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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may, for the purposes of recordal, submit to the registrars of patents,
copyright, trade marks and designs a request together with the appropriate
information as prescribed, for a manifestation of indigenous cultural
expressions or knowledge to be recorded in the relevant database.
(8) If the applicant for registration is an existing indigenous community,
the request referred to in subsection (7) 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 copyright must be registered;
(c) if the representative is a juristic person, full details of registration of
such juristic person;
(d) the indigenous work that is being recorded and the justification for the
indigenous community claiming rights to it;
(e) whether such indigenous work 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 copyright on behalf
of the indigenous community.
(9) The Council shall assist the indigenous community to ensure that the
community protocol corresponds with the structure of the indigenous
community.
(10) The community protocol must be kept with the recordal of the
indigenous work.
(11) If the registrars of patents, copyright, trade marks and designs are
satisfied that a request for recording meets with the prescribed requirements
for recording, he or she shall accept the request and, within the prescribed
period, cause the request to be published in the prescribed manner.
(12) Any person may, within three months from the date of publication of
the request contemplated in subsection (11), or such further period as the
registrars of patents, copyright, trade marks and designs may upon
application allow, oppose the recording by lodging with the registrars of
patents, copyright, trade marks and designs a notice of opposition setting
out the grounds on which he or she relies to support the opposition.
(13) An opposition contemplated in subsection (12) shall be dealt with in
the manner prescribed, and at the conclusion thereof the registrars of
patents, copyright, trade marks and designs shall decide either to—
(a) refuse the recording of the information concerned;
(b) record the information; or
(c) record the information subject to certain conditions.
(14) A recording as contemplated in this section shall serve as prima
facie proof of the existence of the manifestation of indigenous cultural
expressions or knowledge and the veracity of the information recorded, but
shall not give rise to any rights other than expressly provided in this Act or
in the Performers’ Protection Act, 1967 (Act No. 11 of 1967), the Trade
Marks Act, 1993 (Act No. 194 of 1993), or the Designs Act, 1993 (Act No.
195 of 1993).
(15) The Commission may determine which information recorded in the
databases 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.
(16) Any person contemplated in subsection (7), or a third party who has
an interest in a traditional work 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
work in the database.
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