Seldom will the VineOracle descend into the dust of the arena, even when the winner is known to her in advance. But on this occasion she considers it necessary to expound upon the recent developments in IP legal development for the sake of those who care to learn. Here is her report on the match between two opposing, albeit ill-matched, forces seeking to use the intellectual property law system for the protection of traditional knowledge.
In 2004 the Cabinet approved the adoption of a policy on Indigenous Knowledge Systems, known as the IKS Policy. Pursuant to this the Department of Trade and Industry formulated a policy document on the protection and commercialisation of Indigenous Knowledge. This policy sought to recognise and protect Indigenous Knowledge as a form of intellectual property and to enable and promote the commercial exploitation of such material for the benefit of the indigenous communities from which the material originated.
In 2008 the DTI sought to give effect to this policy by drafting and publishing the Intellectual Property Laws Amendment Bill (“IPLAB”). This Bill proposed to amend the Copyright, Designs, Trade Marks and Performers Protection Acts, respectively, to introduce into them special provisions applying the subject matters of those acts to what it termed “Traditional Knowledge,” but what can more correctly be described in terms of internationally recognised terminology as “Cultural Expressions”, i.e. folklore, traditional art and music, traditional designs and signs and performances of traditional works.
IPLAB has had a very tortuous and controversial journey through the legislative process. It has been roundly condemned as being badly drafted and unworkable by a wide spectrum of people from High Court judges, academics, legal practitioners and other government departments, to business people and the cultural community. Despite all this, as well as vociferous objection by opposition parties in Parliament, it was passed by Parliament in 2012 and submitted to the President for his assent. He, however, declined to sign it on the basis that it had not been considered by the National House of Traditional Leaders, the representative body of the avowed beneficiaries of the measures to be introduced.
The main criticism of IPLAB has been that it attempts to do the impossible. It purports to grant protection to TK by bending the principles of existing intellectual property laws beyond breaking point. It amounts in effect to trying to mix oil and water. The counter- argument and proposal is that the desired protection should be granted by means of a custom made (a so-called “sui generis”) statute providing for a new species of intellectual property with its own unique characteristics and circumstance. It would thus join and supplement the existing intellectual property statutes, such as the Patents Act, the Copyright Act etc., which each regulate a separate and unique form of intellectual property. The new law would be further Act in the series of intellectual property statutes.
In order to illustrate how the government’s goal could be achieved by means of a sui generis statute, Prof Owen Dean, the incumbent of the Anton Mostert Chair of Intellectual Property Law at Stellenbosch University, prepared a draft sui generis Bill covering the same ground as IPLAB. This draft Bill was made available to the Trade and Industries Portfolio Committee of the House of Assembly at the time when it considered IPLAB. The committee either ignored or disregarded (or did not understand) this draft Bill and IPLAB was approved after substantial amendment by the Parliamentary drafting team. These amendments, however, did not remove or cure the objections to IPLAB.
The Democratic Alliance and other opposition parties, mindful of the damning criticism that had been voiced against IPLAB, felt strongly that a grave error was being made by passing it and resolved to take further steps to rectify the undesirable situation. These took the form of Dr Wilmot James, the DA’s shadow Minister of Trade and Industry, tabling Prof Dean’s draft Bill in Parliament as a Private Member Bill. Parliament is thus faced with two fundamentally different competing Bills aimed at achieving the same objective.
The beneficiaries of the two Bills, i.e. the traditional communities whose works are involved, had never really been given an educated choice as to how they felt that their works should be protected. This has been rectified. The options have now been presented to them at a recent meeting of the National Council of Traditional Leaders held in Durban. The two Bills and their effects and implications were described to them to enable them to make an informed choice as to which they prefer. The essence of the principal information put before them is summarised below.
IPLAB has been described by the Deputy President of the Supreme Court of Appeal as fundamentally flawed and incapable of delivering any protection to traditional cultural works. This sentiment has been echoed time and again by leading experts in the field of intellectual property law. The World Intellectual Property Organisation (WIPO) has expressed similar views. Even the independent organisation that did a regulatory impact assessment of the Bill at the government’s behest condemned it as unworkable and undesirable. It is difficult to find anyone outside government who has any good word to say about the Bill. If passed, the law is likely to become a complete white elephant and it will have no practical application. Indeed, it would in all probability face a constitutional challenge.
