Cultural IP now protected by law

Jon Tullett
By Jon Tullett, Editor: News analysis
Johannesburg, 11 Feb 2014
The amendments to intellectual property laws will be "totally unworkable", says Dr Owen Dean, chairman of intellectual property law at the University of Stellenbosch.
The amendments to intellectual property laws will be "totally unworkable", says Dr Owen Dean, chairman of intellectual property law at the University of Stellenbosch.

President Jacob Zuma has signed into law the controversial Intellectual Property Laws Amendment Act (IPLAA) 2013.

The Act, created by the Department of Trade and Industry (DTI), is intended to update several areas of intellectual property law to provide protection for historic cultural knowledge such as folklore. Legal areas updated by the Act include performance art, copyrights, trademarks, and designs.

Although there is widespread agreement that indigenous knowledge deserves IP protection, the Act has been heavily criticised as cumbersome, unenforceable, and costly.

Internationally, broad consensus exists that indigenous knowledge in many forms deserves protection.

The World Intellectual Property Organisation (WIPO) has a committee working to establish common ground and to provide a framework within which governments can enact compatible legislation.

In SA, the IPLAA attempts to tackle this by amending existing IP laws to extend the coverage of existing intellectual property laws, trying to resolve inherent contradictions and provide a framework which works across the customary forms of IP, as well as cultural heritage. Critics argue the differences are so profound that the attempt at rationalisation will be rendered contradictory and unworkable.

Dr Owen Dean, chairman of intellectual property law at the University of Stellenbosch, says many of the problems with the IPLAA stem from the fact that traditional knowledge simply doesn't comply with the requirements for intellectual property protection. "All IP is based on a policy which says you want to encourage creativity, so you give creators an incentive: exclusive control for a limited period, before the work becomes public domain. Indigenous knowledge is reversed: nothing is identifiably creative, and rights are awarded perpetually."

Under the new Act, the South African government will establish registries where cultural communities can register creative works. A commission will handle registration and licensing, and collect fees on behalf of the communities. "There is nothing in the law that requires the government to actually transfer the licence revenue to the rights holders," Dean points out. "The law turns indigenous knowledge into a national resource, with the government managing the rights."

Conflict ahead

This stands in contrast to international efforts. WIPO has published templates for custom "sui generis" legislation, which treats indigenous knowledge as distinct forms of IP. South African businesses may find themselves clashing with countries adopting the WIPO approach, Dean warns, and creative industries may find the new law particularly challenging to negotiate.

Indigenous IP conflicts

One of the best known examples of indigenous IP conflict in SA is that of the Hoodia plant. The San people had used Hoodia extract as an appetite suppressant for generations, knowledge which was unprotected.

The CSIR isolated the active ingredient (P57), patented it, and licensed it to drug companies for commercialisation. After a brief legal wrangle, the CSIR and the San agreed on a royalty scheme whereby the tribesmen would gain a small percentage of licence payments.

In New Zealand, the famous haka - the war dance which precedes an All Black rugby game - was the subject of a legal dispute, in which royalty-free ownership was established, then revoked.

"This could make life difficult for the music industry," Dean says. "If you want to play Tula Baba, from Ipi Ntombi, on the radio, you may have to negotiate with not only the commercial rights holder, but the traditional rights holder as well. It'd just be easier to find a less encumbered piece of American or European music, and the local industry loses out as a result."

The use of traditional art may too require additional legal legwork, and the only real beneficiaries will be lawyers, Dean says: "It's like Father Christmas arrived early."

In practice, the market as a whole may simply ignore many of the requirements, rendering them ineffective. Companies will find it too complex to check for rights, and cultural groups may find it too difficult, and too expensive, to register IP at all. "This will be a dead letter," Dean concludes. "It's totally impractical, the market will ignore it, and we'll have an expensive agency employing people for no purpose."

Dr Willmott James, federal chairperson of the Democratic Alliance, says the Act is "fundamentally flawed".

"Due the misinterpretation of the inherently contradictory nature of the protection of indigenous knowledge versus the protection of conventional IP such as copyright and trademarks, the Bill will never achieve its objectives. Assuming, however, that these can somehow be overcome, the requirements for protection and licensing are too burdensome for traditional communities to benefit.

"Not only will traditional communities in all likelihood not benefit, but the existing IP regime will be plunged into uncertainty due to the forced and unnatural amendments that are being imposed upon age-old principles of IP law."

James submitted an alternative, the Protection of Traditional Knowledge Bill, as a Private Member's Bill, offering an alternative, WIPO-aligned legislative approach, but ultimately failed to gain support.

The DTI had not returned requests for comment at the time of publication.