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.