No. 37148
GOVERNMENT GAZETTE, 10 December 2013
Act No. 28 of 2013
42
Intellectual Property Laws Amendment Act, 2013
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(c) person appointed by the Minister in the manner prescribed, to act on
behalf of an indigenous community which is no longer in existence,
may submit to the registrars of patents, copyright, trade marks and designs
a request together with the appropriate information as prescribed for a
traditional term or expression or geographical indication to be registered in
the database, whereupon the provisions of the said section 28C of the
Copyright Act shall, with necessary changes, apply.
(5) The applicant for registration and the proprietor shall be—
(a) where—
(i) the originator of the traditional term or expression or the
geographical indication cannot be determined;
(ii) the originator of the traditional term or expression or the
geographical indication, is an indigenous community which is
no longer in existence; or
(iii) the indigenous terms or expressions or geographical indication
developed in such a manner that proprietorship cannot be
shared amongst indigenous communities,
the National Trust;
(b) in all other instances related to indigenous terms or expressions, a
person authorised to act on behalf of the indigenous community or
indigenous communities or on behalf of an individual;
(c) in all other instances related to geographical indications, a person
authorised to act on behalf of the indigenous community or indigenous
communities or the relevant member of the indigenous community;
and
(d) in all other instances related to derivative traditional terms or
expressions, the relevant member of the indigenous community.
(6) If the applicant for registration is an indigenous community, the
request referred to in subsection (4) shall include a community protocol
setting out relevant information about the community, including—
(a) identification of the indigenous community and its acknowledged
structure;
(b) full details of the appointed representative of the indigenous community in whose name the traditional term or expression or the
geographical indication must be registered;
(c) if the representative is a juristic person, full details of registration of
such juristic person;
(d) the indigenous term or expression or geographical indication that is
being registered and the justification for the community claiming
rights to it;
(e) whether such indigenous term or expression or geographical indication is sacred, or should for any other reason, which must be provided,
be kept confidential; and
(f) a written undertaking by the representative of the indigenous
community to the effect that he or she will hold the right to the
indigenous term or expression or geographical indication on behalf of
the indigenous community.
(7) The Council must assist the indigenous community to ensure that the
community protocol corresponds with the structure of the indigenous
community.
(8) The community protocol must be kept with the registration of the
indigenous term or expression or geographical indication.
(9) Section 22(4) shall apply, with necessary changes, in relation to a
database for traditional terms or expressions or geographical indications.
(10) The Commission may determine which information recorded in the
database must be treated confidentially: Provided that if the community
protocol indicates that the information is sacred or must be kept in
confidence, the Commission must treat the information confidentially.
(11) Any person contemplated in subsection (4), or a third party who has
an interest in a traditional term or expression or geographical indication
may submit to the registrars of patents, copyright, trade marks and designs
a request together with the appropriate information as prescribed, for the
amendment or removal of a traditional term or expression or geographical
indication in the database, whereupon the provisions of section 28C(13) of
the Copyright Act shall, with necessary changes, apply.
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