Speech delivered by the Minister of Trade and Industry, Dr Rob Davies, MP, in the National Assembly on the Intellectual Property Laws Amendment Bill
27 Oct 2011
The Bill before the House today seeks to provide protection for indigenous knowledge through the Intellectual Property Law system. Indigenous knowledge is knowledge generated and owned by communities. It may be knowledge about medical practices, production of food products or cultural expressions, songs designs or whatever.
A World Bank Study by Alan Winters has shown that poor people can turn their own knowledge into income generating opportunities through the use of modern methods to protect and market such knowledge. Conversely, we know of cases where unprotected cultural expressions emerging from our communities have been appropriated and commercialised by individual interests without benefits going to these communities.
The Bill before us is a sequel of two policy processes, namely, the development of the Indigenous Knowledge Systems (IKS) Policy adopted in 2004 and the Policy on Protection of Indigenous Knowledge (IK) through the IP system in 2007. The question of how to protect indigenous knowledge is the subject of vigorous debate. While by no means a unanimous view many stakeholders nationally and internationally agree that the IP system can used to protect IK, but it is not a panacea. Indigenous knowledge is distinct in many respects from Intellectual Property generally protected by IP systems. IP systems and practioners do not easily accommodate knowledge that is collective in nature and also not time bound. The protection and beneficial use of IK therefore requires that other areas of law be reviewed, and speedily so, to bring about comprehensive protection of IK, e.g. in agriculture, preservation and heritage.
In the debate on this Bill, some stakeholders argued in favour of a sui generis approach, which would keep IK protection out of the purview of IP law. A sui generis, or stand alone, law would in any event have to work together with the IP system and it is clear that for IK to be comprehensively protected, we need a package of solutions. The global debate on a sui generis mechanism is not nearing completion any time soon and we are faced with a need to respond urgently to a number of cases of private misappropriation of IK through the use of the existing IP system. Failure to act will in our view encourage further unabated exploitation of communities’ heritages by unscrupulous private interests
Let me say that should there be any developments in future that suggest a different route may be better, we will not hesitate to review this legislation. But South Africa unfortunately does not have a luxury to allow the rampant exploitation of IK through the IP system while we wait for such a solution to emerge.
Honourable Speaker, this IP Bill seeks to amend the Performers Protection Act, Trade Marks Act, Copyright Act and Designs Act. The main thrust of the Bill is that no registration of IP that is based on IK will be able to be effected without 1) mandatory disclosure of the IK element, 2) prior informed consent by IK owners, and 3) without a benefit sharing arrangement entered into with the relevant IK owners. These principles have already been applied in the Patents Amendment Act, 2005 complementing the Biodiversity Act, 2004. By their nature, these principles undoubtedly give power back to indigenous communities who are the rightful owners of indigenous knowledge.
In recognition of the fact that power relations of indigenous communities and those of seasoned proponents of the IP system are skewed, the IP Bill establishes an Alternative Dispute Resolutions (ADR) system to deal with disputes.
The IP Bill also provides for establishment of appropriate structures to facilitate the implementation of the IP Bill when it comes into legal force. These are the National Council, the National Trust and Trust Fund, as well as recognition of community structures and collecting societies.
Honourable Speaker, the Bill is fully compatible with all international treaties to which South Africa is a party. National treatment and reciprocity principles are appropriately observed in this Bill. Further, the Bill does not intend to expropriate any IK related IP rights that were previously granted prior to this Bill coming into force.
In preparation for implementation, the Department of Trade and Industry (the dti) is already developing a comprehensive strategy to take this IP Bill to indigenous communities in the most accessible and simple form. In this regard the dti and Congress of Traditional Leaders of South Africa (Contralesa) will be entering into Memorandum of Agreement (MOA) that will facilitate outreach programme building on “Taking the dti to the People” initiative. A Launch Conference on the MOA will take place in November 2011 where sub-programmes and activities will be unveiled. The above strategy will be complemented by the development of field workers who will be deployed in all nine provinces. This will be in addition to cooperation with other sister departments such as Department of Agriculture, Forestry and Fisheries, Department of Rural Development, Department of Cooperative Governance and Traditional Affairs and Department of Arts and Culture.
With these few words, Hon. Speaker, I call on the National Assembly to support the Intellectual Property Laws Amendment Bill.
Issued by: Department of Trade and Industry
27 Oct 2011
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