Mr Chairperson, I now rise on my second point of order.
Order, hon members!
Let's try to do this quickly. The point of order is that this House is not in a position to deliberate on this Bill at this sitting, because this Bill must first be referred to the National House of Traditional Leaders in terms of section 18 of the National House of Traditional Leaders Act. Section 18 of that Act requires that any Bill pertaining to customary law or customs of traditional communities must, before it is passed by the House of Parliament where it was introduced, be referred by the Secretary to Parliament to the National House of Traditional Leaders for its comments. The Bill has not been so referred.
The legal test is that pertaining to customs. The test is not that of legislating customs, for instance repealing, replacing, amending or codifying and enforcing the registration requirements on customs. In many respects, it would be unconstitutional for the law to legislate customs and traditions, which is an area of collective freedom and autonomy.
The Bill pertains to indigenous customs and traditions. Its sole purpose is that of giving intellectual property rights protection to customs and traditions. It also contains a customary dispute resolution mechanism, which includes traditional councils and courts. Parliament and the National Assembly are subjected to, and bound by, the principle of legality, which includes observance of any law enforced. Parliament has the power to amend laws it passed, explicitly or by necessary implication, but until it does so, it is ...
Order! Hon member, will you take your seat, please? Yes, Chief Whip of the Majority Party?
Chairperson, I am just wondering on behalf of which traditional community the hon Oriani-Ambrosini is speaking. As far as I know, he does not know any indigenous language of the people he is referring to.
Hon Chief Whip of the Majority Party ...
Where did they give him the mandate? [Applause.]
That is not a point of order. I will allow the hon Oriani-Ambrosini to complete his input, but he must get to the point of order, because there is a ruling on this matter.
The aforesaid section 18 binds the National Assembly in its proceedings. I have given the Speaker - and I am not going to repeat it - four pages of provisions of this Bill which attach exclusively to customs and traditions, and changing them requires certain things to take place.
The second point, Mr Chairperson, is that the clauses of the Bill introduced section ...
Hon Oriani-Ambrosini, I have given you sufficient time to make your point of order. You are now making a statement, which is not a point of order.
No, I am not. I am not making a statement.
Can you make your point of order? Otherwise, I will have to ask you to sit down.
Mr Chairperson, will you allow me to point out to you the provisions of this Bill, which fall within the scope of section 18 of the National House of Traditional Leaders Act?
On a point of order, Chairperson, please.
Hon member and hon Oriani- Ambrosini, I have given you sufficient time to make your point of order. I did not give you time to make a speech on this matter. The IFP has been allocated time in the debate. I must also remind you that the report from the committee has been adopted and the objection of the IFP has been noted. What you are doing now is raising a range of issues that are actually part of the deliberations and the debate that can take place later. So, I will ask you to conclude, please.
I have given to the Speaker the full list of provisions which fall within the legislative mandate to be referred to the House of Traditional Leaders, and I raise the point of order that this House cannot proceed, because the House of Traditional Leaders has not been seized of this matter.
Thank you, hon member. I want to remind the House of my previous ruling in this regard and for the same reasons given previously I rule that the Second Reading debate be proceeded with. I now recognise the hon Minister of Trade and Industry.
Mr Chairperson, I am rising now on my third point of order.
Hon Oriani-Ambrosini, will you take your seat, please?
This is a point of order.
Hon member, take your seat please.
I need to be able to raise a point of order.
Hon member, I have given you sufficient time to raise two points of order. Will you take your seat, please? Can I request the Whips of the IFP to talk to their member? Otherwise I will be left with no choice but to ask him to leave the House. The hon Minister may proceed.
House Chairperson, we thank you for at last giving us the opportunity to discuss this piece of legislation. The Bill before us today is a piece of legislation that seeks to provide protection for indigenous knowledge through the intellectual property law system. Indigenous knowledge is knowledge that is generated and owned by communities. It may include knowledge about medical practices, production of food products, cultural expressions, songs, designs or whatever.
I think there is a large body of work that shows that poor people have the potential to turn their own indigenous knowledge into income-generating opportunities through the use of modern methods to protect and market such knowledge. Conversely, I am sure that many members are aware of many cases in South Africa and other parts of the world where unprotected cultural expression and other forms of indigenous knowledge emerging from communities have been appropriated and commercialised by individual interests without any benefit going to those communities. Examples include traditional songs that have been adapted and commercialised without royalties being paid, cultural expressions being used in logos by private concerns and knowledge about traditional remedies being commercialised as individual products by pharmaceutical companies.
The Bill before the House today is a sequel to two policy processes, namely the development of the Indigenous Knowledge Systems Policy, which was adopted in 2004, and the Policy on the Protection of Indigenous Knowledge through the intellectual property, IP, system in 2007.
The question of how to protect indigenous knowledge is the subject of vigorous debate internationally. While by no means a unanimous view, many stakeholders, both nationally and internationally, agree that the intellectual property system can be used to protect indigenous knowledge, but is not a panacea. Indigenous knowledge, IK, is distinct in many respects from intellectual property, which is generally protected by intellectual property systems. IP systems and practitioners do not easily accommodate knowledge that is collective in nature and also not time-bound. The protection and beneficial use of indigenous knowledge, therefore, requires that other areas of law also be reviewed, and speedily so, to bring about the comprehensive protection of indigenous knowledge in the various areas.
In the debate on this Bill, some stakeholders argued in favour of a sui generis or stand-alone approach which would keep IK protection out of the purview of intellectual property law. A sui generis approach would, in any event, have to work together with the IP system to be effective, and it is clear that if IK is going to be comprehensively protected, we need a package of solutions.
The global debate on a sui generis mechanism is nowhere near completion and we are faced with the need to respond urgently to a number of cases of the private misappropriation of indigenous knowledge through the use of the existing intellectual property system. In our view, failure to act will encourage the further unabated exploitation of communities' heritage by unscrupulous private interests.
Let me say this: Should there be any development in future that suggests a different route may be better to achieve the same end, we will not hesitate to review this legislation. Unfortunately South Africa does not have the luxury of allowing the rampant exploitation of indigenous knowledge through the IP system while we wait for such a development or improvement to emerge.
