South Africa Approves New IP Policy, With Guidance From UN Agencies

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(by Linda Daniels – first published for Intellectual Property Watch under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.)

It took nine years of policy development, two different draft policies and various rounds of public consultation, to finally see Cabinet give the nod to the new Intellectual Property (IP) policy in South Africa.

Cabinet, the highest decision-making body of government made the announcement in a statement released earlier this week. Cabinet’s approval of the policy has set in motion an administrative process which will lead to the publication of the finalized policy in the government gazette. At this stage it is unclear when it will be published.

High-level input went into the IP policy and Cabinet’s approval was applauded by both local and international IP stakeholder communities.

According to sources, the United Nations Conference on Trade and Development (UNCTAD) and the UN Development Program (UNDP) provided substantive advice and assistance on the development of the policy from mid-2016. The overall purpose of UNCTAD’s and UNDP’s involvement was to share experience in international IP policymaking to help South African stakeholders compare the approach taken in their national policy with practices in other jurisdictions.

This involved a series of activities on the draft IP policy as well as its predecessor, the Department of Trade and Industry (DTI) draft consultative framework for IP, the sources said. UNCTAD and UNDP organised two national stakeholder consultations, in 2016 and 2017, on the policy document. The process also was said to involve other organisations such as the World Health Organization (WHO), World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).

The UN Office of the High Commissioner for Human Rights (OHCHR) provided inputs to a human rights analysis of the draft policy prepared by UNCTAD and UNDP at the DTI’s request. This involved a series of activities on the draft IP policy as well as its predecessor, the DTI draft consultative framework for IP. Since 2016, UNCTAD and UNDP have been in touch with the South African government’s Inter-Ministerial Committee on IP (IMCIP), which is in charge of the IP policy.

Christoph Spennemann, legal officer and officer-in-charge, Intellectual Property Unit, Division on Investment and Enterprise, UNCTAD, congratulated South Africa on the adoption of the national IP policy.

“This is an important step toward improved access to medicines in South Africa and the development of its domestic pharmaceutical sector,” Spennemann said in a written response to Intellectual Property Watch. “The policy has been inspired by SDG [UN Sustainable Development Goal] 3 on healthy lives and well being for all. It is in line with international practices and strikes a fair balance between incentives for innovation and the need to promote generic competition and access to medicines. The introduction of substantive patent examination will contribute to enhanced legal certainty for both IP holders and competitors.”

“It is now important to ensure appropriate implementation of the policy in South Africa’s domestic laws,” he said. “It will also be important to embark on the design of Phase 2 of the policy, with emphasis on the promotion of creativity and incremental innovation in the informal sector, increased use of trademarks and IP licensing. We are ready to continue assisting South Africa in this respect.”

“As far as this past process is concerned,” Spennemann concluded, “I am particularly happy about the good cooperation between UNCTAD and UNDP, the involvement of invaluable expertise from sister agencies such as WHO, WIPO and WTO, and the professional leadership of the Department of Trade and Industry.”

Positive Reaction

Local reaction to Cabinet approval of the policy was equally positive.

The Fix the Patent Laws Coalition (FTPL), which is made up of a joint coalition of 36 patient groups, said in a statement: “Though we await seeing the final policy until it is gazetted by government, we are optimistic that the policy will herald a new era for access to medicines in South Africa by prioritising people’ lives over the profits of pharmaceutical corporations.

While the finalisation and adoption of a policy is an important milestone, the hard work of developing and passing legislative amendments is still ahead of us. We urge the Department of Trade and Industry to prioritise the development of bills that will bring a more humane and Constitutionally sound balance to our legal framework…the Coalition, will release a full statement after having read and analysed the new policy in detail.

Marcus Low, member of the steering committee of the Fix the Patent Laws campaign, added: “Firstly, we haven’t seen the policy yet, so it is difficult to comment. We do however suspect, based on the draft policy, that the final policy will be relatively good. If that is correct, the next step is for the DTI to send bills to parliament so as to amend the Patents Act. Our understanding is that the DTI has already started drafting bills. We will provide what support we can in this process and when bills go to parliament we will make our submissions like all other interested parties.”

Tobias Schonwetter, director of the Intellectual Property Unit at the University of Cape Town, said: “Going forward, I do now expect that South Africa speedily amends its patent law in line with what is spelled out in the policy – including the phasing in of a patent examination system in the country. I also hope that subsequent phases of the policy will be tackled speedily and thoroughly and in the same spirit as this phase; this seems to be particularly relevant for the area of copyright law, where it seems that the ongoing copyright revision process has recently fallen victim to increased lobbyist pressure from the beneficiaries of the current but obsolete system.”

“[T]he risk is that we will soon end up here with a rather disappointing and incomplete patching of a few select issues, without addressing some of the important underlying problems that the copyright system faces in the digital age,” he added. “We should fully embrace this opportunity to move forward towards creating a modern and progressive legislative framework that can serve as a model and benchmark for other countries, especially in Africa.”

The Chief Executive Officer of the Innovative Pharmaceutical Association of South Africa (IPASA), Konji Sebati, offered a written response from the association, which stated in part:

“1) IPASA supports the South African government’s Department of Trade and Industry’s efforts to develop its Industrial Policy.

2) In structuring an IP system, it will be important to comply with the provisions of the WTO Agreement on Trade-Related aspects of IP Rights (“TRIPS”), taking into account TRIPS obligations; and South Africa is a signatory to these International treaties

3) Subsequent legislation must not erode and in fact weaken the patent system. It has been shown in several studies that a country that respects IP attracts foreign direct investment – and SA sorely needs that right now.

4) South Africa must not be pressured to “fix the patents”, irrespective of all other stakeholders’ needs, and in fact protection by the law; because as a matter of fact 70% or more essential medicines are off patent and should be available to our people. Patents are not a barrier to access, but other variables are just as important – infrastructure, healthcare workers, distribution and supply – to name a few.

5) We eagerly await the next phase of this process as the different government departments adopt whatever they deem vital for their amendments to their existing IP Acts.”