Abstract
This chapter critically evaluates the positive protection of traditional cultural expressions by examining how folklore is protected by intellectual property rights in African states, including South Africa, Nigeria, Ghana and Kenya. The protection of traditional cultural expressions by intellectual property rights is generally considered as positive protection if its primary objective is to endow proprietary rights on the creators of traditional cultural expressions, usually but not exclusively, on communities of origin, to exploit the traditional cultural expressions through determining how and when third parties will have access to their traditional cultural expressions. Since all African states recognise intellectual property rights, two broad possibilities—albeit loosely understood—exist in this regard. The first possibility is the use—especially through judicial interpretation that some traditional cultural expressions can be protected by some or all intellectual property rights. The second group consists of states that through recent legislation recognise new rights protecting traditional cultural expressions as intellectual property rights. In line with this broad framework, this chapter is organised as follows. In the next part, an overview of the protection of traditional cultural expressions in certain African states is undertaken. The intellectual property rights framework in these states suggests that traditional cultural expressions can be protected by all or some of the rights. In the third section, a consideration of recent legislative reform in South Africa and Kenya reveals how traditional cultural expressions can be protected by rights of the use of intellectual property rights to protect traditional cultural expressions. With respect to South Africa, it is to be noted that on 6 September 2013, South Africa achieved a milestone by using the MMA to restrict the use of the words: ‘Rooibos; Red Bush; Rooibostee; Roosibos Tea; Rooitee and Rooibosch’ in connection with any trade, business, profession or occupation or in connection with a trademark, mark or trade description applied to goods by unauthorised third parties. In addition, the dual-track engagement through, on one hand, IPLAB 2011 and, on the other hand, the Draft Protection of Traditional Knowledge Bill yielded IPLAA 2013, which came into force on 10 December 2013. In Kenya, the PTKCE 2016, which came into force on 26 September 2016, represents what may appear unorthodox in the protection of traditional cultural expressions.
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Notes
- 1.
See GN 911 in GG 36807 of 6 September 2013 issued in terms of s 15(1) of the MMA.
- 2.
Hereafter IPLAB 2011.
- 3.
Hereafter the Wilmot Bill. This is a private member bill introduced to the South African National Assembly by Dr. Wilmot James, the Shadow Minister of Trade and Industry in terms of s 73(2) of the South African Constitution and Rules 241(1) and 241(2) of the National Assembly. The Wilmot Bill is based on a bill prepared by Professor Owen Dean. See Dean (2012b) TK Bill References to the Wilmot Bill are references to the Bill prepared by Prof Dean. There is an accompanying synopsis to the Bill prepared by Prof Dean. See Dean (2012c) TK Bill Synopsis (hereafter Wilmot Bill Synopsis). See GN 376 in GG 36353 of 9 April 2013. Private members’ bills have become possible as a result of the Constitutional Court decision in Oriani-Ambrosini v Sisulu 2012 6 SA 588 (CC), which struck down certain parliamentary rules that barred private members’ bills.
- 4.
8 of 2000 (hereafter the Botswana Law).
- 5.
See, in addition, s 6(1) of the Botswana Law.
- 6.
Kiggundu (2011), pp. 143, 148.
- 7.
Kiggundu (2011), p. 149.
- 8.
‘[a] visible sign capable of distinguishing the origin or any other common characteristic including the quality of goods and services of different enterprises which use the sign under the control of a registered owner from the goods and services of any other enterprises’.
- 9.
See Adewopo (2013), pp. 108–131.
- 10.
See Project Document 2009. www.ige.ch/fileadmin/user_upload/.../e/MoU-swiss-kenya-e.pdf (hereafter Swiss-Kenya).
- 11.
S 22.
- 12.
See s 2(1)a of the GI Ghana.
- 13.
See s 2(2) of the GI Ghana.
- 14.
See s 3(1) of the GI Ghana.
- 15.
See s 3(2) of the GI Ghana.
- 16.