This Bill seeks to amend the Performers' Protection Act, Trade Marks Act, Copyright Act and Designs Act. 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, firstly, the mandatory disclosure of the indigenous knowledge component, prior informed consent by the indigenous knowledge owners, and a benefit-sharing arrangement entered into with the relevant indigenous knowledge owners.
These principles have already been applied in the Patents Amendment Act of 2005, complementing the National Environmental Management: Biodiversity Act of 2004. By their nature, these principles undoubtedly give power back to indigenous communities, who are the rightful owners of indigenous knowledge. In recognition of the fact that the power relations between indigenous communities and seasoned proponents of the IP system are skewed, the Intellectual Property Laws Amendment Bill establishes an alternative dispute resolution system to deal with any conflicts.
The Intellectual Property Laws Amendment Bill also provides for the establishment of appropriate structures to facilitate the implementation of this Bill when it comes into legal force. These are the National Council for Traditional Intellectual Property, the National Trust Fund for Traditional Intellectual Property, as well as 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 are appropriately observed. Furthermore, the Bill does not intend to expropriate any indigenous knowledge-related intellectual property rights granted prior to the Bill coming into force.
In preparing for implementation, the DTI is already developing a comprehensive strategy to take the Bill to indigenous communities in the most accessible and simplest form. In this regard, the DTI and Congress of Traditional Leaders of South Africa will be entering into a Memorandum of Understanding, which will facilitate an outreach programme as part of this exercise. A launch conference on the Memorandum of Understanding will take place in November, when subprogrammes and activities will be unveiled.
This strategy will be complemented by the development of field workers, who will be deployed in all nine provinces. This will be in addition to co- operation with other sister departments, such as the Department of Agriculture, Forestry and Fisheries, the Department of Rural Development and Land Reform, the Department of Co-operative Governance and Traditional Affairs and the Department of Arts and Culture.
I would like to thank the portfolio committee for all the work they did. They substantially redrafted and improved the Bill presented to them. I also want to thank the Chief Whip of the Majority Party for organising some of the consultations that took place with representatives of traditional communities. Let me assure everybody that there will be extensive consultation, as is provided for in the Bill, in the establishment of the bodies envisaged, such as the national council and the trustees of the national trust fund.
With these few words, I call on the National Assembly to reject the silly games we saw earlier on and support an important piece of legislation to the benefit of our communities. [Applause.]
Hon Chairperson, hon members of this House, comrades and colleagues, today marks a fresh phase in the process of the recognition and protection of indigenous knowledge. Through the legislative instrument of the Intellectual Property Laws Amendment Bill this House, once it adopts this redrafted Amendment Bill, will launch a pioneering piece of legislation and one long overdue.
Given the substance and purpose of this legislation, I wish to dedicate it to the late, highly respected University of Venda academic, Professor Emeritus Victor Ralushai, who, in his lifetime, charted and underpinned indigenous knowledge, and knew a great deal. However, this legislation is only a platform on which to build even more robust and embracing legislation in this regard.
We brought in experts to assist us: a copyright expert, Ms Shabangu; Professor Ntuli, an authority on indigenous knowledge - because Professor Ralushai was very busy at the time - and Dr Von Braun, an expert in genetic resources and the rights of indigenous people in the international field. There is an extensive report by the Portfolio Committee on Trade and Industry in the Announcements, Tablings and Committee Reports, ATCs, and I urge you to study it.
It was clear from the outset that, with billions of dollars involved, this Bill was under siege from vested interests, as well as from people who looked at only their own expectations of lucrative gain, rather than those who owned the indigenous knowledge. For example, architects benefited in the case of the First National Bank calabash World Cup soccer stadium design, but did the communities where these things are from receive any benefit? However, under this piece of legislation, they will benefit under and through a national trust fund.
Again, most of us are familiar with the song The Lion Sleeps Tonight, originally called Imbube. Solomon Linda wrote Imbube in 1920 and recorded it in 1939, after billions had been made from it by others. In 2006 his family received some compensation - after great litigation expenses.
Under the Intellectual Property Laws Amendment Bill, which the ANC supports, even the poorest person and community will receive recognition and protection. This legislation will also facilitate ownership by communities and the resolution of disputes through a mechanism that will include an appeal process.
The risk of indigenous knowledge loss in Africa and South Africa reminded me of an African proverb that basically states that every morning in Africa, an impala wakes up, knowing she must run faster than the lion or die. A lion wakes up, knowing he must run faster than the impala or starve. In fact, no matter what time the sun rises in Africa, we know you had better start running. [Interjections.] This is why the portfolio committee, led by the ANC, is pursuing this now, on this platform.
The Portfolio Committee on Trade and Industry invited other committees to the briefing and many subsequently came to committee meetings, among those the Portfolio Committee on Science and Technology and the Portfolio Committee on Arts and Culture. It soon became apparent to the committee that this was a very complex piece of legislation, so we went overseas as a multiparty group, the biggest one from a portfolio committee ever allowed to go. We wanted everyone there. We went to Geneva and we visited the World International Property Organisation, Wipo, World Trade Organisation, WTO, the International Centre for Trade and Sustainable Development, ICTSD ... [Interjections.] ... As a matter of fact, they are not ... I will quote from a letter.
Some of the major issues that needed serious study and advice were the constitutionality of the Bill, whether or not it was a Money Bill and whether or not it should be referred to the National House of Traditional Leaders, NHTL. After taking advice from our table of procedural people and legal advisors ... [Interjections.] We learned, certainly, even if we weren't sure then. The Bill does not impose a tax, duty, levy or surcharge and does not request payment from the National Revenue Fund.
With regard to the NHTL, it was clear from the classification by the Joint Tagging Mechanism that the Bill did not have to be referred to them. I see I have only two minutes left. I simply want to add that we had a five-day in-depth study tour overseas. We had two further days of workshops and we started on the Bill in earnest in April last year. We spent many days and hours on the Bill, as every member of the committee will attest to.
Regarding the sui generis approach - which was the choice of some - we took advice during the workshop as well. It then transpired that only one member stated categorically that they were in favour of it. Wipo was mentioned by many in the opposition who claimed that Wipo opposed the legislation entirely, or at least held a different view. This is not the case.
I want to read from a letter written by the secretariat regarding this issue. The letter is extensive, constructive and helpful. I quote:
These comments have been prepared by the secretariat of the Wipo and do not necessarily represent the views of any of the member states of the organisation. Furthermore, Wipo do not expect to finalise the international legislation in this regard this year or even next year. Other countries have pursued their own legislation to take immediate steps.
