Department of Science and Technology Portfolio Committee: Trade and Industry 27 July 2010

Support for the DTI IP Amendment Bill The current amendments protects trade and commercial aspects of indigenous knowledge Recognizes collective ownership Recognizes indigenous knowledge that is in the public domain Recognizes the development of database to protect indigenous knowledge Recognizes the establishment of a National Trust fund

Comment: Intellectual property vs IKS We proceed on the premise that intellectual property rights are just one set of tools in the protection of indigenous knowledge systems. Whilst we accept that the mandate of the dti is to protect indigenous knowledge through a system of commercialisation there are other systems, including recording, documenting, and sui generis form of protection. The approach represented by the amendments do not take into account the idiosyncrasies of indigenous knowledge in terms of duration, originality, material forms, etc.

Comment: Intellectual property vs IKS The works of intellectual property need to be “novel” and “original” while by its nature indigenous knowledge is understood to have descended across generations; The works of intellectual property can only be protected for a limited period, after which the work enters the public domain, the purpose of protecting indigenous knowledge is protect it in perpetuity for future generations; The Bill only applies to recent indigenous knowledge, and indigenous knowledge in possession before 1958 will have no benefit for indigenous existing prior to this date.

Comment: traditional works: We foresee potential conflict among communities if what constitutes "traditional works" is left for them to determine subjectively, and we therefore propose that the regulations should include guidelines or criteria be formulated to make this determination. Our view is that what maybe determined as traditional work in one community may not be in another. Traditional character may vary from one community to another. We would also like to draw attention to the fact that not all traditional performances have indigenous origins.

Implementation issues; trans-border nature of IKS Concern is raised by the trans-border nature of indigenous knowledge. Some communities exist across two or more jurisdictions rendering the need to provide benefits under a South African initiative will be complex. We also note in the amendment that the Minister may enter into a reciprocal agreement with another state in respect of traditional performances. We are concerned that these agreements will run counter to the national treatment provision under International obligations which South Africa must comply with.

Implementation issues: National Council We are concerned that giving the Council the responsibilities of collecting societies is rather confusing. We are also concerned that the structure and responsibilities of the Council would not render them competent to function as a collecting society. We are unclear as to how the 12 person Council will remedy the failure to identify communities as beneficiaries.

Indigenous vis-à-vis traditional knowledge At the outset we would like to point out that the term "traditional" which is transversal through out the amendments is loosely used and not aligned with the national IKS Policy adopted by cabinet in 2004 as well as IKS policy on IP developed by the Department of Trade and Industry. "Indigenous" succinctly captures the impact of the historical context of colonialization, oppression and obliteration of the identity and values of the people.

Implementation Issues: Trust Fund Trust Funds are supported in principle as it appears to be one of the most equitable and flexible mechanism of managing monetary rewards in both the near and long-term for indigenous and local communities. We note a contradiction namely the amendments themselves imply that the indigenous community may own the traditional IP and that the copyright will vest in the “National Trust Fund for Intellectual Property.” It is also unclear whether a community or the fund can be legal entities for the purpose of copyright ownership. The concern is raised at the proliferation of the number of Trust Funds envisaged by a litany of Bills and Acts relating to the protection of indigenous knowledge. The risk of competing for resources as well as duplication with other existing Trust Funds for example the Trust Fund created under the Biodiversity Act would be onerous.

Implementation Issues: Trust Fund: Continued The establishment of Trust Fund as proposed by the amendments must ensure that it does not duplicate the functioning of the collecting society. Section 4 of the Amendments makes provision for payment to made into the fund for the benefit for indigenous and local communities in a “prescribed manner.” Our concern is that there is no prescribed manner stipulated in the amendments. We are also concerned that the ownership of any copyright in the traditional work will belong to the Trust Fund for Traditional Intellectual Property and not the community. The concern is complicated given that the Trust Fund is not a juristic person in law.

Implementation issues: Database The support for the development of databases is acknowledged, however this inclusion in the amendments must not lose its flexibility in terms of the protection of contents in the databases that recognise the ownership of communities. The idea of disclosing indigenous knowledge in a public forum even with controlled access represents an unacceptably high risk of exploitation and destruction. That protection is granted only to what is residing in the database, and other mechanisms for housing data, such as community registries, are not provided for in the amendments The proposed database must assist in identifying the true beneficiaries of the indigenous knowledge- given that no data exists of who these beneficiaries are and where they are located.

Implementation issues: Database- Continued Our system does not allow for a search and examination procedure or validation of entries into the database, it would be a nightmare for the dti as all kinds of data will recorded as traditional works. DST is developing a National Recordal System that will record undocumented indigenous knowledge through Documentation Centres which differs from the National database that DTI is looking at namely IK residing in the public domain. The definition of database in the Bill is limited and does not provide sufficient flexibility for future development of sui generis legislation for knowledge that is undocumented and unrecorded

Comm unity 2 Comm unity 4 Comm unity 1 Comm unity 3 Comm unity 6 Comm unity 5 NRS IKSCs Centralised Database Decentralised databases Steering Committee Host institution Metadata System & Taxonomies NIKMAS NRS Components The NRS support the NIKMAS in standardising the management and protection of IK in SA by supplying a multi-media IK information management system and documentation that is focused on capturing IK in identified spheres.

Implementation issues: Database- Continued Clarity of the objectives, functionalities and technical specifications of the proposed databases in the amendments needs to made. For example are the objectives of the database for conservation and preservation, defensive protection, or for positive protection. Our view is that the objective of the database will determine its functionality and technical specification.. The amendments should also focus on registers developed and maintained by indigenous and local communities of which are not in the public domain and the contents of the registers undisclosed

"indigenous community" The distinction between indigenous and local communities was clearly made for a purpose. A local community is normally considered to be a body of people living in the same locality. Thus, with no other distinction, it could contain indigenous or non-indigenous citizens, however, the amendments specifically mark out indigenous communities, and so the meaning must be more specific. The San community, for instance, has consistently maintained that they are the first people of South Africa and the expression "historically lived" in the definition of indigenous community would exclude certain indigenous communities.

Implementation Issues: “literary … traditional works" The term "traditional" will be a policy challenge as the dti has drafted an IKS intellectual property policy. The term "traditional" does not refer so much to the content of the culture, but to the way in which a community preserves its identity. We are of the view that the definition also excludes the recital of poems, stories and discourses. We would prefer a definition of "traditional works" that is inclusive of orators, story tellers, spiritualists.

Development of a sui generis legislation Context DTI process - amendments IGC process - African position TRIPs processes –disclosure Database policy process Natural Justice project Rationale Exclusive ownership Finite time period Commercial application Ownership Inter-generational Oral and performance based, passed on from generation to generation not considered Advantages Flexibility- definitions, objectives, subject matter and beneficiaries Duration of protection in perpetuity Allows for both collective and individual ownership Mixes different types of systems: CBD, IGC Allows enforcement by various actors Takes into consideration customary law Allows for the requirements for disclosure Ensures Prior Informed Consent and Benefit Sharing Ensures both positive and defensive protection Costs are less prohibitive Allows communities access to justice Allows for regional and national tailor made solutions Allows for the establishment of an Indigenous competent authority