In November 2004, the Indigenous Knowledge Systems (IKS) Policy was adopted in South Africa. In May 2008, the South African Department of Trade and Industry (DTI) published the Intellectual Property Amendment Bill in the Government Gazette for public comment. This Bill proposed to include traditional knowledge works as a category of protected work and to amend intellectual property legislation accordingly. This required amendments to be made to the Performers' Act of 1967; the Copyright Act of 1978; the Trade Marks Act of 1993 and the Designs Act of 1993.
Stakeholders across the board, including the tertiary sector, submitted objections and recommendations for changes to be made to the Bill before it was presented to Parliament. The DTI held various public hearings around the country during 2008 and again strong objections were raised and recommendations made by IP lawyers, librarians, academics, musicians, rights organisations and other stakeholders. In a Mail & Guardian Online article, Dr. Owen Dean of Spoor and Fisher slammed the Bill as an "abomination". Judge Louis Harms was also critical of the Bill.
The Bill was submitted to Parliament in mid-2009. Cabinet requested that a Regulatory Impact Assessment (RIA) of the Bill be done before it proceeded any further. The Presidency, together with the DTI, commissioned an independent research organisation, SBP, to do the RIA in late 2009. This RIA report was submitted to the Presidency but has not yet been made public. The Bill has now appeared on the Parliamentary Monitoring Group’s website , effective 17 February 2010, but recommendations made by the tertiary sector have not been included and no limitations and exceptions for education, libraries or for persons with sensory disabilities have been incorporated, despite the Bill proposing to protect a whole new layer of copyright works. Concerns raised by other stakeholders have also not been addressed.
Questions must be asked about transparency and the process of this Bill. Why were public comments called for and public hearings held in various provinces if recommendations have not been taken into account? Why has the RIA report not been made public - where is the transparency? Enough objections and suggested amendments were submitted from the public and private sectors to know that the Bill needs serious re-writing before it goes to Parliament.
Denise Nicholson
1 March 2010
This article is the personal view of the author, Denise Rosemary Nicholson (
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