NO. 107 OF 1996: INTELLECTUAL PROPERTY LAWS RATIONALISATION ACT, 1996.
PRESIDENT'S OFFICE
No. 1905.
27 November 1996
NO. 107 OF 1996: INTELLECTUAL PROPERTY LAWS RATIONALISATION ACT, 1996.
It is hereby notified that the President has assented to the following Act
which is hereby published for general information:-
ACT
To provide for the integration of intellectual property rights subsisting in
Bophuthatswana, Transkei, Venda and Ciskei into the national system; to extend
the South African intellectual property rights legislation throughout the
Republic; to repeal certain other intellectual property laws; and to provide
for matters connected therewith.
(Afrikaans text signed by the President.)
(Assented to 12 November 1996.)
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-
PART 1
Introduction and definitions
Scheme of Act
1. This Act is divided into seven parts which relate to the following
matters, respectively:
Part 1-Introduction and definitions
Part 2-General application
Part 3-Patents
Part 4-Registered designs
Part 5-Trade marks
Part 6-Copyright
Part 7-General
Definitions
2. In this Act, unless the context otherwise indicates-
"Bophuthatswana" means the former Republic of Bophuthatswana as constituted
on 26 April 1994;
"Bophuthatswana Act" in Part 3 means the Patents Act, 1952 (Act No. 37 of
1952), in Part 4 means the Designs Act, 1967 (Act No. 57 of 1967), in Part 5
means the Trade Marks Act, 1963 (Act No. 62 of 1963), and in Part 6 means the
Copyright Act, 1965 (Act No. 63 of 1965), all as effective in Bophuthatswana,
and
"Bophuthatswana Acts" means all those Acts, collectively;
"Ciskei" means the former Republic of Ciskei as constituted on 26 April
1994;
"Ciskei Act" in Part 6 means the Copyright Act, 1978 (Act No. 98 of 1978),
as effective in Ciskei;
"Designs Office" means the designs office as contemplated in the Designs
Act, 1993 (Act No. 195 of 1993);
"Patent Office" means the patent office as contemplated in the Patents Act,
1978 (Act No. 57 of 1978);
"Registrar of Designs" means the registrar of designs appointed in terms of
the Designs Act, 1993 (Act No. 195 of 1993);
"Registrar of Patents" means the registrar of patents appointed in terms of
the Patents Act, 1978 (Act No. 57 of 1978);
"Registrar of Trade Marks" means the registrar of trade marks appointed in
terms of the Trade Marks Act, 1993 (Act No. 194 of 1993);
"Register of Designs" in Part 4 means the register of designs kept under the
Bophuthatswana Act, the Transkei Act or the Venda Act, as the case may be, and
"records" pertaining to those registers has a corresponding meaning;
"Register of Patents" in Part 3 means the register of patents kept under the
Bophuthatswana Act, the Transkei Act or the Venda Act, as the case may be, and
"records" pertaining to those registers has a corresponding meaning;
"Register of Trade Marks" in Part 5 means the register of trade marks kept
under the Bophuthatswana Act, the Transkei Act or the Venda Act, as the case
may be, and
"records" pertaining to those registers has a corresponding meaning;
"Republic" means the Republic of South Africa as constituted on 27 April
1994;
"South African Act" in Part 3 means the Patents Act, 1978 (Act No. 57 of
1978), in Part 4 means the Designs Act, 1993 (Act No. 195 of 1993), in Part 5
means the Trade Marks Act, 1993 (Act No. 194 of 1993), and in Part 6 means the
Copyright Act, 1978 (Act No. 98 of 1978), and "South African Acts" means all
those Acts, collectively;
"Territorial Acts" means the Bophuthatswana Acts, Ciskei Acts, Transkei Acts
and Venda Acts collectively;
"Trade Marks Office" means the trade marks office contemplated in the Trade
Marks Act, 1993 (Act No. 194 of 1993);
"Transkei" means the former Republic of Transkei as constituted on 26 April
1994;
"Transkei Act" in Part 3 means the Patents Act, 1952 (Act No. 37 of 1952),
in Part 4 means the Designs Act, 1967 (Act No. 57 of 1967), in Part 5 means
the Trade Marks Act, 1963 (Act No. 62 of 1963), and in Part 6 means the
Copyright Act, 1965 (Act No. 63 of 1965), all as effective in Transkei, and
"Transkei Acts" means all those Acts, collectively;
"Venda" means the former Republic of Venda as constituted on 26 April 1994;
"Venda Act" in Part 3 means the Patents Act, 1978 (Act No. 57 of 1978), in
Part 4 means the Designs Act, 1967 (Act No. 57 of 1967), in Part 5 means the
Trade Marks Act, 1963 (Act No. 62 of 1963), and in Part 6 means the Copyright
Act, 1978 (Act No. 98 of 1978), all as effective in Venda, and "Venda Acts"
means all those Acts, collectively.
