South Africa: Copyright – The Unregisterable, The Forgotten And The Mighty

Last Updated: 3 May 2018
Article by Izaan Kuschke

What does the Agricultural Research Council ('ARC'), a cattle breeder and a stud bull have in common? Copyright of course.

In December 2017, a saga spanning more than 5 years finally came to an end when all disputes between the ARC and The South African and Animal Improvement Association ('Stud Book') were settled. The dispute originates from a joint venture that was cancelled by the ARC, leading to Stud Book's unlawful copying in 2011 of the Integrated Registration and Genetic Information System ('INTERGIS'), and Best Linear Unbiased Prediction ('BLUP') systems, developed by and under the control of the ARC. Stud Book thereafter operated the copy of INTERGIS and BLUP for the exclusive benefit of Stud Book members to the exclusion of the rest of the livestock industry. The INTERGIS is the (now recognised) National Databank of South Africa for animal recording and improvement and the copied BLUP system was independently developed by the ARC.

Following an Anton Piller type raid on the offices of Stud Book in October 2014, Stud Book agreed to an interim interdict and the ARC issued summons against them in order to secure the statutory management, control and ownership of the INTERGIS database and the BLUP system to the benefit of the cattle breeders and wider South African public. The ARC as the custodian and owner of the copyright in INTERGIS and BLUP respectively, contended that Stud Book unlawfully copied these systems (and made unlawful adaptations thereof) and thereby infringed the State's and the ARC's copyright in the INTERGIS database and the BLUP system, and by setting up a privatised system built on the ARC's system, was unlawfully competing with the ARC. INTERGIS, being described as the National Database in the Animal Improvement Schemes (the Schemes) established by the Minister of Agriculture, Forestry and Fisheries (DAFF) under the Animal Improvement Act No. 62 of 1998 ('the AI Act'), is of particular importance and is considered as a worldwide leading facility and database.

The ARC also contended that Stud Book has, since December 2011, transgressed the provisions of the AI Act and the Schemes by operating its unlawful, duplicated system called LOGIX. Stud Book, although admitting that it has made a duplicate, alternatively a duplicate adaptation of the INTERGIS, and also admitting that it is in possession of pedigree and performance data that has not been submitted to INTERGIS as statutorily prescribed, refused to acknowledge that it is under a statutory obligation to submit all such data to the ARC as the appointed operator/manager of INTERGIS and the Schemes.

During the trial in October 2016 the Free State High Court was asked to determine whether in the absence of "a manner approved by the registrar" in terms of the AI Act, a breeders' society/breeder (as defined in the AI Act) is obliged to submit pedigree and performance data of its registered animals (as defined in the AI Act) to the INTERGIS (as defined in the AI Act) ('the stated question'). In the judgment handed down in November 2016, it was held that there is "no legal justification for Stud Book's refusal to submit all pedigree and performance data, received or captured by it on LOGIX, to INTERGIS." The stated question was therefore decided in favour of the ARC and Stud Book was ordered to pay the costs in relation to the trial on the separated issues. Stud Book proceeded to appeal the judgment before the Supreme Court of Appeal ('SCA'), which was heard during November 2017.

In December 2017, before judgment could be handed down by the SCA on the stated question, the parties reached full and final settlement. In essence, it was agreed and conceded that the copying and use of INTERGIS and BLUP was unlawful and that breeders' and breeders' societies are obliged to submit pedigree and performance data to the INTERGIS. More specifically, it was conceded that:

  • the ARC is "the organisation" contracted by the Department of Agriculture (now the Department of Agriculture, Forestry and Fisheries) to, solely, operate INTERGIS;
  • Stud Book had to date failed and/or refused to record on INTERGIS the information of animals, falling under the auspices of the AI Act, pertaining to their pedigrees and performance data, but instead recorded it exclusively on LOGIX;
  • the operation of Stud Book's LOGIX registration and genetic information system, to the exclusion of INTERGIS and thereby jeopardising the continued existence of an updated National databank, contravened the objects of the AI Act; and
  • Stud Book shall submit available pedigree and performance data of the registered animals (as defined in the AI Act) of breeders and/or Breeders' Societies making use of Stud Book as their Registering Authority, to INTERGIS.

Underpinning the conclusion of this saga is a healthy dose of respect for copyright, the unregisterable, oft forgotten yet mighty intellectual property right. The ARC was vindicated in the settlement and its invaluable contribution to livestock improvement over many decades in South Africa was finally given the recognition it deserves.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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