In the jungle, the mighty jungle of cut-throat propriety

2013-06-11 10:00

In Awakening the Lion (Tafelberg, 2012), Owen Dean tells the story of his success in using copyright protection to benefit the descendants of the South African musician, Solomon Linda, who composed a song titled Mbube (Zulu for “lion”).

It later became the ballad for the animated adventure, The Lion King, which just about everyone has by now seen.

Dean wrote that more than 150 artists recorded Linda’s Mbube, which became The Lion Sleeps Tonight.

The song features in many movies and musicals, and has been translated into French, Japanese, Spanish and Danish, among other languages.

“It has earned over R150?million in royalties,” Dean remarks, but “Linda’s role in the song’s creation is undisputed, he died a pauper, leaving his family too poor even to afford a headstone for his grave”.

Dean took Walt Disney Enterprises to court and won.

The 2006 settlement acknowledged that: The Lion Sleeps Tonight derives from Mbube, with Linda as the acknowledged co-composer; Linda’s heirs will receive payment for past uses of the song and are entitled to future royalties from its worldwide use; and a trust be created to administer the heirs’ royalty earning copyright in Mbube and The Lion Sleeps Tonight.

Dean is admired for his legal smarts (he used the 1911 Imperial Copyright Act in force in all British colonies to win his case), but I tell this story to show how important an intellectual property regime is to protect individuals from having their ideas stolen.

But for it to work properly, there must be a concrete form (a song, book or design) attributable to an originator (a composer, writer or artist) and have identifiable beneficiaries (descendants or those designated as beneficiaries by the originator).

Dean’s advice was to write a special law devoted entirely to protecting indigenous knowledge applications.

Not only did he advise, he drafted a new law and posted it on a website.

A public-spirited act rare in today’s world, I had permission to submit Dean’s intellectual property as a Private Members’ Bill, duly published in Parliament on April 16 2013 as The Protection of Traditional Knowledge Bill.

The bill does not amend existing intellectual property laws covering copyright, trademark, patent, design, performers’ and film protection rights.

Rather, it gives special protection to indigenous knowledge applications when it comes to traditional works, designs and marks or images.

It furthermore provides for a fund to receive royalties and a proper governance system to distribute these.

But the trade and industry department thought otherwise.

Instead of preparing a separate law to protect traditional knowledge, it sought to amend the existing patent, copyright and trademark laws.

This stretched these laws in a manner that created, in Dean’s words, “unwelcome uncertainty”, to the dismay of our main trading and investment parties, who fear that their companies may lose research and development commitments because of diluted protection of their intellectual property.

Titled the Intellectual Property Laws Amendment Bill, Trade and Industry Minister Rob Davies sought to establish the equivalent of an encyclopedic register of all accumulated expressions of indigenous knowledge where the originators are mostly unknown, the beneficiaries of royalties indeterminable and real innovators undefined.

First introduced in January?2010, Davies’ bill went through Parliament only for President Jacob Zuma to quite rightly return it because the National House of Traditional Leaders was not consulted.

Davies’ committee did not ensure that the House was properly consulted.

Instead, it used a two-year-old letter as evidence of consultation, a ruse by sleight of hand.

Don MacRobert of law firm Edward Nathan Sonnenbergs wrote to “exhort Parliament not to try and attach such an important bill to other existing acts”.

Instead, Sonnenbergs supports the DA’s stand-alone Traditional Knowledge Bill, as does the Law Society of South Africa.

The Competition Commission wrote to say that “the introduction of a bill that is exclusively focused on traditional knowledge matters is welcome”.

In?government’s ranks, the science and technology department, which is the custodian of traditional knowledge science applications, submitted comments on the DA’s bill, saying that a “sui generis legislation for the protection of indigenous knowledge systems cannot be moulded around existing conventional intellectual property rights laws”.

On April 2, Davies himself was quoted as saying that his department is “having a thorough relook” at their bill and that he was unable to give “any comfort that this intellectual policy is coming out soon”.

Even so, the committee persisted like a bad habit and the House sent the bill to the National Council of Provinces for concurrence.

But it is not too late for Minister Davies to withdraw a very bad law.

»?James is the DA shadow minister of trade and industry

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