Deputy Chairperson, traditional knowledge is the information that people in a given community, based on experience and adaptation to a local culture and environment, have developed over time and continue to develop. It plays a fundamental role in protecting the livelihood of many indigenous communities, protecting the community's health and maintaining the resources necessary for the continued survival of the community.
A World Bank study has shown that poor people can turn their own knowledge into income-generating opportunities through the use of modern methods to protect and market such knowledge. However, cases are known where unprotected cultural expression emerging from South African communities was appropriated and commercialised by individual interests without benefits going to these communities.
In 2004, therefore, the Cabinet approved the adoption of the policy on Indigenous Knowledge Systems, the IKS policy. Pursuant to the adoption of the IKS policy, the Department of Trade and Industry formulated a policy document on the commercialisation and protection of, through the Intellectual Property System. This policy seeks to recognise and protect indigenous knowledge as a form of intellectual property and to enable and promote the commercial exploitation of indigenous knowledge for the benefit of the indigenous communities from which the indigenous knowledge originated.
In order to create an appropriate legal framework for the recognition and protection of indigenous knowledge and to provide appropriate structures and mechanisms to enable the commercialisation of indigenous knowledge, it was considered appropriate to create an interface of indigenous knowledge with the current intellectual property legislative dispensation and to integrate the protection of indigenous knowledge into the current intellectual property protection laws of the Republic.
The object of the Bill is to provide for the recognition and protection of certain manifestations of indigenous knowledge as a species of intellectual property. To this end, it seeks to amend the following laws so as to provide for the protection of relevant manifestations of indigenous knowledge as a species of intellectual property.
They are: the Performers' Protection Act, Act 11 of 1967, to provide for the recognition and protection of performances of traditional works; the Copyright Act, Act 98 of 1978, to provide for the recognition and protection of indigenous works, to provide for the establishment of a national council in respect of indigenous knowledge, to provide for a national database for recording indigenous knowledge and the recording of indigenous works, and to provide for the establishment of a National Trust Fund for Indigenous Knowledge; the Trade Marks Act, Act 194 of 1993, to provide for the recognition of indigenous terms and expressions and the registration of such terms and expressions as trademarks and create for this purpose a further part of the trademarks register to provide for the recording of indigenous terms and expressions, and to provide for further protection of geographical indications; and the Designs Act, Act 195 of 1993, so as to provide for the recognition and registration of indigenous designs and to create for this purpose a further part of the designs register and to provide for the recording of indigenous designs.
The Bill further seeks to introduce statutory provisions to provide for the establishment of a national council in respect of indigenous knowledge, a national database for the recording of indigenous knowledge and a national trust and trust fund for purposes of indigenous knowledge.
The Intellectual Property Laws Amendment Bill [B 8B - 2010] therefore seeks to implement the Department of Trade and Industry policy, by introducing appropriate amendments to the primary IP statutes, excluding the Patents Act, Act 57 of 1978.
The Patents Amendment Act, Act 20 of 2005, already gives recognition to indigenous knowledge and use within the context of the protection of indigenous genetic and biological resources, as contemplated in the National Environmental Management: Biodiversity Act, Act 10 of 2004. The Patents Amendment Act, Act 20 of 2005, complements the National Environmental Management: Biodiversity Act, Act 10 of 2004. There may be a need to effect consequential amendments to the National Environmental Management: Biodiversity Act, Act 10 of 2004 and the Plant Breeders' Rights Act, Act 15 of 1976. This will be necessitated by the fact that the Department of Agriculture, Forestry and Fisheries, which administers the Plant Breeders' Rights Act, Act 15 of 1976, has not yet effected amendments to complement the Patents Amendment Act, Act 20 of 2005.
The main thrust of the Bill is that no registration of intellectual property that is based on indigenous knowledge will be able to be effected without mandatory disclosure of the indigenous knowledge element, without the prior informed consent by indigenous knowledge owners, and without a benefit-sharing arrangement being entered into with the relevant indigenous knowledge owners - something the DA doesn't want.
These principles have already been applied in the Patents Amendment Act, Act 20 of 2005, complementing the National Environmental Management: Biodiversity Act, Act 10 of 2004. By their nature, these principles undoubtedly give power back to indigenous communities who are the rightful owners of the indigenous knowledge.
In recognition of the fact that the power relations of indigenous communities and those of seasoned proponents of the intellectual property system are skewed, the Intellectual Property Laws Amendment Bill establishes an alternative dispute resolution system to deal with disputes.
The Intellectual Property Laws Amendment Bill also provides for the establishment of appropriate structures to facilitate the implementation of the Intellectual Property Laws Amendment Bill when it comes into legal force. These are the national council, the national trust and the trust fund, as well as the recognition of community structures and collecting societies.
The Bill is fully compatible with international treaties to which South Africa is a party. National treatment and reciprocity principles are appropriately observed in this Bill.
Currently, there are persons who are using traditional intellectual property for their own benefit and derive commercial benefit from such use. The Bill does not seek to deprive anybody of the constitutional rights they may be enjoying in terms of existing legislation. With the commencement of the Bill, such individuals or juristic persons may have to provide compensation for the use of the traditional intellectual property.
I therefore table the report of the committee on the Bill and propose that we adopt it. I thank you. [Applause.]
Question put: That the Bill be agreed to.
Declarations of vote: