1
REPUBLIC OF SOUTH AFRICA
INTELLECTUAL PROPERTY LAWS AMENDMENT BILL
------
(As redrafted by the National Assembly (proposed section 75); explanatory summary of Bill published in Government Gazette No. of ) (The English text is the official text of the Bill)
------
(MINISTER OF TRADE AND INDUSTRY)
[B8 - 2010]
______
060608se
GENERAL EXPLANATORY NOTE:
[ ]Words in bold type in square brackets indicate omissions from existing enactments.
______Words underlined with a solid line indicate insertions in existing enactments.
______
B I L L
To provide for the recognition and protection of certain manifestation of indigenous knowledge as intellectual property; to this end to amend certain statutes to provide for the protection of relevant manifestations of indigenous knowledge as intellectual property, namely –
- the Performers’ Protection Act, 1967 so as to provide for the recognition and protection of traditional performances, and to provide for the payment of royalties in respect of the use of such performances;
- the Copyright Act, 1978 so as to provide for the recognition and protection of indigenous works; to provide for the establishment of a National Council in respect of indigenous knowledge and indigenous intellectual property; to provide for a National Database for recording indigenous knowledge and indigenous intellectual property and to provide for the recording of indigenous works; and to provide for the establishment of a National Trust and a trust fund in respect of indigenous knowledge and indigenous intellectual property;
- the Trade Marks Act, 1993 so as to provide for the recognition ofindigenous terms and expressions and for the registration of such terms and expressions as trade marks; to create for this purpose a further part of the trade marks register; to provide for the recording of indigenous terms and expressions; and to provide for further protection of geographical indications;
- the Designs Act, 1993 so as to provide for the recognition and registration of indigenous designs; to create for this purpose a further part of the designs register; and to provide for the recording of indigenous designs;
- to introduce statutory provisions to provide for the establishment of a national council in respect of indigenous knowledge and indigenous intellectual property, a national database for the recording of indigenous knowledge and indigenous intellectual property, and a national trust and trust fund for purposes of indigenous knowledge and indigenous intellectual property;
and to provide for matters incidental thereto.
PREAMBLE
WHEREAS it is important, in order to give effect to the recognition of cultural values and the freedom to participate in cultural activities as contemplated in sections 30 and 31 of the Constitution of the Republic of South Africa, 1996 that the wealth of indigenous knowledge held by the indigenous people of South Africa be recognised, preserved, protected and promoted and made accessible to the public; and
WHEREAS it is necessary to recognise indigenous knowledge as a valuable economic as well as a cultural resource, and therefore to create a legal dispensation for the commercial exploitation of indigenous knowledge in a manner that will benefit the country and will ensure that fair financial benefits will also be received by indigenous communities and persons; and
WHEREAS positions in principle have been agreed upon by international bodies confirming that indigenous knowledge should be recognised and protected by appropriate legal instruments, on national level as well as internationally; and
WHEREAS indigenous knowledge is the outcome of the creative ability of the human mind and in that context constitutes intellectual property, so that the intellectual property laws of the country may be used as the legal dispensation and legal tool to provide protection for appropriate manifestations of indigenous knowledge; and
WHEREAS certain manifestations of indigenous knowledge have already been recognised and protected by the Patents Amendment Act, 2005 and certain further manifestations of indigenous knowledge are to be protected by way of this legislation, requiring appropriate amendments to be made to the Performers’ Protection Act, 1967, the Copyright Act, 1978, the Trade Marks Act, 1993, and the Designs Act, 1993;
BE IT ENACTED by the Parliament of the Republic of South Africa as follows:
Amendment of section 1 of Act 11 of 1967, as amended by section 19 of Act 38 of 1997 and section 1 of Act 8 of 2002
1.Section 1 of the Performers’ Protection Act, 1967 (Act No.11 of 1967), is hereby amended—
(a)by the insertion in subsection (1) after the definition of "broadcaster " of the following definitions:
“‘cinematograph film' means any fixation of images, or of images and sounds, of a performance with or without other images or sounds;”;
(b)by the substitution in subsection (1) for the definition of "collecting society" of the following definition:
“‘collecting society’ means a[collecting]society[established under]created bythe Copyright Act, 1978 (Act No. 98 of 1978), this Act, or agreement and which –
(a)collectively manages matters related to rights in copyright works;
(b)negotiates for and collect royalties on behalf of its members;and
(c)distributes royalties to copyright owners;”;
(c)by the insertion in subsection (1) after the definition of "collecting society" of the following definitions:
“‘Commission’means the Commission established in terms of section 185 of the Companies Act, 2008(Act No. 71 of 2008);
'Council' means the National Council for Traditional Intellectual Property as defined in section 1 of the Copyright Act, 1978 (Act No. 98 of 1978);
'database' means the national database for traditional intellectual property as defined in section 1 of the Copyright Act, 1978 (Act No. 98 of 1978);
‘derivative traditionalperformance’ means a literary, artistic or musical work or an expression of culture or knowledge or a performance, a significant portion of which, or an essential feature of which, was derived from ahereditary traditional performance;
‘expression of culture or knowledge’ includes expressions made by way of one or a combination of –
(a)verbal expressions, including stories, epics, legends, poetry, riddles and other narratives, and word signs or symbols;
(b)musical expressions, including songs and instrumental musical renditions; and
(c)expressions by action, including dances, plays, ceremonies, rituals and other performances”;”
(d)by the substitution in subsection (1) for the definition of "fixation" of the following definition:
"'fixation' includes storage of—
(a)sounds or images or both sounds and images; or
(b)data or signals representing sounds or images or both sounds and images,
in any manner or on any medium so as to be capable of being reproduced or performed;";
(e)by the insertion in subsection (1) after the definition of "fixation" of the following definitions:
“‘hereditary traditional performance’means a performance which is recognised by an indigenous community as a performance having an indigenous origin and a traditional character and which has always existed in the memory of the living members of the indigenous community and was passed down from a previous generation;
‘hereditary traditional work’ means hereditary traditional work as defined in section 1 of the Copyright Act, 1978 (Act No. 98 of 1978);
'indigenous community'means any recognisable community of people with a common ethnological origin and which, according to historical record or other evidence, originated in or historically settled in a geographic area currently located within the borders of the Republic and which community currently lives in the Republic;
‘indigenous expression of culture or knowledge’ means an expression of culture or knowledge where –
(a)the expression was created by one or more persons who are or were members, currently or historically, of an indigenous community although the identity of such person or persons is not known;
(b)the culture or knowledge is recognised as currently existing or as having historically existed within that indigenous community; and
(c)the mode of expression is recognised by that indigenous community as having an indigenous origin and a traditional character;”;
(f)by the substitution in subsection (1) for the definition of "literary and artistic works" of the following definition:
"'literaryand artistic works'[includes musical, dramatic and]have the meaning assigned to them in the Copyright Act, 1978 (Act No. 98 of 1978), insofar as such works are capable of being performed, and include musical, traditional and dramatico-musical works and expressions of folklore;";
(g)by the insertion in subsection (1) after the definition of "literary and artisticworks" of the following definition:
"'performance' means any mode of visual or acoustic presentation of a literary, musical, artistic or traditional work including acting, singing, delivering, declaiming, playing or otherwise performing such work, and includes any such presentation by the operation of a loudspeaker, but excluding such performance by the use of a phonogram, a radio or television broadcast, or by the exhibition of a cinematograph film, and 'perform' has a corresponding meaning;";
(h)by the substitution in subsection (1) for the definition of "performer" of the following definition:
"'performer' means an actor, singer, musician, dancer or other person who acts, sings, delivers, declaims, plays in or otherwise performs, literary, musical,[or] artistic or traditional works;";
(i)by the insertion in subsection (1) after the definition of "phonogram" of the following definition:
“ ‘prescribe’means prescribe by regulation in terms of this Act and ‘prescribed’ has a corresponding meaning;”;
(j)by the addition in subsection (1) of the following definitions:
"'traditional performance'includes derivative traditional performances and hereditary traditional performances’;
'trust' means the National Trust for Traditional Intellectual Property established by section 28I of the Copyright Act, 1978 (Act No. 98 of 1978), and which functions as the trust for traditional performances contemplated in section 8H, and 'trust fund' or 'fund' means the fund contemplated in section 8H;"; and
(k) by the substitution for subsection (2) of the following subsection:
"(2)Except in so far as the context otherwise requires, any reference in this Act to the doing of an act in relation to a performance, including a traditional performance, a fixation of a performance or a reproduction of such a fixation, shall be taken to include a reference to the doing of that act in relation to a substantial part of the performance, the fixation or the reproduction, as the case may be.".