And, may I add, we have experts in this field right here among us, including our Chief Whip, who is an authority on this particular matter - not that we had extensive consultations with him in the matter at all. [Applause.] The ANC would like to make it very clear that it supports this pioneering piece of legislation and that it believes that the application of minds in the portfolio committee cannot be questioned by anyone. [Applause.]
Hon Harris, in future you must wait until I recognise you before you come to the podium, please. You are now recognised.
Mr Speaker, it is a special privilege today to address this House and especially the new Leader of the Opposition, Lindiwe Mazibuko. The DA, and I think all parties in this House, believe that the creators of indigenous cultural items like designs, songs, plays and music should benefit from intellectual property, or IP, protection.
We are disappointed that the Minister and the Chairperson of the committee returned to three tired old red herrings today in regard to this Bill. The first is whether the Bill has anything to do with traditional medicine. It plainly does not. The Patents Act was amended to incorporate traditional medicine. Actually, the fact that only a handful of patents have been awarded under that new Act should have taught us a few lessons - which we plainly have not learnt - about this Bill.
The second is that the Minister made the point that this sui generis or stand-alone Bill will somehow be outside of the IP system. May I point out to the Minister that the Designs Act is sui generis or stand-alone from the Copyright Act? Yet it is still part of the system.
The third was the story about Solomon Linda's estate, which now owns Imbube through the Copyright Act. Actually, ownership was established by Professor Nandini, an esteemed chairperson of IP at Stellenbosch University - who, we need to note, opposes the Bill in its current form. Plainly it is clear that ownership was established without the benefit of this Bill today.
Nevertheless, we do strongly support the intention of protecting traditional knowledge using legislation. The problem is that we have six major objections to the Bill before us today. Our first objection is that the Department of Trade and Industry, DTI, and the ruling party were determined to proceed with amending four existing IP laws, rather than writing a sui generis law. It is clear to us, and to the majority of IP experts in South Africa, that the particular characteristics of indigenous knowledge mean that a sui generis law would be the only way to protect it properly.
Our second objection is that the regulatory impact assessment, RIA, commissioned by the Presidency in 2009, concluded that, unless a sui generis approach was taken, the cost of the legislation would outweigh its benefit. The implication of this document is that the cost of the law we have before us today outweighs its benefits. This did not seem to bother the DTI because they simply commissioned another regulatory impact assessment. Unsurprisingly, this one concluded the exact opposite.
Our third objection is that we have processed this law without waiting for the World Intellectual Property Organisation, Wipo, to complete their drafting of a model law to ensure that indigenous knowledge is protected in a consistent manner internationally. They are due to finish work on it in the next year. Despite this, our committee was pushed to finalise this Bill ahead of Wipo's process. This compromises the principle of staying in line with international law to ensure that protections offered domestically are automatically offered to other countries under various treaties.
Our fourth objection is that, despite the fact that we did make significant progress on fixing many of the problems, the ruling party insisted on placing serious hurdles before "derivative" users of indigenous knowledge that will disincentivise profitable, fair and productive use.
Derivative use covers everyone from a Ndebele trader selling beadwork based on her tribe's hut designs to an entrepreneur publishing children's books based on traditional stories. The Bill does not allow sufficient time for users such as these to comply and creates serious uncertainty for users of derivative designs. For example, that Ndebele trader may find herself having to pay backdated royalties for up to three years, depending on whether or not the community registers their design on the database or not. These are significant weaknesses that are likely to work against legitimate practitioners of traditional works in South Africa, with no impact on foreign users of South African works.
Our fifth objection is that the Bill was not reventilated through public hearings. We did have public hearings on last year's draft, but it had been fundamentally reworked since then. Some of the new provisions are totally different, are untested and may have considerable impact on the IP community and the users of traditional works. Again, we should have listened to the public's views on this.
Our sixth and final objection is perhaps the most serious one. Dr Ambrosini attempted to raise this earlier and the DA agrees with his objection. The Traditional Leadership and Governance Framework Act of 2003, in Section 18(1), clearly states that any Bill that pertains to the customs of indigenous communities needs to be referred to the National House of Traditional Leaders. Now the question is: If this Bill does not pertain to the customs of indigenous communities, which one does?
It is our view, as well as the view of senior members of the House of Traditional Leaders, some of whom are sitting here to my right today, that this Bill clearly pertains to such customs. Nevertheless, it has not been referred. This is a serious breach that opens up the Bill to legal challenge.
I must point out that, as usual, the committee was ably chaired by Ms Fubbs and that all members of the committee applied themselves with great diligence, trying to fix the numerous problems in the Bill. We did fix some of them. In addition, the drafters and committee staff worked exceptionally hard and were a great asset. Notwithstanding that, I am afraid that the DA cannot support this Bill because it will not achieve its aim of protecting traditional knowledge. [Applause.]
Chairperson, this Bill seeks to amend an Act that is one example of why South Africa is such a respected member of the global investment community and is the leading economy in Africa. With the Intellectual Property Laws Act and related laws about patents and copyright, we provide secure property rights, thereby reducing risks for investors and entrepreneurs, who know that our laws and courts will protect their property.
We often think of the property rights clause in our Constitution as relating only to land, but that is a serious mistake. The composer of music, the owner of a Kombi taxi, the inventor, the author, the plant breeder, as well as the farmer and the owner of a flat - all have equally important property rights that our laws and courts must protect.
The principle of the Bill that we are discussing in this Second Reading debate is to include within the recognised net of property rights, knowledge and products that have not been included before within the ambit of the Act.
The best-known South African case, to which the hon Harris referred, is the song The Lion Sleeps Tonight, which was used in Disney's film The Lion King. Originally, Wimoweh or Imbube was written by Solomon Linda in 1939 for his group, the Evening Birds. I used to think that the song was from the Caribbean. Thanks to the publicity Rian Malan gave to the injustice of denying Solomon Linda his rights, some compensation has now been paid.
Buchu is an example of plants that have special qualities in their fruit, essential oils or bark and can be developed and processed for commercial use. For centuries buchu was used as a treatment in South Africa by the Khoisan people. Buchu brandy is recognised as an old boereraat for stomach ailments. Nowadays buchu is farmed commercially at Stanford in the Western Cape and its oils are extracted for export to Europe, so creating jobs.
