Business Day
Wednesday, 20 October 2010, p.5

Public hearings reject 'defective' bill on indigenous knowledge

Written by
LINDA ENSOR
Political Correspondent

The government’s attempt to protect indigenous knowledge by incorporating it under the existing law on intellectual property met with almost universal rejection.

CAPE TOWN — The government’s attempt to protect indigenous knowledge by incorporating it under the existing law on intellectual property met with almost universal rejection yesterday during parliamentary public hearings on the Intellectual Property Laws Amendment Bill.

There was overwhelming support for a “sui generis” or customised law dealing specifically with indigenous and traditional knowledge, which experts did not believe could be dealt with appropriately in existing legislation.

Strong criticisms were made of the poor drafting of the “defective” bill and several stakeholders called for it to be withdrawn altogether.
There was also criticism that there was a lack of consultation about the bill, and that where consultation had taken place, it had not influenced the outcome. The Department of Trade and Industry was accused of having reneged on agreements reached within the National Economic Development and Labour Council.
 
The proposed bill would amend, among others, the Performers Protection Act, the Trade Marks Act, the Copyright Act and the Designs Act.
The Publishers’ Association of SA (Pasa), which represents book and journal publishers, argued that the principle defect of the draft bill was that it did not advance the objectives of the Department of Trade and Industry on traditional and indigenous knowledge. It would also cause “substantial prejudice to the copyright system”, the association told members of Parliament’s trade and industry committee. Authors writing within the African storytelling and African studies genres would be penalised as traditional communities could claim their work as being indigenous knowledge.

This would require the vesting of their copyrights in the National Trust Fund for Traditional Intellectual Property, and enhance commercial risks and uncertainties for publishers. Royalties would be paid into the fund and used for the benefit of indigenous communities.
“In Pasa’s view, these provisions amount to an expropriation of property rights of authors who work in the indigenous traditional genre,” Pasa executive director Brian Wafawarowa said.

Also, it was argued it could breach the bill of rights and international treaties.