Yesterday, the Intellectual Property Laws Amendment Bill was debated in Parliament. While the Democratic Alliance (DA) strongly supports the intention of this bill to protect indigenous knowledge, I believe that, in its current form, the bill is seriously flawed.

Opposition parties on the parliamentary portfolio committee for trade and industry are united in raising a number of objections against the current bill, which I listed yesterday in a speech to Parliament:

Our first objection is that the Department of Trade and Industry (DTI), and the ruling party, were determined to proceed with amending four existing IP laws, rather than writing a sui generis – or stand-alone – law.

The existing laws require properties that are simply not found in indigenous knowledge. For example, copyright protection is always for a limited period, works have to be original, have an identifiable author, and be recorded in some way.

Indigenous knowledge seldom has an identifiable author; it is passed down from generation to generation. It is often not recorded, or even impossible to record, existing in the minds of a community. And it needs to be protected in perpetuity: protections should exist as long as the community exists.

The decision not to recognise these incompatibilities has created numerous complexities in the law that could make protection onerous, expensive and – at worst – impossible.

Our second objection is that the DTI persevered with this approach despite professional outside assessments to the contrary. The World Intellectual Property Organisation (WIPO) gave comments on the draft bill in 2009, in which it questioned the route the DTI was taking, and suggested a sui generis approach. Once we had completed our work, our committee requested WIPO comments on the new draft. However, on the strength of the ANC majority on the committee, the bill was approved without these comments being considered.

Furthermore, a Regulatory Impact Assessment (RIA) commissioned by the Presidency in 2009 concluded that, unless a sui generis approach was taken, the cost of the legislation would outweigh its benefit. However, the DTI simply commissioned another RIA that came to the opposite conclusion.

Our third objection is that we have processed this law without waiting for WIPO to complete their drafting of a model law to ensure that indigenous knowledge is protected in a consistent manner internationally. They are due to finish work on it in the next year. Despite this, the committee was pushed to finalise the bill ahead of WIPO’s process. This compromises the principle of staying in line with international laws to ensure that protections offered domestically are automatically offered to other countries under various treaties.

Our fourth objection is that, despite the fact that we did make significant progress on fixing many of the problems, the ruling party insisted on placing serious hurdles before “derivative” users of indigenous knowledge that will disincentivise profitable, fair and productive use. (Derivative use covers everyone from an Ndebele trader selling beadwork based on her tribe’s hut designs, to an entrepreneur publishing children’s books based on traditional stories.)

The bill does not allow sufficient time for derivative users to comply and creates serious uncertainty for users of derivative designs who may have to pay backdated royalties for up to three years, depending on whether a community registers their design on the database or not. These are significant weaknesses that are likely to work against legitimate practitioners of traditional works in South Africa, with no impact on foreign users of South African works.

Our fifth objection is that the revised bill was not subjected to public hearings. Public hearings were held on the first draft last year, but since then it has been fundamentally reworked. Some of the new provisions are quite radical and untested and may have considerable impact. These need to be subjected to public hearings once again.

Our sixth and final objection is perhaps the most serious. The Traditional Leadership and Governance Framework Act 2003, in Section 18(1), requires that any bill that “pertains” to “customs of indigenous communities” needs to be referred to the House of Traditional Leaders. It is our view – as well as the view of senior members of the House of Traditional Leaders – that this bill clearly pertains to customs of indigenous communities. Nevertheless, it has not been referred. This is a serious breach that opens the bill up to legal challenge.

It is clear that the Bill in its present form is completely unworkable, and will not provide sufficient protection to owners of indigenous knowledge.


Media Enquiries:

Tim Harris MP
DA Shadow Minister of Trade and Industry
082 427 3751

Piera Abbott
Senior Media Officer
076 130 5779


Tim Harris MP