INDIGENOUS KNOWLEDGE SYSTEMS

AMENDMENTS TO THE COPYRIGHT ACT – UPDATE

2008 was a controversial year in copyright law circles owing to the introduction of proposed amendments to intellectual property laws, notably the Copyright Act. The amendments were intended to give legal recognition and protection to indigenous knowledge systems (IKS). The Department of Trade and Industry (DTI), the government department responsible for this legislation, drafted amendments to the Copyright Act that sought to include a ‘traditional work’ as a ‘work’ alongside other protected works in the Act such as literary works, musical works and artistic works – and to identify the indigenous community as the author of that particular work.

A public hearing was held and stakeholders were given an opportunity to make submissions to the DTI on the proposed amendments. ANFASA, with other stakeholders, was opposed to them because they were impractical. The main issue pointed out in submissions by all stakeholders was that although the legal recognition and protection of IKS is important, this cannot be achieved through the Copyright Act, because the nature and ownership of traditional works are so different from literary, artistic and musical works that they should be protected by a unique, sui generis, piece of legislation. Other stakeholders argued that indigenous knowledge is part of the public domain and restricting use of it frustrates knowledge production because creators need a public domain to draw from when creating new works.

Despite these submissions, the DTI steamrolled ahead and had planned for the draft amendments to be presented before Parliament during the Mbeki presidency. Fortunately enough, stakeholders in copyright circles managed to derail this process by taking the draft Bill to the National Economic Development and Labour Council (NEDLAC), which provides a forum where legislation with socio-economic effects can be discussed by government, business and labour before it goes to Parliament. The main aim was to streamline differences and achieve some form of consensus with regard to the draft legislation. During this process, technical amendments were made to the draft Bill, to assist in tidying up its impractical aspects; this involved defining some of the key words.

But at this point, ANFASA pulled out of the NEDLAC process because our concerns were less about “business” than about how the proposed legislation would affect authorship and especially authors creating new works drawing on traditional forms. Thus, we chose not to get involved in the re-drafting of the legislation, which would still not resolve its inherent flaws.

Another interruption, after the NEDLAC process, was the Regulatory Impact Assessment (RIA). This is a policing mechanism, commissioned by the office of the Presidency to ensure that proposed legislation is not detrimental from a cost analysis point. When ANFASA met the company responsible for carrying out this assessment we emphasised our support for the underlying principles of the legislation and our concern that its inherent flaws will certainly cause more harm than good. We argued for sui generis legislation.

After the assessment was completed a report was handed over to the office of the Presidency. Its contents have not been made available to the public.

The latest development is that the draft legislation has been presented to the Parliamentary Portfolio Committee for Trade and Industry (PPC). ANFASA, supported by indigenous language authors’ associations, made its submission to Parliament: “we support the legal recognition and protection of IKS but this must be achieved in terms of sui generis legislation”. On 19 May, the DTI made its presentation to the PPC. It was striking that the Bill was still in its original form – none of the changes from the NEDLAC process were incorporated, despite all the parties to the process having signed the document. During its presentation, the DTI emphasised the underlying importance of giving legal recognition and protection to IKS but avoided discussing the practicability of the substantive provisions in its draft legislation.

The PPC posed questions to the DTI like: Who makes up the indigenous community? How will they be identified? How are the examples of Tunisia and Samoa relevant to South Africa and how does New Zealand ensure that all the scattered members of the Maori community benefit from IKS? And how does the DTI plan to ensure that all the relevant South African indigenous communities will benefit? There was a feeling from the PPC members that the Bill could assist in protecting South African artists (e.g Lady Blacksmith Mambazo) from exploitation by international corporations. But there was also a concern that the Bill should not lead to “inter-tribal” conflicts.

In the DTI’s evasive responses there was a lot of emphasis on patents and trademarks, based on an assumption that what relates to patents and trademarks would also apply to copyright.The chairman of the PPC, indicated that there were numerous technical issues they had to get to grips with before they could properly consider the Bill. Therefore, there will be workshops to assist them to understand intellectual property before the stakeholders make oral submissions later on this month.

Let’s hope this process will provide Parliament with a better understanding of the flawed drafting process. We look forward to the next stage.

VIEW THE ANFASA SUBMISSION HERE