Presentation by Department of Trade and Industry to:
Portfolio Committee on Trade and Industry
and
Select Committee on Trade and International Affairs
DELEGATION
Ms Zodwa Ntuli: Deputy Director-General: Consumer and Corporate Regulation Division (CCRD), Department of Trade and Industry (the dti)
Ms Nomfundo Maseti: Chief Director: Policy and Legislation, CCRD, the dti
Mr MacDonald Netshitenzhe: Director: Commercial Law and Policy, CCRD, the dti
PURPOSE
To brief the Portfolio Committee on Trade and Industry and the Select Committee on Trade and International Affairs about the Policy on Protection of Indigenous Knowledge using Intellectual Property (IP) System
CONTENTS
Background
Rationale
Objectives
Forms Of IP
Legal Options
The Bill
Conclusion
BACKGROUND
The need for protection of traditional and/or indigenous knowledge was triggered by international debates, particularly in the following areas:
Copyright – in 1967 by Berne Convention, 1976 Tunis Model, 1982 WIPO-UNESCO model; Treaty on Protection of folklore not adopted; 1996 WIPO Performances and Phornograms Treaty provides protection of a performer of folklore, 1997 WIPO-UNESCO held World Forum on Protection of Folklore, Phuket, Thailand, 1998/1999 WIPO held Fact Finding Missions on IP-related needs and Indigenous Knowledge (IK) in 28 countries (South Africa included);
IP in general – in 2000 WIPO established Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore to deal with policy and practical linkages of IP and cultures.
On this basis, in 1999, Department of Arts, Culture, Science and Technology (ACST) initiated the formulation of the Policy on Indigenous Knowledge Systems (IKS) and this was an interdepartmental team effort.
Protection of IK through the IP system became the subset of the IKS. IKS was adopted by Cabinet in 2004.
BACKGROUND continued
In 2007/8, the dti placed the Policy on the Protection of Traditional Knowledge through the IP system ( Policy)
The rationale for the policy include the following:
to recognise the intrinsic value of indigenous knowledge (IK) through IP system i.e. social, spiritual, economic, intellectual, scientific, ecological, technological, commercial and educational value
To improve the livelihoods of IK holders/ communities
To discourage misappropriation and exploitation without recognition
There is a relationship between IP “protection” and “preservation/ safeguarding” in the cultural heritage sense. The elements and principles of the copyright system are relevant to the protection of folklore because many are literary and artistic productions and therefore are already or potentially the subject matter of copyright protection.
For this reason, many countries protect folklore under copyright regime, in particular the rights of performers.
BACKGROUND continued
The other branch of the IP law, namely, industrial property (trade marks, patents, geographical indications and designs), also has been used to protect folklore.
For examples, trade marks such as collective and certification marks and geographical indications, industrial designs (textile designs) have been used to protect folklore.
In some instances, the law of suppression of unfair competition has been invoked to protect folklore.
Preservation such as recording or documentation and publication of indigenous cultural materials if not well managed, can trigger concerns about lack of IP protection and can run the risk of intentionally placing IP in the public “domain”.
BACKGROUND continued
This leaves others free to use them against the wishes of the indigenous people. If not well managed, in the area of copyright, the person recording the folklore gains copyright over the form in which it is recorded, e.g. a photograph, film or sound recording of folklore.
It is conceded however that the IP system in some cases is not the best “protector” and a country may choose other systems such as cultural legislation.
RATIONALE FOR REGULATION OF IKS
Legal protection of indigenous knowledge should be considered in an inclusive manner and not as an end in itself.
This involves a reflection on broader issues such as:
the respect for indigenous knowledge,
the needs and interests of indigenous communities,
the promotion of indigenous-based creativity and innovation as ingredients of sustainable development.
POLICY OBJECTIVES
To provide a legal framework for protection of the rights of IK Holders
To bring IK holders into the mainstream of the economy
To improve the livelihoods of IK holders and communities
To benefit the national economy
To conserve the environment
To prevent misappropriation/bio-piracy; and
to prevent exploitation without recognition
FORMS OF IP
1. Patents (Lifespan 20yrs) – e.g. medicines, technology
Indigenous knowledge is inputted into “modern” inventions; however, indigenous people and their knowledge are not recognised.
