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The much anticipated draft IP Policy for South Africa has finally been published by the Department of Trade and Industry (DTI) and is now open for comment by the public. By way of background, South Africa’s first draft IP Policy was published by the DTI in September 2013, with a fairly short 30-day submission period. The stated aim of the draft IP Policy was to remedy perceived uncertainty involving IP matters, brought on by a lack of general IP policy in the country.

The original draft policy met with strong criticism and dissent in submissions and comment from stakeholders, including academic institutions, non-profit groups and law firms. Some of the more controversial criticism of 2013 draft came from organisations such as the Treatment Action Campaign (TAC), Section 27 and Médecins Sans Frontières (MSF), who all called for a change in laws relating to pharmaceutical patents and HIV/AIDS treatment. However, the biggest gripe among submission arguments was the fact that IP stakeholders had not been consulted in regard to the draft process and, as such, there was a glaring lack of public input. The policy was also widely considered to have been poorly drafted and contained blatantly incorrect statements regarding the law.

Following the criticism levelled against the draft IP Policy, the DTI agreed that the process needed to be revaluated and, in July 2016, the IP Consultative Framework replaced the 2013 draft IP Policy. In addition, an inter-ministerial committee on IP (IMCIP) was created to assist with the process and ensure that relevant stakeholders were appropriately consulted.

Adams & Adams, as Africa’s largest IP law firm, was one of a number of legal stakeholders that had expressed concerns; so when the window for public submissions was again opened for the IP Consultative Framework in the third quarter of 2016, the firm engaged heavily with the DTI and provided detailed commentary. Read the Adams & Adams comments on the draft IP Policy here.

Following the 2016 submissions and other IMCIP processes, the new draft IP Policy was reviewed by Cabinet in March and the draft IP Policy 2017 Phase 1 was approved. You can view the draft IP Policy document here. The Department of Trade and Industry has now called on all interested parties to make their submissions within 60 days, with the closing date for submissions being 23 October 2017.

Hopefully, the next phase of the process will be a smooth one.

by Dineo Modibedi | Associate

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