[AfrICANN-discuss] A NEW South Africa Traditional Knowledge Bill – Sui Generis Protection for TK

Anne-Rachel Inné annerachel at gmail.com
Mon Mar 19 00:06:35 SAST 2012

A NEW South Africa Traditional Knowledge Bill – *Sui Generis* Protection
for TK Published on 18 March 2012 @ 6:17 pm

*Disclaimer: the views expressed in this column are solely those of the
authors and are not associated with Intellectual Property Watch. IP-Watch
expressly disclaims and refuses any responsibility or liability for the
content, style or form of any posts made to this forum, which remain solely
the responsibility of their authors.*


Intellectual Property Watch

By Prof. Owen Dean<http://www.ip-watch.org/2012/03/18/a-new-south-africa-traditional-knowledge-bill-%e2%80%93-sui-generis-protection-for-tk/?utm_source=post&utm_medium=email&utm_campaign=alerts#bio>

*[Editor's Note: The author, as holder of a university Chair in
intellectual property law in South Africa, offers an alternative proposal
in answer to a controversial bill on traditional knowledge which has passed
both houses of Parliament and is awaiting promulgation by the State
President.] *

If you cannot beat them, join them. For that reason this Chair of IP has
decided to announce a NEW *sui generis* Protection of Traditional Knowledge
Bill in the hope that something may yet be done to save us all.

Government’s current attempt at protecting traditional knowledge by
amending current IP statutes remains an unmitigated disaster, the scope of
which is yet to be fully realised. This Chair, among many others, has
expressed its distress at the current Traditional Knowledge Bill (likely to
be the Protection of Traditional Knowledge Act soon) in no uncertain terms.
And despite the fact that the Chair’s criticism of the Bill has been cited
with support by some of the world’s foremost authorities on IP and TK, the
Portfolio Committee’s ignorance of these same facts is only exceeded by
Government’s ignorance of (international) law. As a result, the current TK
Bill is likely to survive its journey across the President’s desk.

For this reason, and after repeated pleas to do so, the Chair has decided
to publish a new and workable TK Bill. This proposal is the work of the
incumbent Chair and proves that TK is better protected by *sui
generis*legislation. The intention is unmistakable – to illustrate how
the Bill
should appear. Although the Chair maintains its earlier position about the
current Bill, this publication is intended to mitigate the calamity our IP
law will face if the Bill in its current format becomes law. Therefore, the
new Bill builds on, expands, corrects and delineates the scope of the
current Bill to make it work (however difficult) as an independent statute
for this (clearly) independent type of work.

Of course, trying to breathe life into the current Bill is an unenviable
task, but at least it goes (a long way) beyond mere criticism of the
current Bill.

Be warned: let it not be said that this Chair is in favour of the current
TK Bill (our views are clear for all to see). However, if you insist on the
current Bill, at least do it properly. Here’s how:

The Protection of Traditional Knowledge

Synopsis of the Protection of Traditional Knowledge

For background, see related *IP-Watch* Inside Views pieces
and here<http://www.ip-watch.org/2011/10/06/south-africa-tk-legislation-in-the-new-tradition/>.

*Owen Dean was appointed as a Professor at the Law Faculty of Stellenbosch
University as of 2011, where he is the incumbent of the Anton Mostert Chair
of Intellectual Property Law. *

He is a consultant and former senior partner at Spoor and Fisher,
intellectual property attorneys, with specialisation in trademark and
copyright law with a special emphasis on litigation and opinion work.. He
holds a B.A (Law), LL.B and LL.D from the University of Stellenbosch in,
respectively, 1964, 1966 and 1989, and was admitted to practice as an
attorney in South Africa in 1974, also admitted as an attorney in Namibia
and Botswana.

Dean served on the Government’s Advisory Committee on Intellectual Property
Law for 20 years, including as Chairman of the Copyright Sub-Committee. He
is a Past President of the South African Institute of Intellectual Property
Law. He conceived, and chaired the Drafting Committee of, the Counterfeit
Goods Act, and as well conceived and drafted Section 15A of the Merchandise
Marks Act (ambush marketing).

He is author of the “Handbook of South African Copyright Law”, and numerous
other publications, serving on editorial boards and publishing in a very
wide range of intellectual property publications, and is frequent speaker
at events.

*Dean also holds appointments to the Panel of Adjudicators for South
African Domain Name Disputes, WIPO Panel of Arbitrators for Domain Name
Disputes, Stellenbosch University Business School Panel of Mediators and IP
Panel of Arbitration Federation of South Africa (AFSA).*
Related Articles:

   - Inside Views: South Africa: TK Legislation In The New
   - Inside Views: The Mad Hatter In Wonderland: South Africa’s New TK
   - India, WIPO Connect On Traditional Knowledge Protection, With Or
   Without Patents<http://www.ip-watch.org/2011/03/28/india-wipo-connect-on-traditional-knowledge-protection-with-or-without-patents/>
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