S 4 of the GI Ghana.
- 17.
Act 589 of 2000. Section 1 of this Act provides that any act or practice in the course of industrial or commercial activities that causes or is likely to cause confusion with respect to the registered or unregistered trademarks; trade name; a business identifier; the presentation of a product or service; or a celebrity or a well-known fictional character of the products of another person’s enterprise or its activities constitutes unfair competition. Section 2 of the Act protects the goodwill or reputation of a person’s enterprise or activities represented by a registered or unregistered trademarks; trade name; a business identifier; the presentation of a product or service; or a celebrity or a well-known fictional character from any act or practice that damages or is likely to damage it whether or not it act or practice causes confusion; (iii) the use of a geographical indication identifying wines or spirits not originating in the place indicated by the geographical indication even when the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as ‘kind’, ‘style’, ‘imitation’ or the like.
- 18.
See South African Department of Science and Technology Indigenous Knowledge Systems Policy available at www.eifll.net/system/files/201101/sa_iks.pdf; Oguamanam and Dagne ‘Geographical Indication’ 93.
- 19.
There is no reason why geographical indications in Kenya cannot be protected by collective marks or certification marks.
- 20.
See Bocedi and Avvocati 2010. www.Tradecomacpeu.com/resources‘files/24/country-paper-on-kenya.pdf (hereafter Country Paper Kenya).
- 21.
Country Paper Kenya 10.
- 22.
Country Paper Kenya 10.
- 23.
Country Paper Kenya 10.
- 24.
Country Paper Kenya 11.
- 25.
Country Paper Kenya 11.
- 26.
Country Paper Kenya 11.
- 27.
Country Paper Kenya 11.
- 28.
See Swiss-Kenyan Project Document 2009. www.ige.ch/fileadmin/user_upload/.../e/MoU-swiss-kenya-e.pdf.
- 29.
See Country Paper Kenya.
- 30.
Country Paper Kenya.
- 31.
Country Paper Kenya.
- 32.
Country Paper Kenya 15.
- 33.
See Amegatcher (1993), pp. 78–79.
- 34.
See also s 28(2) which grants a performer the exclusive right to authorise or prohibit (a) the rebroadcasting, rental and distribution of a fixation of the performance; (b) the fixation of the performance; (c) the reproduction of a fixation of the performance; or (d) the communication to the public of the performance except where the performance has been lawfully fixed on audio visual or audio recording media which may be broadcast without the consent of the performer, if the recordings have been published; subject to the payment of equitable remuneration to the performer.
- 35.
See s 29 of CA Ghana.
- 36.
See s 5 of the TA Ghana.
- 37.
Asein (2003), pp. 186.
- 38.
Thus s 27 of CA Nigeria provides that a person who infringes a performer’s rights shall, unless he proves to the satisfaction of the court that he did not know that his conduct was an infringement of the performer’s right, be liable on conviction (a) in the case of an individual, to a fine not exceeding N10 000; (b) in the case of a body corporate, to a fine of N50 000; (c) in all other cases, to a fine of N100 for each copy dealt with in contravention or to imprisonment for 12 months or to both such fine and imprisonment. In addition a court before which an offence under this section is tried shall order that the recording or any other part thereof be delivered to the performer.
- 39.
See s 30(5) of CA Kenya.
- 40.
See s 87 of the IPA Kenya.
- 41.
17 of 1941 as amended up to 2002.
- 42.
See GN 817 in GG 36736 of 16 August 2013. The Notice states that the South African Honeybush Tea Association (SANTA) has conveyed a request for the prohibition, in terms of s 15(1) of the said Act, on the use of the words indicated hereunder in connection with any trade, business, profession, or occupation or in connection with a trademark, mark or trade description applied to goods, other than the use thereof by SAHTA members or any other party in accordance with the ‘Rules of Use for Honeybush’.
- 43.
