A NEW South Africa Traditional Knowledge Bill – Sui Generis Protection for TK

By Prof. Owen Dean

[Editor’s Note: The author, as holder of a university Chair in intellectual property law in South Africa, offers an alternative proposal in answer to a controversial bill on traditional knowledge which has passed both houses of Parliament and is awaiting promulgation by the State President.]

If you cannot beat them, join them. For that reason this Chair of IP has decided to announce a NEW sui generis Protection of Traditional Knowledge Bill in the hope that something may yet be done to save us all.

Government’s current attempt at protecting traditional knowledge by amending current IP statutes remains an unmitigated disaster, the scope of which is yet to be fully realised. This Chair, among many others, has expressed its distress at the current Traditional Knowledge Bill (likely to be the Protection of Traditional Knowledge Act soon) in no uncertain terms. And despite the fact that the Chair’s criticism of the Bill has been cited with support by some of the world’s foremost authorities on IP and TK, the Portfolio Committee’s ignorance of these same facts is only exceeded by Government’s ignorance of (international) law. As a result, the current TK Bill is likely to survive its journey across the President’s desk.

For this reason, and after repeated pleas to do so, the Chair has decided to publish a new and workable TK Bill. This proposal is the work of the incumbent Chair and proves that TK is better protected by sui generis legislation. The intention is unmistakable – to illustrate how the Bill should appear. Although the Chair maintains its earlier position about the current Bill, this publication is intended to mitigate the calamity our IP law will face if the Bill in its current format becomes law. Therefore, the new Bill builds on, expands, corrects and delineates the scope of the current Bill to make it work (however difficult) as an independent statute for this (clearly) independent type of work.

Of course, trying to breathe life into the current Bill is an unenviable task, but at least it goes (a long way) beyond mere criticism of the current Bill.

Be warned: let it not be said that this Chair is in favour of the current TK Bill (our views are clear for all to see). However, if you insist on the current Bill, at least do it properly. Here’s how:

The Protection of Traditional Knowledge Bill [pdf]

Synopsis of the Protection of Traditional Knowledge Bill [pdf]

For background, see related IP-Watch Inside Views pieces here, and here.

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).