South Africa Cabinet Considers Draft IP Policy

CAPE TOWN–The highest decision-making body of government has finally considered the much-anticipated draft intellectual property policy of South Africa.

Marumo Nkomo, director-legal, international trade and investment at the International Trade and Economic Development (ITED) at the Department of Trade and Industry (DTI), confirmed that the document made it to Cabinet in March this year and Cabinet suggested some changes to it.

Cabinet is the highest decision-making structure of the South African government that discusses government business.

“The draft policy was submitted to Cabinet. They have considered and requested some changes to be made,” Nkomo said in correspondence to Intellectual Property Watch. “Said changes have been made and are undergoing Inter-Ministerial Committee on IP (IMCIP) processes. Once that process has been concluded we will resubmit the amended document to Cabinet.”

Nkomo could not confirm when the draft policy would be re-submitted to Cabinet after the IMCIP processes, and could not comment on the proposed changes as Cabinet deliberations are “classified”.

The draft policy has been a while in the making. The 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.

Commentators and stakeholders have in the past complained that the process of drawing up the draft policy was not widely inclusive and ignored outside input.

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

Nkomo said that following the release of the 2013 draft IP policy (IPW, Africa, 27 July 2016) and the critique around the DTI’s lack of a consultative process, “there was a need to reassess the approach.”

“Government embarked on a process of introspection and correction and we developed the IP Consultative Framework as a means to ensure we have a process to harness collective capacity within government on IP related matters,” he said. “A strengthened consultative process is to ensure an evidence based approach informed by stakeholders on the ground and to ensure a coordinated intragovernmental approach. The Framework served as a tool to develop a coordinated approach and to engage constructively with stakeholders.”

The public submissions window period for the IP Consultative Framework ran from August until October last year (IPW, Africa, 20 October 2016).

“The submissions themselves have been significant. They were read and analysed very studiously,” said Nkomo. “The idea of the Framework was to garner information from the public and where appropriate they have been incorporated into the draft policy as this is an area with very divergent interests.”

Even so, the IP Consultative Framework has not come without objection that it was not consultative.

“We read with concern the passage by Adams and Adams in its submission where the opportunity to participate in the consultative process was called into question,” Nkomo explained. “I personally emailed the author including the link and pdf of the framework on 18 July, the day it was published on the DTI website and the author thanked me. Thereafter, we engaged with the said entity at various fora between July and October – the period during which the Framework was open for public comment.”

“It raises questions about the bona fides of the certain individual entities,” he said. “No other entity has called into question the transparency or inclusiveness of the process notwithstanding interest-based divergences of opinion on substantive issues which are to be expected. Nevertheless, we remain committed to a consultative approach – this has been recognised and acknowledged by the vast majority of stakeholders.”

 

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