Traditional Knowledge: Will Wilmots Bill make law?
On 9 April 2013 the Protection of Traditional Knowledge Bill, 2013 was published in the Government Gazette.
The Bill was introduced to the National Assembly on 5 March 2013 by Wilmot James, MP. Interested parties are requested to submit written representations on the Bill within 40 days of publication. This new Bill was drafted by Professor Owen Dean, a consultant to Spoor and Fisher, in light of serious criticism of the Government’s Intellectual Property Laws Amendment Bill, which is now being referred to as the old Bill.
The new Bill, unlike the old Bill, proposes a sui generis approach to the protection of traditional knowledge. In short, this means that traditional knowledge will be dealt with as a new category of intellectual property rather than fitting it into the already existing categories of intellectual property. This approach has generally been regarded internationally, including by the World Intellectual Property Organisation, as the proper approach for the protection of traditional knowledge.
The protection proposed to be offered by the new Bill can be divided into 3 categories, namely
- Traditional Work, akin to copyright;
- Traditional Designs, akin to Designs; and
- Traditional Marks; akin to Trade Marks.
The noticeable exception is traditional knowledge relating to an invention, but this is due to the Patents Amendment Act, 2007 which established rules for dealing with inventions based on or derived from traditional knowledge.
The new Bill further, and very importantly, proposes that a register of Traditional Knowledge be established, which register shall, as in the case of patents and trade marks, record all protected traditional knowledge.
The Bill is important for South Africa because of the vast traditional knowledge held within South Africa, and the value which may be associated with that traditional knowledge and accordingly one hopes that the new Bill will replace the old Bill and proceed to be signed into law.