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    South African Traditional Knowledge Protection Bill Amends IP Laws

    Published on 19 February 2014 @ 4:32 pm

    By for Intellectual Property Watch

    The much-debated Intellectual Property Laws Amendment Bill in South Africa, aimed at boosting protection for traditional knowledge, was signed by President Jacob Zuma without much fanfare and promotion. What happens now?

    The Act [pdf], which was commonly referred to as the Traditional Knowledge Bill, seeks to provide recognition for expressions of indigenous knowledge as an aspect of intellectual property. The 70-page Act amends the major South African intellectual property laws.

    The bill was signed and then published in the Government Gazette on 10 December, but it was only this month that the Department of Trade and Industry released a statement confirming the latest development. Now an Act, it will only come into effect on a date to be fixed by the President.

    The signing of the bill by the President does not mean that the Act is promulgated.

    The promulgation of an Act is usually delayed as regulations first have to be drafted. The regulations are drafted by the relevant department and provide the finer details about how the Act will be implemented.

    The regulations mostly do not require approval by Parliament. However, the department may ask the public to comment on them and only when the regulations are approved by the relevant Minister, can the Act be promulgated.

    Other matters that can delay the Act coming into operation is training of certain officials, or the need for certain infrastructure to be in place.

    The Intellectual Property Laws Amendment Act amends the South African Performers’ Protection Act, Copyright Act, Trade Marks Act and Designs Act.

    Several legal experts objected to the bill saying that it was cumbersome and unenforceable amongst other reasons. However, these objections were voiced against the backdrop of a general consensus that indigenous knowledge needed to be protected.

    In a February media statement confirming the Act, Minister of Trade and Industry Rob Davies said that the Act would protect indigenous knowledge using the current intellectual property system, which includes copyright and related rights, trademark, designs and geographical Indications.

    “Minister Davies says the objectives of the Act are to bring Indigenous Knowledge (IK) holders into the mainstream of the economy and to improve the livelihoods of the communities,” the statement said. “The Act is providing a legal framework for protection of the rights of IK Holders and empowers communities to commercialise and trade on IKs to benefit the national economy.”

    In the statement, Davies added that key interventions contained in the Act include the prohibition of registration of indigenous knowledge without consent or that is offensive to a particular public.

    Praise from Indigenous Leaders

    The former president of the non-profit Congress of Traditional Leaders of South Africa (CONTRALESA) and still a current member of the organisation, Patekile Holomisa said in response to the Act: “The intention of the act is noble and what we need in order to gain financially from our knowledge instead of others.”

    Holomisa added that traditional leaders should support the Act and they are custodians of indigenous knowledge “but that there are structures that don’t seem to acknowledge that fact.”

    Contralesa is a non-governmental pressure group which advocates for greater rights for traditional leaders in the country.

    President Zuma had previously declined to sign the bill because of a lack of consultation with the national house of traditional leaders.

    The National House of Traditional Leaders is a body composed of delegates from the Provincial Houses of Traditional Leaders of South Africa, representing the Provincial Houses at national level.

    Opposition from IP Lawyers

    Meanwhile, the Act has encountered vocal opposition and at one point this was expressed in an alternative bill having been created.

    From the opposition party, the Democratic Alliance’s shadow Minister of Trade and Industry Wilmot James in April last year introduced a “private members bill” to Parliament as an alternative to the Intellectual Property Laws Amendment Bill.

    This alternative bill was drafted by Prof. Owen Dean, the Anton Mostert Chair of Intellectual Property Law at Stellenbosch University in Cape Town.

    Dean’s bill proposed a sui generis approach to the protection of traditional knowledge that would have meant traditional knowledge was dealt with as a new category of intellectual property instead of having it fit into the already existing categories of intellectual property.

    Dean released a statement following the announcement of the Intellectual Property Laws Amendment Act objecting to the Act.

    Similarly, James called the Act a “fundamentally bad law in that it can’t achieve what it sets out to do and that is protect Indigenous Knowledge.” James said he would continue to challenge the wisdom of introducing the Act promising that “there will be a lot of turbulence around this issue still.”

    Sharing the less than enthusiastic sentiment about the Act, Herman Blignaut, partner at specialist IP firm Spoor and Fisher, said he did not support “the way government went about this, and I would have preferred a sui generis approach.”

    Blignaut said he foresees the courts being approached for certainty on aspects of the Act as the practical effect of the Act takes hold once the Act is promulgated.

    Linda Daniels may be reached at info@ip-watch.ch.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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