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Indigenous Knowledge: Amend Existing Laws, Says DTI

August 14, 2017

Portfolio committees on trade & industry and international relations

The department of trade and industry (DTI) has opted for an approach to the protection of indigenous knowledge (IK) that favours amending existing intellectual property laws rather than creating new law, said a team from DTI’s consumer and corporate regulating division (CCRD) when briefing Parliament on the proposed Intellectual Property Laws Amendment Bill.

Ms Zodwa Ntuli, deputy director of CCRD at DTI, told a joint meeting of the trade & industry and international relations portfolio committees that the Bill to be proposed was in fact a policy framework giving objectives and amending existing laws.

This resulted, she said, in government being empowered to protect traditional knowledge in terms of existing laws and which already accommodated or respected international agreements, understandings, codes and practices already in force or which might be agreed.

MacDonald Netshitenzhe, director, commercial law at DTI, said the new Bill seeks to amend the Performances Protection Act, the Trade Marks Act and the Designs Act. He added that by doing this, DTI was “bringing to the table protection rather than promotion”.

He said that the recording, documentation and publication of indigenous cultural materials were not well managed at present in South Africa. A legal framework for the protection of the rights of indigenous knowledge holders was badly needed, as had been found in many other emerging countries, particularly in Asia. There was a need to bring such holders into the mainstream economy and prevent misappropriation, bio-piracy and exploitation without recognition.

Netshitenzhe said the problem with drafting a law for this aspect of IP alone and involving just cultures and traditional matters was that such legislation would neither properly prevent exploitation from a total IP perspective, from trade marks through to copyright, patents and international agreements, but would particularly remain silent on commercial aspects.

When being questioned by parliamentarians, DDG Zodwa Ntuli said that recognition to the various communities was a separate subject and would take a different form whether it be in the form of, say, royalties or token community projects such as schools. “At this stage”, she said, “the idea is just to protect the knowledge”.

Ntuli said that when the draft bill had gone to cabinet earlier, “They raised the issue of the fact that a cross-section of many government departments were affected by the proposals”. As a result, DTI has now to come up with a policy of how this Bill can be coordinated across a full spectrum of sectoral and government department in view of the many aspects involving bio-diversity, medicines, pharmaceuticals, agriculture and trade.

“Much will come out during the course of public comment and parliamentary public hearings when the bill is tabled”, she said.

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