You can listen to the lecture here. (NOTE to on-campus users: Open Inetkey to listen to the recording).

Summary:

The lecture will address the topic of deprivation of trade marks, particularly those of tobacco products, by legislative intervention that propose to limit the use of such trade marks for reasons of public interest, particularly public health. With reference to the recent Australian cases where the state succeeded in effectively abolishing the use of tobacco-related trade marks, Prof Dean will analyse the relevant provisions of the South African Trade Marks Act and the Constitution to determine the likelihood that similar legislation may succeed in South Africa. Prof Dean’s lecture will scrutinise the constitutionality of the Australian legislation from a South African perspective, distinguish between deprivation and expropriation in terms of the Constitution and in so doing develop a bespoke theory applicable to the expropriation of trade marks under South African law.

Invitation:

The Faculty of Law and the Chair of Intellectual Property Law invites everyone interested in attending the lecture to RSVP by email to yolandi@sun.ac.za by 16 May 2013. Click here to download the invitation.

The inaugural lecture is open to the public and attendance is free, but RSVP is essential. A cocktail reception will follow after the lecture.

The Chair of IP Law and the Faculty of Law along with the South African Federation Against Copyright Theft (SAFACT), Microsoft SA, Proudly South African, the South African Police Service and several other IP organisations teamed up to host the first annual IP festival on campus. The World IP Day festival also served as the launch of the Be Your Own, Buy Your Own campaign. This initiative aims to counteract the wave of piracy of movies, computer software and music in South Africa by highlighting the impact such activities have on job losses, the artists’ livelihood and the economy.

During the press-briefing at the start of the all-day festival, Mr Sean Moffat of the American Embassy to SA explained how much money South Africans loses annually by failing to register their patents, designs and trademarks. This was mainly due to the fact that the man on the street does not have sufficient knowledge of IP and is uninformed about the commercial value of his or her creative work. Dalene du Preez of Proudly South African and Corne Guldenphening of SAFACT also addressed the gathered media and emphasised the importance of raising awareness about the value of intellectual property, particularly among students.

Most of the activities took place in the Neelsie. There was a buzz that could not be ignored. While I was enjoying the displays I overheard a conversation taking place between two students: “Did you know that I can get copyright on my wedding photos and make money from them? The only problem now is to get a husband…..”

With the last statement I rest my case.  I am sure that the students are now definitely aware of IP. “Be your own and buy your own” has made a statement!

Annette van Tonder

All events at the festival are free and open to all students. 

Check the programme for the venues of the free movie premiere screenings, exhibitions, competitions and free IP legal advice.

Free movies showing in Neelsie PULP Cinema 14:00 to 16:00:

View Trailer

View Trailer

View Trailer

 

View Trailer

The World IP Day Festival is presented by SAFACT (South African Federation Agains Copyright Theft) in partnership with:

• Microsoft
• The American Embassy
• Proudly South African
• The Companies and Intellectual Property Commission (CIPC)
• The South African Police Service (SAPS)
• The Department of Trade and Industry
• The Association of Independent Record Companies
• The Recording Industry of South Africa

Download the programme here.

The Portfolio Committee submitted version “B8B-2010” of the TK Bill to the World Intellectual Property Organisation (WIPO) on 13 September 2011 for comment.  From the date of the WIPO Secretariat’s written response sent to the Portfolio Committee (the “WIPO Comments”) on the TK Bill, it appears that it did not take the Secretariat long to consider the proposed legislation, and to, in effect, say to the Committee: “Nice that you are trying to do something about indigenous knowledge, but go back to the drawing board and think a bit harder about what it is that you are trying to achieve.”  In its euphemistically-worded, and rather diplomatic, criticism of the TK Bill, the WIPO Secretariat regards the proposed legislation as a Procrustean attempt to force the protection of indigenous knowledge into the existing intellectual property framework.  Government’s approach is described by the WIPO Secretariat as “novel and unusual,” which is a polite way of saying that it is unworkable, particularly when one has regard to WIPO’s further comments.

