The much-debated Intellectual Property Laws Amendment Act 2007 – generally referred to as the Traditional Knowledge (TK) legislation – is now in force.  It’s been controversial to put it mildly. Although few objected to the notion of TK receiving legal protection, many within the intellectual property (IP) community felt that the authorities had gone about it the wrong way. They felt that TK should be seen and protected as a specific or sui generis right, rather than as a form of IP.  This is in fact the approach of the World Intellectual Property Organisation (WIPO), which has for some time been working on a model TK law.

There are various reasons why lawyers feel that TK is not a form of IP. For starters, IP law essentially rewards and stimulates innovation and creativity, by granting those who display it exclusive rights for a limited period of time. Traditional knowledge, on the other hand, grants eternal rights in respect of things that may have existed for centuries.   Another reason is that reciprocity is a fundamental part of IP, which means that a country must give the same rights to foreigners as it does to its own citizens. As we’ll see later, the TK legislation certainly does not do that. One professor of IP law felt so strongly about the issue that he drafted an alternative bill which took TK outside the realm of IP altogether. Although the bill was presented to Parliament by an opposition party, the majority party decided to go with the original bill.  So TK now forms parts of our IP statutes.

The South African government’s insistence on pushing through such controversial legislation can possibly be seen as part and parcel of a fairly strong developing world agenda. In 2013 the South African authorities published an IP Policy Document which made it very clear that they felt that South Africa should align itself with the developing world in the area of IP. The TK legislation can be seen as part of this new agenda.

So just what does the TK legislation do to our IP?  Here’s a brief synopsis.

General

The TK Act introduces the term ‘Indigenous Community’, which is defined to mean any community living in South Africa.   It also creates various bodies, such as a rights-owning body called the National Trust Fund for Traditional Intellectual Property, an advisory body called the National Council for Traditional Intellectual Property, and a collecting society called the National Council for Traditional Performances.  More on these bodies later. It also envisages a rather vaguely-defined database of‘Traditional Intellectual Property’.

Copyright

The Copyright Act provides protection for various categories of works: literary works; musical works; artistic works; cinematograph films; sound recordings; broadcasts; programme-carrying signals; and published editions.  The TK Act adds a new category, the ‘Traditional Work’. This is defined as ‘a literary work, an artistic work, or a musical work, which is recognised by an indigenous community as having an indigenous origin and a traditional character.’   In order to enjoy copyright these works do not need to be reduced to a material form but simply ‘communicated to the public’.  The ‘author’ of a traditional work will be ‘the indigenous community from which the work originated and acquired its traditional character’, although ownership will belong to the National Trust Fund for Traditional Intellectual Property.

The term of protection will be 50 years, although there are quite detailed provisions on this relating to the date on which the work was first communicated to the public. The copyright owner will have the exclusive right to do various things such as reproduce, perform and broadcast the work, but there are savings provisions to ensure that those who have already acquired rights to such works are not prejudiced.

Performers’ Protection Act

In terms of the Performers’ Protection Act (PPA), it’s unlawful to broadcast or record performances of literary, musical or artistic works without authority. The TK Act brings traditional works within the ambit of the PPA and ensures that it covers expressions of folklore and any ‘Traditional Performance’, which is defined as ‘aperformance which is recognised by an indigenous community as a performance having an indigenous origin and a traditional character.’ The National Council for Traditional Performances is the collecting society for royalties.

Trade Marks

The Trade Marks Act now has something called a ‘Traditional Term or Expression’. This is defined as ‘a term or expression which is recognised by an indigenous community as a term or expression having an indigenous origin and a traditional character and which is used to designate, describe or refer to goods or services.’ It is now possible to register a traditional term or expression as a trade mark if it is capable of distinguishing the goods of an indigenous community from those of another community. Any application for registration will go to the National Council for Traditional Intellectual Property for advice.

We also now have a‘Geographical Indication’. This is defined as ‘an indication which identifies  goods as originating in the territory of the Republic or in a region or locality in that territory, and where a particular quality, reputation or other characteristic of the goods is essentially attributable to the geographic origin of the goods, including natural and human factors.’ Geographical indications can be registered as certification marks or collective marks.  It’s very likely that the authorities had names like‘Rooibos’ in mind when they created this.

Registered Designs

In South Africa we have long had two categories of designs that can be registered, Aesthetic Designs and Functional Designs. We now have a third, the ‘Traditional Design’.  This is defined as ‘any design applied to any article, by whatever means it is applied whether for the pattern, shape, configuration or ornamentation thereof…. whether or not it has features which are necessitated by the function which the article to which the design is applied is to perform, which design is recognised by an indigenous community as having an indigenous origin and a traditional character.’ The owner will be the community from which it originated, and it will be possible to get a registration if the design is ‘new and has features which are based on or derived from the designs of an indigenous community and which have a traditional character’.

There are fairly detailed provisions about determining novelty which I won’t go into here.  Applications for registration will be referred to the National Council for Traditional Intellectual Property. The period of protection for Traditional Designs is 15 years (as it is for Aesthetic Designs), and once again there are provisions protecting those with existing rights.

The TK Act clearly makes radical changes to South African IP legislation. Only time will tell how much practical significance these changes really have.

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