/ 30 July 2009

Intellectual property Bill slammed as an ‘abomination’

Cold Rooibos has been poured over draft legislation seeking to protect staples of local culture such as African dances -- and the herbal tea itself.

Cold Rooibos tea has been poured over draft legislation seeking to protect venerable staples of local culture such as African dances, folklore — and the herbal tea itself.

The Intellectual Property Laws Amendment Bill aims to use forms of existing intellectual property legislation such as trademarks, copyrights, geographical indications, designs and patents to protect indigenous culture. Under this proposed law, cultural expressions such as dances, folklore, music and paintings, and trademarks such as Rooibos tea, would be protected from exploitation and traditional knowledge holders would benefit financially from their use.

However, intellectual property law expert Owen Dean of Spoor & Fisher this week slammed the Bill as an “abomination that deserves to be thrown on the legal scrapheap”. Conventionally, intellectual property law does not extend to traditional knowledge. The main problem with the Bill is that the basic principle of intellectual property is operating in reverse, Dean told the Mail & Guardian.

“When you create something new like a song or book, intellectual property law allows you to have a monopoly over its use for a limited period of time. Thereafter it goes into the public domain. With traditional knowledge, the Bill is seeking to take something from the public domain and allow a community to benefit from it under the same law. This just won’t work,” said Dean.

The Bill recognises new forms of intellectual property, but requires that they must have an “indigenous origin” and a “traditional culture”. These terms are not defined. The Bill also allows for indigenous communities themselves to determine whether or not a painting or song possesses these traits. Owen said this is subjective and could lead to legal uncertainty.

Additional amendments refer to a national council that would advise the trade and industry minister on all matters concerning traditional intellectual property (TIP); a national TIP database; and a national trust fund to manage income received from the use of TIP for the benefit of indigenous communities. However, the Bill does not specify who will represent the communities or how the income will be distributed.

South African intellectual property law allows individuals to protect their inventions and intellectual property rights, but not communities. The amended Bill will permit communities to establish business enterprises, enter into licensing agreements to commercialise their TIP and form “collecting societies” to collect royalties relating to these. The Bill does not outline who will comprise these societies or how exactly remuneration will be decided.

According to Owen, this lack of detail in the Bill is one of its major shortcomings. While it frequently alludes to “traditional knowledge” and “indigenous communities”, it provides no definitions for these terms.

His criticism of the Bill is shared by the vice-president of the Supreme Court of Appeal, Judge Louis Harms. “The proposals are fundamentally flawed and will not lead to any material benefit to any community in South Africa. They will not make the country technologically or otherwise rich, and they will protect little [if any] indigenous knowledge,” Harms wrote in a recent article.

Owen claims that the majority of attorneys of the Law Society of South Africa (LSSA) shares his views, and has called on them to voice their opinions openly. LSSA co-chairpersons Thoba Poyo-Dlwati and Henri van Rooyen said the society will meet next month to finalise its views on the Bill.

It was drafted by the Department of Trade and Industry (DTI) in 2007, and is set to be debated in Parliament later this year.

In its 2004 policy framework for protecting TIP, the DTI highlighted the economic benefits this will bring to the national economy and the agricultural, chemical and health sectors. Local and international trade of traditional products generate billions of US dollars per year, and South Africa can benefit from commercialising these products using the current intellectual property system.

However, Owen believes the best way to protect traditional knowledge is through a separate piece of legislation. “We need a set of rules and regulations which is custom-designed to protect this specific form of property.”

Known as a sui generis system, it is been adopted by several countries like China, Peru and Thailand to protect their indigenous heritage, knowledge and products.