Insertion of Sections 8A, 8B, 8C, 8D, 8E, 8F, 8G, 8H, 8I, 8J, 8K, 8L and 8M in Act 11 of 1967
2.The following sections are hereby inserted in the Performers' Protection Act, 1967 (Act No. 11 of 1967) after section 8:
“Application to traditional performances
8A.Subject to the provisions of sections 8A, 8B, 8C, 8D, 8E, 8F, 8G, 8H, 8I, 8J,8K, 8L and 8Mthe provisions of this Act shall, except in so far as is otherwise provided in the said sections, and in so far as they can be applied, apply to traditional performances.
Protection of performers’ rights in respect of performances in the Republic
8B.(1)Performers oftraditional performances shall, in accordance with subsection (4), be granted the protection provided for in section 5 in respect of their traditional performances—
(a)taking place;
(b)broadcast without a fixation;or
(c)first fixed,
in the Republic.
(2)No intellectual property right provided for in the Intellectual Property Laws Amendment Act, 2010, that relates to heritage, agriculture or bio-diversity laws shall be eligible for registration unless—
(a)prior informed consent has been obtained from the relevant authority or indigenous community;
(b)disclosure of the indigenous knowledge has been made to the Commission; and
(c)a benefit sharing agreement between the applicant and the relevant authority or indigenous community has been concluded.
(3)The rights created by this Act shall in no way restrict or affect the rights provided for by any other law relating to copyright in traditional works.
(4)Copyright shall, under this Act, be conferred on atraditional performanceonly if—
(a)the performance is a derivative traditionalperformance and was created on or after the date of commencement of the Intellectual Property Laws Amendment Act, 2010and the community from which the work or a substantial part thereof originated is or was an indigenous community when the work was created; or
(b)the performance is a hereditary traditional performance.
(5)A repeat performances of the same traditional performance shallbe deemed not to be a new performance, but will be protected as if each repeated performance was the first traditional performance that became eligible for copyright protection.
National database
8C.(1)The database contemplated in section 28C of the Copyright Act, 1978 (Act no. 98 of 1978), shall constitute and function as the database in respect of traditional performancesfor purposes of this Act, in the manner provided for in the said section 28C.
(2)Any—
(a)indigenous community;
(b)person or body authorised to act on behalf of an indigenous community; or
(c)other person, institution, body or agency,
may submit to the Registrar of Copyright a request together with the appropriate information for a traditional performance to be recorded in the database, whereupon the provisions of the said section 28C shall, with necessary changes, apply.
(3)The Commission may determine which information recorded in the database must be treated in confidentiality.
(4)A repeat performance of the same traditional performance shall be deemed not to be a new performance, but to have been entered into the database upon the recording of the said traditional performance.
(5)Any person in subsection (3), or a third party who has an interest in a traditional performance may submit to the registrar of copyright a request together with the appropriate information as prescribed, for the amendment or removal of a traditional performance in the database, whereupon the provisions of section 28Cshall, with necessary changes, apply.
Ownership of copyright in traditional performances
8D.Theprovisions of section 28D of the Copyright Act, 1978 (Act no. 98 of 1978)shall, with necessary changes, apply.
Nature of copyright intraditional performances
8E.Theprovisions of section 28E of the Copyright Act, 1978 (Act no. 98 of 1978)shall, with necessary changes, apply.
Term of protection
8F.(1)The prohibition against the use of a performance as provided for in sections 5 and 8B, shall in respect of derivative traditionalperformances as set out in section 8B(4)(a), commence -
(a)on the date the derivative traditional performance first took place; or
(b)if incorporated in a phonogram or cinematograph film, when it was first fixed on such phonogram or cinematograph film,
and shall continue for a period of 50 years calculated from the end of the calendar year in which the derivative traditional performance took place or was incorporated in a phonogram or cinematograph film, as the case may be.
(2)The prohibition against the use of a performance as provided for in sections 5 and 8B shall in respect of hereditary traditional performances be in perpetuity.
Restriction on use of traditional performances and royalties
8G.(1) The restrictions contained in section 5 shall be applicable totraditional performances.