See GN 1073 in GG 36973 of 1 November 2013 which states that the Karoo Development Foundation Trust has sought for the prohibition of the term ‘Karoo Lamb’ in terms of s 15(1) of the MMA.
- 44.
The investigations by the Minister would include affording interested persons an opportunity to comment on a proposed notice in terms of s 13 of the Act.
- 45.
These variants are ‘Red Bush’, ‘Rooibooste’, ‘Rooibos Tea’, ‘Rooitea’ and ‘Rooibosch’.
- 46.
The Rules of Origin provide as follows: ‘The name ROOIBOS can only be used to refer to the dry product, infusion or extract that is 100% pure Rooibos—derived from Aspalathus linearis and that has been cultivated or wild-harvested in the geographic area as described in this application.’
Rooibos flavoured tea or infusions with liquid flavourants (flavoured Rooibos) can be called ‘Rooibos liquid flavourant’ on the conditions that Rooibos is the main ingredient (after water); the exact percentage of Rooibos content appears on the label/packaging; the final product must still be recognizable as Rooibos, as characterised in the description of the product.
Following guidance from the SA Rooibos Council, other products (for instance extracts, soaps, cream, yoghurts, liquor, etc.) may be called ‘Rooibos other product’ only if it contains Rooibos and on the conditions that ‘Rooibos’ (or ‘Aspalathus linearis’) appears on the list of ingredients. It can be proven that Rooibos adds to the characteristics of the product.
- 47.
See Jordan ‘1360ha of veld dotted with highly prized sheep’ available at www.news.howzit.msn.com/border-war-erupts-over-Karoo-Lamb. The news story reports a dispute of the exact definition of Karoo in light of the proposed notice to be issued under the MMA.
- 48.
See Oguamanam and Dagne (2013), p. 81.
- 49.
See further Nwauche (2015a), QMJIP.
- 50.
See the Policy document on the Indigenous Knowledge Systems (IKS).
- 51.
See the Explanatory Memorandum, 36.
- 52.
Hereafter IKS Policy Statement.
- 53.
Hereafter IPLAB 2008.
- 54.
B8–2010. Hereafter IPLAB 2010.
- 55.
For a discussion and detail of relevant documents of this legislative process, see C. Jooste ‘Trampling Tradition - A Call for Support’ CIP Blog post of March 19 2013. Available at www.blogs.sun.ac.za/iplaw/2013/03/19/trampling-tradition/.
- 56.
Hereafter IPLAB 2011.
- 57.
In terms of S. 79 of the 1996 Constitution of the Republic of South Africa (Hereafter SA Constitution).
- 58.
The SA Constitution recognises four categories of bills: Bills amending the Constitution (section 74), Bills not affecting provinces (section 75), Bills affecting provinces (section 76) and Money Bills in terms of section 77 of the Constitution that deal with appropriation of money, imposition of national taxes, levies, duties, or surcharges.
- 59.
Hereafter The Memorandum and is contained in Doc. No B8B-2010 (ISBN 978–1–77,037-885-8), p. 36. This version of the Bill was presented by the Portfolio Committee on Trade and Industry to Parliament after amendments occasioned by vigorous public debates. The original bill was introduced by the Government into the National Assembly through the Intellectual Property Laws Amendment Bill 2010. See the Explanatory memorandum published in Government Gazette No. 33055 of 29 March 2010. Doc No B8–2010.
- 60.
Ibid.
- 61.
Ibid.
- 62.
Ibid.
- 63.
These management structures for indigenous knowledge include the establishment of a National Council in respect of Indigenous Knowledge; to provide for National Databases for recording Indigenous Knowledge and to providing for recording of indigenous works and to provide for the Establishment of a National Trust Fund for Indigenous Knowledge.
- 64.
See s 3 of the IPLAA 2013.
- 65.
See s 2 of the SA TMA.
- 66.
Section 11 of the SADA.
- 67.
See, for example, Visser (2002), SA Merc LJ, pp. 656–687.
- 68.