Reference to Act
3. Reference to any Act referred to in this Act shall be deemed to include
all amendments to that Act and all notices, directives, rules and regulations
issued under that Act.
PART 2
General application
Application of South African Acts
4. Subject to the provisions of Parts 3, 4, 5 and 6 of this Act, the South
African Acts shall apply throughout the Republic.
PART 3
Patents
Application of South African Patents Act
5. (1) Subject to the provisions of this section, the South African Act
shall apply to all patents registered or deemed to be registered under the
Bophuthatswana Act, the Transkei Act and the Venda Act.
(2) Subject to subsection (5), the validity of a patent entered on the
Register of Patent and the duration of such a patent shall be determined in
accordance with the laws applying to the application for registration of that
patent as at the date of that application-
(3) Subject to subsection (5), the repeal of the laws by section 16 does not
affect any applications or proceedings commenced under the Bophuthatswana Act,
the Transkei Act or the Venda Act and any such applications or proceedings
shall be continued with and concluded in accordance with the provisions of the
respective laws as if such laws had not been repealed, provided that-
(a) the Registrar of Patents shall perform the functions and duties of the
registrars appointed under those Acts; and
(b) any notice and other communication required to be inserted or published
in a patent journal or other official publications may be inserted or
published in the South African Patent Journal.
(4) A patent registered under the South African Act shall not apply to the
geographical areas of Bophuthatswana, Transkei or Venda for so long as and to$
the extent that a valid registered patent right for the same invention
continues to subsist in any such geographical area, but shall extend to each
such geographical area if and when such valid right no longer subsists.
(5)(a) A proprietor of a patent registered in Bophuthatswana, Transkei or
Venda, respectively, may, within one year after the coming into force of this
Act, notify the Registrar of Patents in writing that he or she wishes his or
her patent right to extend to the whole of the national territory of the
Republic, subject to paragraph (b).
(b) Once such a notification has been made such patent right shall continue
to apply only to the geographical areas of Bophuthatswana, Transkei or Venda,
as the case may be, for as long as and to the extent that a valid registered
patent for the same invention subsists in terms of the South African Act, but,
subject to paragraph (a), such patent right shall extend to the whole of the
national territory if and when such right in terms of the South African Act
does not exist.
(6) Any lawful use by any person of an invention commenced prior to 27 April
1994 in the geographical area of Bophuthatswana, Transkei or Venda shall not
become unlawful by virtue of this Act, provided that use is not extended
outside the geographical area concerned.
Patent Registers and Records
6. The Registers of Patents and records shall be transferred to and kept in
the office of the Registrar of Patents.
Identification of patents
7. All patents registered and all patent applications filed in terms of the
Bophuthatswana Act, Transkei Act and Venda Act shall be identified by the
suffixes "(BT)", "(TR)" and "(VE)", respectively.
PART 4
Registered designs
Application of South African Designs Act
8. (1) Subject to the provisions of this section, the South African Act
shall apply to designs registered or deemed to be registered under the
Bophuthatswana Act, the Transkei Act or the Venda Act.
