The Mad Hatter In Wonderland: South Africa’s New TK Bill

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By Prof. Owen Dean

So, the Department of Trade and Industry (“DTI”) has finally gone ahead and done it. It has caused the South African Government to pass the Intellectual Property Laws Amendment Bill (the so-called “Traditional Knowledge Bill”) despite vociferous objections from all quarters. It has rushed headlong into terrain where no angel would venture through acute trepidation. It has entered Wonderland and assumed the role of the Mad Hatter.

The Vine Oracle (that is to be found in the vineyards of the Winelands) is of the view that the traditional knowledge law will simply be unworkable and is destined to be a dead letter. By seeking to protect traditional knowledge as species of copyright, designs, etc. and to attempt to apply the existing laws in these areas to it, it has purported to create rights which are simply incapable of being enforced. The Vine Oracle predicts that no successful claim based on a traditional knowledge right will ever succeed in the South African court. An enormous edifice of bureaucracy, councils, funds, trusts, databases and registration systems is to be created at inordinate expense and all to no avail since the system is not capable of being operated. What an exercise in futility and a waste of innumerable hours on the part of stakeholders, Government Departments and the Parliamentary process!

The Vine Oracle is not alone in holding this view. The DTI and the Government have been told time and again by an army of commentators that it is going down the wrong track which will lead to a cul-de-sac. The IP profession, academics, the judiciary, the intellectual property industries, the World Intellectual Property Organization (WIPO) are but a few of those that have tried to show the DTI the folly of its ways. Even a Regulatory Impact Assessment commissioned in 2009 by the State President opined that the legislation was ill advised and that, apart from any other considerations, the cost of implementing it would outweigh any possible benefits that might flow from it. Alas, the DTI has been undaunted and unwavering in its purpose. It takes a special form of mindless arrogance to shrug off, nay be totally impervious to, such a strong body of informed opinion. Such obduracy is difficult to fathom and it has been suggested that the Department, or individuals within it, have a double agenda. Perhaps the motivation and process regarding the drafting of the legislations should be investigated by the Public Protector!

It is true that a small minority of the IP profession has given succour to the DTI in its endeavours and it has gratefully favoured and made mileage out of this. This collection of praise singers has, however, been categorised by Nose Week as persons seeking to ingratiate themselves with the Department. This group, who are outside the mainstream of informed IP opinion, can be discounted and it is true to say that the Traditional Knowledge Bill has been roundly condemned by anyone who has any savvy of IP law.

The Parliamentary Trade and Industry Portfolio Committee have been complicit in this debacle. To its credit, the Committee recognised that the offering produced by the DTI could not pass muster and it tried manfully to improve the Bill. It succeeded to a degree. However, it was seeking to achieve the impossible (given the misguided nature of the raw material that it had to work with) and moreover, while it was at least willing to listen to informed opinion (in contrast to the DTI), it failed to give due weight to that opinion and in the main chose to perpetuate the folly of the DTI. In effect, it changed an outright slap-stick farce into a mere comedy (of errors). It must, nevertheless, also be held accountable for the disaster that has been visited upon South African IP law. Due credit must, however, be given to those members of the Portfolio Committee who represent opposition parties as they saw the light and recognised the Bill for what it is, namely an abomination, and did their level best to cause sanity to prevail, alas in vain. Be that as it may, the Bill has now had its second reading in the House of Assembly and been passed by courtesy of the majority commanded by the ruling party. Die Burger described the vote as being close, which, given the size of the majority held by the ruling party in Parliament, suggests that the Bill did not enjoy wholehearted support even within the ranks of the ruling party.

The net result is that the Mad Hatter is now in a Wonderland of its own making and it will now presumably attempt to give effect to its new creation. It will doubtless proceed to build castles comprising the Bill’s structures, registers, army of new employees to implement the system, etc., in short the full catastrophe. If, as predicted, none of this works or has any practical effect, the main losers will be the taxpayer and disillusioned traditionalists who have been lead to believe that a pot of gold awaits at the end of the traditional rainbow. But, what about poor IP law? Ay, there’s the rub. The damage that this new wondrous creation grafted on to IP statutes does to established principles of IP law cannot simply be shrugged off. When the edifice in Wonderland has come tumbling down, or is left derelict and fades into oblivion, the damage to IP law caused by the undermining of its basic principles is likely to remain and we, the country’s reputation (it has been made to look ridiculous in the international IP community) and its ability to encourage innovation and business activity will suffer the negative consequences.

How is the use of material having a traditional flavour likely to be influenced in the future? The Vine Oracle predicts that there will in practice be very little change. It predicts that most informed IP lawyers will advise their clients to simply ignore the provisions of the TK law and to carry on as before in the belief that in practical terms the purported rights in traditional knowledge which have been created will simply not be capable of being enforced and will amount to naught. The likely approach to the demands of purported traditional knowledge rights holders for payment of royalties will be “go ahead and sue us if you will!”. Rights which only exist in Wonderland will have little or no effect in the real world.

Then there is of course the prospect of a constitutional challenge to the legislation. There are several good grounds for such a challenge. These include that the Bill is procedurally flawed in that it should have been referred to the House of Traditional Leaders, but was not (what do traditional leaders know about traditional knowledge and why should they have anything to say about it?); after been radically altered by the Portfolio Committee, which introduced new principles into it, it was not again made available for proper public consultation; it conflicts with the property clause of the Bill of Rights; and so forth. Possibly the only factor which will save it from a constitutional challenge is that it will be a proverbial white elephant so why go to the trouble and expense of mounting a challenge? Rather allow it to wither away of its own accord and die a natural death. To quote Shakespeare, its death, through whatever cause, would be a “consummation devoutly to be wished.”


