The draft National Policy on Intellectual Property (IP) is 'worrying', as it includes several provisions that could harm the development of a competitive marketplace in SA by undermining the protection afforded to IP right holders such as the software sector.
This is the view of BSA | The Software Alliance, which is urging the Department of Trade and Industry to engage in an extended consultation period and to adopt a more concerted approach.
One of the forms of IP the policy aims to address is patents, in particular regarding technology transfer. The policy acknowledges the call from patent system users for SA to have strong patents that can survive the test of competitiveness throughout the world.
Last month, the Digital Portfolio Committee of the Cape Chamber of Commerce and Industry called on software companies to submit comment on the recently released intellectual property policy.
Darren Olivier, spokesperson for BSA in SA, says while the policy may have noble goals, such as to create economic opportunities and promote innovation, its impact could have the opposite effect.
"Careful reconsideration in consultation with the software sector and other stakeholders is necessary in order to ensure this important legislative framework has the effect of spurring innovation, creating economic opportunities, and building an open and inclusive competitive environment for software companies in South Africa," says Olivier.
Nicholas Hall, an associate at law firm Michalsons Attorneys, says the draft policy in its current state is a "mess". He argues that, although the policy's intentions are beneficial in protecting IP in SA, it has been badly written and is vague.
"There are a lot of issues that the draft policy does not address and everyone in the industry is of the view that the policy needs to be re-drafted," says Hall.
He also argues that some sections on contracts for copyright can end up stifling SA's competitiveness with other countries.
According to Olivier, BSA is particularly concerned with the draft policy's provision on government procurement of software, which establishes unhelpful preferences for specific software models instead of allowing government bodies to choose from the vast range of technology choices that exist in the market.
In addition, BSA believes there are better ways to promote compatibility between IT products than to require companies to hand over their IP to the government.
Instead, Olivier suggests, promoting interoperability among IT products in the country would ensure opportunities for locally developed products and services while preserving companies' ability to protect their IP. BSA also encourages the government to do more to improve the enforcement of IP laws and regulations.
"South Africa must do more to support local companies that rely on IP protections in order to deliver jobs and contribute to local economies," says BSA member and MD of Noctronet, Billa Coetsee.
"More time is needed for consultation with the industry in order to achieve a forward-looking IP policy in South Africa that will encourage competition and deliver economic growth."
BSA recently revealed that the number of reported cases of unlicensed software in SA was significantly higher than in its EMEA counterparts. SA accounted for 22% of the total cases reported in the EMEA region in 2013.
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