The Intellectual Property Laws Amendment Bill otherwise known as the traditional knowledge bill approved by the South African National Assembly in October 2011 is “unworkable”.
This was the view expressed by Owen Dean, holder of the Anton Mostert Chair of Intellectual Property at Stellenbosch University and a leading expert in the field in South Africa.
“By seeking to protect traditional knowledge as species of copyright, designs, etc. and to apply the existing laws in these areas to it, the bill has created rights that are simply incapable of being enforced. It can be predicted with a measure of certainty that no claim based on a traditional knowledge right will ever succeed in the South African courts,” Dean said in a press release.
He said the sponsors of the bill, Department of Trade and Industry (DTI), was repeatedly warned by the Intellectual Property (IP) profession and industries, academics, the judiciary and the World Intellectual Property Organisation that it was on the wrong track.
“Even a Regulatory Impact Assessment commissioned by the President in 2009 opined that the legislation was ill advised and that, apart from any other considerations, the cost of implementing it would outweigh any possible benefits that might flow from it,” he said.
Dean said that an enormous edifice of bureaucracy, councils, funds, trusts, databases and registration systems were to be created at inordinate expense – and all to no avail since the system was not capable of being operated.
“The main losers will be the taxpayer and disillusioned traditionalists who have been led to believe that a pot of gold awaits at the end of the IP rainbow,” he added.
According to Dean, South Africa has been made to look ridiculous in the international IP community, and the country’s ability to encourage innovation and business activity would suffer the consequences.
He said that most informed IP lawyers would in future advise their clients to simply carry on as before, in the belief that in practical terms the purported rights in traditional knowledge that have been created would not be capable of being enforced.
He warned that the Bill might face a constitutional challenge.
( Picture: Stefan Els)