The National Policy on Intellectual Property (IP) seeks to adapt the IP regime of the country to local conditions and integrate it into the national policies of South Africa including industrial, Agricultural Development, Education, Public Health, Research and Development and Enforcement. On the other hand, the policy seeks to re-align the broader development objectives and matters of public interest.
Patents
Patents are a form of Industrial Property that is associated with technology and it can be described as a bundle of rights granted to the inventor of a new product or process that allows the inventor to exclude third parties from making, using, offering for sale, selling or importing the patented product, using the patented process or importing a product made with the patented process for a period of 20 years from the date of filing, unless the inventor gets to assign the rights to a third party.
Patents are territorial in nature and are affected or moulded by policies of the countries that grant them. In this regard, a country is allowed in terms of the Agreement on Trade Related Aspects of Intellectual Property to take a policy position around issues such as “compulsory and voluntary licensing” and “parallel importation”. These issues are relevant for accessibility and affordability of medicines.
In the current SA Patent Act 1978, parallel importation is not catered for whilst compulsory licensing is not informed by the recent Doha Decision on public health and intellectual property under the WTO processes of the Development Agenda. The Patents Act as it stands therefore does not address issues of pricing of medicines, but the policy seeks to address such. Further, grants and incentives may be introduced in order to encourage innovation by the locals through the policy options available to member states of WTO.
Harmonisation of Laws should take place in Africa. The Proposed Pan African Intellectual Property Office (PAIPO) is fully supported by South Africa as it will lead to IP being dealt with uniformly. We are hoping that the areas of disagreement will be ironed out soon. South Africa is seeking to use the patent related flexibilities as set out in the TRIPS agreement of WTO.
In South Africa there is no patent extension or restoration but we are under pressure to provide for such. In this regard an initial recommendation is that there should be no patent extension/restoration as there is no standardised timelines in the world to deal with common granting standards. Until such time that harmonisation takes place, it would be difficult for SA to introduce patent extension or restoration.
South Africa wants to undertake substantive search and examination of patents so as to have strict rules that frustrate granting weak patents as is the case currently through the ”Depository System”. Weak patents frustrate accessibility and affordability of medicines and technologies. With regard to the aforementioned, we are considering going the Substantive search and Examination route.
As we all know generic medicines are manufactured based on a patent that has expired or is no longer under patent protection. Due to public policy option available to the state, the state may allow the working on the patent before its expiry for purposes of allowing generic medicine development. Such workings are not regarded as infringing as long as competition with the innovator does not take place before the expiry of the patent or the developed generic medicine is not released into the channels of commerce before the expiry of the patent. Our Patents Act, 1978 allows generic medicines to be developed before an expiry of the patent.
Generic medicines may contribute to the reduction of prices of medicines as they are not involved in research and development. South Africa will assist in the development of technical capabilities for the development of the generic industry.
This may assist in the accessibility and affordability of medicines.
- South Africa will amend its legislation to address issues of parallel importation and compulsory licensing in line with the Doha Decision of the WTO on IP and public health
- Incentive schemes in the area of IP in general will be developed in order to achieve its developmental goals.
- Competition law will continue to apply to the patent regime where there is over- concentration, dominance or abuse.
Copyright
Copyright legislation is out-dated in South Africa as it dates back to 1978 and does not take into consideration the advances in the digital arena thus needs to be overhauled especially in view of the WIPO treaties that have come into being in the recent past. The treaties in question are the Beijing treaty, the Marrakesh treaty amongst others.
The South African Government is also looking at the issue of collective management of royalties in view of complaints from industry stakeholders especially royalty payment in view of artist dying poor. In 2011, I established the Copyright Review Commission whose mandate was to basically look at the collective management in the country and come up with recommendations. Some of the recommendations are that the Copyright legislation must be brought up to speed with the developments taking place at international level, one super collecting society per right must be brought into being in South Africa and local content must feature in extensively in local radio stations as the quotas’ are not adhered to currently and these need to be enforced.
In conclusion, the comment period on the policy ended on 17 October 2013. The majority of the comments are positive and are commending the South African Government in taking this major step in coordinating its efforts in the IP sphere both nationally and internationally.
A conference on this policy is being planned for the month of November to focus specifically on main issues that transpired from the public consultation process. Dates and venue will be communicated as soon as all logistical arrangements are finalised.
The removal of credit information
The National Credit Act was introduced in 2006 with the aim of facilitating access to credit to a broad section of the South African population while addressing the abusive practices that have plagued the credit market for many decades. Many of these abusive practices have been addressed and was established to oversee compliance with the Act.