Established pursuant to section 185 of the Companies Act 2008 (Act 71 of 2008).
- 69.
Section 28B(5) of SACA provides that if an indigenous community has established a community protocol, the interaction with the indigenous community contemplated in subsection (4) must take such community protocol into account.
- 70.
See s 43B(1) of the SA TMA.
- 71.
A certification trademark is described by s 42 of the SA TMA as a mark capable of distinguishing in the course of trade, goods and services certified by any person in respect of kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of the goods and services, or the mode or time of production of the goods or rendering of the services as the case may be, from the goods and services not so certified shall on application be registered as a certification trademark.
- 72.
A collective trademark is described by s 43 of the SA TMA as a mark which is capable of distinguishing in the course of trade goods or services of persons who are members of any association from goods or services of non-members and the mark is in the name of such association.
- 73.
A ‘geographical indication’ is defined by s 2 of the SA TMA (in as far as it relates to indigenous cultural expressions or knowledge) as meaning an indication which identifies goods or services as originating in the territory of the Republic or in a region or locality in that territory, and where a particular quality, reputation or other characteristic of the goods or services is attributable to the geographical origin of the goods or services, including natural and human factors.
- 74.
See s 43B(8)(b) of the SA TMA.
- 75.
S 43B(3) of the SA TMA.
- 76.
S 43C(1)(b) of the SA TMA.
- 77.
S 28C (1) and (2) of SACA.
- 78.
SACA s 28C(4).
- 79.
SACA s 28C(14).
- 80.
‘Author’ is defined in s 1 of SACA as including the person who first made or created a ‘derivative indigenous work’ and the indigenous community from which a work originated and acquired its traditional character.
- 81.
SACA s 28C(7).
- 82.
SACA s 28(8).
- 83.
SACA s 28C(9).
- 84.
SACA s 28C(11).
- 85.
SACA s 28C(12).
- 86.
SACA s 28C(13).
- 87.
SACA s 28C(16).
- 88.
S 43D of SA TMA.
- 89.
See ss 43D(2)(a) and 43D(14) of the SA TMA.
- 90.
See SA TMA s 43D(2)(b).
- 91.
Any natural person who created the traditional terms and expressions or geographical indications; natural or juristic person authorised to act on behalf of an indigenous community, or on behalf of an individual; or person appointed by the Minister in the manner prescribed, to act on behalf of an indigenous community which is no longer in existence.
- 92.
See SA TMA s 43D(4).
- 93.
See SA TMA s 43D(5)(a). The circumstances include where the originator of the traditional term or expression or the geographical indication cannot be determined, where the originator of the traditional term or expression or the geographical indication, is an indigenous community which is no longer in existence; and where the indigenous terms or expressions or geographical indication developed in such a manner that proprietorship cannot be shared amongst indigenous communities.
- 94.
See SA TMA s 43D(5)(b)-(d).
- 95.
SA TMA s 43D(6). The relevant information includes identification of the indigenous community and its acknowledged structure full details of the appointed representative of the indigenous community in whose name the traditional term or expression or the geographical indication must be registered; if the representative is a juristic person, full details of registration of such juristic person; the indigenous term or expression or geographical indication that is being registered and the justification for the community claiming rights to it; whether such indigenous term or expression or geographical indication is sacred, or should for any other reason, which must be provided, be kept confidential; and a written undertaking by the representative of the indigenous community to the effect that he or she will hold the right to the indigenous term or expression or geographical indication on behalf of the indigenous community. S 43D(7) requires the National Council to assist the indigenous community to ensure that the protocol corresponds to the structure of the community.
- 96.
See SA TMA s 43D(12).
- 97.
SA TMA s 43D(11).
- 98.
SA TMA s 43D(17(a).
- 99.
SA TMA s 43D(17)(b).
- 100.
SA TMA s 43E(2).
- 101.
A derivative indigenous design is considered to be new if it is different from or does not form party of the state of art immediately before the date of the application for registration or the release date whichever is earlier.
