No. 37148
GOVERNMENT GAZETTE, 10 December 2013
Act No. 28 of 2013
60
Intellectual Property Laws Amendment Act, 2013
60
(4) For the purposes of this Act, an indigenous community is deemed to
be a juristic person.
(5) Any—
(a) person who created the derivative indigenous design;
(b) person authorised to act on behalf of an indigenous community, or on
behalf of an individual, or
(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 for a traditional design
to be registered in the database, whereupon the provisions of the said
section 28C of the Copyright Act shall, with necessary changes, apply.
(6) If the applicant for registration is an indigenous community, the
request referred to in subsection (5) shall include a community protocol
setting out relevant information about the indigenous 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 indigenous design must be registered;
(c) if the representative is a juristic person, full details of registration of
such juristic person;
(d) the indigenous design that is being registered and the justification for
the community claiming rights to it;
(e) whether such indigenous design 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 design 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 design.
(9) An indigenous community may register an indigenous design:
Provided that where the indigenous community—
(a) registers an indigenous design within 36 months from the commencement of the Intellectual Property Laws Amendment Act, 2013, or such
longer period as the Minister may prescribe, such indigenous
community shall enjoy the right to royalties and benefits conferred by
the Intellectual Property Laws Amendment Act, 2013, from the date of
its commencement; or
(b) registers an indigenous design after the period contemplated in
subsection (a), such indigenous community shall enjoy the right to
royalties and benefits conferred by the Intellectual Property Laws
Amendment Act, 2013, from the date of registration.
(10) The Commission may determine that certain 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 (5), or a third party who has
an interest in a traditional design 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
design in the database, whereupon the provisions of section 28C(17) of the
Copyright Act shall, with necessary changes, apply.
(12) The registrars of patents, copyright, trade marks and designs shall
examine any application for the registration of a traditional design received
in terms of this section and, if it complies with the requirements of this Act,
register such design in Part T of the database which contains registrations
with regard to traditional designs as ‘‘TA’’, if it is an indigenous design or
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