The challenge over the last four years has been the growing number of consumers that are over-indebted and struggling to pay their bills. Many factors, such as economic and personal circumstances, contribute to this problem. Most consumers were affected by the financial crisis during these years, and their credit status impaired significantly as a result. However, the weaker affordability assessment on credit applicants is one of the causes of this problem. Consumers continue to receive credit from reckless borrowers, who fail to do proper affordability asessments, thus putting consumers in a continouos debt cycle.
The NCR is in the process of introducing affordability assessment guidelines to address this. Further, education and awareness camaigns will be implemented directly intended to asssist consumers to better understand their finances and fully and honestly disclose their fnancial status to credit providers when applying for credit.
Over and above the guidelines and the awareness interventions, the dti has made proposals to amend various sections of the Act to close loopholes that have undermined the spririt and objectives of the Act. In particular, the debt counselling process has been undermined firstly by lack of cooperation from credit providers who continue to implement court processes despite a debt counseling process being initiated. Secondly, consumers that have paid off their short term debt remain unrehabilitated due to debt such as homeloans that take a longer period to repay. The amendment thus seek to also bring about early rehabilitation of consumers to enable them to interact with the economy further. The National Credit Amendment Bill has been introduced into Parliament last month and will be processed to bring about thes changes.
The other intervention proposed is the removal of adverse credit regulation, as was proposed by Parliament. The purpose of this process is to provide relief to consumers listed at the credit bureaus to access credit if they can afford it, pay less for credit and to obtain employment and rental accommodation. A number of consumers’ acccess to credit is barred by adverse listing which is referred to irrespective of whether or not the financial position of a consumer has changed.
The proposal is to remove all adverse information listings from the credit records of consumers. This move would provide relief to the affected consumers to obtain employment, rental accommodation and credit if they can afford it. The payment profile information which reflects how an account is paid on a monthly basis will not be removed from the credit records of consumers through this process. This payment history information will allow credit providers to adequately assess the application against the risk, and and price for risk appropriately. The credit bureaus display this information on the credit records of consumers for up to three years and are allowed by the Act to display it for five years.
With proper affordability assessments and the retention of the payment profile information, credit providers will be able to ensure that consumers who are already over-indebted do not obtain more credit. These will also mitigate the risk of unhealthy surge in credit acceptances following the removal of adverse credit information.
It is expensive for many consumers with judgments listed on their credit records to apply to the courts to have these judgments rescinded so that they can be removed from their records. The removal of this information will address this problem by requiring credit bureaus to remove judgment listings from credit records following payment of the judgment debts. Consumers will no longer have to incur legal costs to remove their names from credit bureaus. Consumers would also no longer have to wait for five years to pass before the judgments are removed from their credit records.
Similarly, consumers with adverse information listings would also have these removed from the credit records following settlement of the underlying accounts. They will no longer have to wait for one or two years to pass before the listings are removed. These changes are fair and will provide an incentive to consumers to pay the debts while also benefitting credit providers.
There is a widespread use of credit reports for employment positions which do not entail the handling of finances. Credit bureaus will be required to stop issuing credit reports to agencies which use these reports for non-financial jobs. This reckless and inappropriate use of a consumer’s credti information goes against the objectives of the Act and needs to be arrested immediately as it impacts on employment opportunities of many consumers when this country has such high unemployment figues.
The role that credit bureau information could play in combating consumer over-indebtedness is acknowledged but this this information should be improved to enable credit providers to conduct adequate affordability assessments on credit applicants. The changes to be introduced to achieve this include requiring all credit providers to report new credit granted to the credit bureaus frequently and within a short space of time.
The proposal to remove adverse credit information was endorsed by the Select Committee on Trade and International Relations and supported by Cabinet as an approach that will be beneficial to both consumers and the industry. In order to sustain the effect of this process, other interventions such as the affordability assessment guidelines, discretionary income guidelines, and credit literacy programmes for consumers will be implemented.
the dti published a notice in the Government Gazette (Notice 966 of 2013) on the 30th of September 2013 inviting stakeholders to submit comments to the dti within 30 days after the publication of the Notice. The consultation workshops on this are proceeding as we speak.
These changes will benefit all South Africans regardless of race or affiliations to different organizations. Close to 2 million consumers will benefit from this process.
Enquiries:
Sidwell Medupe, Departmental Spokesperson
Tel: 012 394 1650
Cell: 079 492 1774
E-mail: MSMedupe@thedti.gov.za
