Afro-IP is running a poll here to gather views on South Africa’s Intellectual Property Laws Amendment Bill (the “TK Bill”) which is up for debate before parliament and on the verge of becoming law in South Africa.
As the visibly unhappy Anton Mostert Chair of Intellectual Property at Stellenbosch University explains, the Bill was drafted by taking four of the existing Intellectual Property (IP) statutes, namely the Copyright, Designs, Performers Protection, and Trade Marks Acts, and writing into them provisions aimed at granting protection to traditional works akin to the subject matters of the individual statutes.
There is no doubt that TK is worthy of protection. The five main reasons advanced for its protection are:
– Equity. (TK generates value that is currently inadequately recognised and compensated)
– Conservation of Biodiversity. (Protection of TK can help conserve the environment and promote sustainable agriculture and food security)
– Preservation of Traditional Practices. (Framework for maintaining practices and knowledge embodying traditional lifestyles)
– Prevention of Biopiracy. ( for example, US Patent number 5, 401, 5041 in respect of healing properties of Turmeric found in India)
– Promotion of the Use and Importance of TK in Development.
However, while there is consensus that indeed TK is worthy of protection, there appears to be some disagreement on HOW best to protect TK, with two main options being put forward:
1. Using the existing IP rights system
2. Developing a sui generis system of IP rights
In the case of option 2, a further policy issue arises: whether the sui generis system can be accommodated within existing laws or whether they should be separate regimes.
In the current case of South Africa, the Department of Trade and Industry (DTI) and the Trade and Industry Portfolio Committee of Parliament seem convinced that TK in South Africa is best protected using the existing IP rights regime. Many disagree with this approach including the Anton Mostert Chair of Intellectual Property, who says that:
“attempting to protect traditional knowledge (TK) in the existing IP statutes has been akin to driving a square peg into a round hole.”
I agree with this view. Indeed, there are several features of the current intellectual property regimes that make them inadequate to protect TK. For instance, the notion of property ownership whereby IP rights regimes recognise individual ownership based on time and labour expended in coming up with a new creation, whereas TK is passed from generation to generation, there is no ‘effort’ to come with something new. Modern IP rights don’t recognise “community rights”. TK, therefore, does not fit in the straitjacket of IP rights.
Therefore as the IP Chair notes, there has been a constant refrain if you want to protect TK – it was to be done in a sui generis, or customised piece of legislation designed to take account of the unique and special nature of TK.
However, the development of a sui generis system of IP rights poses several challenges:
– Definition of the subject matter of protection – What is “traditional knowledge”? As we know, TK covers a wide range of knowledge varying from cultural expressions, such as carvings to traditional medicine. The exact “material” to be protected must be identified before-hand.
– Requirements for protection – What preconditions should there be for registration?
– Nature of the rights to be conferred – for example, the right to exclude others, the right to obtain remuneration, or the right to prevent misappropriation.
– Title holders – individuals, communities or the state?
– Modes of acquisition of protection – process of registration.
– Duration – for how long should the rights conferred be protected?
– Enforcement measures – how can the rights holder assert his/her rights?
Furthermore, there are a couple of policy questions that must be answered:
– Should the sui generis regime take the form of a single comprehensive regime or whether there should be a set of specific regimes adapted to various forms of TK?
– Whether the sui generis system can be accomodated within existing laws or whether they should be separate regimes?
These challenges and issues are what countries worldwide are currently grappling with on the international stage under the auspices of the World Intellectual Property Organisation’s Inter-Governmental Committee on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions. So far an international instrument to protect traditional knowledge and folklore has not materialised due to some “teething issues” between member states but it is hoped that with an extension of the IGC’s mandate these issues will be ironed out.
In sum, I think disagreement with South Africa’s proposed “TK Bill” is well founded, especially since the rest of the world is busy working towards developing a sui generis form of IP Rights for TK. Therefore South Africans should not allow this Bill to be passed into law in its current form and at the risk of sounding dramatic, they must be prepared to challenge the enactment of this Bill through the courts, if necessary.