Copyright in traditional works: unravelling the Intellectual Property Laws Amendment Act of 2013

• Jurisdiction: South Africa
• Published date: 20 August 2019
• Pages: 43-65
• Citation: (2017) 29 SA Merc LJ 43
• Date: 20 August 2019
• Author: Sunelle Geyer

COPYRIGHT IN TRADITIONAL WORKS:

UNRAVELLING THE INTELLECTUAL

PROPERTY LAWS AMENDMENT ACT OF

2013*

SUNELLE GEYER

†

Associate Professor, Department of Mercantile Law, University of

South Africa

Abstract

The lengthy ss 3–6 of the Intellectual Property Laws Amendment Act 28

of 2013 (IPLAA) contain complicated changes to the Copyright Act 98 of

1978. This paper simplif‌ies the task of coming to grips with the

amendments to the Copyright Act by explaining and clarifying that

the concepts ‘indigenous works’ and ‘derivative indigenous works’

are the objects that these amendments seek to protect. The article then

unpacks the rules and principles pertaining to indigenous works and

derivative indigenous works respectively: legal subjects, duration of

protection, requirements, registration, assignment and exceptions are

all analysed and moral rights receive substantial attention throughout.

The said topics are applied to a Volkspele example, followed by certain

conclusions. The article highlights the major stumbling blocks to the

IPLAA, namely the principles of both national treatment and territorial-

ity.

Keywords: copyright; indigenous knowledge; indigenous cultural expres-

sions; national treatment; territoriality; moral rights.

*I should like to thank Coenraad Visser for his valuable comment and advice. All opinions

expressed and errors that remain are my own.

†

BProc LLB LLD (UP). This article is based on a paper presented at the Second Annual

Mercantile Law Conference, Bloemfontein, 5–7 November 2014, under the title ‘Copyright:

understanding the Intellectual Property Laws Amendment Act 28 of 2013’.

43

(2017) 29 SA Merc LJ 43

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I INTRODUCTION

The Intellectual Property Laws Amendment Act (IPLAA)

1

amends the

Performers’ Protection Act,

2

the Copyright Act,

3

the Trade Marks Act

4

and the Designs Act.

5

Here I shall focus on the amendments of the

Copyright Act (CA).

The IPLAA is a complex statute.

6

It has been criticised for ‘trying to

drive a square peg into a round hole’,

7

because it attempts to protect

traditional knowledge through the existing intellectual property system.

The implementation of the IPLAA still seems to be hanging in the

balance as a result of the publication by the Department of Science and

Technology of its Protection, Promotion, Development and Manage-

ment of Indigenous Knowledge Systems Bill (DST Bill),

8

which seeks to

establish a sui generis system for the protection of indigenous know-

ledge.

9

The complexities and inconsistencies of the IPLAA go beyond the

basic misf‌it between intellectual property and traditional knowledge. In

this article I aim to unravel the IPLAA as it stands, and to contemplate

how the new provisions will f‌it into the existing copyright framework.

Even if the IPLAA is not brought into force, a clear understanding of its

provisions and their strengths and weaknesses, can assist Parliament in

its ongoing endeavours to protect, promote and develop traditional

knowledge.

1

Act 28 of 2013. The Act was assented to by the State President on 9 December 2013 (N 996

in GG 37148 on 10 December 2013). Section 15 provides that it will come into operation on a

date f‌ixed by the President by proclamation in the Government Gazette. However, for

reference purposes, I shall assume that the amendments of the Copyright Act are already in

force.

2

Act 11 of 1967. The amendments are set out in IPLAA ss 1–2.

3

Act 98 of 1978. The amendments are set out in IPLAA ss 3–6.

4

Act 194 of 1993. The amendments are set out in IPLAA ss 7–10.

5

Act 195 of 1993. The amendments are set out in IPLAA ss 11–14.

6

Van der Merwe, ‘The old and the new: a concise overview of the Intellectual Property

Laws Amendment Act’ (2014) Sep De Rebus 28 at 32.

7

Dean, ‘Traditional knowledge — legislation in the new tradition’ 18 September 2011,

available at http://blogs.sun.ac.za/iplaw/2011/09/18/traditional-knowledge-%E2%80%93-

legislation-in-the-new-tradition/, accessed on 6 March 2014.

8

B6–2016. The 2014 version of the Bill was published for comment on 20 March 2015 (GN

243 in GG 38574). A consideration of this Bill falls outside the scope of this article.

9

See Daniels, ‘A cautious welcome for South Africa’s traditional knowledge legislation’

Intellectual Property Watch 29 April 2015, available at http://www.ip-watch.org/2015/04/29/a-

cautious-welcome-for-south-africas-traditional-knowledge-legislation/. In the last paragraph of

her article, she quotes Susanna Chung and Louis van Wyk, who are said to have stated: ‘The

IPAA [IPLAA] was adopted prematurely without suff‌icient time to consider the full impact of

its existence... . The questions raised by the IPAA have been covered by the DST Bill in a more

comprehensive manner. It would appear that repealing the IPAA and taking the process

forward as government with the DST Bill would be a more sensible approach.’

(2017) 29 SA MERC LJ

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