No. 37148
GOVERNMENT GAZETTE, 10 December 2013
Act No. 28 of 2013
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Intellectual Property Laws Amendment Act, 2013
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(8) Notwithstanding the provisions of this section, any indigenous
community may establish a legal entity, business or other enterprise to
promote or exploit indigenous cultural expressions or knowledge: Provided
that any commercial benefit derived shall only be subject to royalties,
benefits or licence fees once, which royalties, benefits or license fees may 5
be paid to the Fund, if the Fund is the owner, by the indigenous community.
(9) Nothing in this Act, or in the Acts referred to in subsection (6) shall
prohibit an indigenous community from requesting the National Trust to
collect, manage and distribute royalties, benefits or license fees on its behalf
against payment of a prescribed fee.
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Assignment and licences
28J. (1) Save for—
(a) assignment of copyright to a collecting society; or
(b) the transfer to a duly appointed representative of the indigenous
community,
the copyright in an indigenous work shall not be transmissible by
assignment, testamentary disposition or operation of law, but the doing of
any act which is the subject of the copyright as contemplated in section 28E
may be licensed.
(2) Should the copyright referred to in subsection (1) vest in a
representative of an indigenous community, whether a natural or juristic
person, the indigenous community may—
(a) upon the death or liquidation of the said representative, as the case
may be; or
(b) prior to the death or liquidation of the said representative,
by agreement as set out in the community protocol, transfer such copyright
to a natural or juristic person, as the indigenous community may decide.
(3) Should the copyright referred to in subsection (1), vest in a
representative of an indigenous community, such copyright shall automatically upon the death of the last living member of such indigenous
community transfer to the National Trust.
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Disputes
28K. (1) The Commission must accredit certain institutions which have
the necessary capacity, to adjudicate any dispute arising from the
application of the Intellectual Property Laws Amendment Act, 2013.
(2) Any dispute arising from the application of the Intellectual Property
Laws Amendment Act, 2013, must first be instituted in an institution
accredited as contemplated in subsection (1).
(3) No person appearing in proceedings before an institution contemplated in subsection (1) shall have the right to legal representation unless —
(a) the adjudicator and all other parties consent; or
(b) the adjudicator, after considering—
(i) the nature of the questions of law raised by the dispute;
(ii) the relative complexity and importance of the dispute; and
(iii) the comparative ability of the parties to represent themselves
in the adjudication,
concludes that it would be unreasonable to expect the party to deal
with the adjudication without legal representation.
(4) Any adjudication must take into account existing customary dispute
resolution mechanisms.
(5) The decision of the institution referred to in subsection (1) may be
served, executed and enforced as if it was an order of the High Court.
(6) Any party to proceedings before an institution referred to in
subsection (1) may appeal to a court of law against any decision of such
institution, and the appeal must be noted and dealt with in the manner
prescribed by law for appeals against a civil order or decision of a single
judge.
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