Owen Dean was appointed as a Professor at the Law Faculty of Stellenbosch University as of 2011, where he is the incumbent of the Anton Mostert Chair of Intellectual Property Law.

He is a consultant and former senior partner at Spoor and Fisher, intellectual property attorneys, with specialisation in trademark and copyright law with a special emphasis on litigation and opinion work.. He holds a B.A (Law), LL.B and LL.D from the University of Stellenbosch in, respectively, 1964, 1966 and 1989, and was admitted to practice as an attorney in South Africa in 1974, also admitted as an attorney in Namibia and Botswana.

Dean served on the Government’s Advisory Committee on Intellectual Property Law for 20 years, including as Chairman of the Copyright Sub-Committee. He is a Past President of the South African Institute of Intellectual Property Law. He conceived, and chaired the Drafting Committee of, the Counterfeit Goods Act, and as well conceived and drafted Section 15A of the Merchandise Marks Act (ambush marketing).

He is author of the “Handbook of South African Copyright Law”, and numerous other publications, serving on editorial boards and publishing in a very wide range of intellectual property publications, and is frequent speaker at events.

Dean also holds appointments to the Panel of Adjudicators for South African Domain Name Disputes, WIPO Panel of Arbitrators for Domain Name Disputes, Stellenbosch University Business School Panel of Mediators and IP Panel of Arbitration Federation of South Africa (AFSA).

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Comments

  1. Riaz K Tayob says

    This is an attempt at something that WIPO has been trying to do for years without success, that is true and vindicates this opinion. However, the push for recognition on non-individual property rights is seen as important by a host of developing countries, which are just free plunder (terra nulius in the knowledge economy in other words). Any protection to these rights is bound to have difficulties, but these will be refined as things move along – this is how reality works. It is quite seminal that an experiment to protect the creations of tribes and communities and to allow them to benefit from their innovations/creativity is so roundly denounced with simple aplomb that it cannot be done by the mainstream (the mainstream whose credibility is inversely proportional to their prestige for silence on TRIPs flexibilities). The DTI, and the process, for all its challenges seeks to give “rights” holders their due. Sure there will be problems, but with rich countries blocking recognition of the distinction between a “discovery” and “invention” at WTO and WIPOs committees this objection needs more substance before it can be addressed seriously as in those cases it is not in their interest The case for developing countries needs to be assessed in terms of their comparative advantage in these types of knowledge, and this has not been addressed sufficiently in the article.

  2. Alan Story says

    There are a lot of blustering phrases in this article, but not actually much content. So could the blustering take a back seat and could we be told instead: here are the five ( or whatever number you wish) specific reasons why this is bad legislation. I don’t know the specifics of this legislation —- and certainly did not find them in this piece —- but the ‘argument’ that ” The damage that this new wondrous creation grafted on to IP statutes does to established principles of IP law cannot simply be shrugged off” does not , by itself, make this bad legislation. I mean “established principles of IP law ” have not exactly been too friendly to indigneous peoples in South Africa (or elsewhere) as the hoodia cactus saga reminds us.
    Alan Story, United Kingdom

  3. Andre Myburgh says

    The Bill attempts to protect traditional knowledge by giving extensive and perpetual rights of copyright to ‘indigenous works’, namely literary, musical and artistic works which are by definition not original and which may in essence be self-identified by not having to have been reduced to material form, and to vest those rights in undefined, and probably unidentifiable, indigenous communities as owners, with which benefit sharing agreements have to be concluded to use those works. The uncertainty and the burden which the Bill will create may well result in no one wanting to touch works made in the traditional genre in South Africa.

  4. jube jube says

    So should the white man have protection for methods of generating electricity, telephone, motor vehicles, air planes etc etc. Oh and please don’t use cement to build your houses as it infringes the white man’s TK.

    And the Chinese – paper, gunpowder, printing press.

    Lastly, don’t forget the TK of Mesopotamians -the wheel.

  5. Riaz K Tayob says

    @Jube Jube: If the permisiveness of the current patent system is any indication (evergreening, low quality patents, not distinguishing between a discovery and invention, etc) then perhaps what you adduce is true if the CURRENT patent system is used as a benchmark. However, the point that is to be DEVELOPED and refined through the SA legislation is to guarantee creators (albeit communal ones) renumeration for their knowledge. The ideas you mention are capable of protection by means of current intellectual property rights (although someone did try to free Mickey Mouse!) whereas a different approach is needed for the rights of the countries in the Third World.
    The point is that this issue is difficult, but a huff and puff polemic about it does not take matters further or increase understanding of the issues. Arguing that the mainstream is correct and any challenges to it are irrational are not arguments, but opinions. One need only look at the struggle to get HIV recognised or how the “scientific” community treated H. Pylori to see that the mainstream can be wrong. God does play dice with the universe!

  6. pradip thomas says

    Prof. Dean’s article simply mentions that the protection of TK is a bad idea. While TK has been a ‘problematic’ area given its compexities,, there are sound reasons to engage with these complexities in order to recognise the worth and substance of TK. After all we are all aware of the consequences of its non-recognition – TK in the public domain has been ripped off and pharma and other industries have had a field day bio-prospecting and making money on the back of bio-piracy. So there is a need to recognise this specific type of knowledge, the bearers of that knowledge,and the consequences of such knowledge for human survival. It would be a good idea for the BRICs countries to assess the potential of the TKDL project in India and work towards the digital compilation of TK for use by patent offices around the world. The dominant IP system seems very tired today. It does need an overhaul and an injection of some new, anti-enclosure thinking.

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