Deputy Chairperson, the intention of the Intellectual Property Laws Amendment Bill is to protect indigenous and traditional works through an established system of intellectual property laws.
The Bill is fundamentally deficient, despite all the hard work that was done by the parliamentary law advisers, and it will not achieve its objectives. The flaws in the Bill have been commented on in Nedlac and the National Assembly, and we will not repeat these grounds again. We do know that the World Intellectual Property Organisation, Wipo, in a letter dated 15 September 2011, gave advice to the National Assembly's portfolio committee, at their request, and pointed out some substantial flaws in the Bill. We have a copy of the report to hand to the Chair.
In the rush to push this Bill through, these comments were not taken into account at all. The procedures followed in rushing the Bill through are likely to be found to be unconstitutional.
Firstly, this Bill should have been tagged as a section 76 Bill, as it deals with the functional area of indigenous law and customary law. Secondly, it is our view, as well as the view of senior members of the House of Traditional Leaders, that this Bill clearly pertains to customs of indigenous communities and should therefore be referred to the House of Traditional Leaders. Thirdly, far-reaching, onerous and substantially new provisions were added to the Bill right at the end of the National Assembly portfolio committee process, without any public consultation. I have a list of those new provisions, which I can hand to the Chair.
One of the most serious of those new provisions relates to those persons who have pre-existing rights to traditional works. In the version of the Bill that was subject to public comment, those pre-existing rights were unconditionally preserved. The new changes require those existing rights holders to register their rights and to conclude benefit-sharing agreements with the communities concerned. Any one of these issues could be the subject of a sound constitutional challenge to the Bill.
Finally, despite the hard efforts of the parliamentary legal team, the speed at which they had to work leaves the Bill littered with mistakes. We have a list of some of these mistakes, which can be made available to the Chair.
In consequence, the DA cannot support this Bill. It should be sent back to the National Assembly for the deficiencies raised to be reconsidered. Thank you.