Unveiling The Wolf

Posted on Feb 11, 2014

Unveiling The Wolf

The erstwhile Intellectual Property Laws Amendment Bill (“IPLAB”), generally known as the “Traditional Knowledge Bill”, became an Act when it was published in the Government Gazette as having been assented to by President Jacob Zuma on 10 December 2013. This despite vociferous objection from the IP community and other informed sources. (Read more about IPLAB here, here, here and here.)

The general consensus was that the Bill was fundamentally flawed and an abominable piece of legislation. Issue was not taken with the notion that traditional knowledge requires improved protection, but the critics were adamant that the government were going about it in quite the wrong way, which put it out of kilter with international thinking on the subject and draft instruments prepared by the World Intellectual Property Organisation (WIPO), and that the Bill was just plain unworkable. The preferred (and eminently logical) approach was to provide for the desired protection in custom made and designed legislation which took special account of the particular circumstances of the works to be protected – so called “sui generis” protection.  A draft sui generis bill was privately prepared and it met with widespread approval. A variation of it was later introduced into Parliament as a private members bill by Dr Wilmot James of the Democratic Alliance. It was spurned by the government and instead its misconceived band wagon rolled on, culminating in the passing of IP Laws Amendment Act.

A good insight into the shortcomings of IPLAB and the objections that were raised against it can be obtained by perusing the range of articles about traditional knowledge on the IPStell blog here.

Seldom has a Bill been greeted by such damning condemnation by those in the know. The Government, however, went on its merry way unflinchingly and not in the slightest bit deterred by the weight of adverse informed opinion. The opposition to the Bill did, however, have a retarding effect and, having first seen the light of day in 2007 it took until the end of 2013 to complete the legislative process. During this time efforts were made to cosmetically change its ugly face but the fundamental flaws were left unaltered. Indeed, some of the changes aggravated the situation.  A seven year plague?  But, perhaps these were the good years compared to what is to come during the next seven year cycle.

What always perplexed the opponents of IPLAB was why it had been drafted and why the government was quite so determined to have it become law, come what may. There was no international pressure to come up with such legislation. WIPO was assiduously working at coming up with the solution to the question of protection of traditional knowledge and the international community, including South Africa, were pitching in and making their contribution to the process. It is simply a question of time before a universal international formula for protection of traditional works, providing for international reciprocal rights, is adopted.

What caused South  Africa to go off pop and attempt to do it its way? There was no local groundswell for new legislation. The “Lion Sleeps Tonight”/”Mbube” case had shown that works having a cultural or traditional flavour were capable of being protected by existing IP law.  In fact, it emerged during a workshop conducted by the Association of Law Societies in 2008 to discuss IPLAB that the Council of Traditional Leaders  of South Africa (CONTRALESA) were totally unaware of its existence of any steps that were being taken to protect traditional knowledge.  Its President, who had been invited to participate at the Workshop, took the DTI to task in no uncertain terms that it could draft and promote such legislation without prior consultation with the traditional leaders and their communities. They, after all, ought to be the beneficiaries and principal stakeholders in respect of such legislation. The plot had clearly been hatched within the confines of DTI and the government.

Opponents of IPAB formed the conviction that the DTI must have a double agenda in pursuing the matter in the manner it was doing. There could be no other rational reason for the government to pursue what is essentially a non-issue with such ardent fervour. Casting around for a possible true objective, the focus fell on the notion that promising traditional communities and leaders great wealth arising from the commercial exploitation of their cultural treasures would be a good way for the ruling party to ingratiate itself with them. Political support must inevitably flow from dangling such an attractive carrot in front of the traditional leaders.

Maybe this is what IPLAB is all about – getting traditional leaders and communities’ on-side in the forthcoming election. Any political party that can command the allegiance of the rural black communities in an election is in a very favourable position. The government has, of course, at the same time come up with the Traditional Courts Bill which confers enormous powers on traditional leaders. Coincidence?

The aforegoing is largely conjecture in the absence of any supporting evidence or substantiation. But, it is submitted that such evidence has now emerged. That evidence has been provided by Rob Davies, the Minister of Trade and Industries.

On 10 February, a matter of a couple of days after the formal announcement of the date of the forthcoming national election, Davies issued a press statement announcing the signing and becoming law of the IP Laws Amendment Act. The press statement extols the apparent virtues of the Act (statement available here). It says all the right things about the wonderful bounties that it is supposed to bestow.  It promises that the Act “will empower communities to commercialise and trade on IKs” (i.e Indigenous Knowledge).

If you are a traditional community and believe in Father Christmas and the Tooth Fairy, you will be exited at the prospect of a marvellous flow of money in your direction, in return for doing absolutely nothing other than signing a consent to use an age-old property. You don’t actually have to create or produce anything yourself, that was all taken care of by your forefathers. What a blessing from the ruling party! But then you probably also believe that the government will provide decent housing and jobs for all erelong.

What is particularly significant about this press statement is its timing; immediately after the announcement of the election. The actual signing of the Bill into law took place early in December and was announced amid no fanfare in the Government Gazette on 10 December 2013. Why no press statement then when the news was actual and hot? Why wait until two months later and give the impression that the event took place on 10 February 2014? At this stage a big fuss is made of the signing of the Act.

The answers to these questions are self-evident. The press statement and its subject matter is linked to the election. It is an instance of blatant electioneering for party political gain. This is consistent with the true objective of the legislation as outlined above.

It must be said that the content of the press statement is wishful thinking. It is submitted that the Act is not going to deliver the prizes that it promises. The Act is simply impracticable and is bad law. Those most likely to benefit are not traditional communities but rather the civil servants who are being installed in numerous new structures set up to administer the Act (in the optimistic expectation that the system will actually be used and will work), and the lawyers who are destined to have a field day in handling the numerous disputes and controversies to which the tortuous and incoherent language and contorted principles of the Act will certainly give rise.

If our hypothesis is correct, the government and the ruling party have sacrificed our IP laws on the altar of subjective political expediency and advantage. The country has now been saddled with an abominable piece of legislation that won’t work in practice (and thankfully will probably become a white elephant) and has damaged the very fabric of our IP laws by prostituting their basic principles.  All this in pursuit of gaining some extra votes at the national election. To make matters worse, we have also been opened up to international ridicule in the IP field by virtue of our adopting such patently absurd legislation.

The raiment of sheep’s clothing adorning IPLAB has been cast off to reveal a wolf inside. It is a political predator hunting down votes to support its cause. IP law has been the hapless victim of this predator and has been dealt a grievous injury. Nothing less than a successful challenge to the Constitutional Court can heal this wound. “Tis a consummation devoutly to be wished” (Shakespeare – Hamlet)

Fellows of the Anton Mostert Chair of Intellectual Property Law

Stellenbosch University

Faculty of Law