Has South Africa’s IP agenda been captured?

Recently Afro Leo caught up with Prof Sadulla Karjiker and Dr Madelein Kleyn to discuss the Anton Mostert Chair of Intellectual Property Law’s Commentary on South Africa’s Draft Intellectual Property Policy Phase 1 2017 from the Department of Trade & Industry (DTI). Serious concerns were raised, not just about the Draft but also about South Africa’s position on IP in general, and the consequences are potentially far-reaching.

Context

The Draft is South Africa’s second attempt to formulate a policy after the IP Regulatory Framework debacle in 2013 attracted widespread criticism and condemnation. You can read about those using the search function on the blog here (top right). That effort was binned and the subsequent IP Draft was made available in August 2017.

The Anton Mostert Chair of Intellectual Property Law (the Chair) is an independently-financed division that forms part of the Faculty of Law at the University of Stellenbosch. It seeks to safeguard and promote the integrity and quality of South African intellectual property law. Its first chair, Prof Owen Dean, was a very outspoken critic of a number of recent endeavours to amend and create new IP laws and policies. For example, the Chair took the DTI to task over its attempt to introduce traditional knowledge legislation, and, arguably, was successful, as the Department of Science & Technology is now championing bespoke legislation, which is what the Chair called for.

Commentary

Prof Dean retired at the end of 2016 and Prof Karjiker took up the mantle. The Commentary is compiled by Prof Karjiker and Dr Kleyn and if you expected them to be more docile, pandering or diplomatic than their predecessor, you are in for a surprise. The second paragraph of the Introduction sets the tone: “We can only bemoan the poor quality of the 2017 Draft IP Policy” and the remainder of the document is of a similar ilk. You can read it all here.

It’s not all negative. Essentially, the Chair welcomes the concept of an IP Policy but laments the limited scope of the document, which is essentially confined to pharmaceutical patents and public health, though recognising that some passing mention is made of the role of IP in stimulating the economy, competition law and IP, and traditional knowledge protection. The Chair calls for the re-establishment of an effective Standing Advisory Committee on IP Rights, which was so influential in updating the laws toward the end of the last century, amongst other things.

Discussion

During our animated conversation over the Commentary, the concern over the IP landscape in South Africa becomes more apparent. “We are lamenting the poor quality of stewardship of IP in South Africa, and there is no sign of improvement,” exclaimed Sadulla, amidst concerns that the process, the decision makers and influencers are not fully disclosed. There is real suspicion that the DTI has been “captured by anti-IP rhetoric from action groups who venture politically-attractive propositions that IP inhibits access, whether it be to healthcare, books or job creation through competition.”

Sadulla and Madelein accept that South Africa has certain requirements as a developing economy and needs to formulate a bespoke IP policy. Indeed they welcome robust debate on the issues. However, they feel that “South Africa has become a playground for proxy wars”; that local experts in intellectual property are not being consulted or being ignored, and that the influencers are from very powerful corporate interests and global in nature “who are engaged in their own ideological battles that are being tested in South Africa,” explains Sadulla. The problem is even more far-reaching as there is “also a perception that if these influencers are successful in undermining IP rights in South Africa, the effect will resonate within the rest of Africa too”, he went on.

Their view is that the DTI is ill equipped to deal with these influencers because they have all but abandoned the Standing Advisory Committee on IP, which once was so influential and now exists only in name, if at all.  The establishment of the Inter-Ministerial Committee on Intellectual Property (IMCIP) focusses on limited fields of IP and industry sectors, and includes no private-practice IP specialists, they explain in the Commentary together with other indications supporting their view.

They argue that it is evident from the Draft that the DTI is unable to properly interrogate the sweeping, but politically attractive, sentiments of baying action groups. For example, explains Madelein “[the Draft] incorporates very selective commentary and suggestions of the former framework debates but most proposals have been completely ignored, and without explanation. The result is a high-level overview of limited scope without substance”. It is difficult then not to conclude that there is not “an insidious agenda”, that the DTI have taken an “anti-IP stance whereby they are attempting to whittle away or dilute intellectual property rights,” Sadulla chimes in.

Comment

The Commentary is of course one of a number on the Draft. It is important though because the view of the Chair does not appear to be tainted by anything other than a genuine interest in producing appropriate world class IP laws and policies in the country. They clearly feel that they are not being heard or are being ignored, with little or no feedback from the DTI and no real debate on the issues. Their conclusion that there is a capture of the IP agenda may well be using the same politically charged rhetoric that they complain of but if it is true, and their case is plausible (if not compelling) then the IP community (not just locally but also abroad) should take notice because damage will be done. The DTI has a case to answer and another opportunity to do so now that it has comments on the Draft. Can they emerge as a true leader for Africa on IP policy? Sadulla and Madelein are not holding their breath, but let’s hope so.