South African Government Staves Off Critics With IP Consultative Framework

South Africa’s Department of Trade and Industry (DTI) appears to be meeting its detractors halfway with a new intellectual property consultative framework it says will help pave the way for consultative engagement with IP stakeholders both inside and outside of government.

The DTI has been accused by some IP stakeholders of being tone deaf to outside input. In a telephone interview ahead of the Cabinet adopting the consultative framework, Marumo Nkomo, director-legal, international trade and investment, in the International Trade and Economic Development (ITED) at DTI, said the document was put together after a period of introspection following the numerous responses to the initial draft IP policy as well as consultations, inter-governmentally and with the various stakeholders.

“We have taken on board a lot of the comments and as a result adopted a fresh approach to policy formation,” he told Intellectual Property Watch. Nkomo joined the DTI in November 2015.

The critique from IP stakeholders included the complaint that there was reportedly no public consultation before the policy was drafted nor intra-departmental consultation.

The IP consultative framework document was first submitted to Cabinet for approval in May and was sent back for further refinement. It has now been adopted by Cabinet and can be found on the DTI website, here [pdf].

Meanwhile, it is unknown when the new IP policy will come out. The draft IP policy was published by DTI in the government gazette in September 2013.

South Africa does not currently have a general IP policy, and critics have argued that this has resulted in a fragmented and unconsolidated approach to IP matters.

The draft IP policy aims to remedy this fragmentation by coordinating the country’s approach to IP matters on both a national and international basis.

Other objectives driving the draft IP policy include improving IP enforcement, promoting research and development, ensuring IP laws are relevant to development and innovation, and promoting public awareness of and education about IP in the country.

Nkomo explained that the document will aid the department’s bid to be more “broadly consultative and facilitate greater coordination … within government” on matters of IP rights.

Responding to Pro-Rights Critics

He also confirmed that he had reached out to Prof. Sadulla Karjiker, an IP law professor at the University of Stellenbosch in South Africa, who has been a vocal critic of the DTI and how it comes up with legislation.

“We are actively trying to bring in expertise in terms of a new consultative approach to achieve an outcome that will benefit the country,” said Nkomo. “The consultative framework document is the instrument to use as a basis for consultation.”

In an interview with Intellectual Property Watch earlier this year (IPW, Africa, 23 March 2016), Karjiker said of the DTI: “[M]y view may not be based on hard evidence, but it seems that the DTI doesn’t speak to anybody. They do things behind closed doors. The process is opaque and you don’t get the impression that when you make written submissions that it is taken seriously. You also have to make comments via the media, which is not a healthy state of affairs.”

“There are scores of practitioners and academia who want to give of their time to work on draft legislation but the DTI does not take up that offer, probably worse, it actually spurns them,” he added.