The portfolio committee on trade and industry is continuing with its long, drawn out deliberations on the Intellectual Property Laws Amendment Bill, which seeks to protect so-called “traditional knowledge” as a species of intellectual property under the existing statutes.
The committee has been seized with this bill for almost a year and it has undergone several revisions in an attempt to bring it into a form that can pass muster.
These revisions and delays are indicative of the fact that the bill was of an unacceptable standard when it was introduced to Parliament by the Department of Trade and Industry.
Large sections of the specialist intellectual property profession, members of the judiciary and academics have been very critical of the nature and content of the bill.
The constant refrain has been that existing intellectual property statutes are ill-equipped to deal with protection for traditional knowledge because the subject matter that is to be protected is significantly different in character from existing intellectual property works and this makes the existing statutes unsuitable. However, as in the case of the Protection of State Information Bill, the government seems undaunted by the deluge of serious objections heaped on the bill and seems determined to drive it through to become law, come what may.
It has been suggested that the bill is unconstitutional and, if passed, will almost inevitably face a constitutional challenge. Even this circumstance is not deflecting the government from its chosen course.
The bill’s purport is to provide a system in terms of which folklore, traditional works of art and the like can generate revenue through the payment of royalties for their use and commercial exploitation. The justification for converting traditional works into a source of income is to benefit the communities from which the works are derived. The bill also seeks to convert recent works comprising traditional elements into income-generating assets.
Commentators feel that while there may be some merit in granting some form of protection to traditional works, the protection should be provided in rational, customised legislation designed specifically to cater for the nature of the works involved.
It is widely believed that the present bill, if passed, will be unworkable and will in practice amount to a dead letter. It will not deliver the outcome for traditional works that the government desires.
Indeed, so it is argued, the granting of the envisaged protection to works that have been free for use is likely to inhibit the use of traditional works on a commercial basis and to drive others to rather use works of foreign origin to which the onerous conditions in the bill do not apply.
In other words, far from enabling traditional works to generate income through commercialisation, the opposite is likely and in practice, the law would be likely to diminish the use of traditional works, thus causing cultural stagnation and a paucity of expression of traditional works.
Perhaps one of the most controversial aspects is the principle that traditional works, that may date back generations and are not currently subject to protection, will be given protection and the right to derive royalty income in perpetuity. This is in contrast to conventional intellectual property that has a limited life-span. It is not apparent why traditional works should be granted superior protection to innovative and creative modern works. The Department of Trade and Industry is looking backwards and not forwards in fostering the creation of intellectual property. page 5
Owen Dean is a consultant to Spoor & Fisher.