Besides its comments highlighting the poor quality of legislative drafting, the WIPO Secretariat, correctly, emphasises the fact that indigenous, or traditional, knowledge – incidentally, no internationally accepted, workable definition of these concepts exists – is fundamentally different to intellectual property, such as copyright and patents, and that the proposed protection may potentially undermine the existing intellectual property system by introducing “unwelcome uncertainty.” In this respect it echoed the desperate criticism voiced by the entire South African intellectual property community.  Existing intellectual property protection, and its impact on society, has already – even before the introduction of unworkable concepts such as “indigenous knowledge” – become a hotly debated and highly politicised matter.  This is not a bad thing.  It is the role of the vanguards of intellectual property protection, such as the Anton Mostert Chair of IP, to convince others of the correctness of such protection, while accepting shortcomings in the current system, where these may exist.  This requires an appreciation of the justification for intellectual property protection, which can convince the critics of the continued need and relevance of the various forms of intellectual property protection, and the types of works that should be protected.  A lack of such a foundational understanding of intellectual property law seems to have curiously led to two diametrically-opposed viewpoints, and it is not clear which is more serious.

At the one end of the spectrum are those who see any form of intellectual property protection as imposing an unnecessary cost on society.  For these people, intellectual property rights simply represent an infringement on the public domain, namely, material that can freely be used by anyone.  This view reflects a crude misperception of intellectual property rights: that they simply serve to inhibit innovation and creativity.  These critics fail to appreciate that intellectual property rights, such as copyright and patents, serve to incentivise creation, which, ultimately, increases the size of the public domain.  At the other end of the spectrum, we see an equally troubling lack of appreciation of the role (and nature) of intellectual property protection, and it is in this camp that the government and proponents of the TK Bill seem to fall.  The types of works which the TK Bill seeks to protect are works that are, and have been in existence, for decades , and, thus, the proposed protection cannot possibly serve to incentivise such creation.  In fact, in direct contrast to the previous type of misconception, as a result of the latter kind of misperception these proponents do seek to shrink the public domain by excluding works (on the basis that they constitute indigenous works) which have hitherto been freely available for use and development by others.  The proposals would, therefore, inhibit innovation and creativity.

It is this latter conceptual bankruptcy which the WIPO Comments seek to elucidate.  The WIPO Comments expressly refers to the “lack of drafting and conceptual clarity,” not to mention that there is doubt internationally about the need for this type of protection.  In fact, internationally, the political trend is, arguably, to focus on efforts to expand the public domain with initiatives that will foster innovation and creativity, such as the Creative Commons and Open-Source Software development.  What makes the government’s persistence in this matter really troubling is that the WIPO Comments was not the first time government was warned about its lack of conceptual clarity, and the social costs which its proposals could impose on the country.

In 2009, the Presidency and the Department of Trade and Industry (the “DTI”) commissioned a report (the “RIA Report”) from an independent expert company, SBP, on the regulatory impact of the version of the TK Bill which it had produced at that stage.  The RIA Report provides a series of criticisms of the TK Bill, starting, firstly, by questioning the need for the type of protection being advocated in the TK Bill.  It states that there appears to be no basis for claims that indigenous knowledge is not currently adequately protected, or that such knowledge is being misappropriated on any significant scale.  If this opinion is correct, which it is submitted is the case, government is engaging in cheap (but financially costly) politicking by perpetuating a myth that indigenous knowledge is being misappropriated and expatriated by multinational companies, who make vast sums of money in the process.

In order to address this, largely, fictitious problem, the TK Bill proposes not only to introduce legislation which would, arguably, make us the laughing stock of the international community due to its poor conceptualisation, it will also impose significant social costs, such as institutional costs and wasted litigation costs due to the uncertainty it would introduce.  The RIA Report explicitly states that there is insufficient evidence to suggest that these costs will be justified.  Perhaps government would like to convince the populace that its lack of delivery is not so much a consequence of incompetence and corruption, but rather the result of the country (or communities) being deprived of large streams of revenue which are being diverted by unscrupulous foreigners.  Government must stop perpetuating the myth that the TK Bill is required, because, as the RIA Report states, there is “a danger that communities’ expectations of commercial benefits may not be realised.”  It may be worth noting that culture (and knowledge generally) is dynamic, and the best way for it to be “preserved” (if such a notion is appropriate at all) is for it to be free from restrictions; rather than for it to be catalogued on a database. (The full texts of the WIPO Comments and the RIA Report are available below).

