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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expression or geographical indication from which the derivative indigenous
term or expression or geographical indication was derived.
(7) Any person deriving commercial benefit from the use of a traditional
term or expression or geographical indication, which commercial benefit is
less than the prescribed value shall be excluded from the requirements of 5
sections 43B(6), 43F(2) and (3) and from the requirement to pay licence
fees and benefits as contemplated in section 43F(1).
(8) A traditional term or expression or geographical indication may be
used without obtaining prior consent of the trade mark proprietor, if it is for
the purpose of—
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(a) private study or private use;
(b) professional criticism or review;
(c) reporting on current events;
(d) education;
(e) scientific research;
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(f) legal proceedings; or
(g) the making of recordings and other reproductions of indigenous
cultural expressions or knowledge for purposes of their inclusion in an
archive, inventory, dissemination for non-commercial cultural heritage safeguarding purposes and incidental uses: Provided that only 20
such portions as is reasonably required for such use are made and that
the trade mark owner’s name is acknowledged.
National Trust and Fund for Indigenous Knowledge
43G. (1) The National Trust and the Fund, as the case may be, shall
constitute and function as a National Trust and Fund in respect of traditional 25
terms and expressions and geographical indications for purposes of this
Act, and the provisions of section 28I of the Copyright Act shall, with
necessary changes, apply.
(2) All monies payable in respect of the use of an indigenous term or
expression or geographical indication registered under this Act and owned 30
by the National Trust shall be paid into the Fund contemplated in subsection
(1) and shall be applied for the benefit of indigenous communities in the
manner prescribed in section 28I of the Copyright Act.
Assignment and licences
43H. (1) Save for—
(a) assignment of an indigenous term or expression or geographical
indication to a collecting society, or
(b) transfer to a duly appointed representative of the community,
the certification or collective trade marks in an indigenous term or
expression or geographical indication shall not be transmissible by
assignment, testamentary disposition or operation of law, but the doing of
any act may be licensed.
(2) Should the certification or collective trade mark referred to in
subsection (1) vest in a representative of an indigenous community, 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
certification or collective trade mark to a person, as the indigenous
community may decide.
(3) Should the certification or collective trade mark referred to in
subsection (1), vest in a representative of an indigenous community, such
certification or collective trade mark shall automatically upon the death of
the last living member of such indigenous community transfer to the
National Trust.
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