South African Traditional Knowledge Protection Bill Amends IP Laws

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.