South Africa’s Department of Trade and Industry has released the Draft Intellectual Property Policy of the Republic of South Africa Phase I (2017) (“the Policy”). Once the Policy has been published in the Government Gazette, submissions can be submitted within 60 days from date of publication.

The Policy describes IP as “an important policy instrument in promoting innovation, technology transfer, research and development (R&D), creative expression, consumer protection, industrial development and more broadly, economic growth“, and emphasis the link between IP and some of the key goals contained, for instance, in the country’s National Development Plan as well as the National Industrial Policy Framework as implemented through the Industrial Policy Action Plan. A domestic IP Policy is seen as a core tool to facilitate South Africa’s transition from over-reliance on natural resources towards a knowledge economy, with the aim of promoting “a holistic, balanced and coordinated approach to IP that is mindful of the many obligations mandated under the South African Constitution.”

The overarching goals of the Policy are summarised as follows:

• To consider the development dynamics of South Africa and improve how IP supports small institutions and vulnerable individuals in society, including in the domain of public health
• To nurture and promote a culture of innovation, by enabling creators and inventors to reach their full potential and contribute towards improving the competitiveness of our industries
• To promote South African arts and culture
• To solidify South Africa’s various international obligations, such as the Convention on Biological Diversity (CBD) and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (Nagoya Protocol on ABS), in the service of our genetic resources and traditional knowledge associated with genetic resources

The overarching objective is to make this IP Policy a just, balanced, and integral part of the broader development strategy for South Africa that helps transforming the South African economy, leverages human resources for the broader economic benefit, increases local manufacturing, and creates more employment.

Strategically, the Policy is geared towards (i) advancing a balanced and coordinated approach to IP that regulates IPRs in line with the South African Constitution; (ii) introducing key policy reforms that account for the development dynamics of South Africa; (iii) promoting innovation and a knowledge economy; and (iv) leveraging competitive and comparative advantages to advance the transformation of the South African economy.

To this end, the Policy proposes, among other things, the following key reforms:

• The introduction of substantive search and examination (SSE) for patents
• The leveraging of flexibilities contained in the TRIPS Agreement
• The promotion of economic empowerment through, among other means, the implementation of the “utility model” to support the registration of patents by resident small, medium and micro-enterprises (SMMEs), historically disadvantaged individuals, and companies who are operating in the informal sector.
• The creation of a system for protection for traditional knowledge which will safeguard misappropriation and exploitation, as well as promote further research and development into products and services based on traditional knowledge.

South Africa’s comprehensive IP Policy will be implemented in a phased approach. This first phase only covers IP and public health, coordination in international forums, and the implementation of commitments undertaken in international agreements. This Policy follows the publication of the 2013 Draft National Policy on Intellectual Property of South Africa and the 2016 Intellectual Property (IP) Consultative Framework. UCT’s IP Unit has submitted comments on both previous documents here and here, and intends to again submit commits concerning the latest draft policy document.