Posted on Oct 6, 2011


Amidst the vineyards in Stellenbosch there is an oracle. This oracle, the Vine Oracle, holds forth on matters pertaining to intellectual property (IP). As may be expected, the Oracle communicates with those wishing to consult its wisdom through the grapevine.

The rustling of the vine leaves in the summer breezes and the birds and the bees going about their business fill the vineyards with music. Music evokes love, passion, reverie, thoughts and creativity. The Vine Oracle is inspired by music.  Songs flow when desired from a Nickelodeon holding a vast and varied repertoire.

On this occasion the song selected by the Vine Oracle is “Come on Baby Light my Fire” (performed by Jim Morrison and the Doors in the late 1960’s). The Oracle has chosen this song to inspire this particular commentary on IP. What, you might well ask, has this song got to do with IP? The answer is: very little, if anything at all. But, read on, all will be revealed.


On 19 and 20 September the Department of Science and Technology, acting in concert with the National Intellectual Property Management Office (NIPMO), held a conference in Cape Town with the theme “Accelerating IP and Innovation in South Africa”. The conference featured an imposing range of speakers, including a bevy of American judges and experts from abroad, as well as several local experts. One of the distinguished local speakers was Judge Louis Harms, the Deputy President of the Supreme Court of Appeal, who is of course an internationally recognised expert on IP law. The conference attendees, numbering around 200, included the incumbent of this Chair, the Dean of IP.  Details of the conference can be obtained at http://www.acceleratingipsouthafrica.com/.

Judge Harms and colleagues from the American bench were the panelists in a session having the subject  The Role of the Judiciary and the Court System in Shaping IP Policy”.By and large the view expressed by the panelists was that it was the role of the government and the legislature to shape and develop policy, not that of the court. Judges must interpret the law and attempt to give effect to policies embodied therein, as perceived by them.

“it is the role of the government and the legislature to shape and develop policy, not that of the court”

An American expert, and indeed one of the hosts of the conference, one Sherry Knowles, was the moderator of the panel.  In introducing the subject and the speakers, Sherry extolled the virtues of South African inventiveness and reeled off the longest list that she could find of significant South African inventions, including the Kreepy Krauly and “dolosse”, and then referred to the greatest South African invention of all – indeed one of the greatest and most significant inventions of all time. FIRE!

She said that fire was discovered many millennia ago just a few miles from present day Johannesburg by our forbears and that all mankind was greatly indebted to them. She facetiously expressed regret and disappointment that fire and its uses could not be the subject of any monopoly in this day and age. Noble sentiments expressed by a foreign visitor! Just imagine what wealth could be generated by charging a royalty every time a fire is lit. All those cigarettes, braais, braziers, hearths for warming the home, to mention but a few royalty opportunities! If it could be applied worldwide South Africa would be the wealthiest country in the world and its government would at last appreciate IP and give it its rightful priority!

“just imagine what wealth could be generated by charging a royalty every time a fire is lit”

At question time the Dean of IP ignited a lively conflagration of discussion by opining that the esteemed foreign well-wisher, in expressing regret for the lack of opportunity to monopolise fire, had obviously not read the new South African legislation dealing with IP protection for traditional knowledge – if she had done so, she might not have been so quick to write off IP protection for fire and its uses. Reference to the wide definitions of “traditional knowledge” and “indigenous community” in the Intellectual Property Laws Amendment Bill (the Bill), taken together with the fact that in certain instances protection under the Bill will be in perpetuity, may well lead her to the conclusion that her previously expressed view was unduly pessimistic and negative. Of course it was difficult to articulate this observation with the tongue firmly compressed between the molars.

