South African Draft Intellectual Property Policy: Initial Reactions

Written by Andrew Rens on September 9th, 2013

The Draft National Intellectual Property Policy has been published for public comment.

Intellectual Property Watch report some initial responses including some comments by yours truly. Here is my response to the IP watcher reporter in full:

“The policy that South Africa should abandon its anomalous deposit system, and instead require substantive examination is welcome if overdue. The establishment of pre and post grant opposition will enable South African entrepreneurs to challenge attempts to patent them out of business without having to engage in expensive litigation. Pre and post grant opposition have worked rather well in India. An important difference between South Africa and India is that prior to updating its patent act India did not permit patents on pharmaceutical formulae at all. However South Africa has not only permitted patenting of pharmaceuticals it has failed to examine the patent applications. Therefore when South Africa introduces pre and post grant opposition it must be clear that all the patents already registered are subject to post grant opposition. Since those patents have not been substantively examined there should be an expedited review process for patents that have already been registered.

While the policy appropriately deals with patent process as a priority it is important not to neglect substantive policy issues such as prohibiting software patents. New Zealand has recently adopted legislation to prevent the patenting of software. South Africa currently prohibits the patenting of computer programs ‘as such’, a prohibition that is ineffective due to the failure to examine applications. The New Zealand legislation attempts to prevent the circumvention of prohibitions on patenting computer programs. The policy should take such new developments into account.

It is also welcome that the policy endorses fair use, and calls for the ‘adoption of broad exemptions for educational, research and library uses’. Books and other knowledge goods are unaffordable and inaccessible for the vast majority of South Africans, so the insertion of a fair use clause into the 1978 Copyright Act should be a priority. The poor need access to the Knowledge Economy now and cannot wait while the Copyright Act is entirely rewritten.

South Africa was very involved in the process that resulted in the Marrakesh Treaty so it is a little surprising that the policy makes no mention of the need for exceptions for the visually impaired. Perhaps the drafters see the need to amend the 1978 Copyright Act in accordance with the the Marrakesh Treaty as so obvious that it doesn’t need to be stated. In any case amendment of the current legislation to enable the visually impaired and print disabled to enjoy the same right to read as the rest of us is urgent and that priority should be reflected in the policy.”

According to the Department of Trade And Industry Website comments can be sent to Ms Meshendri Padayachy at by 17 October 2013.


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