Our Parliament is often decorated with gladioli flowers. What many people do not know is that the gladiolus was developed and bred from our indigenous Watsonia. The same is true of the enchanting and simple Barberton daisy, which is now sold by florists in a variegated and multipetalled form.
It is right that we recognise our so-called indigenous knowledge. Those of us who are familiar with traditional herbalists, sangomas and the various treatments they use, know that there are many people who may even be illiterate, but have a compendious knowledge of plants and their uses.
There is a body of fascinating knowledge and treatment in the field of protecting oneself against lightning strikes. The famous traditional healer and herbalist, Khotso, who lived and died at Lusikisiki in Pondoland and claimed that his father was President Paul Kruger's coach driver, sold a product that was bought by most Xhosa miners to protect them from danger when going to the mines. This Bill is trying to put in place mechanisms to enable people like the late Khotso with his indigenous knowledge to be recognised. That also applies to sellers of a type of love potion called "bheka mina ngedwa". [Laughter.]
The portfolio committee, under our chairlady's leadership, has done its best over a long period to process this Bill. Cope welcomes the principle of the Bill. However, we do have concerns around two aspects. The one is attaching this good objective to our existing Intellectual Property Rights Act through this amendment. We don't think it works. [Interjections.]
[Uhleko.] Ngiyabonga, kodwa okokugcina Mnumzane, ngifuna ukubongela uLindiwe Mazibuko. Sikufisela inhlanhla KaMazibuko, uNkulunkulu akubusise nkosazana. [[Laughter.] Thank you, but lastly, sir, I would like to congratulate Lindiwe Mazibuko. We wish you all the best, Ms Mazibuko. May God bless you.]
Mr House Chairperson, my congratulations also go to the hon Mazibuko on her appointment.
This Bill embodies the best possible intentions, but in order to understand the problems we have with it, and the problems most of the intellectual property rights community has, one needs to look at the actual technicalities. No money will go to the indigenous communities. An enormous amount of business will be developed around this Bill by people who do not belong to indigenous communities. The net result is that anything that remotely smells of South Africa and is not being used here, will surely be freely used everywhere else but in South Africa.
I am very pleased to hear from the hon Fubbs that the Chief Whip of the ANC is an expert on intellectual property law. We worked very hard on this Bill, night and day. Whenever questions were raised about the meaning and application of the Bill, those questions could not be answered without lawyers disagreeing, officials offering a different reading and legislators - ourselves - being totally confused. The Bill is a conundrum wrapped in an enigma surrounded by mystery looking at itself in a mirror.
These are the difficulties we have: The definition of "knowledge" lacks the requirement that such knowledge be unique to the relevant community. So, such knowledge could very well be ubiquitous and known to many other communities. The definition of "indigenous community" bypasses existing traditional councils as if the traditional structure did not exist. An indigenous community as a legal person lacks the legal prescripts to determine how such entity expresses its volitions, inter alia, to appoint a representative or apply for registration of its knowledge. You are going to have one person after another popping up out of nowhere and saying that they represent this or the other community, and enormous conflict will be generated around it. And the inclusion of "extinct communities" that no longer exist is nothing short of absurd.
The Bill has unaddressed issues of constitutionality. It requires those who now freely use indigenous knowledge for commercial purposes to stop doing so until and unless they obtain the consent of a community and pay a royalty, thereby taking away a right without the required constitutional compensation. The new royalty or benefit to be paid into the state- established trust - which is an organ of state - is a tax, duty, levy or surcharge, which turns some provisions of this Bill into those of a money Bill. There is an exclusion of this money going into the National Revenue Fund. It cannot be done. It is unconstitutional. There is no justification for that to be the case. In the absence of extraordinary circumstances, it is impermissible to legislate that money raised in terms of this Bill goes anywhere but into the National Revenue Fund.
In respect of what the Minister said, the Bill also contravenes international law as set out in the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights, Trips, which prohibits legislation providing for national treatment or extending benefits to nationals only. Trying to achieve parity of treatment by means of additional international treaties subject to reciprocity confirms rather than solves the problem, as it highlights that in the absence of treaties the legislation breaches the Trips Agreement.
The length of time during which indigenous knowledge is protected is excessive, unwarranted and not in line with any existing intellectual property law in the world.
The rest of my speech may be read on our website. [Interjections.] [Time expired.]
Mr House Chairperson, this Bill represents a valiant effort to fill a constitutional void that could bring the governance of South African society into alignment with the reality of its diversity of communities. As such, the objectives of the Bill to protect and promote indigenous knowledge are laudable and were supported by all political parties, including ourselves. However, the South African society is complex and, as such, the instruments chosen, namely the amendment of four Acts within the intellectual property regime, were seen by many legal and social science experts and the public as inadequate and forced. Indeed, what was needed was the creation of sui generis legislation that could deal with the unique properties of indigenous knowledge in a customised manner. This was also the FF Plus's position, and it remains so.
Dit blyk uiteindelik dat die politiek agter die skerms die keuse vir hierdie wysigingswetsontwerp gedryf het. Die Departement van Handel en Nywerheid het alle advies, insluitende di van die Wreldorganisasie vir Intellektuele Eiendomsreg, Wipo, om eerder unieke wetgewing vir die beskerming van inheemse kennisstelsels te skep, bloot gegnoreer. Dit was baie duidelik dat om die beskerming van inheemse kennisstelsels in die bestaande intellektuele eiendomswette in te forseer, heelwat onbedoelde gevolge sou h. Die eerste weergawe van die wysigingswetsontwerp het dan ook soveel gebreke gehad dat die parlementre regsadviseurs, tesame met die komitee, die wysigingwetsontwerp moes oorskryf. Sodoende is heelwat van die teenstrydighede en probleme wel uitgestryk. (Translation of Afrikaans paragraph follows.)
[In the end, it appears that behind-the-scenes politics has been the driving force of this amending Bill. The Department of Trade and Industry simply ignored all advice, including the advice of the World Intellectual Property Organisation, Wipo, rather than to create unique legislation for the protection of indigenous knowledge systems. It was very clear that forcing the protection of indigenous knowledge systems into the existing intellectual property legislation would have considerable unintentional consequences. Consequently, the first draft of the amending Bill had so many flaws that the parliamentary law advisors, together with the committee, had to rewrite it. By so doing many of the discrepancies and problems were sorted out, though.]