Why have the WIPO Comments and the RIA Report not been widely publicised by the DTI?  Why have the Portfolio Committee and the DTI chosen to ignore the advice which they requested?  On what justifiable basis have resources continued to be devoted to a matter which is fundamentally flawed?  For the DTI, as the department responsible for overseeing our intellectual property law system, to pursue the enacting of the TK Bill, which would probably only serve to undermine our intellectual property law system, is totally unacceptable, and demonstrates a lack of fitness to carry out its mandate.  Perhaps some proponents of the TK Bill at the DTI have been financially incentivised to get the TK Bill passed, without regard for the need for it, and have chosen to ignore (or, worse still, deliberately misrepresent) the substantive content of these two reports.

On World Copyright Day (23 April), rather that celebrating the social benefits which copyright protection incentivises, we are more concerned that government may not be prosecuting the enactment of proposed legislation with the honesty and transparency expected in a democracy.  Furthermore, government does not appear to appreciate the importance and function of intellectual property rights, and, as a consequence, seeks to violate the integrity of our legal framework concerning intellectual property by seeking to enact the TK Bill.  The resources that have been earmarked to establish the institutional infrastructure to support the TK Bill would be much better spent on a national education programme concerning intellectual property rights, or used to amend current legislation, such as the Copyright Act 1978, which require updating in light of technological advances since its enactment.

What is interesting about these reports is that they reiterated and thus supported many of the criticisms of the TK Bill that had been voiced by the South African public and the intellectual property community. They, too, made the point that, if the government was steadfastly intent on going ahead with legislation to protect traditional knowledge, the appropriate manner to do this – should such need exist – would be in sui generis (specific) legislation and not by amending the existing intellectual property statutes.

So, in the final analysis, what actually became of these Reports? What did Government faced with two damning reports on its legislation from expert bodies that it, itself sought and obtained, do with them? First, like it did with the vociferous and highly critical comments received from the entire informed intellectual property community in South Africa, it ignored and discounted them. Second, it put them under wraps and made them unavailable to interested parties and the public. Third, in the case of the RIA Report, it replaced it with in internal RIA report prepared by the DTI, which whitewashed the TK Bill (the full text of this report can be accessed via the link provided). Finally, it tabled the internal RIA report in Parliament (without any reference to the existence of the earlier independent one) and quoted selectively from the WIPO Report, thereby representing that there was objective support for the TK Bill. So much for openness and transparency! It obviously believes that the (misguided) end justifies the means.

Dr Sadulla Karjiker  

 WIPO 1 – Comments of the World Intellectual Property Organisation (WIPO) on “Policy Framework for the Protection of Indigenous Traditional Knowledge through the Intellectual Property System” and the “Intellectual Property Laws Amendment Bill, 2008″. September 2009.

 WIPO 2 – Comments of the World Intellectual Property Organisation (WIPO) on the “Intellectual Property Laws Amendment Bill, 2010″. September 2011.

 RIA 1 – Regulatory Impact Analysis: The Intellectual Property Laws Amendment Bill. October 2009. Commissioned SBP Report to the Presidency and the dti.

 RIA 2 – Regulatory Impact Assessment: Intellectual Property Laws Amendment Bill, 2009. DTI.

You can listen to the interview below.

Listen here

To read the full media reports select the relevant publication below:

Full text report

Full text report

Prof Dean will address the club on “The Lion Sleeps Tonight Case – A Discussion of the Economic Impact of Copyright”.

Dean is a past president of the South African Institute of Intellectual Property Law, and the author of the “Handbook of South African Copyright Law”.

More info click here.

This Bill is based on the Protection of TK Bill drafted by the incumbent of the Stellenbosch Chair of IP Law (CIP), Prof Owen Dean, and was tabled in Parliament by Dr Wilmot James earlier this year amid widespread and serious criticism of Government’s current attempt at protecting TK through the Intellectual Property Laws Amendment Bill (the old TK Bill).

Now, finally, there is an alternative on the table that neither the Department of Trade and Industry nor its indifferent Portfolio Committee (responsible for the old TK Bill) can ignore.

The new TK Bill (fondly referred to as Wilmot’s Bill), if it becomes law, will introduce a pioneering approach to the protection of indigenous works in a manner befitting South Africa’s status as an (erstwhile) leader of the international IP community. In addition, it will establish a TK system that will stand firmly on its own, untrammelled by interference from its ill-fitting cousins, namely the selection of IP statutes the old TK Bill sought to amend for this purpose.

Wilmot’s Bill will establish a bespoke TK system, customised to the unique and widely divergent demographic of the South African population and capable of actually protecting TK and financially benefitting the indigenous communities from whence it hails. As readers of this blog will know, it is common knowledge that the old TK Bill was ruefully incapable of achieving either of these goals.

In fact, the old TK Bill met with the most serious objection possible to proposed legislation – namely that the foremost IP practitioners in South Africa found it entirely impracticable and resolved to advise their clients to ignore it (if it is to become law) and, where necessary, circumvent its limping application by contract.

Conversely, the new TK Bill was drafted by one of South Africa’s champion IP practitioners with decades of IP litigation experience. It is therefore guaranteed to work, not only in theory but also in practice in South Africa – something that cannot be said of many other statutes our esteemed Legislature has recently enacted.

In addition, Wilmot’s Bill proposes a sui generis approach to protection of sui generis expressions of intellectual endeavour. While the benefit of such an approach seems obvious, Government has yet to wake up and smell the fire. In fact, the World Intellectual Property Organisation (WIPO) has been working on a TK model law for many years and its expert opinion remains that TK is best protected by sui generis legislation. Indeed, this Chair is in possession of proof that the Portfolio Committee on Trade and Industry was advised, on more than one occasion, of this fact by WIPO and (not surprisingly) suppressed WIPO’s view, distorted it to support their own interpretation and then proceeded with pushing the old (non sui generis) TK Bill through Parliament. The CIP will soon publish its review of the WIPO report here on IPStell.

Therefore, the CIP repeats its call to rally around the new Protection of Traditional Knowledge Bill (full text available here). The CIP will make written submissions to Parliament (again) requesting an opportunity to make oral submissions in support of the new Bill. All interested parties, and indeed everyone with an interest in the future existence of their IP rights or the protection of traditional knowledge, are encouraged to do the same. For more details on how to make your voice heard in the seat of power, click here or see the contact details in the Gazette notice.

For an exhaustive analysis of the procedural and substantive problems with the old TK Bill and the CIP’s views on both the old and new TK Bills, click here.

NOTE: The new TK Bill is a matter of particular importance to the administration of the nation and thus required urgent communication to the public. As a result, it was published in an Extraordinary Gazette, Vol 574, No 36354, Notice 376 of 2013 and not the weekly General Gazette.

Cobus Jooste

 DOWNLOAD FULL TEXT

Invitation for public comment on draft Protection of Traditional Knowledge Bill, GG 36354, Notice No 376, 9 April 2013.

It is therefore with great (albeit guarded) excitement that the CIP received the news that it has at last been heard. On 5 March this year the Shadow Minister of Trade and Industry, Dr Wilmot James, submitted a Private Members’ Bill to the Office of the Speaker, entitled the Protection of Traditional Knowledge Bill (full text here). This Bill is of course the new Traditional Knowledge Bill drafted by the incumbent of this Chair, Prof Owen Dean, more than a year ago and published widely in the IP community and media. The Bill (now called the Wilmot Bill) seeks to bridge the gap between the current (old) TK Bill introduced by government in 2010 and the stated ideals of the Indigenous Knowledge Systems Policy adopted by government in 2004.

The Wilmot Bill is, as explained by its drafter, Prof Dean, in the accompanying synopsis to the Bill, a considered effort to provide adequate, financially viable, legally enforceable protection for traditional knowledge (TK) that will:

• Provide sui generis protection for TK,
• Comply with South Africa’s international obligations,
• Give effect to the principles for the protection of indigenous knowledge advocated by the World Intellectual Property Organisation (WIPO),
• Safeguard our existing IP statutes from irreparable harm and
• Establish a more sophisticated system for the protection of traditional knowledge in South Africa that far exceeds the level of protection anywhere else in the world.