- 102.
Whereupon the provisions of s 28C of SACA shall, with necessary changes, apply. SADA s 53C(1) provides that the National Database of Indigenous Knowledge shall constitute and function as a sub-register within the register of designs. A part T is to be opened in the register for traditional designs.
- 103.
SADA s 53C(6)–(8).
- 104.
SADA s 53C(15).
- 105.
SADA s 53C(16).
- 106.
SADA s 20.
- 107.
SADA s 53C(9).
- 108.
SADA s 53E(1)(b).
- 109.
SADA s 53B(1).
- 110.
SADA s 53B(2).
- 111.
SADA s 53B(4) provides that the negotiations with the third party shall take into account a community protocol on a benefit-sharing arrangement.
- 112.
SACA s 28E.
- 113.
SACA s 28E(2).
- 114.
SACA s 28G(4).
- 115.
See SA TMA s 35.
- 116.
In terms of s 43B(6)(b) & (c) of the SA TMA.
- 117.
SA TMA s 43F(6).
- 118.
SA TMA s 43F(8).
- 119.
SADA s 53F.
- 120.
SACA s 28F.
- 121.
SACA s 28F(2).
- 122.
The exceptions covered by ss 12, 13, 14, 15, 16, 17 18 and 19B of SACA relate to literary artistic and musical works; published editions and computer programs; program carrying signals; cinematographic films; and sound recordings. As adapted the relevant parts of SACA provides that copyright shall not be infringed by any fair dealing with a traditional work or its adaptation in its original language or a different language in a number of instances: (a) for the purposes of research or private study by, or the personal or private use of, the person using the work; (b) for the purposes of criticism or review of that work or of another work; or (c) for the purpose of reporting current events (i) in a newspaper, magazine or similar periodical, or (ii) by means of broadcasting or in a cinematograph film. Provided that, in the case of paragraphs (b) and (c) (i), the source shall be mentioned, as well as the name of the author if it appears on the work. Secondly, the copyright in a literary or musical work shall not be infringed by using the work for the purposes of judicial proceedings or by reproducing it for the purposes of a report of judicial proceedings. Thirdly, The copyright in a literary or musical work which is lawfully available to the public shall not be infringed by any quotation there from, including any quotation from articles in newspapers or periodicals that are in the form of summaries of any such work: Provided that the quotation shall be compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose and that the source shall be mentioned, as well as the name of the author if it appears on the work. Fourthly, usage by way of illustration in any publication broadcast or sound or visual record for teaching provided that such use shall be compatible with fair practice and the source shall be mentioned as well as the name of the author if it appears on the work. Fifthly, a broadcaster may with its own facilities reproduce and keep a traditional work for not more than 6 months or a longer term as agreed with the owner of a copyright if the reproduction is intended for lawful purposes and the reproduction is destroyed. If the reproduction of the traditional work is of exceptional documentary nature the work may be kept in an archive and not used for broadcasting except with the consent of the copyright owner. Sixthly, if a dealer in radio and television services use a traditional work to demonstrate the equipment to a client. Seventhly, an authorisation to include a traditional work in a cinematograph film includes a right to broadcast such a film.
- 123.
S 8(3) of the SA PPA.
- 124.
See, for example, Davies (2002), p. 7.
- 125.
A 27(1) and (2) of the UDHR provides that (1) everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Professor Paul Torremans states that even though the UDHR as the product of the United Nations General Assembly may be regarded as aspirational or advisory, the UDHR has ‘gradually acquired the status of customary international law and of the single most authoritative source of human rights norms. See Torremans ‘Copyright as a human right’ 5 (hereafter Torremans).
- 126.
A 15(1) provides: ‘The State parties recognize the right of everyone (a) To take part in cultural life (b) To enjoy the benefits of scientific progress and its applications (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’
- 127.
See, for example, Nwauche (2008), IIC-Int’l Rev. IIC-Int’l Rev. Indus Prop & Copyright L, p. 917.
- 128.
See, for example, Rens and Ncube (2012). www.infojustice.org/archives/9110.
- 129.
See generally Schonwetter et al. (2010), p. 231. Many South African artists have voiced considerable concern over the loss of traditional intellectual property as a source of inspiration. For example, Hlastwayo laments that authors who are engaged in recording Africa’s oral traditions will be discouraged by the IPLAB 2010. See Hlastwayo (2010), p. 20. See also Myburg (2010), p. 18.
- 130.
See, for example, Visser (2005), CILSA, pp. 321–343.
- 131.
See generally Brown (2003).
- 132.
‘It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.’
- 133.
WTO, United States s 110(5) of the US Copyright Act: Report of the Panel, 15 June 2000, WTO Doc WT/DS160.
- 134.
See, for example, the French Supreme Court in Mulholland v Drive French Supreme Court, 28 February 2006 (2006) IIC 760; the Brussels Court of First Instance in Google Inc. v Copiepresse SCRL Court of First Instance of Brussels 13 February 2007 [2007] ECDR 5.
- 135.
- 136.
Hereafter Council.
- 137.
Hereafter Trust.
- 138.
S 28L of SACA. Before appointing members of the Council, the Minister shall publish a notice in the Gazette or any other widely circulating means of communication calling for nominations and setting forth the criteria for nomination. In appointing the members of the Council, the Minister may consult the Ministers responsible for agriculture, arts and culture; environmental affairs, science and technology; organised local government; an association of traditional healers; the Council of Traditional Leaders; academia; the legal profession; organised commerce and industry; or any other relevant body or institution.
- 139.
S 28L(6) of SACA.
- 140.
See SACA ss 28M and 28M(2). The Council is to advise the Minister on a number of issues including any matter concerning indigenous cultural expressions or knowledge; matters relating to performances of traditional work; the integrity of a database of intellectual property in relation to indigenous cultural expressions or knowledge and matters involving the registration of indigenous cultural expressions or knowledge relevant. When any of these registrars is in doubt as to the suitability of an application for registration for a traditional work traditional mark traditional design or performance of a traditional work the Council can be approached for advice on whether the registrar is to accept or refuse the application. With respect to performances of traditional works the Council is regarded as the authority under s 6 of the PPA when a performance of a traditional work is performed by several performers as a group and no other designated authority exists. The Council shall also refer any disputes to a dispute settlement body established pursuant to s 28K of SACA and carry out any other function(s) assigned to it by the Minister. In furtherance of its statutory function the Council has powers to appoint any person to assist the Council with the performance of any specific act, task or assignment, or to investigate any matter relating to its functions; constitute and maintain such committees as it may deem necessary; appoint as members of the committees any of its members and any other persons for such periods of time as the council may determine; and refer to such committees any tasks or matters as may be necessary to enable the Council to carry out its functions.
- 141.
S 28I(1) of SACA envisages the establishment of a Trust made up of five members and to be known as the National Trust for Indigenous Knowledge.
- 142.
See s 28I(9) of SACA.
- 143.
Hereafter the ‘Fund’.
- 144.
SACA s 28I(5).
- 145.
SACA s 28I(6) provides that in utilising the Fund for the benefit of indigenous communities the Minister may prescribe administration fees; fees relating to commercialisation, exploitation and training of indigenous communities; the frequency and manner in which payments shall be made to indigenous communities; and any other matter related to the administration of the income received by the Fund.
- 146.
SACA s 28K(4).
- 147.
SACA s 28K(5).
- 148.
SACA s 28K(6).
- 149.
S 1 of SACA defines a ‘collecting society’ as a society created by this Act, or agreement and which amongst others manages matters related to rights in copyright works; negotiates for, and collects royalties and benefits on behalf of its members; and distributes royalties and benefits to copyright owners.
- 150.
See, for example, s 28H(3)(a) of SACA; s 43F(4)(a) of the SA TMA; and s 53F(4)(a) of the DA.
- 151.
SACA s 28D.
- 152.
SACA s 28D(3).
- 153.
Dean (2010a), p. 16.
- 154.
See ‘Umoja and Gallo Settle Music Feud’ The New Age 4 March 2013.
- 155.
This definition is used in the SA TMA, the SADA and the SA PPA.
- 156.
Dean’s comments related to a definition of the term ‘indigenous community’ in the IPLAB 2010 which is ‘any community of people living within the borders of the Republic or which historically lived within the geographic area located within the borders of the Republic’.
- 157.
Dean (2010b), p. 16.
- 158.
See Geyer (2010), PELJ, pp. 127–143. The comments by Geyer are also based on the definition of ‘indigenous community’ in the IPLAB 2010.
- 159.
- 160.
See also Harms (2009), p. 175 whose description of ‘community’ clearly refers to a community related to blood.
- 161.
See Mukuka (2010), p. 18.
- 162.
See Dean (2012a), Install 1.
- 163.
- 164.
2008 1 SA 474 (CC).
- 165.
[2009] ZASCA 85 (SCA).
- 166.
[2009] ZASCA 157 (hereafter Century City).
- 167.
[2011] ZASCA 4 (hereafter LFE).
- 168.
See Van der Vyver (2012), De Jure, p. 140, who asserts that members of the Zulu Tribe, the Roman Catholic Church and the Afrikaans-speaking community qualify to be a people.
- 169.
See Century City [2009] ZASCA 157 para 37.
- 170.
See Century City [2009] ZASCA 157 para 39.
- 171.
2008 1 SA 474 (CC).
- 172.
[2009] ZASCA 85 (SCA).
- 173.
Dean (2010b), p. 186.
- 174.
See Pillay 2008 1 SA 474 (CC).
- 175.
See Pillay 2008 1 SA 474 (CC) para 52.
- 176.
See Pillay 2008 1 SA 474 (CC) para 52.
- 177.
See Pillay 2008 1 SA 474 (CC) para 147.
- 178.
See Century City [2009] ZASCA 157.
- 179.
See Century City [2009] ZASCA 157 para 34 adopting para 38 of the judgment in Peek and Cloppenburg KG’s Application [2006] ETMR 33. See also Pistorius (2010), pp. 10–14.
- 180.
See Ecols (2003), JAL, p. 215.
- 181.
See Dean (1996), p. 38.
- 182.
See Rimmer (2008). http://works.bepress.com/matthew_rimmer/63.
- 183.
See Nkomo (2013), XLVI, CILSA, pp. 257–273.
- 184.
The notice may include exceptions or modifications to the application of IPLAA 2013 in respect of a specified country; provide for general or limited application of IPLAA 2013 to traditional works.
- 185.
S 36 of the South African Constitution provides: ‘The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.’
- 186.
S 25 of the South African Constitution provides that (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. (2) Property may be expropriated only in terms of law of general application—(a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court; (3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including—(a) the current use of the property; (b) the history of the acquisition and use of the property; (e) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation. (4) For the purposes of this section—(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and (6) property is not limited to land. (5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. (6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. (7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. (8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1). (9) Parliament must enact the legislation referred to in subsection (6).
- 187.
S 16 of the South African Constitution provides that (1) Everyone has the right to freedom of expression, which includes—(a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (e) freedom of artistic creativity; and (f) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not extend to—(a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
- 188.
2006 1 SA 144 (CC).
- 189.
2006 1 SA 144 (CC) para 83.
- 190.
Dean (1997), p. 113: who does not agree that ‘intellectual property’ is ‘constitutional property: The issues of expropriation of property and restoration of property previously dispossessed, with which s 25 is preoccupied, not only have no relevance to IP but would, if applied to IP, abrogate the very underlying principles and theory of IP’. See National Soccer League T/A Premier Soccer League v Gidani (Pty) Ltd. [2014] 2 ALL SA 461 (GJ).
