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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(2) Nothing in this chapter shall be construed as conferring any rights on
any person in respect of intellectual property which is not a traditional
work.
Traditional works eligible for copyright
28B. (1) Subject to the provisions of this Act, traditional works shall be
eligible for copyright.
(2) Notwithstanding section 2(2), a traditional work shall not be eligible
for copyright unless it has been written down, recorded, represented in
digital data or signals, or otherwise reduced to a material form or is capable
of substantiation from the collective memory of the relevant indigenous
community.
(3) Copyright shall be conferred on a traditional work only if—
(a) the traditional work is a derivative indigenous work and was created
on or after the date of commencement of the Intellectual Property
Laws Amendment Act, 2013, and the indigenous community from
which the work, or a substantial part thereof originated, is or was an
indigenous community when the work was created; or
(b) the traditional work is an indigenous work.
(4) No right in a derivative indigenous work provided for in the
Intellectual Property Laws Amendment Act, 2013, shall be eligible for
registration unless—
(a) prior informed consent has been obtained from the relevant authority
or indigenous community;
(b) disclosure of the indigenous cultural expressions or knowledge have
been made to the Commission; and
(c) a benefit-sharing agreement between the applicant and the relevant
authority or indigenous community has been concluded.
(5) If an indigenous community has established a community protocol,
the interaction with the indigenous community contemplated in subsection
(4) must take such community protocol into account.
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National Database
28C. (1) There shall be kept in the prescribed manner, at the offices of the
registrars of patents, copyright, trade marks and designs, databases for
indigenous knowledge as part of existing intellectual property registers,
where applicable.
(2) The databases contemplated in subsection (1) shall form subsections
of existing intellectual property registers and shall incorporate separate
sections for the recording of information on different manifestations of
indigenous cultural expressions or knowledge, as contemplated in
subsection (3).
(3) All information submitted to the registrar regarding manifestations of
indigenous cultural expressions or knowledge shall be recorded in the
databases in the appropriate sections in the prescribed manner.
(4) Registration in respect of a traditional work shall be for the purposes
of recordal of ownership and identification of representation within an
indigenous community.
(5) The databases may be kept in an electronic format, and shall be open
for inspection by the public during office hours, upon payment of the
prescribed fee.
(6) The registrars of patents, copyright, trade marks and designs may
request any relevant person to provide them with such information or
advice as they may require in order to assess a request for recording as
contemplated in subsection (7), or to maintain the databases.
(7) Any—
(a) person who is an author;
(b) person authorised to act on behalf of an author; 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,
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