Intellectual Property Laws Amendment Bill – Comments received from the National House of Traditional Leaders (2013.04.10) Presentation to the Portfolio Committee on Trade and Industry – 30 April 2013 Adv Charmaine van der Merwe - Parliamentary Legal Adviser

“…there is a need for the recognition and protection of the indigenous knowledge system in South Africa.” - The whole Bill is aimed at fulfilling this need “…traditional leaders and their communities should be involved in the processes” “Traditional leaders should be the access point to the communities…” - Provision is made for a community protocol. The community protocol sets out the structure of the community and how dealings with the community should be done. e.g. Clause 3, Sections 28B(5); 28C(9)

“…some cut across different communities,…” - Ownership can be shared amongst communities. (See Clause 3, Section 28D(3) for instances where for some reason it cannot be shared: The National Trust becomes owner); “The definition of “traditional work” as a literacy work, an artistic work or a musical work… will cause conflict…if that is left (to Communities) to determine.” - Definitions have been reworked in detail to ensure that all definitions provide clarity on what is mean with each term; - The National Trust (Clause 3, Section 28I) can assist Communities; - Institutions that can mediate disputes will be accredited (Clause 3, Section 28K (1)).

…traditional leaders should form part of the National Council…” - Clause 3, section 28L: The National House of Traditional Leaders may be consulted before the appointment of Council members and at least two persons must have “expertise and extensive knowledge in, and patronage of, traditional cultures and values of indigenous communities.” “…supports the development of a database however these must protect the contents…” - Clause 3, section 28C(15) provides for confidentiality of the content of the database, when needed. “The database must therefore assist in identifying the beneficiaries…” - Clause 3, section 28C(10) requires the community protocol to be kept with the recordal of the work, thus ensuring identification of the owners / beneficiaries.

Ownership by the fund and payment of royalties to the fund. Completely amended: - The National Trust only becomes owner in exceptional circumstances (Clause 3, section 28D(3)); - Money is only paid to the National Trust when it is the owner, or when the Community request it to.

Thank you