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Polity
Published: 21 Sep 2009
Intellectual Property Laws Bill an ‘abomination’
The Draft Intellectual Property Laws Amendment Bill is scheduled to come before parliament later this year aims to protect indigenous knowledge through the intellectual property system. Dr Owen Dean, partner at intellectual property law specialist Spoor & Fisher, has described it as an "abomination" that deserves to be thrown on the legal scrapheap.

South Africa's current intellectual property system allows individuals to protect their inventions and intellectual property rights, including those which have a traditional character and meet the requirements, but does not allow communities to collectively protect their longstanding traditional works, many of which are currently in the public domain. The objective of the draft bill is to safeguard traditional or indigenous knowledge from exploitation and commercialisation and from being misappropriated to the economic and social disadvantage of the traditional knowledge holders.

The Bill seeks among other things to provide for:

• The recognition and protection of traditional performances with an indigenous origin;

• The recognition and protection of works of a traditional character in the nature of those works eligible for copyright;

• Protection of geographical indications, signs used on goods that have a specific geographical origin and resultant qualities or reputations;

• The recognition of terms and expressions of indigenous origin and for the registration of these terms and expressions as trademarks; and

• The recognition and registration of traditional designs of indigenous origin

• The payment of royalties for the use of the works listed above

Deriving income
A National Trust Fund for Traditional Intellectual Property will administer income derived from the exploitation of traditional knowledge, and will itself be administered by people with knowledge and patronage of traditional cultures and values of indigenous communities and of traditional performing arts. The fund will be responsible for the promotion and preservation of traditional IP, including its commercialisation and exploitation. Income derived from such use shall be paid into the Trust Fund to be applied at the discretion of the Fund to the benefit of indigenous communities. The communities themselves will not own the works nor will they gain any direct economic benefits from the commercial exploitation of the works.

The Bill seeks to confer copyright on items such as folklore, indigenous rock paintings and longstanding traditional music. Certain names and terms of indigenous origin that would be sought to be protected include "Rooibos" and "Honey Bush" teas. The Bill also seeks to provide for the establishment of a national council of experts on traditional knowledge.

The Bill seeks, in other words, to force the protection of so-called "traditional knowledge" into the intellectual property statues, thereby clothing it with statutory protection and, in particular, the facility to attract revenue for its use.

Fundamental flaws
Globally, there is no generally accepted definition of indigenous knowledge or traditional knowledge, nor is the difference between the two clear. In addition, there is no consensus on the manner in which either form of knowledge should be protected. The World Intellectual Property Organisation (WIPO), after much ongoing debate, regards folklore as the essence of traditional knowledge. WIPO has not espoused the approach of regarding traditional knowledge as a species of existing forms of intellectual property.

South Africa's proposed approach is a novel one, suggesting that traditional knowledge be treated as intellectual property, and should be protected by introducing appropriate provisions into existing IP legislation. "This may be likened to dressing something in clothes which were not designed for it, thus making for an extremely uncomfortable fit," says Dean.

Judge Louis Harms, vice president of the Supreme Court of Appeal and an internationally acknowledged expert in intellectual property law, has voiced his criticisms of the Bill in scathing terms: "The proposals are fundamentally flawed and will not lead to any material benefit to any community in South Africa. They will not make the country technologically or otherwise rich, and they will protect little (if any) indigenous knowledge."

Harms's views echo those held by a large number of attorneys and other practitioners specialising in the practice of intellectual property law, Dean reports. Tellingly, these views are shared by the majority of the members of the Intellectual Property Committee of the Law Society of South Africa (LSSA), even though members' reservations have not been heard publicly. "One can only hope that attorneys will muster up the courage of their convictions and voice their disapproval of the Bill openly and timeously, for the good of the profession and the legislative process.," says Dean.

To date, however, the LSSA has remained silent on the question despite the views of its Intellectual Property Law Committee. But there is still an opportunity to raise objections to the Bill and for the LSSA to voice the concerns expressed by its IP committee.

"My own chief concern about the Bill is that not only will it not achieve its objective, which is a laudable one in principle, but it will undermine the well established principles of intellectual property law Judge Harms puts it this way. "Worse still, political expediency of this nature has the ability to destroy legal structures that have been developed over centuries," concludes Dean.

From: Spoor & Fisher