South African Intellectual Property Amendment Bill, 2007
Who really benefits?
The Department of Trade and Industry published the Intellectual Property Amendment Bill, 2007, on 5 May 2008, in the Government Gazette, Vol. 515, No. 31026, calling for public comment by 15 June 2008 (see: http://www.dti.gov.za/ccrd/ipbills.htm).
Various public consultations were held around the country. On 13 June 2008, a workshop for public consultations was held at the University of Pretoria. About 40 people attended, representing intellectual property firms, the Shuttleworth Foundation, the African Copyright and Access to Knowledge Alliance, rights organizations, academic institutions, libraries, the Academic and Non-Fiction Authors' Association and other relevant Government departments.
Although the Department of Trade and Industry (DTI)'s Intellectual Property Office was lauded for attempting to address traditional knowledge in our legal system, it was quite clear by the end of the day, that stakeholders were not happy with the Bill in its current form. The DTI explained that it was working on a tight schedule as the Bill had to be presented to Parliament before the close of Parliament, in view of elections taking place in 2009.
It was stressed to representatives of the DTI that this Bill should not be rushed through Parliament just because 2009 is an election year. This Bill needs a great deal more consultation, and perhaps even a conference as suggested by one delegate, before it is passed. There are too many controversial issues in the Bill for it to be passed in its current form. They were also reminded that if South Africa passes such a Bill, it is likely to be used as a precedent in other Southern African countries. It is therefore imperative that this Bill be redrafted taking all the concerns and issues raised into account.
Several delegates stated that the definitions for "traditional works" and "indigenous communities" were far too vague and needed to be very clear. There was discussion around ownership of traditional works by a National Trust instead of Community Trusts, oral works and how they do not comply with the fixation requirements of the Copyright Act and overlapping of two systems, e.g. when a traditional work is published, it becomes a conventional copyright work with an individual owner as opposed to ownership by the National Trust. Questions were raised as to why a ‘sui generis' system was not being adopted in line with international trends, and why the four Intellectual Property Acts, namely, Patents Act, Designs Act, Trade Marks Act and the Copyright Act, were not being amended separately, instead of being ‘lumped together' in the proposed Amended Bill. This would have been a more sensible and practical way of dealing with all the issues and ramifications that these proposed amendments would have on each piece of legislation.
Representatives of the DTI were asked why the needs of education, libraries and people with sensory-disabilities had not been taken into account in the proposed Bill, especially since the library and educational sectors have been calling for such amendments since 1998. Without appropriate limitations and exceptions in this Bill, the public domain will shrink even more and libraries and educational institutions will have to clear copyright for a whole lot more works. Mr. Netshitenzhe of the DTI agreed that appropriate limitations and exceptions could still be included in this Bill and an informal extension of 1 week was given for these sectors to submit recommendations/proposals in this regard. One delegate suggested that ‘fair use' be adopted in the Copyright Act to address some of these issues.
So who will really benefit from this Bill?
One intellectual property lawyer quipped that if the Bill is passed in its current form, the only people who will benefit will be lawyers, as they will be so busy dealing with litigation arising out of the Bill!
13 June 2008
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