In 2000, the Secretariat of the Convention on Biodiversity proposed that WIPO, the WTO and FAO should recognise the importance of bio-diversity into the IP system. They requested that the following features should be incorporated into IP stream prior to granting rights:
Disclosure of origin of genetic material used that lead to the invention
Disclosure of the indigenous community that assisted in the development of the IP component
Prior informed consent e.g. seek consent from community that owns the IK
Disclosure of a benefit sharing agreement with that community. It should be said that these features are already incorporated in the Patents Amendment Act, 2005.
Trade Marks (lifespan 10yrs renewable) – e.g. coke, MTN
Trade marks distinguish goods and services from one another in order to, amongst other things, avoid misleading the public
It is a brand name, a slogan or a log. Trade marks (collective or certification marks) can be used to protect culturally recognised symbols used or not used in trade and commerce. Example is “Rooibos” owned by Khoisan and Dutch descendants
Geographical Indications (GI) – i.e. product peculiar to a particular area due to skills, climate, soil type e.g. Rooibos, honey bush
FORMS OF IP continued
GIs can therefore be the same as trade marks (collective/certification marks) because they are jointly owned by a particular association or community
However, in certain instances they are stand-alone and Government can declare unilaterally what constitutes a GI and then convince trading partners to recognise them, e.g. “Champagne” for sparkling wines “owned” by France. South Africa can also declare unilaterally what constitutes GI.
FORMS OF IP continued
Copyright (Lifespan of creator plus 50 years after the death of creator)
Examples: Books, CDs, computer software
Copyright regime can protect IK as it has been said earlier as follows:
The elements and principles of the copyright system are relevant to the protection of folklore because many folklore are literary and artistic productions and therefore already or potentially the subject matter of copyright protection.
E.g. music and storytelling emanating from communities
Many countries protect folklore under copyright regime, in particular the rights of performers.
Protection afforded to a derivative works vests in the new material or aspects of the derivative work.
FORMS OF IP continued
4. Designs (lifespan 15 yrs and 10 yrs) – functional designs exist only in SA
Intended to introduce a lower threshold for innovation e.g. reduce and/or minimise requirements/criteria for innovation, then improve on them
Encourages creativity between lower and higher thresholds / standards required
Industrial Designs may be used to protect, for instance, textile design that is richly indigenous
Something that mimics the function of the original design e.g. product of a lower standard that performs the same function as wheelbarrow
LEGAL OPTIONS
Legislative measures under IP regime
Amendment of existing IP laws to include IKs issues to enjoy the same protection status
Licensing provisions for IP – IK rights to third parties and enjoying royalties
Introduced provisions requiring registration of IP derived from IK e.g. includes examination /verification of IP rights
Creation of Database – as mechanisms for identification and storage for IP (IKs)
LEGAL OPTIONS
Provisions for benefit sharing agreements in all spheres of IP
Provided structures for protection IKs right holders and promotion for Commercialisation e.g. collecting societies, Trusts, Alternative Dispute Resolution
Provisions empowering government to balance powers during negotiations between the holder and potential user
Reciprocity provisions for the purposes of dealing with the application of the Bill/Act in other jurisdictions should carefully be considered
Need for harmonisation of IP laws and other laws relating to Bio-diversity, agriculture/plant varieties, arts and culture etc on the levels of indigenous knowledge
LEGAL OPTIONS
Sui generis approach:
“A law of a special kind” was not an option as the current IP system is appropriate to protect IK.
Disadvantage of sui generis approach (Cultural Act) does not prevent exploitation of IK from IP perspective, and is silent on Commercialisation
Other Government Departments need to protect IK and the two systems should not contradict each other per se.
PROCESS ON THE BILL
Bill was drafted to articulate the principles in the Policy and wide consultations were held with:
the public and various stakeholders including legal experts on IP
Government departments (Arts and Culture, Co-operative Governance and Traditional Affairs, Agriculture, Science and Technology, International Relations and Co-operation)
NEDLAC process was followed to the letter.
A Regulatory Impact Assessment (RIA) was also conducted. In this regard it was found that costs of implementation of the Bill will be outweighed by benefits.
