1. THE INDIGENOUS KNOWLEDGE SYSTEMS (IKS) BILL
COMMENTS BY PROF OH DEAN
Professor Owen Dean
Research Fellow, Chair of IP Law.

2. INTRODUCTION Member of Committee that assisted DST with drafting Bill
Approve the basic principle and fundamental approach
Vastly preferable to DTI’s IPLAA.

3. DEFINITION OF IK
Paras (a) to (c) should refer to “functional/cultural”. See s 9(1), 19(2)(b) and 26(3).

4. OWNERSHIP OF IK
Community is not a juristic person therefore cannot own property and enforce rights.
Community appoints trustee.
In law trustee owns property for benefit of others. See s 12(2).
S 12(1) should be amended to specify trustee as person in whom IK vests

5. OWNERSHIP OF IK - continued
Community should be designated as “beneficial holder” of IK.

6. IK PRACTITIONERS
Dealt with in Chapter 5; s18 is out of place and should become s.16.
Present s18(1) should be amended to refer to Register of Designations (see definition).

7. REGISTERS A new chapter should be created following on from Chapter 6.
Should be titled “Registers” and deal with all the various registers collectively. Numbering of sections will change.
Existing s 16 should become first section of new chapter and the existing s18(2)and (3) should become sub sections (3) and (4) of it.
Present ss 17 and 21to 24 should follow.

8. REGISTRATION OF IK
Existing Chapter 6 with its heading should become Chapter 7.
It should comprise ss 19 and 20.
Present s 25(3) should become s20(4).

9. LICENCES IN RESPECT OF IK
Provision made for NIKSO to grant licences. See ss 13(2) and 26.
Therefore s.5 should include this power, which is not the case.
S 13(3)(c) requires that benefit sharing agreement with community trustee be made prior to filing licence application with NIKSO.

10. LICENCES continued
In contradiction, s. 26(1)(b) requires standard benefit sharing agreement to be made with NIKSO.
Prior consent of community dealt with in definition but it is stipulated nowhere that it must be part of licence application or when it is required; s 26(1) only deals with when it is not required

11. ENFORCEMENT OF RIGHTS
S 13(5) duplicates s 28 (1) and is out of place; it should be deleted.
No provision made for civil law enforcement, only criminal; no ability to claim damages.
Dispute Resolution Committee (s 27) has limited powers, which do not include enforcement of rights

12. TRANSITIONAL ARRANGEMENTS
Policy of Bill is that IK is protected whenever made, but cannot be implemented or enforced until registered (see current s25(3))
Policy implies that it can be registered at any time.
S33 nullifies this policy and should be deleted.

13. GENERAL Patents Act should be specified in s32(3). See s3(1)(h)
“Register of Designations” should be added to s31(b)
Advisory Committee comprises no lawyers (see s7(2)), but the Bill deals with exercising and enforcing property rights

14. GENERAL continued S7(6) envisages sound principle but is nonsensical.
S14(4) should provide for NIKSO to also refuse an application; consequently, s14(5) should state that NIKSO may issue certificate
The word “the” should be inserted before the word “Indigenous” in s20(3)(b)

15. GENERAL continued
The word “for” should be inserted after the word “assistance” in s25(1).

16. CONCLUSION
Questions?
Thank you for your attention.