South Africa: The Draft IP Policy: Not Staying Out Of Harms’ Way

Last Updated: 21 November 2013
Article by Chris Bull

Most Read Contributor in South Africa, September 2016

We have discussed the recent Draft National Policy on Intellectual Property, 2013 ('the Policy') in a separate article. Shortly after its release, one of South Africa's foremost IP experts, Louis Harms, produced a written comment on the Policy. Harms, a former Deputy Judge President of the Supreme Court of Appeal, is now a professor of IP law at the University of Pretoria.

Harms suggests that the Policy recognises the fact that different government departments have different views on IP. The impression created by the Policy, he says, is that the Department of Science & Technology is pro-IP, the departments of Health and Education anti, and the DTI ambivalent. This, he says, is no surprise, because IP rights are so very different, and they serve very different interests.  Which is obviously  true  - the interests of  the inventors and scientists who find patents attractive may be very different from the interests of the musicians and writers whose livelihoods depend on copyright, and different again from those   entrepreneurs who believe that it is their brands (trade marks) that power their businesses.  Harms makes the point that he's not one of those who believes that IP rights need to be extended. On the contrary, he feels that copyright 'requires a proper hair trim'.

Harms makes the point that , although our IP laws are based on local statutes, these are largely based on international conventions.  At the heart of these international conventions is the concept of national treatment, and what this means is that no country can discriminate against foreigners.   Developing countries - who are invariably net importers of IP - do however seek to limit IP rights in order to stem the flow of royalties out of their countries. What these countries must realise, says Harms, is that the concept of national treatment requires them to similarly limit the rights of their own people. To use a simple example,  if a state wants to amend its copyright law to allow for the photocopying of foreigner's  works, that law must similarly allow for the copying of works created by locals.  This may, of course, stifle local creativity!

Although Harms accepts the general idea that IP policy must serve the interests of the country, he  takes issue with the statement that it must be done from the standpoint that South Africa is a developing country 'with the bare minimum of a technological, economic or social base.' A statement like this is hardly going to achieve one of the objects of the Policy, which is to 'engender confidence and attract investment'.  Harms is also sceptical of claims that South Africa must follow the lead of 'similar economies such as Brazil, India and Egypt.'  One what basis were these countries selected, asks Harms, two are BRICS countries but one is not, and two other BRICS have been left out? And why not align with sub-Saharan countries, or countries that have a British law background like we do?

Harms talks briefly about the suggestion that we move to a patent examination system, saying that he has nothing against this in principle, but that he queries whether we have the capacity to do it. He does, however, question whether patent examination might harm local companies, in that a time-consuming process may deter them from patenting. He's perplexed by the suggestion that search and examination might co-exist with the current deposit system. 'Does it mean that some patent applications will be examined and others not? Is there a hidden agenda somewhere?'

For the most part, Harms is critical of the Policy. He feels that it's short on substance, and full of nice-sounding but unexplained remarks, for example the one that  South Africa must ensure that pharmaceutical patents do not impede health care, and the one that copyright does not limit access to knowledge.  He says that no priorities are listed, there are no time frames, there are no cost estimates, and there's no data (empirical or even anecdotal) to support many of the claims.  He makes this comment, which will no doubt be quoted widely: 'One cannot escape the conclusion that as policy it promises candy-floss: it is very sweet but it becomes sticky if you touch it and it disintegrates on eating, leaving no aftertaste.'

Harms complains that the Policy fails to address the real issues. For example, statistics show that patent activity in South Africa is stagnant, whereas in countries like Australia, China and South Korea it's very much on the up.  And even worthy South African initiatives, like the patenting in 1995 by the CSIR of the ingredient in hoodia that suppresses appetite, P57, benefit no-one – the product's apparently still not close to commercialisation despite the fact that the patent expires in two years, and the only suggestion the Policy has is that the MCC should get its act together.

Harms is critical of the fact that there was no public consultation before the document was drafted,  no intra-departmental consultation, and no request for outside expert advice.  He's also surprised that no account was taken of recent international moves to create fair use copyright exceptions for the visually impaired (the Marrakesh Treaty). Harms can't resist a dig:  'The only conclusion is that government intends to keep its eyes closed.'

Harms is critical of the drafting of the Policy: 'Considering that this document is for international and not only local consumption, it is unfortunate that while much in the policy has merit the document was not drafted with care.'  But his most damaging criticism is this: 'Embarrassingly, the policy document shows some lack of appreciation of South African IP law.' Harms has examples aplenty.

On the patent front, he points out many errors:  the Policy mistakenly believes that there is a 'newness' requirement in addition to a 'novelty' requirement;  it  suggests that patent law should in future exclude  'diagnostic, therapeutic and surgical methods from patentability' when it already does; it suggests that we should not allow for patenting of animals or plants when we don't;  and it says that 'patent enforcement is dealt with under health and SAP legislation' , when in fact  'neither "health" nor the police have anything to do with patent enforcement.' It also fails to appreciate that generic medicines can be illegal when they are sold under counterfeit trade marks.

It's not limited to patents.  Harms takes issue with the statement that fashion designers should be allowed to make use of the design registration system when they can. He says that the Policy refers to a 'Trade Mark Tribunal', a body that doesn't exist. He points out that the authors of the Policy don't seem to appreciate the difference between two of the major IP conventions that South Africa is subject to, the Berne and Paris Conventions:  'What can one say: an official document on IP that does not recognise the difference between the Berne and Paris Conventions.'  

Harms ends in a more conciliatory tone: 'No one can argue with most of the "broader objectives"... all are in favour of the empowerment of our people, the development of the economy, synergy between IP and government policies...the devil is sometimes in the detail and sometimes in the lack of precision.' But he remains irked that we haven't looked elsewhere for guidance:  'Other countries have grappled with the issues and there is much to be learnt from them. But then, a peek at the rest of Africa, Singapore, Hong Kong and Australia is discouraged. How sad.'

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