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Send  Share  RSS  Twitter  27 Jul 2009

LEGISLATION: Intellectual Bill 'An Abomination'


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The Draft Intellectual Property Laws Amendment Bill, scheduled to come before parliament later this year, has been described as an “abomination” that deserves to be thrown on the legal scrap heap. That’s according to Dr Owen Dean, partner at intellectual property law specialist Spoor & Fisher.

The Bill seeks to force the protection of so-called “traditional knowledge” into the intellectual property statues, thereby clothing it with statutory protection and, in particular, the facility to attract revenue for its use. The Bill seeks to confer copyright on items such as folklore, indigenous rock paintings and longstanding traditional music. Certain names and terms of indigenous origin that would be sought to be protected include “Rooibos” and “Honey Bush” teas. Among other things, the Bill also seeks to provide for the establishment of a national council of experts on traditional knowledge, and to provide for the recognition and registration of traditional designs of indigenous origin.

This can be viewed as dressing something in clothes which were not designed for it, thus making for an extremely uncomfortable fit,” Dean says.

Judge Louis Harms, vice president of the Supreme Court of Appeal and an internationally acknowledged expert in intellectual property law, has voiced his criticisms of the Bill in scathing terms: “The proposals are fundamentally flawed and will not lead to any material benefit to any community in South Africa. They will not make the country technologically or otherwise rich, and they will protect little (if any) indigenous knowledge.”

Dean says Harms’s views echo those held by a large number of attorneys and other practitioners specialising in the practice of intellectual property law.

Tellingly, these views are shared by the majority of the members of the Intellectual Property Committee of the Law Society of South Africa (LSSA) even though members’ reservations have not yet been heard publicly,” Dean says.

He is calling for attorneys to have the courage of their convictions and to voice their disapproval of the Bill openly, for the good of the profession and the legislative process.

To date, the LSSA has remained silent on the question despite the views of its Intellectual Property Law Committee,” he claims. “There is, however, still an opportunity to raise objections to the Bill and I hope that the LSSA will voice the concerns expressed by its IP committee.”

Dean says his own chief concern about the Bill is that not only will it not achieve its objective, which is a laudable one in principle, but it will undermine the well established principles of intellectual property law. Judge Harms puts it this way: “Worse still, political expediency of this nature has the ability to destroy legal structures that have been developed over centuries.”

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