Report of the
Portfolio Committee on Trade and
Industry on the Intellectual Property Laws Amendment Bill [B 8 – 2010]
(National Assembly – sec 75), dated 19 October 2011:
The Portfolio Committee
on Trade and Industry, having considered the subject of the Intellectual Property Laws Amendment Bill [B 8 – 2010] (National Assembly – sec
75), referred to it and classified by the Joint Tagging Mechanism (JTM) as a
section 75 Bill, presents a redraft of the Bill [B 8B – 2010].
A.
Process
followed by the Committee on the Intellectual Property Laws Amendment Bill
1.
The Bill was submitted in terms of
Joint Rule 159 on 28 January 2010.
2.
The Bill was then introduced and
referred to the Committee on 21 April 2010.
3.
The Committee’s initial engagement was
on the Indigenous Knowledge Protection Policy using the Intellectual Property
System on 17 February 2010.
4.
Subsequently, it had an initial
briefing on the Intellectual Property Laws Amendment Bill from the Department
of Trade and Industry (DTI) on 19 May 2010.
5.
Due to the complexity of the Bill,
the Committee engaged Prof Coenraad Visser, an expert on indigenous knowledge and intellectual
property, for a workshop on 2 June 2010. The workshop covered the (i)
international experience regarding protection of traditional or indigenous
knowledge systems; (ii) South African experience; (iii) issues being raised
about the proposed Bill and the validity of these concerns; and (iv) way forward for the public hearings.
6.
Then the Committee embarked on an
international study tour to
7.
The Committee consulted several
organisations regarding their views of the Bill including the National Economic
Development and Labour Council (NEDLAC) and the Department of Science and Technology
(27 July 2010), and the Commission for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic Communities (28 July 2010).
8.
On 5 August 2010, the Committee held
a public meeting in
9.
A working group on intellectual
property was convened, which included four members of the Committee, support
staff and experts from the DTI and the State Law Adviser. The working group
began meeting in September 2010.
10.
The ICTSD Workshop was held on 7 to 8
September 2010, covering (i) Introduction and
background: Concepts and global debate; (ii) Lessons learnt from WIPO-related
debates; (iii) Protection of traditional
knowledge related to biodiversity and South’s Africa experience: Lessons,
Opportunities and Challenges; and (iv) the SA Intellectual Property Amendments
Bill: Salient issues, open discussion.
11.
Although the closing date for the
initial advertisements for public hearings was in May 2010, given the
complexity of the Bill, the Committee decided to first acquaint itself with the
Bill and the intellectual property field before embarking on the hearings. Thus
the hearings were held on 19 and 20 October, as well as 3 November 2010. The
DTI provided their response to public hearings on 10 November 2010.
12.
Due to the urgency of the companies legislation, the intellectual property process was
halted and deliberations were reconvened on 27 May 2011. The first meeting of
this second phase focused on the functioning of the current intellectual
property system, followed by deliberations from 1 to 15 June 2011, which
culminated in a decision to redraft the Intellectual Property Laws Amendment
Bill as introduced on 10 June 2011. The DTI also briefed the Committee on the
Bill on 14 June 2011 on issues raised prior to the redraft.
13.
The redrafted Amendment Bill was
submitted by the working group on 27 July 2011 and deliberations continued from
28 July to 14 September 2011.
14.
The Bill was formally considered and
adopted on 16 September 2011.
B. Minority views were expressed on the
following aspects contained in this report:
1.
JTM
Classification of Bill
The
Committee was of the opinion that the Bill was correctly classified as a
section 75 Bill. The IFP disagreed and was of the opinion that the Bill should
have been classified as a section 77 (money) Bill.
2. Non-referral to National House of Traditional Leaders
Included
in the decision on classification by the JTM was the view that the Bill did not
have to be referred to the National House of Traditional Leaders (NHTL). The Committee
agreed with this view. The DA, IFP and FF Plus disagreed, and were of the view
that the Bill should have been referred to the NHTL in terms of section 18(1)
of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of
2003).
3. Approval of Bill
3.1. After deliberation, the Committee
decided to present a redraft of the Bill to the House. The DA, IFP and FF Plus disagreed,
and were of the opinion that the Bill should be rejected and that the DTI should
submit a new sui generis Bill,
dealing solely with Indigenous Knowledge.
3.2. The FF Plus proposed an
amendment to the preamble that would open the door to a later overarching sui generis Bill,
which, although the Committee supports further development on protection of
Indigenous Knowledge, was rejected by the Committee because it is implicit in
the preamble. The DA and IFP supported the amendment of the FF Plus.
3.3. All clauses of the redrafted
Bill were agreed to by the Committee, although not one of them enjoyed the full
support of all parties represented in the Committee.
The
Committee recommends accordingly.
Report
to be considered.