ex Africa semper aliquid novi

The Intellectual Property Laws Amendment Bill, known informally as the TK Bill is was introduced into Parliament in February (2010) and will be before Parliament in May (2010).

Supreme Court of Appeal Deputy President Loius Harms who is considered the senior judicial expert on intellectual property in the judiciary took an unusual step for a sitting judge, he wrote an article in a law journal describing the draft legislation as flawed.Other criticisms have been more polemical. Dr Owen Dean described the Bill as an ‘abomination’ in an article written for the Mail and Guardian in July 2009 (link not working due to technical problems at M & G).

As a consequence of the reaction to the draft Bill the Presidency appointed an independent consultancy to examine the draft Bill and its implications. The report of the consultancy isn’t publicly available, but respondents to the research conducted by the consultancy were universally critical of draft Bill. Despite this the Bill is largely unchanged from the draft Bill circulated for comment by the Department of Trade and Industry in May 2008. The Parliamentary Portfolio Committee on Trade and Industry will hold public hearings on the Bill on 11 and 12 May 2010.

Criticism of the Bill hasn’t abated, a representative of DALRO, a collecting society, claims that the Bill will put black authors who retell traditional stories out of business.

What is the debate about? Criticism of the TK Bill is actually taking place on three  very different levels.

On one level are concerns about the practicalities of the Bill, how it changes current legislation, how indigenous communities are constituted by the Bill, what constitutes indigenous knowledge, how the mechanisms of the Bill will operate. These shouldn’t be dismissed as details. What lawyers know, and re-learn every day is that intentions alone are never enough, legal mechanisms whether legislation or contracts often founder on poor wording, ambiguity and lack of clarity. These concerns aren’t ideological,  they are just as likely to stem from those who support the objectives of the Bill in principle

On another level there is criticism of the Bill from a anthropological and community development perspective. These concerns are about how the Bill constitutes traditional knowledge as a commodity, rather than as a constitutive feature of indigenous communities, makes knowledge a thing rather than recognising how it is embedded in relationships. The particular form of this Bill also raises concerns about the ways in which the State deprives communities of agency, the opportunities for rent seeking by self appointed community leaders, and the potentially stifling  of local creativity.

A rather different view is the attack on the idea of traditional knowledge being granted legal recognition and protection. The proponent of this view seem concerned that the idea of collective ownership of knowledge will subvert their view of intellectual property. In their view knowledge can be viewed as property which can be owned by an individual or (more likely) a corporation, and as a commodity, traded, rented out and the like. Since they generally also represent those corporations that have amassed large inventories of copyrights, trademarks and designs they are also concerned that traditional knowledge will subject them to claims of ownership of the same material.

The cause of the debate is not often considered. Some developing countries have campaigned for years for an international legal regimes which recognises traditional knowledge. Developing countries generally support sui generis laws for traditional knowledge, but developed countries have adamantly refused to recognise traditional knowledge as a form of intellectual property. One response to this is to use the existing species of copyright, trademark and design (often referred to collectively if erroneously as “intellectual property”) and constitute a traditional knowledge copyright, traditional knowledge trademark and a traditional knowledge design. This is the approach taken by the South African Bill. In other words its an attempt to hack the existing international IP regime.

But will it work?