(2)Copyright in a traditional work shall not be infringed by –
(a)members of the community of which that indigenous expression of culture or knowledge is generally recognised as its traditional heritage uses atraditional performance recorded in the database contemplated in section 8C—
(i)for the purpose of the normal use and development or cultural usage of that indigenous expression of culture or knowledge; and
(ii)for the purpose of deriving a commercial benefit from such traditional performance; or
(b)a person if that personhas acquired rights in respect of that traditional performance by doing any of the acts referred to in section 8E prior to the commencement of the Intellectual Property Laws Amendment Act, 2010 andcontinues to perform such act or acts:
(3)No royalty shall be payable for uses set out in section (2)(a)(i), but where a commercial benefit is derived from the use of the traditional performance provided for section (2)(a)(ii) or (2)(b), a royalty shall be paid to the owner of the copyright by the person receiving the commercial benefit, and where the fund is the owner, to the fund to be used for the benefit of indigenous communities in the manner prescribed in section28I of the Copyright Act, 1978 (Act No. 98 of 1978)
(4)The amount of the royalty contemplated in subsection (3) shall be determined by agreement between-
(a) the manager or other authority in charge of the group and the owner of the copyright in the traditional performance;
(b)failing an authority as contemplated in subsection (a), by the leader of the group andthe owner of the copyright in the traditional performance; or
(c)one or more collecting societies representing either or both of these parties.
(5)In the absence of agreement, the amount of the royalty shall be determined by—
(a)an institution accredited by the Commission;
(b)the Copyright Tribunal contemplated in section 5(3)(b); or
(c)arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).
(6)Agreements concluded in terms of section (3) must be submitted to the council and the council shall –
(a)scrutinise the agreement for compliance with traditional intellectual property laws, including this Act; and
(b)if there is any clause within the contract that is regarded as not being to the benefit of the indigenous community or member of the indigenous community concerned, require renegotiation of said clause.
(7)The owner of copyright in a derivative traditional performance shall pay a royalty, agreed to as set out in this section, to the owner or owners of the copyright in the hereditary traditional work from which the derivative traditional performance was derived.
(8)A performance, a fixation of a performance or a reproduction of such a fixation may be used without obtaining prior consent of the copyright owner, if it is for the purpose of —
(a)private study or personal and private use;
(b)criticism or review;
(c)reporting on current events;
(d) education;
(e)scientific research; or
(f) legal proceedings.
provided that only such excerpts as is reasonably required areused and that the performers and copyright owner’s names are acknowledged.
National trust and national trust fund
8H.(1)The National Trust and the National Trust Fund for Traditional Intellectual Property established in terms of section 28I of the Copyright Act, 1978 (Act no. 98 of 1978), shall constitute and function as a trust and a trust fundin respect of traditional performances for purposes of this Act, and the provisions of the said section 28Ishall, with necessary changes, apply.
(2)Any payment made in respect of traditional performances in terms of section 8G where the fund is the owner of the copyright, shall be paid into the trust fund contemplated in subsection (1) and shall be applied for the benefit of indigenous communities, in the manner prescribed in section 28I of the Copyright Act, 1978 (Act No. 98 of 1978).
Assignment and Licences
8I.Theprovisions of section 28J of the Copyright Act, 1978 (Act no. 98 of 1978)shall, with necessary changes, apply.
Disputes
8J.(1) The Commissionmay accredit certain institutions which have the necessary capacity, to adjudicate any dispute arising from the application of the Intellectual Property Laws Amendment Act, 2010.
(2) No court of law or arbitrator will have the jurisdiction to hear any matter arising from the application of this Amendment Act, without an accredited institution contemplated in subsection (1) having made a ruling in respect thereof.
(3) No person appearing in proceedings before an institution contemplated in subsection (1) shall have the right to legal representation.
(4)The decision of the institution referred to in subsection (1) shall be final and will constitute an administrative decision.
(5)The Minister shall prescribe the processes and formalities relating to submitting and adjudicating a dispute.
National Council
8K.(1)The Council shall function as the Council for traditional performances under this Act.
(2)When a traditional performance is performed by several performers as a group, as contemplated in section 6, the Council shall, in the absence of another specifically designated authority function and be regulated as the authority contemplated in section 6.