Human Rights · Intellectual Property · IP Policy

South Africa’s New IP Policy: A Human Rights Perspective

As you may already be aware, South Africa’s Department of Trade and Industry has recently published the ‘Intellectual Property Policy of the Republic of South Africa Phase 1 2018‘ i.e. a new IP policy document. I believe that this document will be subject to critical analysis by other commentators in the coming weeks/months. In this post, I just want to focus on aspects of the policy document that incorporate a human rights perspective. This is not the first time that this blog will examine a country’s IP policy document from a human rights perspective. For a previous similar analysis of India’s IP policy document, see here.

Firstly, it is noteworthy that in its ‘problem statement,’ (page 7) the South African IP policy document acknowledges that:

“…the intersection of IP and public health has long been an issue of contention within South Africa, and one without resolution to date. Recognition of the problem began as early as 1997, with amendments to the Medicines Act, and the subsequent case, PMA v the President of the Republic of South Africa. Thus, it has been twenty years since the problem was identified. As both a constitutionally guaranteed right, as well as a key
development goal, the issue of access to health care services – and the role of IP in delivering public health – has been at the forefront of human rights debates in the country.”

Secondly, in enunciating the purpose of the policy, the document states on page 10 that:

“South Africa requires a coordinated and balanced approach to IP that provides effective protection of IPR and responds to South Africa’s unique innovation and development dynamics. South Africa’s IP Policy must first and foremost engender the ethos of the South African Constitution. It must also reflect the country’s industrial policy and broader socioeconomic development objectives … It should also be aligned to the country’s objectives of promoting local manufacturing, competitiveness and transformation of industry in South Africa. This must be done within a broader context where the state is bound to respect and implement various international commitments; those pertaining to human rights are of fundamental importance.”*

Thirdly, on page 11, in outlining the objectives of the South African IP policy, it is clearly stated that one of the objectives that the policy document seeks to advance is compliance “with international obligations, in particular those pertaining to human rights.”

This post is not intended to be an exhaustive examination of all the issues addressed in the policy document. It is however worth noting that the document identifies a number of key areas where a more equitable balance could be struck between protecting IP rights and the public interest especially in relation to access to medicines. In this regard, the document outlines a number of interventions including: local manufacture and export, substantive search and examination of patent applications, patent opposition, patentability criteria, disclosure requirements, parallel importation, exceptions (early working/bolar exception, and research & experimental use exception), compulsory licences, and competition law.

The policy document is worth reading. More importantly, it is hoped that the lofty ideals contained in the policy document will form the basis for the much needed amendment of South Africa’s patent law in the near future.



*Underling mine.



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