Roll up and hear the good news! Today the new sui generis Protection of Traditional Knowledge Bill was published in the Government Gazette, signalling a major step toward the protection of traditional knowledge (TK) in South Africa.

This Bill is based on the Protection of TK Bill drafted by the incumbent of the Stellenbosch Chair of IP Law (CIP), Prof Owen Dean, and was tabled in Parliament by Dr Wilmot James earlier this year amid widespread and serious criticism of Government’s current attempt at protecting TK through the Intellectual Property Laws Amendment Bill (the old TK Bill).

Now, finally, there is an alternative on the table that neither the Department of Trade and Industry nor its indifferent Portfolio Committee (responsible for the old TK Bill) can ignore.

The new TK Bill (fondly referred to as Wilmot’s Bill), if it becomes law, will introduce a pioneering approach to the protection of indigenous works in a manner befitting South Africa’s status as an (erstwhile) leader of the international IP community. In addition, it will establish a TK system that will stand firmly on its own, untrammelled by interference from its ill-fitting cousins, namely the selection of IP statutes the old TK Bill sought to amend for this purpose.

Wilmot’s Bill will establish a bespoke TK system, customised to the unique and widely divergent demographic of the South African population and capable of actually protecting TK and financially benefitting the indigenous communities from whence it hails. As readers of the CIP’s blog, IPSTELL, will know, it is common knowledge that the old TK Bill was ruefully incapable of achieving either of these goals.

In fact, the old TK Bill met with the most serious objection possible to proposed legislation - namely that the foremost IP practitioners in South Africa found it entirely impracticable and resolved to advise their clients to ignore it (if it is to become law) and, where necessary, circumvent its limping application by contract. 

Conversely, the new TK Bill was drafted by one of South Africa’s champion IP practitioners with decades of IP litigation experience. It is therefore guaranteed to work, not only in theory but also in practice in South Africa – something that cannot be said of many other statutes our esteemed Legislature recently enacted.

In addition, Wilmot’s Bill proposes a sui generis approach to protection of sui generis expressions of intellectual endeavour. While the benefit of such an approach seems obvious, Government has yet to wake up and smell the fire. In fact, the World Intellectual Property Organisation (WIPO) has been working on a TK model law for many years and its expert opinion remains that TK is best protected by sui generis legislation. Indeed, this Chair is in possession of proof that the Portfolio Committee on Trade and Industry was advised, on more than one occasion, of this fact by WIPO and (not surprisingly) suppressed WIPO’s view, distorted it to support their own interpretation and then proceeded with pushing the old (non sui generis) TK Bill through Parliament. The CIP will publish its review of the WIPO report soon on its blog IPSTELL.

Therefore, the CIP repeats its call to rally around the new Protection of Traditional Knowledge Bill (full text available here). The CIP will make written submissions to Parliament (again) requesting an opportunity to make oral submissions in support of the new Bill. All interested parties, and indeed everyone with an interest in the future existence of their IP rights or the protection of traditional knowledge, are encouraged to do the same. For more details on how to make your voice heard in the seat of power, click here or see the contact details in the Gazette Notice.

For an exhaustive analysis of the procedural and substantive problems with the old TK Bill and the CIP’s views on both the old and new TK Bills, click here.

NOTE: The new TK Bill is a matter of particular importance to the administration of the nation and thus required urgent communication to the public. As a result, it was published in an Extraordinary Gazette, Vol 574, No 36354, Notice 376 of 2013 and not the weekly General Gazette.

Written by Cobus Jooste, Fellow of the Chair of Intellectual Property
Faculty of Law, Stellenbosch University

Read more about this and other matters at: www.sun.ac.za/iplaw or blogs.sun.ac.za/ipstell.