However, the Bill remains too simple an instrument to deal adequately with the complexities of indigenous communities and culture and with the protection of cultural expressions. As a blueprint for managing and protecting indigenous knowledge, it is not quite what the world and the United Nations were looking for when they asked South Africa to take the lead in this matter - and I was informed of this in person by Wipo.
The world was expecting an innovative approach, but instead we delivered what Edmund Burke referred to as a metaphysical abstraction that does not fit properly with reality. If we had created sui generis legislation instead, we would have made history in the process, as we would have established a completely new category of intellectual property alongside and analogous to the existing ones, without distortion.
Sihlalo ohloniphekile, oNgqongqoshe noSekela Ngqongqoshe abahloniphekile, maLungu ePhalamende ahloniphekile, umbutho wabantu i-ANC wethula lo mthethosivivinywa ochibiyelwayo esiwubiza ngokuthi yi- Intellectual Laws Amendment Bill kule Ndlu ehloniphekile yeSishayamthetho ukuze leNdlu iwuphasise lo mthetho usebenze njengomthetho wezwe.
Ngalo mthetho, uhulumeni kaKhongolose uhlose ukuthi kuhlonishwe futhi kuvikelwe ulwazi oluyinjulamqondo [indigenous knowledge] olutholakala emphakathini yokudabuka kuleli lizwe lakithi[indigenous communities], kanye nokuthi le miphakathi yokudabuka ihlomule ingxenye yenkece - imali phela - uma lolu lwazi lusetshenziswe ngabanye ngenhloso yokuthola umvuzo oyinkece. (Translation of isiZulu paragraphs follows.)
[Mr N E GCWABAZA: Hon Chairperson, hon Ministers and Deputy Ministers, hon Members of Parliament, the people's party, the ANC, presents this amending Bill that is known as the Intellectual Properly Laws Amendment Bill before this august House, the National Assembly, for the House to pass it so that it can be recognised as state law.
With this law, the ANC-led government is aiming at recognising and protecting indigenous information that belongs to the indigenous communities of this country, and for these indigenous communities to be compensated financially when this information is used by those who want to benefit financially.]
The promotion and protection of indigenous knowledge using intellectual property law is a subject of debate in Africa and the rest of the world in various international forums, such as the World Intellectual Property Organisation, the World Trade Organisation, the United Nations Educational, Scientific and Cultural Organization, Unesco, and many others. This debate is particularly important for developing countries and less developed countries, particularly those whose indigenous knowledge continues to be exploited and misappropriated by third parties for financial benefit, without the same benefit accruing to those indigenous communities who are the holders and custodians of indigenous knowledge.
As we continue to build a developmental state, we can no longer ignore the importance of recognising, promoting and protecting indigenous knowledge in order for it to benefit indigenous communities economically, continue to build social cohesion and advance national reconciliation.
Hon Ambrosini, article 27, paragraph 3(b) of the Trade-Related Aspects of Intellectual Property Rights, Trips, agreement empowers member states to consider protecting indigenous knowledge by using intellectual property systems.
Kulo mthetho akukho nakunye okushintsha noma okuchibiyela umthetho weNdlu kaZwelonke yobuKhosi beNdabuko. Abaholi esahlangana nabo eMpumalanga Kapa nabanye abafika emihlanganweni yomphakathi [public hearings] lapha ePhalamende bayawusekela lo mthetho, ngoba baqonda kahle ukuthi akukho okushintsha umthetho ababusa ngawo.
Ngalo mthetho, i-Intellectual Laws Amendment Bill, sizovikela, sihloniphe ukugujwa komkhosi womhlanga nokusina kwamaZulu, imifanekiso yezingubo nemidwebo yezindlu zamaNdebele, isigqoko sotshani sabeSuthu, amalungelo abaqambi bezinganekwane [copyright of indigenous folklore], imifanekiso yobuhlalu nokuxhentsa kwakwaXhosa. (Translation of isiZulu paragraphs follows.) [In terms of this law, nothing is going to amend the laws of the National House of Traditional Leaders. The leaders whom we met in the Eastern Cape and others who came to the public hearings here in Parliament support this law, because they understand very well that nothing is going to change with regard to their powers.
With this law, the Intellectual Property Laws Amendment Bill, we will protect and recognise the celebration of the Reed Dance and the traditional dances of the Zulu people, the designs of the dresses and the drawings on the houses of the Ndebele people, the grass hat of the Sotho people, the copyrights of indigenous folklore, the beadwork designs and the traditional Xhosa dance, ukuxhentsa.]
It will protect indigenous Indian and Afrikaner music and dance performances, and the Cape Minstrels with their colourful apparel, so that whoever wants to use these designs, trademarks, performances and copyrights for commercial gain has to enter into a benefit-sharing arrangement with the indigenous communities as the owners of this indigenous knowledge.
Indigenous peoples all over the world have lamented that their arts and crafts, literature and folklore, science and medicine, music and dances, designs, trademarks and heritage are subjects of research and eventual commercial exploitation by others, while they are denied not only financial benefit, but also respect and official recognition. I submit that, through the Intellectual Property Laws Amendment Bill, the ANC seeks to guarantee just compensation for indigenous communities when their indigenous knowledge is being used for commercial gain. If this House fails to pass this Bill, mining of indigenous knowledge will become the latest and ultimate neo-colonial form of exploitation of indigenous communities. It is estimated, for instance, that the annual world market for medicines derived from medicinal plants discovered by and from indigenous communities amounted to $43 billion in 1985, grew to $130 billion by 1990 and will total $5 trillion by 2020. When one adds the economic value of other forms of indigenous knowledge, which continue to be exploited and misappropriated, one will realise that indigenous communities are losing massive amounts of money. This massive indigenous wealth cannot be left to individuals and private business while the indigenous communities continue to be poor, hungry and unemployed.
This is an opportune moment for this Parliament to pass this amending Bill in order to use the collective intellectual property of our indigenous communities to secure the economic benefit that is due to them.
Let me conclude by drawing the attention of the House to this proverb: "Every time an elder dies, it is as if a library burns down". This Parliament must pass this Bill so that the educational, social, cultural and moral values and the economic benefits accruing from indigenous knowledge are no longer lost to posterity every time a generation of elders passes on. [Applause.]
