of science and innovation.

Ms J Hermans (ANC) asked what the connection was between in the National Council of Indigenous Knowledge in IPLAA and the National Indigenous Knowledge Systems Office (NIKSO) in the Indigenous Knowledge Act. Would there be two entities?

Dr Seleti explained that the mandate of the CIPC would not change. NIKSO could be regarded as a plug-in that addressed the neglect of indigenous knowledge in apartheid-era legislation.

Mr Mbuyane said it was important to have clear timelines for the development of regulations. What was the involvement of the Office of the State Law Advisor? What was the programme of the technical team, and how could the Committee assist it to ensure a common implementation programme?

Ms Hermans added that it would be important for the Committee to hold them to these timelines. The delays in implementing the IPLAA since 2013 would need to be explained to the public.

Dr Seleti drew attention to timelines given by Dr Masotja. He agreed that the involvement of the Office of the State Law Advisor was critical.

Dr Masotja added that legal advice was expected to be received within the next month.

Mr Mbuyane said that the educational programme was very important. The implications of the Indigenous Knowledge Act needed to be communicated to the population at large.

Ms Hermans agreed. The educational programme needed to be part of the programme of action. Communities needed to know that they could claim rights in terms of the Act.

Dr Seleti replied that two colleagues were in the Mayor’s office right now developing plans to reach out to communities in Cape Town. Indigenous knowledge expos had been held in many provinces already.

Mr Mbuyane said that there were some loopholes in the Performers’ Protection Act of 1967 and the Copyright Act of 1978 that needed to be closed.

Dr Masotja replied that IPLAA amended these laws. From a practical point of view, once regulations were in place, it was the Department’s view that there was no reason why IPLAA and the Indigenous Knowledge Act could not be implemented in the existing policy framework. However, legal advice would be sought on this.

The Chairperson observed that not only the Department of Trade and Industry and the Department of Science and Innovation but also the Departments of Environmental Affairs, Agriculture, Arts and Culture and Cooperative Governance, as well as National Treasury, were all linked to the process of developing the regulations.

Dr Masotja suggested that perhaps the Committee could initiate a joint sitting of those Portfolio Committees whose mandate was overseeing those Departments.

The Chairperson stressed the importance of history in planning and moving forward. Therefore, archives needed to consulted and their contents should not just be forgotten. He instructed the Departments to establish the technical team to work on the details arising in the meeting. The technical team should report back no later than June 2020.

The meeting was adjourned.