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The commitments to development-oriented intellectual property policy, in particular the proposed changes to the patent system to ensure greater access to medicines, are welcome.
The policy addresses issues that affect the daily struggles of millions of South Africans. The A2K coalition therefore submits that as a national policy it must take into account the fundamental rights of South Africans. The lack of reference to fundamental rights and Batho Pele as the most important policy driver of Intellectual Property policy is cause for grave concern.
There are many important needs of South Africans that are not addressed by the current intellectual property laws, the 1978 Copyright Act and the 1978 Patent Act. The primary legislation is thus in urgent need of reform. The Access to Knowledge Coalition cannot address the full range of issues that require attention. Instead the coalition has focused on two urgent issues which must become priorities in the national Intellectual Property policy: provisions for sensory impaired persons, and fair use.
Exceptions are necessary to ensure that blind and visually impaired persons have access to reading materials in a technology-neutral way which operates in all environments, and without requiring the consent of any information intermediaries, whether search engines, internet service providers or other intermediaries.
The draft policy accepts in principle the need for fair use. But South African law does not currently specify an explicit fair use provision. The introduction of a fully fledged fair use provision into current South African copyright legislation will benefit teachers, learners, library users, software engineers, film makers, artists, writers and journalists. A fair use provision is a flexible, open-ended provision that enables courts to develop copyright law in a way that balances the rights of copyright holders and those who use copyright works to learn, to educate and to create new works, in a rapidly changing, technological landscape.
Legislative reform however is complicated by the many treaties by which South Africa is bound, not least the Berne Convention, Paris Convention and Trade Related Aspects of Intellectual Property agreement (WTO-TRIPS), including the so called three step test. A fair use provision that is substantially the same as the provision adopted in the United States, and currently being adopted or considered by other jurisdictions such as Australia and the United States, does not require any analysis to ensure it complies with international treaties because its compliance has already been established. Legislation that complies with the Marrakesh Treaty to enable access by the blind and visually impaired also complies with international treaties.
Without appropriate provisions for blind and visually impaired persons and a flexible fair use provision, copyright legislation fails to fulfill the fundamental rights of South Africans and is open to constitutional challenge. These two reforms should be stated as urgent priorities in the national Intellectual Property policy.