The Intellectual Property Laws Amendment Bill seeks to amend the Performer's Protection, Copyright, Trade Marks and Designs Acts by including provisions which aim to recognise and protect traditional knowledge. Traditional knowledge includes traditional performances having an indigenous origin and a traditional character, copyright works of a traditional character, terms and expressions of indigenous origin and traditional designs of indigenous origin. After much criticism and debate, the Bill was drafted and approved by the Department of Trade and Industry's Portfolio Committee and, last Thursday, was approved in the National Assembly. Eminent intellectual property practitioners and academics alike have indicated that, while the idea behind the legislation is laudable, the imprecise nature of the provisions is likely to cause severe problems, for instance, the concept of "indigenous community". This concept means any community of people living within the borders of South Africa or which historically lived within the geographic area located within the borders of South Africa. Taking the amended Performers' Protection Act as an example, it is stated that a traditional performance is one recognised as such by an indigenous community. This means that the mere claim of the status of a work, e.g. a song, is enough to create the basis for ownership and, as a result, a claim for royalties. How can a party then challenge this "recognition"? One can consider where a performer must now start paying royalties for a performance that has been going for a number of years. The Act indicates that it does not amount to infringement, but royalties must still be paid. This is unheard of in intellectual property law, where the payment of royalties only follows after a finding of infringement has been made.
The issue of a unilateral "recognition" of a particular word as having an indigenous character is also found, apart from a copyrighted work, in the provisions relating to trade marks and designs. Again there is no appeal against a particular group's claim that a particular trade mark or design has an indigenous character. Furthermore, who decides on the delineation of a specific group as people constituting an indigenous community? The use of the concept "indigenous community" therefore creates great uncertainty. This problem is exacerbated by the fact that the Act creates retrospective subsistence of copyright, up to 50 years before the Act came into operation. Accordingly, the use of something that was not copyrighted at the stage that use was commenced can now amount to infringement, and, if not infringement, then creating a duty to pay royalties. Another strange provision is that copyright comes into existence when words are spoken or, as the Act states, communicated to the public. But it is a tried and tested principle of copyright law that there is no copyright in ideas, only in the physical expression thereof. Here one can imagine disputes about who first told a particular story? There is, after all, no physical proof required.
A final example of the far-reaching effect the Act will have is in relation to designs. In normal design law, one has a grace period of six months within which to file a design application, if it was put on the market before an application was lodged. The Act provides for a period of ten years. This means that by the stage that an application is filed, competing designs could long have overtaken the particular design, yet the earlier "owner" can still prevent, after ten years, the use of the design.
In summary, it may be that so-called first world businesses will be influenced and restricted by the Act. However, there is a clear possibility that the Act could harm the very people it was designed to protect.
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