Thursday 28 May 2015

Caroline B Ncube

Comments on South Africa's Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014

Since the call for comments on this bill (noted here), the following comments have been published:

  1. The International Trademark Association (INTA)'s comments are available here 
  2. The UCT IP Unit  has posted comments (here) co-authored by Tobias Schonwetter (UCT),  Lesle Jansen (Natural Justice) and Laura Foster (Indiana University). 
  3. The Anton Mostert Chair in IP at Stellenbosch University has posted comments by Sadulla Karjiker (here) and Madeline Kleyn (here)  

Amongst other concerns, INTA notes the potential negative impact of  a 'the co-existence of traditional knowledge and traditional cultural expressions with trademark rights' and implores the creation of a system that is 'consistent with the well-established intellectual property principles of territoriality, exclusivity, priority, and notice' (p. 1). All the other comments are unanimous in their  view that the sui generis approach to the protection of TK advanced by the bill is a better approach than that provided for by the IP Laws Amendment Act. However, they all point out concerns about the Bill in its current form. In my view, one of the most pressing of these is how this Bill, if it it passed, will relate to the IP protection provided by the various IP statutes as amended by the IP Laws Amendment Act. The UCT IP Unit submission notes that South Africa will have a mixed approach [that offers the option of either IP or sui generis protection] that may cause tensions 'among and within indigenous communities' about the selection of  protection for their TK (p. 3).    Dr Kleyn, on the other hand, is of the view that such a mixed approach is not feasible because 'the two separate systems of protection for IK provided for in these two pieces of legislation cannot co-exist.' Therefore she recommends that the 'IKS Bill should upon promulgation repeal the IPLA Act' (p. 14). 

It will be interesting to see how discussions on this Bill develop both in and outside parliament.
For more discussion, see Linda Daniels 'A Cautious Welcome For South Africa’s Traditional Knowledge Legislation'

Caroline B Ncube

Caroline B Ncube

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1 June 2015 at 16:21 delete

There's some very interesting comments here. I'm most struck by the sentence in Prof Sadulla Karjiker's submission, "The phrase “or deny” in sub-paragraph (1)(b) can be deleted as it is superfluous." I very much disagree. As the submission by Tobias Schonwetter, Lesle Jansen and Laura Foster points out on pg 10, the right to deny has has itself often been denied to indigenous communities.
The right to authorise and the right to deny are different and the existence of one does not imply the other. A rightsholder may have the right to authorise use by determining the conditions of use but still lack the right to deny use altogether.