The New Tradition in Drafting Legislation

The Trade and Industry’s Portfolio Committee of Parliament is continuing with its long drawn out deliberations on the Intellectual Property Laws Amendment Bill, a Bill which seeks to protect so-called “traditional knowledge” as a species of intellectual property under the existing Intellectual Property Statutes. The Portfolio Committee has been seized with this Bill for almost a year and during this process it has undergone several revisions in an attempt to bring it into a form that can pass muster. The fact that the Portfolio Committee has revised the Bill several times is indicative of it having been of an unacceptable standard when it was introduced to Parliament by the Department of Trade and Industry.

Large sections of the specialist intellectual property profession, members of the judiciary and academics have been very critical of the nature and the content of the Bill. The constant refrain has been that existing Intellectual Property Statutes are ill-equipped to deal with protection for traditional knowledge because the subject matter which is sought to be protected is significantly different in character in many respects from existing intellectual property works and this makes the existing Statutes unsuitable vehicles for providing the envisaged protection. However, like in the case of the Protection of Information Bill, commonly referred to as the “Secrecy Bill”, the Government seems undaunted by the deluge of serious objections and criticism heaped on the Bill from all quarters and appears to be determined to drive it through to become law, come what may. It has been suggested that the Bill is unconstitutional in many respects and, if passed, will almost inevitably face a Constitutional challenge. Even this circumstance is not deflecting the Government from its chosen course.

The purport of the Bill is to provide a system in terms of which folklore, traditional works of art and the like can generate revenue through the payment of royalties for their use and commercial exploitation. The justification for converting traditional works into a source of income is to benefit the communities from which the works are derived. The Bill seeks to convert not only traditional works themselves, but also present day works comprising traditional elements, into income generating assets.

Commentators feel that, while there may be some merit in granting some form of protection to traditional works, the protection should be provided in rational customised legislation designed specifically to cater for the nature of works involved. It is widely believed that the present Bill, if passed into law, will be unworkable and will in practice amount to a dead letter. It will not deliver the outcome for traditional works which the Government appears to desire. Indeed, so it is argued, the granting of the envisaged protection to works which have thus far been free for use by all is likely to inhibit the use of traditional works on a commercial basis and to drive others to rather use works of foreign origin to which the onerous conditions contained in the Bill do not apply. In other words, far from enabling traditional works to generate income through commercial works, the opposite is likely and in practice the law would be likely to diminish the use of traditional works thus causing cultural stagnation and a paucity of expression of traditional works in the media and elsewhere.

Perhaps one of the most controversial aspects of the Bill is the principle that traditional works, which may date back many years and generations and are currently not subject to protection, will be given protection and the right to derive royalty income in perpetuity. This is in contrast to conventional intellectual property that has a limited life-span. It is not apparent why traditional works, which by their nature are at this stage not creative, should be granted such superior protection to innovative and creative modern works. The DTI is looking backwards and not forwards in fostering the creation of intellectual property.

Date published: 2011/09/21
Author: Dr Owen Dean

Tags: drafting legislation trade and industry