(2) Subject to subsection (5), the validity of a design registration entered
on the Register of Designs and the duration of such a design registration shall
be determined in accordance with the laws applying to the application for
registration of that design as at the date of that application.
(3) Subject to subsection (5), the repeal of the laws by section 16 does not
affect any proceedings or applications commenced under the Bophuthatswana Act,
the Transkei Act or the Venda Act, and any such proceedings or applications
shall be continued with and concluded as if the laws had not been repealed,
provided that-
(a) the Registrar of Designs shall perform the functions and duties of the
registrars appointed under those Acts; and
(b) any notice and other communication required to be inserted or published
in a patent journal or other official publications shall be inserted or
published in the South African Patent Journal.
(4) A design registered under the South African Act shall not apply to the
geographical areas of Bophuthatswana, Transkei or Venda for so long as and to
the extent that a valid registered design right for the same design continues
to subsist in any such geographical area, but shall extend to each such
geographical area if and when such valid right no longer subsists.
(5)(a) A proprietor of a design registered in Bophuthatswana, Transkei or
Venda, respectively, may, within one year after the coming into force of this
Act, notify the Registrar of Designs in writing that he or she wishes his or
her design right to extend to the whole of the national territory of the
Republic, subject to paragraph (b).
(b) Once such a notification has been made such design right shall continue
to apply only to the geographical areas of Bophuthatswana, Transkei or Venda,
as the case may be, for as long as and to the extent that a valid registered
design for the same right subsists in terms of the South African Act, but,
subject to paragraph (a), such design right shall extend to the whole of the
national territory if and when such right in terms of the South African Act
does not exist.
(6) Any lawful use by any person of a design commenced prior to 27 April
1994 in the geographical area of Bophuthatswana, Transkei or Venda shall not
become unlawful by virtue of this Act, provided that the use is not extended
outside the geographical area concerned.
Design registers and records
9. The Registers of Designs and records shall be transferred to and kept in
the office of the Registrar of Designs.
Identification of designs
10. All designs registered and all design applications filed in terms of
the Bophuthatswana Act, Transkei Act and Venda Act shall be identified by the
suffixes "(BT)", "(TR)" and "(VE)", respectively.
PART 5
Trade marks
Application of South African Trade Marks Act
11. (1) Subject to the provisions of this section, the South African Act
shall apply to all trade marks registered or deemed to be registered under the
Bophuthatswana Act, the Transkei Act and the Venda Act.
(2) Subject to subsection (5), the validity of the original entry of a trade
mark on the Register of Trade Marks shall be determined in accordance with the
laws applying to the application for registration of that trade mark as at the
date of that application.
(3) Subject to subsection (5), the repeal of laws by section 16 does not
affect any applications or proceedings commenced under the Bophuthatswana Act,
the Transkei Act or the Venda Act and any such applications or proceedings
shall be continued with and concluded in every respect as if those laws had not
been repealed, provided that-
(a) the Registrar of Trade Marks shall carry out the functions and duties of
the registrars appointed under those Acts; and
(b) any notices and other communications required to be inserted or
published in a patent journal or other official publications may be
inserted or published in the South African Patent Journal.
(4) A trade mark registered under the South African Act shall not apply to
the geographical area of Bophuthatswana, Transkei or Venda for so long as and
to the extent that a valid registered trade mark right for the same trade mark
continues to subsist in any such geographical area, but shall extend to each
such geographical area if and when such valid right no longer subsists.
(5)(a) A proprietor of a trade mark registered in Bophuthatswana, Transkei
or Venda, respectively, may, within one year after the coming into force of
this Act, notify the Registrar of Trade Marks in writing that he or she wishes
his or her trade mark to extend to the whole of the national territory of the
Republic, subject to paragraph (b).
(b) Once such a notification has been made such a trade mark shall continue
to apply only to the geographical areas of Bophuthatswana, Transkei or Venda,
as the case may be, for as long as and to the extent that a valid registered
trade mark right for the same trade mark subsists in terms of the South African
Act, but, subject to paragraph (a), such trade mark right shall extend to the
whole of the national territory if and when such right in terms of the South
African Act does not exist.
