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. 5 10 15 20 25 30 35 40 45 50 55 60