It purports to create a system which in certain circumstances will confer ownership of the property created in the State, and not in the communities themselves. Such property will be commercially exploited by the State and royalties flowing to the State from the use of the works will accrue to a trust fund administered by the State. The trust operating the fund has discretion as to how the money should be spent or allocated and no obligation is placed on it to transfer any such money to any community. Royalty payments could be viewed as a sort of tax, somewhat along the lines of the extolls to be extracted from motorists for the use of Gauteng highways.
Licensing of the traditional works is subject to onerous formalities and conditions and the State is requires to give advance approval to any licence agreement. These circumstances for licensing are not at all in accordance with the realities of the market place in the licensing of works of intellectual property and they are likely to prove to be a strong disincentive to anyone contemplating acquiring a licence.
IPLAB deprives traditional communities of rights that they currently enjoy under intellectual property law in certain respects. For instance, traditional signs are prevented from being registered as trade marks, which is currently possible.
The James Bill follows the sui generis legislation route. This approach to protecting traditional knowledge enjoys the support of WIPO, which is currently preparing a model law to this effect for adoption internationally, as well as an international treaty to promote it. It is the approved international approach. It is also subscribed to by all our neighbouring countries and the International Association of Intellectual Property, an authoritative body of experts. The James Bill, and the sui generis approach has received widespread support in South Africa including from the Department of Science and Technology, the Competition Commission, the Association of Law Societies and prominent academics and legal practitioners with expert knowledge of intellectual property law. No comment whatsoever that the Bill is pursuing the incorrect approach has been offered.
The James Bill provides for protected traditional knowledge to be owned by the community that originated it and for that community to exploit the works commercially to its own advantage. No deprivation or expropriation of a community’s property thus takes place. Licensing of traditional knowledge property takes place on a simple, uncomplicated and user –friendly basis in keeping with standing commercial practices. Payment of royalties for use of the property can be made to a trust fund operated by the state but such moneys are specifically directed to be paid to the relevant community owning the work being exploited. Provision is made for the state to enforce rights in protected works, at the election of the owner and on its behalf. All existing intellectual property rights currently available to communities are preserved and are not taken away.
Intellectual Property law is a complex and difficult field and it lends itself to specialist attention. This branch of the law is in the main practised by lawyers who have undergone specialist training in it. Lawyers with general expertise, and even High Court judges, have difficulty in coping with it. The lay public has, little knowledge or understanding of it, which is not surprising, given its specialised nature.
In order to understand IPLAB and how it regulates protection of Traditional Knowledge, it is necessary as a prerequisite to have a good and thorough knowledge and understanding of the host Acts that it will amend, namely the Trade Marks Act, the Copyright Act, the Designs Act and the Performers Protection Act, and the law created by them. This achieved, it is necessary to work out how IPLAB adapts these Acts to make (or attempts to make) them applicable to Traditional Knowledge. This is complicated by the fact that, as previously stated, the objective sought to be achieved is in fact unattainable. Several of the principles and concepts in the host Acts are distorted in a manner that makes them incomprehensible. The task on hand is daunting to even the most experienced and learned exponents of IP law. How, one may ask, are members of traditional communities possibly going to be able to begin to understand the law protecting Traditional Knowledge in these circumstances?
On the other hand, the James Bill is a relatively brief, self-contained and uncomplicated piece of legislation. Prior knowledge of Intellectual Property law is not required in order to interpret it as it has its own custom made principles and concepts. Most lawyers without any expertise in IP law will be able to understand it and interpret it. Moreover, it ought to be reasonably intelligible to the layman. Members of traditional communities will be confronted with legislation which is not shrouded in mystery and confusion and will be far better able to comprehend how and to what extent their traditional property is protected. This , after all, ought to be the objective of all legislation, particularly statutes which are aimed at protecting property belonging to relatively unsophisticated people.
The principal benefit of the James Bill is that it is capable of actually working in practice and granting the desired protection to traditional works for the benefit of the respective originating communities, in contrast to IPLAB which is doomed to becoming a dead letter if passed.
The National House of Traditional Leaders was advised to apply its collective mind to the choice of Bills and, in the event that it decides that the James Bill is the better option, to communicate this view to the government, and more specifically to Parliament, before any further steps are taken by it in relation to IPLAB.
The reader is to be forgiven for thinking that the contest is a one horse race.
Prof OH Dean
To read more about traditional knowledge, IPLAB and the James Bill, click here.
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