- 191.
Constitutional Property Law, pp. 94–95.
- 192.
‘Property’, pp. 46–17.
- 193.
The Bill of Rights Handbook, p. 539; see also Du Bois (2012), SA Merc LJ, pp. 177–193.
- 194.
See Du Bois (2013), pp. 144–170.
- 195.
See First National Bank of SA t/a Wesbank v Commissioner, South African Revenue Services 2002 4 SA 768 (CC).
- 196.
Harsken v Lane NO 1998 1 SA 300 (CC); Steinberg v South Peninsula Municipality 2001 4 SA 1243 (SAC).
- 197.
[2013] ZACC 9 (hereafter Agri South Africa).
- 198.
Act 28 of 2002.
- 199.
See Schedule II to the MPRDA. In effect the existing rights were given a lifespan of between 2 and 5 years from the commencement of the MPRDA within which the owner could lodge a conversion application which would yield MPRDA rights.
- 200.
- 201.
A 11 of the Kenyan Constitution provides: ‘(1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. (2) The State shall — (a) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; (b) recognise the role of science and indigenous technologies in the development of the nation; and (c) promote the intellectual property rights of the people of Kenya. (3) Parliament shall enact legislation to — (a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and (b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.’
- 202.
A 40(5) of the Kenyan Constitution provides that the State shall support, promote and protect the intellectual property rights of the people of Kenya.
- 203.
Cultural expressions are defined by s. 2 of the PTKCE 2016 as any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise of the following forms of expressions or combinations thereof (a) verbal expressions including stories, epics, legends, poetry, riddles; other narratives; words, signs, names, and symbols; (b) musical expressions including songs and instrumental music; (c) expressions by movement, including dances, plays, rituals or other performances, whether or not reduced to a material form; (d) tangible expressions, including productions of art, drawings, etchings, lithographs, engravings, prints, photographs, designs, paintings, including body-painting, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, pictorial woven tissues, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments, maps, plans, diagrams architectural buildings, architectural models; and architectural forms;
- 204.
Section 15 (2) of the PTKCE 2016 provides for a voluntary registration process of cultural expression a duty it imposes on county governments who are to collect information document and register cultural expressions within the respective counties for the purposes of recognition. The effect of the registration is towards a mere declaratory function and not to confer rights.
- 205.
See section 33 of PTKCE 2016.
- 206.
Section 2 of the PTKCE 2016 defines customary use as the use of traditional knowledge or cultural expressions in accordance with the customary laws and practices of the holders.
- 207.
The independent and inalienable moral rights of owners and holders of cultural expressions are to be found in in the provisions of s. 18(5) and s. 21. The latter defines moral rights as including (a) the right of attribution of ownership or paternity in relation to their traditional knowledge and cultural expressions; (b) the right not to have ownership of traditional knowledge or cultural expressions falsely attributed to them; and (c) the right not to have their traditional knowledge and cultural expressions subject to derogatory treatment including any act or omission that results in a material distortion, mutilation or alteration of the traditional knowledge or cultural expressions that is prejudicial to the honor or reputation of the traditional owners, or the integrity of the traditional knowledge or cultural expressions; and (d) the right to protection from false and misleading claims to authenticity and origin. Section 18(5) prohibits the use of words, signs, names and symbols that are cultural expressions or derivatives thereof, or acquire or exercise intellectual property rights over the cultural expressions or derivatives thereof, in a manner that disparages, offends or falsely suggests a connection with the community concerned, or brings the community into contempt or disrepute.
- 208.
The disclosure of secret cultural expression attracts more punishment.
- 209.
See further Nwauche (2015b), Marquette IPLR, pp. 221–243.
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Nwauche, E. (2017). The Positive Protection of Traditional Cultural Expressions by Intellectual Property Rights in Africa. In: The Protection of Traditional Cultural Expressions in Africa. Springer, Cham. https://doi.org/10.1007/978-3-319-57231-4_5
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