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.]