PRACTICAL APPLICATION OF IPLAB/PTK WORKS AND DESIGNS Prof Owen Dean Chair of Intellectual Property Law Stellenbosch University

PRINCIPAL FOCUS OF BILL Traditional Cultural Expressions Copyright Works/Traditional Works Registered Designs/Traditional Designs

COPYRIGHT WORK/TRADITIONAL WORK Ndebele art can constitute “work” Under IPLAB – copyright in artistic work – Traditional Copyright Work Under PTK – Traditional Work

IPLAB – ELEMENTS OF COPYRIGHT Exist in a material form or capable of substantiation from collective memory Original Indigenous work Community (collectively) is author and owner (deemed to be a juristic person) Where author cannot be determined or is claimed to be more than one community, the Trust Fund (State) is owner Dual copyright

PTK – ELEMENTS OF TRADITIONAL WORK Exists automatically provided conditions are met. Exist in a material form Recognition as being from, and characteristic of, originating community by outside persons Person nominated by originating community (“Community Proxy”) is owner of work No State ownership

INDIGENOUS DESIGN/TRADITIONAL DESIGN Ndebele art can be embodied in design (shape or ornamentation) of an article Under IPLAB – Indigenous Design Under PTK – Traditional Design

'Ulona' Platform Sandal by Christian Louboutin

Esther Mahlangu – BMW 525i Art Car

IPLAB – ELEMENTS OF INDIGENOUS DESIGN Registration necessary for protection of design Each individual design must be separately registered for each article to be protected If aesthetic, it must be new (different from earlier designs introduced to the public anywhere in the world) and original

IPLAB – ELEMENTS OF INDIGENOUS DESIGN (continued) Community creating design is author and can register and become proprietor Where author cannot be determined or design cannot be shared by multiplicity of communities, the National Trust (the State) can register and become proprietor

PTK – ELEMENTS OF TRADITIONAL DESIGN Exists automatically, provided conditions are met; no registration is required Exist in a material form Recognition as being from, and characteristic of, originating community by outside persons

PTK – ELEMENTS OF TRADITIONAL DESIGN (continued) Person nominated by originating community (“Community Proxy”) is proprietor in a representative capacity No State ownership

COMMERCIAL EXPLOITATION OF TRADITIONAL KNOWLEDGE Licence to use property subject to payment of royalties IPLAB – Onerous conditions for granting licence (agreement must be approved in advance by State) PTK – Informal, no formalities or conditions for granting licence; simple automatic licensing system

ROYALTIES Paid by licensees to National Trust IPLAB – No obligation on National Trust to pay monies to originating community; monies can be dispensed at discretion of Trust PTK – National Trust is obliged to pay royalties collected to originating community

Owen Dean Stellenbosch University