With Lively Start, African IP Conference Addresses Medicines Access, GIs

Johannesburg, South Africa – The start of the Africa IP conference was the scene of a surprise protest action by Treatment Action Campaign health activists who ambushed the stage as South African Trade and Industry Minister Rob Davies was about to welcome delegates to the three-day conference.

The demonstrators carried placards demanding access to affordable medicines and their memorandum, read out to conference delegates, called for intellectual property reform in South Africa.

In a statement timed for release a day before the conference, the TAC stated that, “South Africa’s own patent law is notorious for how easily and casually it awards patent monopolies to pharmaceutical companies. This blocks the entry of more affordable generic versions of medicines into the South African market and for the South African public. With no local patent examination system in place, South Africa grants many patents which in other countries are rejected after scrutiny.”

The lively group of demonstrators demanded to know when exactly South Africa’s Intellectual Property amendment bill would be made public.

Conference delegates took in the scene in silence.

Davies responded directly to the group, announcing that the IP amendment bill would be made public soon enough, a claim the minister re-iterated later in his welcome address to delegates.

Davies said that the piece of legislation still has to overcome some legal hurdles but is now well on its way to being finalised and then will be released for public comment.

The bill, also known as the traditional knowledge bill, was met with fierce opposition by critics in the intellectual property arena.

Critics of the bill were buoyed by President Jacob Zuma’s decision at the end of last year not to sign the bill into law, but to send it back to Parliament for refinement. Zuma believed the bill to be unconstitutional.

The presidency said that the bill should have been referred to the National House of Traditional Leaders, as required in terms of section 18 of the Traditional Leadership and Governance Framework Act, 2003.

IP experts have in the past derided the bill’s attempts to protect traditional knowledge.

Chair of intellectual property law at the Stellenbosch University faculty of law, Professor Owen Dean, said: “My departure point of criticism is that the bill is fundamentally flawed and cannot be repaired. What is striven for can only be achieved in customised stand-alone (sui generis) legislation. Existing IP legislation is singularly unsuited for providing the desired protection. Moreover, attempting to bend IP legislation to suit the task will do serious damage to the basic precepts of IP law, thus creating double jeopardy.”

Similarly, copyright specialist and Creative Commons Regional Coordinator for Africa said at the time of the bill’s referral back to Parliament: “In my view the approach to protect TK by means of existing IP rights – rather than creating a so-called sui generis regime is ill-conceived. TK and IP is just not a good fit.”

However, Davies told conference delegates that sui generis legislation for traditional knowledge is not the right method of protection.

“We are seeing far too many of our collective products being pirated,” he said. We have decided to incorporate indigenous knowledge in IP law…. Even if we did sui generis, we still need to find a relationship with IP law.”

In this context, Davies raised the issue of geographical indications (GIs, products with names and characteristics specific to a geographical location), which he said are under siege by rich countries.

“Most of the food products of geographic indicators come from the developing world and it’s no accident [that] when there is this advantage of the Old World to claim GIs in the developing world, there’s an inherent unequal situation,” Davies said. “I am referring to the French patent application for Rooibos [a South African tea]. I have written to the French embassy here, expressing our objection and we will support the industry in wherever this may take us. We have seen too many cases of the little bit of collective knowledge that we do have exploited by commercial forces abroad.”

In 1994, a company called Burke International registered the name “Rooibos” with the US Patent and Trademark Office.

As the use of Rooibos became more popular, Burke demanded that companies either pay fees for use of the name, or cease its use, but in 2005, the American Herbal Products Association and a number of import companies succeeded in defeating the trademark through petitions and lawsuits. The matter was settled out of court when Burke surrendered the name to the public domain.

Davies said told the conference that since South Africa is a developing country, traditional knowledge must be protected.

The IP Future We Want

The three-day conference in Johannesburg was organised by South Africa’s Department of Trade and Industry, the driving force in the development of the country’s IP policy. Delegates from all over the world are in attendance to debate the conference theme: “Intellectual property and economic growth in Africa.”

Zodwa Ntuli, deputy director general in the Department of Trade and Industry, explained why the department called for the conference.

“When discussions around intellectual property are held, there’s a question in terms of what exactly is there for us,” he said. “Obviously, there are perspectives from developing countries how they see intellectual property but also perspectives from the developed world in terms of how they see it.”

“The conference theme is appropriate in the sense that we can start talking about how as a continent we are looking at intellectual property,” he said.

“South Africa is at the point where we are looking at policy around intellectual property, to say what kind of intellectual property system do we want,” said Ntuli. “Is it a system that merely recognises some IP that is being registered with us, then we protect it? Or are we going to look for a system that in addition to protection actually encourages innovation – encourages the use of intellectual property to advance the economy.”

The first day of the conference also warmly received the news of the Joint UN programme on HIV/AIDS (UNAIDS) and UN Development Programme (UNDP) call for renewing a provision that allows the world’s poorest countries access to life-saving drugs at costs they can afford. This ahead of talks on the issue in Geneva next week (IPW, WTO/TRIPS, 26 February 2013).

In a new brief, they argue that failing to extend an internationally agreed transition period for poor countries to comply fully with the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) could jeopardise access to lifesaving HIV/AIDS treatment and other essential drugs for those who need them most.

The conference is attended by, among others, the World Intellectual Property Organization Deputy Director General Geoffrey Onyeama, and Ahmed Abdul Latif from the IP division of the International Centre for Trade and Sustainable Development in Geneva.