1 Introduction
Despite there being no internationally-accepted agreement on the mechanism for protecting indigenous (or traditional) knowledge, or indigenous (or traditional) cultural expressions, the South African government appears to be determined to introduce some form of protection in this area. To that end, the Department of Science and Technology (“DST”) published the latest draft of the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill (the “2016 IKS Bill) on 8 April 2016 (GG 39910).[1] This follows its first draft Bill which was published last year (the “2015 IKS Bill).[2] This article will highlight what appears to be a fundamental change in the scope of application of the 2016 IKS Bill, when compared to the 2015 IKS Bill, and some of the substantive issues which remain in the Bill.
2 IPLA Act trumps IKS Bill
As previously indicated at the time of the publication the 2015 IKS Bill, the merit of the approach embodied in the DST’s IKS Bills is that it proceeds from the correct theoretical basis in relation to indigenous knowledge: it seeks to provide special (sui generis) protection for indigenous knowledge. In other words, it does not seek to protect indigenous knowledge in terms of the recognised types of intellectual property, such as, patents, copyright, designs or trademarks, because it does not conform to such types of property. While that singular fact meant that the DST’s approach should be preferred over that embodied in the Intellectual Property Laws Amendment Act, 2013 (the “IPLA Act”), the 2016 IKS Bill appears to represent a rather serious dilution of the approach embodied in the 2015 IKS Bill.
The 2015 IKS Bill, despite its technical-drafting problems, purported to comprehensively deal with the protection of indigenous (or traditional) knowledge (“IK”), and indigenous (or traditional) cultural expressions (“TCEs”), by way of sui generis protection.[3] That appears to no longer be the case. The 2016 IKS Bill still contains a definition of “indigenous cultural expressions”, but, arguably, it may no longer be the exclusive source of substantive protection of TCEs. First, it is important to note that although clauses 2(2) and 9 of the 2016 IKS Bill prima facie only apply to “indigenous knowledge”, the definition of “indigenous knowledge” now includes “indigenous cultural expressions”. In contrast, the substantive provisions of the 2015 IKS expressly listed “indigenous knowledge” and “indigenous cultural expressions” as separate protected subject matter, and did not subsume the latter into the definition of the former. Second, and more importantly, the concern is that TCEs, unlike other “indigenous knowledge”, will no longer exclusively be the subject of the sui generis protection crafted by the IKS Bill.
Given the fact that the 2015 IKS Bill purported to be represent a concerted attempt to comprehensively deal with the protection of IK, and TCEs, it was hoped – at least by those concerned about maintaining the integrity of our intellectual property laws – that the proposed IKS Bill would result in the repeal of the IPLA Act, or, at a minimum, that it would never be brought into effect. On the face of it, the 2016 IKS Bill seems to envisage that the IPLA Act – despite its fundamentally-flawed approach – may no longer have the ignominious ending it deserves. The reason for the scepticism is that clause 32 of the 2016 IKS Bill states that the provisions of the Bill will, in effect, be trumped by any rights conferred by another statute concerning intellectual property. But for the IPLA Act, clause 32 would not have been concern it is.
The IPLA Act specifically deals with TCEs, and not IK. As has previously been pointed out, the IPLA Act was, and remains, an ill-considered attempt at protecting TCEs that is out of kilter with the majority view of experts in the field of intellectual property law, both locally and internationally. It is a Procrustean attempt to force the protection of TCEs into the existing intellectual-property framework, despite the fact that TCEs do not conform to the requirements of the existing forms of intellectual property. The problem, however, is that, as the IPLA Act seeks to protect TCEs as intellectual property, clause 32 of the 2016 IKS Bill would mean that, in the event of a conflict between the provisions of the IPLA Act and the Bill, the provisions of the IPLA Act will prevail.
Thus, the inclusion of clause 32 in the 2016 IKS Bill represents, either intentionally or as a result of oversight, an undermining of the most praiseworthy aspect of the DST’s efforts in seeking to protect IKs and TKEs, namely, its theoretically-correct approach in promoting sui generis protection. If the IPLA Act is not repealed, it will do more than cast a dark shadow over intellectual property law, it will also potentially undermine what the IKS Bill laudably sought to achieve. In addition to the repeal of the IPLA Act, it would be advisable to provide that subject matter which is protectable by recognised intellectual property rights (or the common law) should not also be protected under the IKS Bill. After all, this type of protection is said to be required because the recognised types of intellectual property or the common law, do not protect IKs and TCEs.
3 Other substantive issues
For what it is worth, here is a selection of some other substantive issues which should ideally be addressed before the Bill is enacted. First, it remains unclear whether protection is dependent on registration. Clause 33 gives IK holders 12 months to seek registration of their IK, but there is no indication if registration is a condition for protection. This was a shortcoming that we pointed out in relation to the 2015 IKS Bill, as well. Protection based on a registration system for IK would certainly be preferable, given the uncertainty about what will be protected and the precise scope of such protection. Second, the Bill does not appear to adequately deal with the rights of persons who, hitherto, have used IK or TKE. Third, clauses 13(5) and 28(1) introduce a preposterous concept that can only be described as “criminal contractual breach”. The proposed sections provide that the failure to use indigenous knowledge in the manner provide for in a licence issued for the use of indigenous knowledge is a criminal offence. Fourth, if the protection is not based on a registration system, it will be highly problematic to require a potential user to know when a licence is required (see clause 13(2)). This is particularly the case because the Bill appears to provide for a system of no-fault liability. The problem appears to be compounded by the seemingly unnecessary secrecy relating to the documents lodged in connection with the registration of IK (see clause 21(2)), and the fact that independent creation is not exempted.
4 Conclusion
While the 2016 IKS Bill now contains fewer drafting issues, when compared to the 2015 IKS Bill, one cannot help but get the impression that the quality of drafting still leaves much to be desired. It appears that the DST has wavered in its commitment to provide a theoretically-principled approach to the protection of IK and TCEs. The 2016 IKS Bill, by not providing for the repeal of the IPLA Act (and potentially allowing its provisions to override the IKS Bill), will potentially damage the principled approach which the DST had appeared to follow in pursuing sui generis protection for IK and TKE. Moreover, we should remind ourselves, that by continuing to plough this lonely furrow, it is only South Africans that will be restrained from using domestic IKs and TCEs, if the IKS Bill is enacted. Persons elsewhere will continue to have unfettered freedom to use IKs or TCEs originating in South Africa. So much for encouraging global competitiveness.
___
[1] The legislative process in South Africa still appears to be worryingly chaotic. There are actually two versions of the 2016 IKS Bill in circulation. While the version published in the mentioned Government Gazette should, theoretically, be the official version, the version circulated to the press actually appears to be a later version. It is the latter version of the Bill (B6-2016) that forms the basis of this article, and not the version in the Government Gazette (B-2015), which also does have the Memorandum attached version B6-2016.
[2] GN 243, GG 38574 of 20 March 2015.
[3] See, for example, clauses 10, 11 and 12 of the 2015 IKS Bill.
Follow
