Abstract
This paper considers how an appropriate theoretical framework for Intellectual Property may be constructed. Such a framework would be the lens through which contested IP issues may be resolved and upon which national IP policy and legislation might be based. The paper begins by highlighting the inherent tensions in IP, which are caused by the various stakeholder interests that this body of law seeks to balance, and by the cross-cutting nature of IP. It contends that in order to more equitably balance the contesting rights of the creators and users, IP rights should be formulated and enforced so as to meet societal goals or serve public interest, be responsive to the economic environment, and take cognisance of the human rights claims of both creators and users.
 
 National socio-economic goals should inform such a framework in a way that ensures that IP is used as a means to achieve these goals and is not perceived as an end. This will require nuances in policy and legislation that meet the country's needs. In particular, as a developing country South Africa would do well to exploit available flexibilities in the various international IP agreements by which it is bound.
 
 Due regard also ought to be had to the users' need for affordable access to IP-protected goods in order that they may exercise the right to work and access to knowledge, as provided for by ss 22 and 16 of the Constitution respectively. Similarly, creators ought to be given due recognition, together with reasonable reward and remuneration for their efforts. This will be achieved through the creation of an IP system that provides protection that is compatible with the nature of the good being protected and the manner in which the creative process unfolds. Such protection should rely on registration systems are efficient, simplified and affordable. The accompanying enforcement system should be equally accessible, although the costs of enforcement would depend on the forum used to secure redress. Finally, the resulting IP regulatory framework should be both certain and clear.
Highlights
Intellectual Property (IP) law is expected to provide equitable protection for eligible kinds of works in virtually all industries; to achieve fair treatment of creator, user and societal interests; and to contribute to a country‟s efforts to achieve economic development
This is a timely discussion as South Africa is engaged in national IP Policy formulation and public consultation is in progress.[1]
The South African Constitution does not provide for the right to IP as a human right because the Constitutional Court held that the right to have IP protection is not a fundamental right.[47]
Summary
Intellectual Property (IP) law is expected to provide equitable protection for eligible kinds of works in virtually all industries; to achieve fair treatment of creator, user and societal interests; and to contribute to a country‟s efforts to achieve economic development. It only seeks to highlight the main point of contestation in this discussion, which is whether or not IP law is suited to the peculiarities of TK, which include communal creation and ownership and the fact that TK often does not meet the eligibility criteria of IP protection such as novelty (for patent protection) or material fixation (for copyright protection) Perhaps, informed by these concerns, the Department of Science and Technology (DST) is creating sui generis protection for TK10 to complement the DTI's approach. It considers the protection of traditional knowledge, as this is a topical matter
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