Chairperson, the ACDP appreciates that indigenous knowledge of communities may be open to exploitation by foreign countries. We also share the view that indigenous communities should derive every benefit from their indigenous knowledge. We therefore support the principle of this Bill. However, as the other speakers have said, the central issue is whether it is appropriate to integrate the protection of indigenous knowledge into current intellectual property protection laws.
Intellectual property is a specialised and complex branch of the law. Even as a lawyer I have difficulty understanding it. Are we not trying to drive a square peg into a round hole? The main objection raised by experts in the field is that a basic principle of intellectual property is operating in reverse in this Bill. Works of traditional knowledge are already in the public domain; how can they then be accorded exclusive, private status, as required in intellectual property laws?
Additionally, conventional intellectual property has a limited lifespan, which contrasts with the permanent protection sought to be given in this Bill. The answer is surely a sui generis Act, and this is the way that it should have been processed.
We are aware that the World Intellectual Property Organisation has also been struggling to protect traditional knowledge for some years. And we have the opportunity to set the benchmark here. It is anticipated that soon, maybe next year or in a while to come, a customised law, a sui generis law and an international treaty will be presented by the World Intellectual Property Organisation. Would it not have been more appropriate to await this development - or even that we set the benchmark with a sui generis law that would then assist the international domain and the way forward?
Finally, it is alleged by various commentators that there will be monumental problems in establishing the subsistence and ownership of property to be protected, and then in bringing successful claims to enforce the rights and payment of the envisaged royalties. Who, then, will be making the money? It will be the lawyers and the litigants in this matter. The ACDP will regrettably not support this Bill.
Hon Chairperson, when we write legislation it must be for a purpose that will work and that will be beneficial to society as a whole. This Bill was intended to protect indigenous knowledge. The DA supports the idea that indigenous knowledge and history must be protected.
In order to make conditions legally binding, a positive approach to the protection of indigenous knowledge - a sui generis approach - was proposed by most legal experts, including the DA. Sui generis literally means "its own kind" or "unique in its characteristics". This would have created opportunities for communities to alleviate economic strain on those individuals who find living difficult. However, the opportunities and rights of citizens are seriously limited as the Bill is written now.
The advantage of using a sui generis approach would have been to allow the recognition of indigenous works outside the normal intellectual property framework. This would have allowed for more effective and comprehensive protection and promotion.
In 2004, the World Trade Organisation, through the Agreement on Trade- related Aspects of Intellectual Property Rights, Trips, saw the need to establish a link between the convention on biodiversity, indigenous knowledge and folklore. This had to be done by setting minimum standards in patents, trademarks, copyrights and performances.
One could argue that stand-alone sections and chapters in the Copyright Act, Performers Protection Act, Trade Marks Act and Designs Act do provide for the necessary flexibility to accommodate the unique characteristics and requirements of indigenous knowledge without disrupting intellectual property relating to non-indigenous knowledge and intellectual property. However, it should be noted that it offered a less comprehensive and cohesive approach to indigenous knowledge.
Should any commercial benefit be derived from this Act when it comes into effect, it will force individuals and companies that are currently protected by the Trade Marks, Copy Rights or Performers Protection Acts first to seek a beneficiating agreement with the indigenous community within 12 months in order to derive commercial benefit. Acknowledgement of this idea should be given to the community.
Should an indigenous community register a design or trademark within 36 months after the commencement of this Act, it will force companies and individuals to pay royalties backdated to the commencement of the Act. This clause, clause 53(c), subsection 9, does not allow parties to walk away should they wish not to further their business. This will create uncertainty regarding future investment in commercial investments that could have assisted indigenous knowledge. The DA will not support this Bill in its current form.
Chairperson, hon members, we are all aware that our country has many riches. These riches include our biodiversity, our natural resources and our remarkable inheritance of indigenous knowledge. This knowledge has been passed down to people over years and centuries, and provides us with a glimpse into our history and into the way our people lived and worked, how they struggled and battled, how they overcame obstacles, how they danced, sang, celebrated and mourned. It is our richest inheritance. Our people own this knowledge, as did their forefathers and -mothers. It is precious and must be protected.
This Bill before the House confers the right of ownership on our indigenous communities to benefit from this inheritance. In this regard, the Bill is overdue and very necessary.
During the course of our debate in committee on the details of the Bill, the ANC tried never to lose sight of this objective and what we are aiming to do - to confer this protection on South African indigenous communities in an ever-changing world, where the holders of indigenous knowledge have been disinherited of their birthright. Part of the reason for this disinheritance is, ironically, the fact that many people and communities in the world recognise the value of our intrinsic assets.
A beautiful song, a lovely design and a unique and compelling story all represent the creativity of the minds of our ancestors, and all have value. These assets have been open to exploitation by others because those others recognise their value. Some have appropriated our assets and benefitted from them. This trend has to be arrested. These assets and their value must be acknowledged by our country and by the international community.
Think of the generations of Ndebele people who walked miles and miles to find white chalk in the Boskop area, among others, and the red sand in the rivers nearby to mix their paints and paint their houses. Think of the designs they created, each with a name, carefully painted with feathers they had plucked, each house adorned with a special design - designs that have survived to this day. This is what we need to protect!
So why do we choose to protect our indigenous knowledge in this manner, through an amendment to the current intellectual property law framework? Why do we do that? We do so because we recognise the value of our indigenous knowledge. We do so because we believe that the benefit associated with our national assets should accrue to the communities who conceived of them. We do so because we believe that our people's creativity should be no less protected and no less valued than the intellectual property which we have already protected in our law.
It must be said that we received the legislation in a form that our committee found to be unsatisfactory. We therefore took the decision as a committee to redraft the Bill, and I might add that at that stage this approach had the backing of all the political parties who were present. They seem to have changed their minds.
We redrafted the Bill so as to give it better structure and make it more coherent and less ambiguous regarding the protection of our indigenous knowledge. In the redrafting we took into account all the submissions made to the committee, including that by the National Economic Development and Labour Council, Nedlac, among others, and worked those comments into the new Bill. The hon Harris has made the assertion that there should have been further hearings, but that does not take this fact into account and would simply have been duplication.
