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The Mad Hatter In Wonderland

3rd November 2011

By: Creamer Media Reporter

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So, the Department of Trade and Industry (“DTI”) has finally gone ahead and done it. It has caused the Government to pass the Intellectual Property Laws Amendment Bill (the so-called “Traditional Knowledge Bill”) despite vociferous objections from all quarters. It has rushed headlong into terrain where no angel would venture through acute trepidation. It has entered Wonderland and assumed the role of the Mad Hatter.

The Vine Oracle (that is to be found in the vineyards of the Winelands) is of the view that the traditional knowledge law will simply be unworkable and is destined to be a dead letter. By seeking to protect traditional knowledge as species of copyright, designs, etc and to attempt to apply the existing laws in these areas to it, it has purported to create rights which are simply incapable of being enforced. The Vine Oracle predicts that no successful claim based on a traditional knowledge right will ever succeed in the South African court. An enormous edifice of bureaucracy, councils, funds, trusts, databases and registration systems is to be created at inordinate expense and all to no avail since the system is not capable of being operated. What an exercise in futility and a waste of innumerable hours on the part of stakeholders, Government Departments and the Parliamentary process!

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The Vine Oracle is not alone in holding this view. The DTI and the Government have been told time and again by an army of commentators that it is going down the wrong track which will lead to a cul-de-sac. The IP profession, academics, the judiciary, the Intellectual Property industries, the World Intellectual Property Organisation (WIPO) are but a few of those that have tried to show the DTI the folly of its ways. Even a Regulatory Impact Assessment commissioned in 2009 by the State President opined that the legislation was ill advised and that, apart from any other considerations, the cost of implementing it would outweigh any possible benefits that might flow from it. Alas, the DTI has been undaunted and unwavering in its purpose. It takes a special form of mindless arrogance to shrug off, nay be totally impervious to, such a strong body of informed opinion. Such obduracy is difficult to fathom and it has been suggested that the Department, or individuals within it, have a double agenda. Perhaps the motivation and process regarding the drafting of the legislations should be investigated by the Public Protector!

It is true that a small minority of the IP profession has given succour to the DTI in its endeavours and it has gratefully favoured and made mileage out of this. This collection of praise singers has, however, been categorised by Nose Week as persons seeking to ingratiate themselves with the Department. Actually the descriptive term used by Nose Week is somewhat less flattering and alludes to movement around the human posterior. This group, who are outside the mainstream of informed IP opinion, can be discounted and it is true to say that the Traditional Knowledge Bill has been roundly condemned by anyone who has any savvy of IP law.

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The Parliamentary Trade and Industry Portfolio Committee have been complicit in this debacle. To its credit, the Committee recognised that the offering produced by the DTI could not pass muster and it tried manfully to improve the Bill. It succeeded to a degree. However, it was seeking to achieve the impossible (given the misguided nature of the raw material that it had to work with) and moreover, while it was at least willing to listen to informed opinion (in contrast to the DTI), it failed to give due weight to that opinion and in the main chose to perpetuate the folly of the DTI. In effect, it changed an outright slap-stick farce into a mere comedy (of errors). It must, nevertheless, also be held accountable for the disaster that has been visited upon South African IP law. Due credit must, however, be given to those members of the Portfolio Committee who represent opposition parties as they saw the light and recognised the Bill for what it is, namely an abomination, and did their level best to cause sanity to prevail, alas in vain. Be that as it may, the Bill has now had its second reading in the House of Assembly and been passed by courtesy of the majority commanded by the ruling party. Die Burger described the vote as being close, which, given the size of the majority held by the ruling party in Parliament, suggests that the Bill did not enjoy wholehearted support even within the ranks of the ruling party.

The nett result is that the Mad Hatter is now in a Wonderland of its own making and it will now presumably attempt to give effect to its new creation. It will doubtless proceed to build castles comprising the Bill’s structures, registers, army of new employees to implement the system, etc., in short the full catastrophe. If, as predicted, none of this works or has any practical effect, the main losers will be the taxpayer and disillusioned traditionalists who have been lead to believe that a pot of gold awaits at the end of the traditional rainbow. But, what about poor IP law? Ay, there’s the rub. The damage that this new wondrous creation grafted on to IP statutes does to established principles of IP law cannot simply be shrugged off. When the edifice in Wonderland has come tumbling down, or is left derelict and fades into oblivion, the damage to IP law caused by the undermining of its basic principles is likely to remain and we, the country’s reputation (it has been made to look ridiculous in the international IP community) and its ability to encourage innovation and business activity will suffer the negative consequences.

How is the use of material having a traditional flavour likely to be influenced in the future? The Vine Oracle predicts that there will in practice be very little change. It predicts that most informed IP lawyers will advise their clients to simply ignore the provisions of the TK law and to carry on as before in the belief that in practical terms the purported rights in traditional knowledge which have been created will simply not be capable of being enforced and will amount to naught. The likely approach to the demands of purported traditional knowledge rights holders for payment of royalties will be “go ahead and sue us if you will!”. Rights which only exist in Wonderland will have little or no effect in the real world.

Then there is of course the prospect of a constitutional challenge to the legislation. There are several good grounds for such a challenge. These include that the Bill is procedurally flawed in that it should have been referred to the House of Traditional Leaders, but was not (what do traditional leaders know about traditional knowledge and why should they have anything to say about it?); after been radically altered by the Portfolio Committee, which introduced new principles into it, it was not again made available for proper public consultation; it conflicts with the property clause of the Bill of Rights; and so forth. Possibly the only factor which will save it from a constitutional challenge is that it will be a proverbial white elephant so why go to the trouble and expense of mounting a challenge? Rather allow it to wither away of its own accord and die a natural death. To quote Shakespeare, its death, through whatever cause, would be a “consummation devoutly to be wished.”

Written by Professor Owen Dean, chairperson of Intellectual Property at Stellenbosch University

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