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.