It is worth noting that Prof Dean is also the author, among others, of the Merchandise Marks Amendment Act 2002 and the Copyright Amendment Act 1992. Indeed, his oeuvre of jurisprudential work is substantial by any standard. Therefore, by presenting to Parliament a workable TK Bill, Dr James has introduced the best alternative to the existing TK Bill anyone could have wished for.

Conversely, after refusing to sign the current (old) TK Bill into law, the President ordered that it be returned to Parliament for consideration by the House of Traditional Leaders on Friday (15 March). This marked the latest in a series of setbacks for the beleaguered portfolio committee and its ill-conceived Bill.

However, the portfolio committee maintains that the old Bill has been appropriately passed and should therefore not be re-opened for public comments. It argues that:

• Sui generis protection for TK is not appropriate because it would not prevent “poaching” of traditional knowledge by means of the existing IP legal system,
• Despite its (conjured) misgivings, the IP legal system already contains a workable system for the economic exploitation of TK and that this system should be employed to exploit TK without more,
• The cost of implementing the Bill would be less than R160 million and is therefore economically viable because the value chain of Rooibos is estimated at that amount,
• The members of the committee appropriately canvassed the enormously complex nature of the bill during a one-day workshop with Prof Coenraad Visser of UNISA and a two-day workshop by the International Centre for Trade and Sustainable Development (ICTSD),
• The Bill should pass into law despite the President’s reservations and the serious objections by a majority (3 out of 5) of the political parties represented on the committee itself. Of the 5 parties, only the ANC and COPE have not raised any substantive objection to the Bill, while the DA, IFP and FF Plus all raised fundamental problems with the Bill and unanimously support an alternative sui generis TK Bill.
• South Africa should regulate TK immediately despite it being unenforceable and not wait for the guidance of WIPO or any other model law, even though several international organisations have been working exclusively toward a workable solution for developing and developed nations.

These facts only scratch the surface of a mass of inadequacies in the work of the portfolio committee, the bullying attitude of the DTI and the festering political objectives that have driven this Bill since its inception. It is riding roughshod over our Democracy and blatantly contravening the Constitution. In fact, the latest report by the committee recommended that the Bill should pass into law despite the President’s objections and the express recommendation by the Department of Science and Technology that the Bill be halted because it oversteps the mandate of the DTI.

Clearly the committee is prepared to trample underfoot every objection to its problematic Bill and is comfortable with ensuring that TK will never be protected in South Africa. The committee has transformed itself into a giant, so far removed from the real world that no obstacle may remain standing, least of all the foundations of our intellectual property law system.

These are the facts. The old TK Bill, if it goes any further, will introduce a TK system that is guaranteed never to function at all. In addition, it will crush the IP system into oblivion and forever divide our IP laws from that of the rest of the world.

Therefore, the CIP is prepared to make a last stand against the old TK Bill and is calling on everyone with an interest in the survival of our IP law, the protection of traditional knowledge or the survival of our Constitutional values of transparent and inclusive government to join us in calling on government to:

• Reject the old TK Bill once and for all,
• Open the matter for public comment from all traditional communities and
• Support the Wilmot Bill by way of written or oral submissions so that our TK system may be an example for Africa and the rest of the world.

In an attempt to lay bare the extent of government’s ungainly efforts to win political favour through legislative intervention, this Chair has collected the most salient public documents relating to the work of the DTI and the portfolio committee. Please read these reports (indexed below) and see for yourself that our IP laws are hanging by a thread.

If you share our concerns, we urge you to call upon government to stop trampling on our values. To express your opinion post a comment here (scroll down) or, better yet, contact those responsible for this chaos and let your voice be heard – as it should be in a real democracy. Contact details below.