(6) Any lawful use by any person of a trade mark commenced prior to 27 April
1994 in the geographical area of Bophuthatswana, Transkei or Venda shall not
become unlawful merely by virtue of this Act having been passed, provided that
the use is not extended outside the geographical area concerned.
Trade mark registers and records
12. The Registers of Trade Marks and records shall be transferred to and
kept in the office of the Registrar of Trade Marks.
Identification of trade marks
13. All trade marks registered and all trade mark applications filed in
terms of the Bophuthatswana Act, Transkei Act and Venda Act shall be identified
by the suffixes "(BT)", "(TR)" and "(VE)", respectively.
14. Reference to "section 53 of the repealed Act" in section 70(2) of the
South African Act shall be deemed also to be a reference to section 53 of the
Bophuthatswana Act, Transkei Act and Venda Act.
PART 6
Copyright
Application of South African Copyright Act
15. (1) The South African Act shall apply to any work-
(a) made by-
(i) any individual who at a material time was a citizen of or was
domiciled or resident in Bophuthatswana, Transkei, Venda or Ciskei;
(ii) any juristic person which at a material time was organised or
existing under the laws of Bophuthatswana, Transkei, Venda or
Ciskei-, or
(b) which-
(i) being a literary, musical or artistic work or a sound recording, was
first published in Bophuthatswana, Transkei, Venda or Ciskei;
(ii) being a broadcast, was made in Bophuthatswana, Transkei, Venda or
Ciskei;
(iii) being a programme-carrying signal, was emitted to a satellite from
a place in Bophuthatswana, Transkei, Venda or Ciskei;
(iv) being a cinematograph film, was first published or made in
Bophuthatswana, Transkei, Venda or Ciskei;
(v) being a published edition, was first published or made in
Bophuthatswana, Transkei, Venda or Ciskei;
(vi) being a computer program, was first published or made in
Bophuthatswana, Transkei, Venda or Ciskei.
(2) Any reference to South Africa or the Republic in sections 3 and 4 of the
South African Act shall be deemed also to be a reference to Bophuthatswana,
Transkei, Venda and Ciskei.
(3) The repeal of laws by section 16 does not affect any proceedings
commenced under the Bophuthatswana Act, the Transkei Act, the Venda Act or the
Ciskei Act, and such proceedings shall be continued with and concluded in every
respect as if the laws had not been repealed.
PART 7
General
Repeal of Acts
16. The laws mentioned in the Schedule are hereby repealed.
Extension of terms
17. Any act required to be performed within a specified time in any of the
Territorial Acts in respect of any proceedings relating to a patent, registered
design or trade mark or in respect of any application therefor may be performed
within that period of time or within six months calculated from the date on
which this Act comes into operation, whichever is the later: Provided that
these provisions shall not extend the due date for the payment of a renewal fee
under any Territorial Act.
Short title and commencement
18. This Act shall be called the Intellectual Property Laws Rationalisation
Act, 1996, and shall come into operation on a date fixed by the President by
proclamation in the Gazette.
SCHEDULE
Number and year of law Short title
----------------------------------------------------------
1. Bophuthatswana
Act No. 37 of 1952 Patents Act, 1952
Act No. 62 of 1963 Trade Marks Act, 1963
Act No. 63 of 1965 Copyright Act, 1965
Act No. 57 of 1967 Designs Act, 1967
2. Transkei
Act No. 37 of 1952 Patents Act, 1952
Act No. 62 of 1963 Trade Marks Act, 1963
Act No. 63 of 1965 Copyright Act, 1965
Act No. 57 of 1967 Designs Act, 1967
3. Venda
Act No. 62 of 1963 Trade Marks Act, 1963
Act No. 57 of 1967 Designs Act, 1967
Act No. 57 of 1978 Patents Act, 1978
Act No. 98 of 1978 Copyright Act, 1978
4. Ciskei
Act No. 98 of 1978 Copyright Act, 1978