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.]