Input from the dti on the Protection of Traditional Knowledge Bill

Presentation to the Portfolio Committee on Trade and Industry

24 October 2013

Parliament, Cape Town

Delegation

Zodwa Ntuli: Deputy Director-General, Consumer and Corporate Regulation Division (CCRD)

McDonald Netshitenzhe: Chief Director, Policy and Legislation, CCRD

Simphiwe Ncwana: Director, Commercial Law and Policy

Purpose

To provide input to the committee on the Protection of Traditional Knowledge Bill

(Private Member’s Bill)

Background• The need to protect indigenous knowledge (IK) was triggered by

international debate:

• Copyright – in 1967 by Berne Convention, 1976 Tunis Model, 1982 World Intellectual Property Organisation (WIPO) - UNESCO model; Treaty on Protection of folklore not adopted; 1996 WIPO Performances and Phonograms 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 IK in 28 countries (South Africa included);

• Intellectual Property (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.

Background

•On the basis of the above, in 1999, the then Department of Arts, Culture, Science and Technology (DACST) initiated the formulation of the Policy on Indigenous Knowledge Systems (IKS)

•This was an interdepartmental team effort as the implementation of the policy would need all departments to implement certain tasks within their policy and legislative mandates.

•Protection of IK through the IP system became the subset of the IKS. IKS Policy was adopted by Cabinet in 2004.

• This was followed by the the Patents Amendment Act, 2005, which complements the Biodivesity Act of 2004, to give effect to the policy as adopted as the first critical step.

Background• In 2007, the dti tabled the Policy on the Protection of

Traditional Knowledge through the IP system

• The rationale for the policy was the following:

• Recognise the intrinsic value of indigenous knowledge (IK) through IP system (social, spiritual, economic, intellectual, scientific, ecological, technological, commercial and educational value)

• To improve the livelihoods of IK holders/communities• To discourage misappropriation and exploitation of IK

without recognition

• There is a relationship between IP “protection” and “preservation / safeguarding” in the cultural heritage sense.

• Legal protection of indigenous knowledge should be considered in an inclusive manner and not as an end in itself.

Background• The elements and principles of the copyright system are relevant to the

protection of folklore because many are literary and artistic productions and therefore already or potentially the subject matter of copyright protection.

• That is why many countries protect folklore under copyright regime, in particular the rights of performers.

• It is conceded that the IP system in some cases is not the best “protector” and a country may choose to implement other systems such as cultural legislation to Protect IK to complement the IP system where there are gaps. Equally, cultural legislation will not protect IK adequately without the IP system.

• Therefore the best way to protect folklore is to allow potential users to ask permission from the state in case of orphaned works or where a community has requested the state to assist in protecting the knowledge on its behalf or owners of IK.

Objectives of Protecting IK using the IP System

• To provide a legal framework for protection of the rights of IK holders

• Empower communities to commercialise and trade on IKs

• To bring IKs 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

Proposed Measures

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-IK

Proposed Measures

• 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 have been 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

Private Members Bill

• The Private Members Bill as published in Government Gazette No: 363554 seeks to protect traditional knowledge as a new category of intellectual property.

• The Bill also seeks to establish a new registration office of traditional knowledge.

• The Bill is a sui generis (Law of a special kind).

Traditional WorksConditions for protection as contained in Chapter 1, S 2 of the Bill

• The Bill seeks to provide protection to traditional works that have been reduced to material form

Comment:

• Intangible intellectual property is recognised in the National Heritage Act and therefore the need to reduce performances and story telling to material form is unfounded.

Duration of Traditional works as contained in Chapter 1, S 5 of the Bill

• The Bill seeks to limit the period of protection of pure traditional works

Comment

• Pure traditional works should vest in the communities and any derivate works which come about through working with the community should expire as per the current IP system

• The original works will therefore not expire in view of the fact that works that are created by a community should be protected for as long as the community is still around.

Traditional Works

• Lapsing of Traditional Works as contained in Chapter 1, S7 of the Bill

• The Bill seeks to have rights to lapse and ceasing to have any force on registration

Comment:

• Pure Original Traditional works should not lapse as they should not be registered under Copyright and Designs as these are limited in time. Only derivative works should expire as per the prescripts of Intellectual Property.

Protection of Traditional Trademarks and Designs

• Lapsing of Traditional Trademarks

– Trademark Protection can not lapse upon registration as it should subsist indefinitely due to the renewal process on every 10th year.

Registrar of Traditional Knowledge

Registrar of Traditional Knowledge

• The Bill seeks to establish an Office for the Registration of Traditional Knowledge

Comment:

• The dti is of the view that the Bill is dealing with the protection of Traditional knowledge without focusing on the commercial aspect but seeks to use the IP system in a limited manner and therefore taking away the commercial rights that are currently used when misappropriation takes place.

Conclusion

• The protection of traditional knowledge can be done in several complementary ways as clearly stipulated in the policy on the Protection of Traditional Knowledge using the IP system. the dti is focusing on the commercial aspect by using the IP system.

• IP is cross cutting in nature and therefore various departments deal with matters that have a bearing or link to IP. In 2008 Cabinet took a decision that the dti should be the lead department on IP matters.

• The gap identified was that of coordination and the dti was mandated by Cabinet to develop the IP Policy to address IP matters, including coordination. With proper coordination, and every department playing its relevant role, protection can be effectively afforded.

• the dti has since proposed the IP Policy which also seeks to address the issue of coordination on IP matters, and all departments were consulted, and has been approved by cabinet for public consultation.

Conclusion• The main focus of the dti is the commercialisation of indigenous

knowledge for the benefit of communities who are the knowledge bearers.

• IK that is derived from communities is used by private individuals to misappropriate the knowledge and get to benefit financially from such.

• An attempt to pay lip service to holders of indeigenous knowledge as proposed in this Bill is detrimental to the rights of these knowledge brearers.

• The Bill seeks to limit the rights that holders of indigenous knowledge would have under the current IP laws, thus on its own fails to afford appropriate protection.

Conclusion•It is the dti’s view that the Bill before this Committee can not be dealt with by the dti as its main focus is not to offer protection using the IP system holistically, but merely attempts to recognise IK as IP.

•This approach has serious limitations, which the dti is not prepared to support. The Bill seeks to extend misappropriation in disguise.

•The Bill seeks to take away all the rights of IK holders upon registration which is not in the spirit of commercialising the knowledge and benefiting the IK holders and the national economy.

•Appropriate legislation would be the one that seeks to enhance protection of IK in those areas that ip is unble to protect.

THANKS

The following slides are for information purposes

Domains of IP 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 World Trade Organisation (WTO) and Food and Agriculture Organisation (FAO) recognised 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.

• These features are already incorporated in the Patents Amendment Act, 2005, which complements the Biodivesity Act of 2004

Domains of IPTrade Marks ( lifespan 10yrs renew) – e.g. Coke, MTN •Trade marks distinguish goods and services from one another e.g. to 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 and contain wines in the Cape Regions.

Domains of IP

• 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.

Domains of IPCopyright (Lifespan of creator plus 50 yrs 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.

Domains of IPDesigns (lifespan 15 yrs and 10 yrs) – functional designs exist

only in SA

• Intended to introduce a lower threshold for innovation e.g. reduce/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 say 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