With this introduction the Dean of IP went on to ask the panel how a court would interpret a provision in a statute which attempts to give expression to a policy when the well established principles, and indeed the language, of the statute made it impossible to give that provision a meaning compatible with the policy.  Calling on his vast experience as a jurist and a seasoned judge, and relying on his in depth knowledge and expertise as an IP authority, Judge Harms replied that he simply did not know. There was no reason to believe that he was being anything less than completely frank and honest. A lively discussion of the wonders of attempting to protect traditional knowledge through performing a graft operation on hapless IP statutes then followed. Judge Harms repeated his oft expressed (and studiously ignored in official circles) view that the Bill was fundamentally flawed, could not work in practice, and should be scrapped. This is a view with which the Vine Oracle heartily agrees.


The Vine Oracle will now proceed to examine the Bill in order to ascertain whether Sherry indeed erred in thinking that it is not possible to protect fire and its uses under South African IP law.

Sherry clearly had the Cradle of Humankind, near Johannesburg, in mind as the location where she said that fire was discovered. The inhabitants of the Cradle (the “babes” of Morrison’s song) were, so the scientists tell us, the forebears of the entire human species, and thus of the current inhabitants of South Africa. Their habitat is part of present day South Africa and knowledge of fire and its uses has, commencing with them, been handed down from generation to generation. The crucial questions are whether fire can constitute traditional knowledge and the “babes” who were nurtured in the Cradle could at the time have constituted the forebears of a current community for purposes of the Bill.  In essence if these two hurdles can be crossed then the current descendants of the “babes” living in South Africa will in principle own fire as a form of traditional knowledge in perpetuity.

In terms of section 2 of the Bill, “traditional work” means an “indigenous work”. This latter term means, inter alia, “indigenous cultural expressions or knowledge which was created by persons who are or were members, currently or historically, of an indigenous community”. “Indigenous cultural expressions or knowledge” is in turn defined to mean “any form, tangible or intangible, or a combination thereof, in which traditional culture and knowledge are embodied, passed on between generations”. One of the examples of the aforegoing given in the definition is “expressions of sacred places”.

The Vine Oracle inclines to the view that fire as discovered by the babes in the Cradle is indeed a form of indigenous knowledge covered by this verbiage.  The verbiage is certainly vague and indefinite enough to cover just about anything capable of being classified as knowledge (or knowhow) passed down from generation to generation, which fire certainly is.

Next, the definition of “indigenous community” must be examined. This term is defined in the Bill to cover “any recognisable community of people originated in or historically settled in a geographic area or areas, located within the borders of the Republic” who constitute, and are recognised as, a distinct collective.  Many, if not all, of us descendants of the babes of the Cradle, fit into this category.  If the scientists are to be believed, we all originated from the Cradle which is located squarely within the borders of South Africa. We can thus be eternally grateful to the babes who lit those fires for the first time and passed this knowledge down to us from generation to generation over the eons of time.

The beauty of the Bill is that, provided the aforegoing conditions are met, it does not matter how long ago the traditional knowledge originated. There is no cut-off date going back in time.  Moreover, traditional knowledge of this nature is protected in perpetuity, i.e. for forever and a day.

So, we the South African based descendants of the babes of the Cradle, living in our community (which one is that?) are, in terms of the Bill, the proud owners of fire as an item of traditional knowledge. It is our IP. We are thus empowered to charge everyone, including ourselves, a royalty each time a fire is lit. What a bonanza! How lucky we are that our forefathers were so inventive and bequeathed this valuable item of property to us. Happily, the babes of the Cradle all those years ago went ahead and lit our fire. Armed with this valuable asset there is no need for us ever to invent anything again in the future. Our livelihood is secure till the end of time.  From the cradle to the grave.


Of course, the above is absurd. Fear not, fire is free for use by all, in the true tradition of IP.  However, what this shows is that ill-conceived, fundamentally flawed and badly drafted legislation can lead to absurd results. The Bill has no place on our statute book, particularly in a field like IP which is international in character and is exposed to scrutiny throughout the world. If we want to look ridiculous, let it not occur on the world stage where we dearly want to shine.

It is time to move on from “Come on baby light my fire” to another song which will hopefully give greater satisfaction.

Remember, you heard it on the grapevine.