South African Government

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Intellectual Property Laws Amendment Act 38 of 1997

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38 of 1997

The Intellectual Property Laws Amendment Act 38 of 1997 intends:

  • to amend the Merchandise Marks Act, 1941, so as
    • to substitute, to delete or to amend certain definitions;
    • to define certain expressions;
    • to repeal the provisions relating to the unlawful trading in counterfeit goods in so far as these provisions are to be superseded by other envisaged legislation regarding the counterfeiting of goods;
    • to adjust the powers of inspectors to enter and search premises and attach goods;
    • to substitute or delete certain obsolete provisions and references;
    • to delete a provision imposing a burden of proof on an accused;
    • to provide for a presumption with respect to the offence of offering for sale or hire goods to which any false trade description is applied; and
    • to adjust the provisions regarding penalties for offences; 
  • to amend the Performers’ Protection Act, 1967, so as
    • to delete or to amend certain definitions;
    • to define certain expressions;
    • to protect performances in countries which are members of the World Trade Organization;
    • to lengthen the term of protection for performances to fifty years;
    • to provide for all broadcasters;
    • to adjust the provisions regarding penalties for offences; and
    • to extend the application of the Act to performances which took place before its commencement to correspond with the Agreement on Trade Related Aspects of Intellectual Property Rights (the TRIPS Agreement);
  • to amend the Patents Act, 1978, so as
    • to define certain expressions;
    • to amend or to substitute certain definitions;
    • to clarify the provisions with respect to the payment of renewal fees, the priority dates of matter as opposed to patent claims, the principle of privilege regardhg communications by or to patent agents and the assessment of damages;
    • to bring the Act in line with the Trade Marks Act, 1993, the Designs Act, 1993, and the TRIPS Agreement;
    • to provide for the implementation of the Patent Cooperation Treaty in the event of South Africa’s accession thereto;
    • to effect a correction in the Afrikaans text;
    • to repeal or amend certain obsolete provisions and references; and
    • to amend the long title;
  • to amend the Copyright Act, 1978, so as
    • to substitute, to amend or to delete certain definitions;
    • to elaborate the requirement that a work must exist in a material form to qualify for copyright;
    • to adjust the term of copyright in a cinematography film and to extend the scope of copyright in computer programs in view of the TRIPS Agreement;
    • to provide for all broadcasters; to amend the pro}tilons relating to damages and other compensation for the infringement of copvright in order that it corresponds with the Trade Marks Act, 1993, and the Designs Act 1993; and
    • to substitute a certain word in the Afrikaans text;
  • to amend the Trade Marks Act, 1993, so as
    • to amend the provisions regarding marks that may not be registered as trade marks and those regarding the protection of well-known trade marks to ensure compliance with the TRIPS Agreement and Article 6ter of the Paris Convention;
    • to effect a correction in the English text;
    • to further regulate the relief for the infringement of registered trade marks;
    • to provide that the registrar must keep a list of emblems of convention countries and international organisations; and
    • to replace an incorrect reference;
  • to amend the Designs Act 1993, so as
    • to define an expression;
    • to delete a definition;
    • to adjust the requirements for the registration of a design;
    • to amend the provisions regarding the notification of registration and the certificate of registration;
    • to adjust the provisions regardhtg compulsory Iicences in respect of certain registered designs and to further regulate the effect of the registration of a design and the amendment of an application for registration, and of a registration of a design, to ensure compliance with the TRIPS Agreement; and
    • to correct or to clarify certain provisions; and
  • to provide for matters connected therewith.


  • 16 March 1999, Sections  26, 27(c), 38 and 47 (Gazette 19844 of 12 Mar 1999)
  • 1 January 1998 , Sections 1 to 18 (Gazette 18573 of 19 December 1997 )
  • 1 October 1997, unless otherwise indicated