The Digital Portfolio Committee of the Cape Chamber of Commerce and Industry has called on software companies to submit comment on the recently released intellectual property policy.
In a statement released by the committee today, chairperson Roderick Lim Banda expressed his concern regarding the registration and legislative protection of patents and intellectual property rights for developing nations.
He notes that many of the patents registered involving software, technology, communications and digital media are not inventions that warrant such global protection and are often generic in use to such an extent that it does more to impede critical socio-economic development.
The Digital Portfolio Committee is an advocate for improving ICT policies in the interest of businesses, consumers and citizens, and reviews digital policy development on behalf of the Cape Chamber's 3 000 business members.
The draft intellectual property policy was recently released by the Department of Trade and Industry (DTI). According to the committee, there are many issues to consider, especially recommendations when it comes to IP and software.
"The chamber is requesting business and in particular companies in the software industry to review the draft policy and the recommendations, and provide us with any comments so that we can provide a submission to the DTI by 17 October," says the statement.
Recommendations:
1. To enhance access to copyrighted materials and achieve developmental goals for education and knowledge transfer, SA must adopt pro-competitive measures under copyright legislation. The legislation must provide the maintenance and adoption of broad exemptions for educational, research and library uses.
2. SA should per se not join international copyright treaties that may compromise its stance on social and economic developmental goals.
3. SA must adopt a policy and amend copyright legislation in relation to the procurement of computer software programs, with a view to ensuring that options for using low-cost and/or free and open source software products are considered and their costs are properly evaluated and supported.
4. SA should allow software to be adapted to local needs through copyright legislation that allows reverse engineering of computer software programs consistent with its international treaty obligations.
5. South African Internet users must be entitled to fair use rights, such as making and distributing copies from electronic sources in reasonable numbers for educational and research purposes and using reasonable excerpts in commentary and criticism.
6. SA should consider carefully before acceding to the WIPO Copyright Treaty and should not follow the path of the US Digital Copyright Management Act (DCMA) and EU (database directive) as these instruments are restrictive and, therefore, bad models for copyright legislation of a developing country like South Africa. The DCMA and EU Directive restrict the number of downloads, whether for commercial or personal/research use.
The members of the portfolio committee reviewing the draft policy believe it is important the local software industry and businesses make their voices heard, says the statement.
Stumbling blocks
Paul Esselaar, vice-chair of the Cape Chamber's Digital Portfolio Committee and an attorney specialising in ICT, says the committee welcomes the concept of harmonising of the intellectual property legislation and treaties. "The committee is particularly interested in how the software industry could be stimulated and encouraged. In this regard, we note that there has been no mention of one of the major stumbling blocks to the software industry ? the ability to export intellectual property overseas."
Esselaar points out that currently the requirement to obtain Reserve Bank approval ? which approval can only be requested by means of a local bank ? significantly hinders the software industry in SA. "South Africa must be seen as a safe place to outsource software development without the possibility of foreign investors suddenly finding themselves unable to move their intellectual property to a safe location," he says. "In a globally competitive world it is not hard to find other countries where these restrictions do not exist. Until such time as we address major roadblocks like this, the software industry will continue to struggle to be seen as globally competitive despite the quality and capability of its professionals and companies."
The portfolio committee believes the issue of intellectual property and patents needs to balance commercial and developmental needs. "The recent success of the customs modernisation programme by the South African Revenue Service was the result of government acknowledging, acquiring and investing in the intellectual property of a local software company situated in Somerset West that also developed the customs management system used by Luxembourg. It shows that the South African software industry can both innovate and undertake large-scale complex systems programs," says the statement.
The committee further notes that sound intellectual property policies must form part of a broader policy to develop human capital and in particular the building of local capacity and skills. In a digital world where software is an important commodity, software development capacity and innovation needs to be developed through management of processes and people and the intellectual capital they produce.
Andreas Kaim, a member of the committee's advocacy working group, points out that the national policy on intellectual property could have a significant impact on corporates. He says corporates need to ensure their policies for acquiring software and services not only protect their intellectual property but are in line with practices that can reduce costs and develop local capacity. "Costs, IP and skills are indicators in a knowledge economy. These issues can no longer be dealt with in isolation. It is important that we do not simply accept international norms that have been shown to be flawed," says Kaim.
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