 Cobus Jooste

• Intellectual Property Laws Amendment Bill (Government’s TK Bill)
  • Original (B 8 – 2010) 
  • Second [most recent] version (8B 8 – 2010) 
• The Protection of Traditional Knowledge Bill (Dean’s Bill) 
  • Synopsis to the New Traditional Knowledge Bill 
• The Wilmot Bill (Protection of Traditional Knowledge Bill) 

Department of Trade & Industry

• Policy Framework for the Protection of Indigenous Traditional Knowledge through the Intellectual Property System
  • Original DTI Document
  • Public Document (GG No 31026 Notice 552, 2008)
• Memorandum on the Objects of the Intellectual Property Laws Amendment Bill, 2010 
• DTI Briefing: Intellectual Property Law Amendment Bill on Indigenous Knowledge

Portfolio Committee on Trade and Industry

• Meeting Report (23 Jan 2008): Policy and Draft Bill on Protection of Indigenous Knowledge Systems – Department Briefing 
• Briefing to Parliament (23 Jan 2008): Policy and Draft Bill on Protection of Indigenous Knowledge Systems 
• Meeting Report (16 Feb 2010): Indigenous Knowledge Protection Policy Using the Intellectual Property System 
• Progress Report & Minority Views (16 Sept 2011): Report of the Portfolio Committee on Trade and Industry on the Intellectual Property Laws Amendment Bill 
• Progress Report & Minority Views (19 Oct 2011): Report of the Portfolio Committee on Trade and Industry on the Intellectual Property Laws Amendment Bill 
• Progress Report (6 March 2013): Report of the Portfolio Committee on Trade and Industry on the Intellectual Property Laws Amendment Bill 

Portfolio Committee on Science and Technology

• Meeting Report (Nov 2010): Indigenous Knowledge Systems: Impact of Policies of Department of Science & Technology 
• Meeting Report (Jun 2012): Indigenous Knowledge Systems Activities & Sui Generis Legislation – Briefing by Department of Science & Technology 
• Presentation (Jun 2012): Report on IKS Activities & Sui Generis Legislation Development 

Portfolio Committee on Trade & International Relations

• Meeting Report (Nov 2011): Intellectual Property Laws Amendment Bill: DTI Briefing and Formal Consideration 

• “Traditional Knowledge – Legislation in the New Tradition” IPStell Sept 2011 
• “Come On Baby Light My Fire” IPStell Oct 2011
• “The Mad Hatter in Wonderland” IPStell Nov 2011
• “NEW Traditional Knowledge Bill – Sui Generis Protection for TK” IPStell Feb 2012
• “Golden Oldies – Gallo Music v Sting Music” IPStell May 2012
• “The Pot of Gold at the Beginning of the Rainbow” IPStell May 2012
• “A New Tradition in Legislation” IPStell Sept 2012
• “Braking With Tradition” IPStell Nov 2012

SEE ALL ARTICLES

Shadow Minister of Trade and Industry

Dr Wilmot James

Email:   marilynq@da.org.za

Email:   wjames@agei.co.za 

Call:     021 403 2910

Portfolio Committee on Trade and Industry

Chairperson:

Ms Joanmariae Louise Fubbs

Secretary of Committee:

Andre Hermans

Email:   ahermans@parliament.gov.za

Tel:      021 403 3776

Cell:     083 709 8482

Secretary to Chairperson

Tandiswa Macanda

Email:   tmacanda@parliament.gov.za

Tel:      021 403 3137

Cell:     021 403 3137

Minister of Trade and Industry

Dr Rob Davies

Tel:       0861 843 384 / 021 461 7191

Fax:     011 341 1600 / 021 465 1291

Email:   rdavies@thedti.gov.za

Private Secretary    

Ms Inze Neethling

Tel:       012 394 1568

Email:   INeethling@thedti.gov.za

Departmental Spokesperson      

Mr Sidwell Medupe

Tel:       012 394 1650

Fax:     012 394 2775

Cell:     079 492 1774

E-mail: MSMedupe@thedti.gov.za

We are excited about the amount of sincere interest in IP law topics from such a varied audience, and pleased by the promise this holds for the development of this field of law.

Our apologies to those who did not reserve their seat in time. If you missed the lecture, or simply want to review the lecture, please select any of the downloadable materials below. If you have any specific questions about the public lecture, feel free to contact us.

Lecture Materials

• Audio recording

Duration: 45 min

File size: 16 MB

•  Podcast Video

Duration: 50 min

Link: <click here>

• Radio Interview

Duration: 10 min

File size: 7.3 MB

• Lecture Slides and Notes

File Type: Portable Document Format

File Size: 12 MB