The restructuring, then, was based on the premise that the four relevant principal Acts, which have been mentioned here - the Performers' Protection Act, the Copyright Act, the Trade Marks Act and the Design Act - should each include a separate section which granted intellectual property rights to indigenous knowledge. The structure of this piece of legislation, therefore, repeats the key sections and clauses in each of the four Acts mentioned to add what is now being termed a "new species of intellectual property" - indigenous knowledge. This is called a "hybrid approach".
We did this because we wished to demonstrate the high importance we place on the equality of indigenous lore in our law. I say this mindful of the fact that we are, in fact, breaking new ground. We are writing our future history. We are entering unchartered waters in intellectual property and in the protection of indigenous knowledge.
We have been informed by the World Intellectual Property Organisation, Wipo, as it is known, that they are watching our efforts. We know that there is an international debate on this very subject, as has been mentioned, but international agreement has not yet been reached. Agreement has not been reached precisely for the reasons that we grappled with and because different nations have different views on the issue.
In a sense, our legislation is therefore ground-breaking. It seeks to give voice to the traditional in a modern world. It seeks to elevate the creativity of the minds of our indigenous communities to a status equal to modern creativity. It is not an easy task, but it is what we seek for our indigenous assets. There has been similar protection enacted in South Africa before - in 2005. The Minister referred to the Patents Act, which was amended to recognise indigenous knowledge. This has been used in protecting indigenous genetic and biological resources. Despite what Mr Harris says, this petition does exist and does work. So, it is not new in that sense, but is groundbreaking in the sense that the four principal Acts that are being amended here did not previously include indigenous knowledge.
Our committee has stated unequivocally that this is merely the beginning of the process. It is the start that we need to make in order to protect the assets of our community. We are aware that more protection might be necessary in future. The world and the intellectual property environment are constantly changing and developing as progress is made. While we have made a start, we know that we will have to do more in the future.
The challengers of this Bill should remember these things and in making their decision should bear in mind what we are trying to do and who will benefit from the passage of this Bill. The beneficiaries will be the very communities and individuals whose creativity forms the basis of our multilayered culture.
I submit that the challenge about constitutionality is spurious. On this issue, and others raised by committee members, the committee sought and received legal opinion. On the strength of those opinions we satisfied ourselves that the Bill is in compliance with the Constitution and has also been certified by the Office of the State Law Adviser, who was present throughout the deliberations. In fact, the Bill furthers the aims of the Constitution in protecting the rights of our citizens and their cultures and heritages.
The ANC is convinced that this is an important first step in our law to protect indigenous knowledge. All of us on the committee have learnt a lot about intellectual property and the complexity of the issues pertaining to intellectual property.
We greatly value the high-level contributions made by all those who participated in the public hearings and by the expert panel who advised our committee. We have also been ably supported by a team of legal advisors, including the Parliamentary Legal Adviser, Advocate Charmaine van der Merwe - no relation - who, with her sharp mind and dedication to her task, played a pivotal role in the process.
In the end, we as Members of Parliament and representatives of our people have to weigh up what we have learned and apply this in the best interest of our communities. I think we have done this, while acknowledging that more will come as the international community deliberates on these issues and as we as South Africans develop and refine our intellectual property legislative framework. Our best intentions, as the hon Oriani-Ambrosini said, are indeed reflected in this Bill and they will, after its passage, be effected to the benefit of those who have been disinherited of their rights up until now.
The ANC supports this Bill and all that it represents for our people.
Chairperson, it has been a strange debate. Everybody says they support the objectives of the Bill, but most of the opposition are going to vote against it. If we unpack it, they seem to have two objections: The one is that they say we should have gone the sui generis route instead of the intellectual property route, and the second one is that they say we haven't waited for the World Intellectual Property Organisation, Wipo, to generate a model Bill and a new treaty.
I want to address both of those. I want to say, first of all, that I deny absolutely that our choice to go the intellectual property route is a matter of dogma, or that we haven't listened to the evidence or haven't engaged in a rather long process. We have, and we have seen no convincing alternative emerging in that process to the route we have chosen.
What our choice means is that the established intellectual property law system will be required to respect and engage with issues of indigenous knowledge in generating their own copyrights, patents and whatever else they generate in the established intellectual property system. This is as opposed to having a set of rights in some sui generis legislation that would be out of kilter and probably in conflict with what is going on in the intellectual property system and that would require a conflict of laws, decisions by judges and whatever. I don't know whether that would be a route for any less litigation than people are saying this Bill will be.
Given the state of the debate internationally about intellectual property issues, it is anybody's guess when Wipo will reach consensus on this matter. I did say that if something better comes along, if Wipo does generate something, we will look seriously at this and be prepared to reconsider. At the moment, I think that this piece of legislation is urgently needed.
I just want to caution against people citing what they call the "intellectual property community" or "intellectual property experts". I said earlier that many of the people involved in intellectual property are not used to community and collective rights. We make no apology for requiring them to get used to that.
There has been a lot of huffing and puffing around this Bill. There has been an attempt to turn discussions about calls and choices and taking steps towards improving the lives of our people into huge gladiatorial contests. There has been theatre in this Parliament, but I want to say that it reminds me of what happened when we passed the Companies Amendment Bill. There was all this drama about what impact it would have, but what happened? On the World Bank's Ease of Doing Business Index, we went up by 30 places, from 74 to 44, in terms of starting a business, and that was attributed to the Companies Act. [Applause.] I have no doubt that this will be a step forward as well. [Applause.]
Debate concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided.
Order, hon members! Can we all be seated? Hon members, I have to go through the routine, whether you have heard it before or not. I would like to remind members that they may only vote from their allocated seats. When requested to do so, members must simply indicate their vote by pressing the appropriate button. If a member inadvertently presses the wrong button, the member may thereafter press the correct button. The last button pressed will be recorded as the member's vote, when the voting session is closed by the Chair.
Hon members, the question before the House is: that the Bill be read a second time. The voting will now commence. Those in favour of the Bill being read a second time should press the "yes" button. Those against should press the "no" button. Those wishing to abstain should press the "abstain" button. I am sorry that I may have to ask - have all the members voted? Then I have to say thank you.
