No. 37148
GOVERNMENT GAZETTE, 10 December 2013
Act No. 28 of 2013
64
Intellectual Property Laws Amendment Act, 2013
64
act, a royalty, benefit, or both such royalty and benefit, shall be paid by such
person to the proprietor of the traditional design as provided for in
subsection (4).
(2) Any person who has acquired rights as contemplated in subsection (1)
must comply with section 53B(3)(b) and (c), within 12 months after the
commencement of the Intellectual Property Laws Amendment Act, 2013:
Provided that—
(a) the rights of the indigenous community to royalties or benefits or to
both such royalties and benefits shall come into existence on the
commencement of the Intellectual Property Laws Amendment Act,
2013; and
(b) save for the obligations contemplated in this subsection and subsection (1) such person shall continue to hold his or her right in the
manner he or she has done prior to the commencement of the
Intellectual Property Laws Amendment Act, 2013.
(3) Any person who intends to acquire rights pertaining to use of an
indigenous design after the commencement of the Intellectual Property
Laws Amendment Act, 2013, must comply with section 53B(3).
(4) The amount or value of a royalty, benefit, or both such royalty and
benefit, contemplated in subsection (1) or negotiated for in the benefit
sharing agreement contemplated in subsections (2) and (3) shall be
determined—
(a) by agreement between the person who is the user of the traditional
design and the proprietor of the traditional design;
(b) by one or more collecting societies representing either or both of these
parties; or
(c) in the absence of agreement, by—
(i) an institution accredited by the Commission as contemplated
in section 53I(1); or
(ii) arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of
1965).
(5) Agreements concluded in terms of subsections (2), (3) or (4) must be
submitted to the Council, who shall—
(a) scrutinise the agreement for compliance with intellectual property
laws, including this Act and the community protocol; and
(b) where any clause within the contract is regarded as not being to the
benefit of the indigenous community or member of the indigenous
community concerned, require renegotiation of said clause and
provide the necessary advice.
(6) The owner of a derivative indigenous design shall pay a royalty,
benefit, or both such royalty and benefit, to the owner of an indigenous
design from which the derivative indigenous design was derived.
(7) Any person deriving commercial benefit from the use of a traditional
design, which commercial benefit is less than the prescribed value shall be
excluded from the requirements of sections 53B(3), 53F(2), 53F(3) and the
requirement to pay royalties and benefits as contemplated in section 53F(1)
and (3).
(8) A traditional design may be used without obtaining prior consent of
the traditional design proprietor, if it is for the purpose of—
(a) private study or private use;
(b) professional criticism or review;
(c) reporting on current events;
(d) education;
(e) scientific research;
(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
such portions as is reasonably required are used and that the traditional
design proprietor’s name is acknowledged.
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