The government’s draft National Policy on Intellectual Property document, which seeks to overhaul the IP regime in the country, is “confusing, vague, poorly structured and in some aspects incoherent,” addresses important issues “at random” and shows a complete “lack of understanding of South African copyright law”. That’s the opinion of the Silicon Cape organisation, which has submitted a lengthy and highly critical comment on the draft to the Department of Trade and Industry, in which it calls for the policy to be completely rewritten.
The comment was submitted in association with the South African Venture Capital Association (SAVCA), Cape IT Initiative (CITI) and “a number of IP lawyers” via SiMODiSA.
The draft Policy, downloadable here, is designed to overhaul and clarify South African law on the protection of intellectual property, and bring together the many different articles of law which relate to IP in one overarching document. The most controversial elements relate to loosening IP protection in areas that would “empower all strata of the citizens of South Africa”. The lofty ideal being is that where IP protection is stopping local innovation or access to cheap healthcare, the needs of citizens should come first.
The report states:
“It is submitted that an inevitable impact of stronger protection and enforcement in terms of the TRIPS Agreement leads to reducing access to knowledge-related products in developing countries, thus poor people are exposed to damaging consequence”
TRIPS has been criticised by many developing countries for effectively locking them out of the ability to innovate.
The policy also covers areas around indigenous rights where traditional songs or stories, or local medical knowledge, can be appropriated by broadcasters or medical firms. Indeed, many of the points made in the document relate to healthcare, and local health groups like Treatment Action Campaign (TAC), Section 27 and Medecin San Frontiers have come out in favour of the document, saying it promotes access to cheap healthcare via generic drug use.
SiMODiSA, however, says that when it comes to IT issues, the policy is severely lacking – and that unlike medicine, when it comes to tech South Africa should be considered a developed nation and have a robust IP system that protects developers’ rights and rewards innovation.
The submission states:
The draft policy seems to focus on patents and the ability to provide generic medicine and protect local knowledge, while IP as it relates to IT, software and technology are scarcely dealt with. Contrary to the draft policy’s focus on South Africa as a developing country, South Africa is, in fact, a dual economy and the country’s National IP Policy should serve the country’s needs as a developed producer and consumer of technological products and services.
The organisation points out that the draft also seems to be ignorant of current laws, and suggests that it wasn’t put together in consultation with experts in the area.
A “Computer program” is a protected work in terms of the South African Copyright Act whereas “Software” is not. The inter-changeable use of the terms “computer program” and “computer software” in the draft policy is not only confusing but also points to the drafters’ lack of understanding of South African copyright law.
On page 33, in Chapter 6, dealing with Copyright, Software and the Internet, the drafters of the policy seems to be ignorant of the fact that section 12 of the Copyright Act contains existing fair use provisions when they recommend that South African Internet users must be entitled to fair use and rights;
On the same page 33, under the heading “Copyright, Software and the Internet”, the policy recommends that South African law should allow for reverse engineering of computer programmes – clearly the drafters are ignorant of current South African copyright law which already allows this.
Many of the statements made in the policy are not backed up by empirical evidence, it says, including the concept of a ‘patent search and examination engine’, which it says could be cumbersome for small companies to use when registering IP. No-one knows, and no research has been done in the area, it suggests.
The comment says that the report also fails to address the problems of overseas investors, who it is claimed are put off investing in South Africa because they have no control or guarantee over IP created here.
In conclusion, SiMODiSA and the Silicon Cape say that the whole thing needs to be written with proper experts involved in the drafting.
The draft policy is difficult to understand and contains numerous incorrect, unfounded or unsubstantiated claims and ill-considered recommendations. We are deeply concerned that these shortcomings will lead to inadvertent but dire consequences for South Africa, its economy and its people.
Submissions on the policy are now closed. We’ll be expecting feedback from the DTI soon.