Order, hon members! We are struggling with the number of the votes. It looks as if we did not make the required quorum of 201. So, we may have to defer the Bill. Order! I am informed that members were saying that their "things" were not working. These instruments that we use are not called "things." They are called "tools of the trade". The "tools of trade" were not working. So, we will have to rerun the whole process and then lock the doors.
Chairperson, can we also correct the record, because we were saying there was no quorum. That is not the position. We have a quorum.
We do not know that yet, Chief Whip of the Majority Party. Let me commence. Again, I remind members that they may only vote from their allocated seats. When requested to do so, members must simply indicate their vote by pressing the appropriate button. If a member inadvertently presses the wrong button, the member may thereafter press the correct button. The last button pressed will be recorded as the member's vote, when the voting session is closed by the Chair.
Hon members, the question before the House is: that the Bill be read a second time. Are members in their allocated seats? I hope the "things" are working. [Laughter.] Voting will now commence. Those in favour of the Bill being read a second time should press the "yes" button. Those against should press the "no" button. Those wishing to abstain should press the "abstain" button. Have all the members voted? The names of those who have not will be taken. Voting will be closed.
Chairperson, just a question: Should Whips of other parties move to the Table?
If you want to, yes, you can. Mr Mpontshane, come and satisfy yourself. Order, hon members! Hon member, take your seat. Hon members, 201 members have voted.
AYES - 156: Abram, S; Adams, P E; Bapela, K O; Bhengu, P; Bikani, F C; Boshigo, D F; Botha, Y R; Burgess, C V; Cele, M A; Chikunga, L S; Chiloane, T D; Chohan, F I; Cronin, J P; Dambuza, B N; Daniels, P N; Davies, R H; Diale, L N; Dikgacwi, M M; Dlakude, D E; Dubazana, Z S; Dube, M C; Duma, N M; Dunjwa, M L; Fihla, N B; Frolick, C; Fubbs, J L; Gasebonwe, T M A; Gaum, A H; Gcwabaza, N E; Gelderblom, J P; Gina, N; Gololo, C L; Hajaig, F; Hanekom, D A; Holomisa, S P; Huang, S - B; Jeffery, J H; Kenye, T E; Khoarai, L P; Khumalo, F E; Kubayi, M T; Landers, L T; Lekgetho, G; Lishivha, T E; Luyenge, Z; Mabasa, X; Mabedla, N R; Mabuza, M C; Madlala, N M; Madlopha, C Q; Mafolo, M V; Magagula, V V; Magama, H T; Magau, K R; Magwanishe, G; Makasi, X C; Makhubela-Mashele, L S; Makhubele, Z S; Malgas, H H; Maluleke, J M; Manana, M C; Manganye, J; Mangena, M S; Maserumule, F T; Mashigo, R M; Mashishi, A C; Masilo, J M; Mathibela, N F; Matladi, M N; Matshoba, J M; Maunye, M M; Mavunda, D W; Mbili, M E; Mdaka, M N; Mdakane, M R; Mgabadeli, H C; Mjobo, L N; Mkhulusi, N N P; Mlangeni, A; Mmusi, S G; Mnisi, N A; Mocumi, P A; Mohale, M C; Mokoena, A D; Molebatsi, M A; Moss, L N; Motimele, M S; Motsepe, R M; Motshekga, M S; Mthethwa, E M; Mtshali, E; Mufamadi, T A; Mushwana, F F; Nchabeleng, M E; Ndabandaba, L B G; Ndlazi, A Z; Nelson, W J; Nene, N M; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngcobo, B T; Ngcobo, E N N; Ngele, N J; Ngwenya-Mabila, P C; Nhlengethwa, D G; Njikelana, S J; November, N T; Ntapane, S Z; Ntuli, Z C; Nxumalo, M D; Nyalungu, R E; Nyanda, M F; Nyekemba, E; Oliphant, M N; Petersen-Maduna, P; Phaliso, M N; Pilusa-Mosoane, M E; Radebe, B A; Radebe, G S; Ramodibe, D M; Saal, G; Schneemann, G D; Segale-Diswai, M J; Selau, G J; Sibanyoni, J B; Sibhidla, N N; Sisulu, L N; Sithole, S C N; Skosana, J J; Smith, V G; Snell, G T; Sogoni, E M; Sonto, M R; Sosibo, J E; Suka, L; Sulliman, E M; Thibedi, J D; Thobejane, S G; Thomson, B; Tinto, B; Tlake, M F; Tobias, T V; Tseke, G K; Tsenoli, S L; Tshwete, P; Tsotetsi, D R; Turok, B; Twala, N M; Van der Merwe, S C; van Rooyen, D D; van Wyk, A; Williams, A J; Williams- De Bruyn, S T; Xaba, P P; Zulu, B Z.
NOES -37: Cebekhulu, R N; Coetzee, T W; Dreyer, A M; Duncan, P C; Farrow, S B; Harris, T D; Hill-Lewis, G G; James, W G; Kalyan, S V; Kloppers-Lourens, J C; Kopane, S P; Lotriet, A; Marais, E J; Masango, S J; Morgan, G R; Motau, S C; Mpontshane, A M; Msweli, H S; Oriani-Ambrosini, M G; Rabie, P J; Robinson, D; Ross, D C; Schfer, D A; Selfe, J; Shinn, M R; Smalle, J F; Steenhuisen, J H; Stubbe, D J; Swart, S N; Swathe, M M; Terblanche, J F; Van den Berg, N J; Van der Westhuizen, A P; Van Schalkwyk, H C; Waters, M; Wenger, M; Zikalala, C N Z.
ABSTAIN - 8: Diemu, B C; Botha, T; Kganare, D A; Koornhof, N J J v R; Mashiane, L M; Mc Intosh, G B D; Njobe, M A A; Ramatlakane, L.
Question agreed to. [Applause.]
Bill accordingly read a second time.
Chairperson, I would like to rise on a point of order relating to the order that we have just dealt with. When Dr Oriani-Ambrosini raised a point of order and indicated that he had three points of order, the previous Chair ruled or forced him to sit down before he had raised his third point of order. Now, in terms of Rule 17, when a point of order is raised, the member called to order shall resume his or her seat. After the point of order has been raised with the Presiding Officer by the member, the Presiding Officer shall give his or her ruling or decision thereon. In this case, it did not happen. Can we get a ruling on this, Mr Chair?
Hon member, the ruling is that you should have raised this point of order then, not now. [Applause.]