BIPA Bill Final 2014

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BUSINESS AND INTELLECTUAL

PROPERTY AUTHORITY

BILL

(DRAFT)

[Act No. – 2013]

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

BUSINESS AND INTELLECTUAL PROPERTY

AUTHORITY BILL

(DRAFT)

STRUCTURE OF THE BILL

1. Part I deals with the objectives of the Bill.

2. Part II of the Bill establishes the Business and Intellectual Property

Authority, which will be a juristic person, the functions and powers of the

Authority, including the Authority’s principles of operation. Part II also

establishes the Board of the Authority, which will be the governing body of

the Authority. It also deals with the appointment of the Chief Executive

Officer of BIPA as well as the appointment of the employees.

3. Part III of the Bill establishes the Registers for Business and Intellectual

Property and grants BIPA investigation powers and compliance directives.

4. Part IV of the Bill deals with the financial provisions of the Authority.

5. Part V of the Bill deals with miscellaneous provisions such as indemnity of

members and staff of the Authority and powers to make regulations and

clauses dealing with transitional arrangements such as, transfer of property

from Registrar of Companies, Close Corporation and Industrial Property

Division in the Ministry of Trade and Industry, and Copyright Division in the

Ministry of Information and Communication Technology to the Authority.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL,

2013

BILL (DRAFT)

To establish the Business and Intellectual Property Authority; to provide for its powers and functions;

and to provide for incidental matters.

BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:

ARRANGEMENT OF SECTIONS

PART I........................................................................................................................................ 6

PRELIMINARY

1. Definitions and application 6

2. Objects of Act 8

PART II....................................................................................................................................... 8

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY

3. Establishment of BIPA 8

4. Functions and powers of BIPA 9

5. Constitution of Board of BIPA 11

6. Disqualification for appointment as member 11

7. Term of office of member 11

8. Vacation of office by member 12

9. Alternate member 12

10. Meetings of Board of BIPA 12

11. Committees of BIPA 13

12. Remuneration and allowances 14

13. Chief Executive Officer 14

14. Employees of BIPA 15

PART III...................................................................................................................................... 16

15. Registers 16

16. Inspection of register 16

17. Confidential information 17

18. Investigations 17

19. Inspectors 18

20. Compliance directives 19

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

PART IV...................................................................................................................................... 21

FINANCIAL PROVISIONS

21. Moneys of BIPA 21

22. Bank accounts 22

23. Financial year and budget 22

24. Auditing 23

25. Annual report 23

PART V....................................................................................................................................... 24

GENERAL PROVISIONS

26. Relationship with other authorities 24

27. Conflict of interest 24

28. Conflict of interest of employees 25

29. Confidentiality 25

30. Personal liability 25

31. Delegation of powers and assignment of functions 26

32. Validity of decisions 26

33. Offences 26

34. Rules by BIPA 27

35. Regulations by Minister 27

36. Transitional and savings provisions 28

37. Amendment of laws 29

38. Short title and commencement 29

SCHEDULE 1: Applicable Legislation 30

SCHEDULE 2: Amendment of Laws 31

SUMMARY OF IMPORTANT COMMENTS ON BIPA BILL 32

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

PART I

PRELIMINARY (ss 1-2)

Definitions and application

1. (1) In this Act, unless the context otherwise indicates-

“applicable legislation” means all laws (as listed in Schedule 1) which assign functions, powers and

duties to BIPA as provided for in this Act;

“BIPA” means the Business and Intellectual Property Authority established by section 3;

“Board” means the Board of members appointed in terms of section 5;

“business” means any company as defined in section 1 the Companies Act, any close corporation falling

within the definition of “corporation” as defined in section 1 of the Close Corporations Act and any

co-operative established under the Co-operatives Act;

“CEO” means the Chief Executive Officer of BIPA appointed under section 13(1);

“Close Corporations Act” means the Close Corporations Act, 1988 (Act No. 26 of 1988);

“committee” means a committee established under section 11;

“Companies Act” means the Companies Act, 2004 (Act No. 28 of 2004);

“Co-operatives Act” means the Co-operatives Act, 1996 (Act No. 23 of 1996);

“file”, when used as a verb, means to deliver a document to BIPA in the manner and form, if any,

determined or prescribed under this Act or any applicable legislation for that document;

“financial year” means the financial year of BIPA referred to in section 23;

“Industrial Property Act” means the Industrial Property Act, 2012 (Act No. 1 of 2012);

“inspector” means an inspector appointed under section 19(1);

“intellectual property” means ”industrial property” as defined in section 1 of the Industrial Property Act;

“member” means a person appointed as a member of the BIPA Board in terms of section 5;

“Minister” means the Minister responsible for trade and industry;

“personal financial interest”, when used with respect to any person means a direct material interest of

that person, of a financial, monetary or economic nature, or to which a monetary value may be attributed

but does not include any interest held by a person in a unit trust or collective investment scheme unless

that person has direct control over the investment decisions of that fund or investment;

“prescribed” means prescribed by rule or regulation, as the case may be;

“register” means a depository of documents required to be kept by BIPA in terms of section 15;

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

“regulation” means a regulation made under section 34(1);

“regulatory authority” means an entity -

(a) established in terms of legislation and responsible for regulating an industry or sector

of an industry; or

(b) authorized in terms of legislation to regulate an industry or sector of an industry;

“related person” means -

(a) where an individual is related to another individual -

(i) through marriage or living together in a relationship similar to marriage;

(ii) if they are separated by no more than two degrees of natural or adopted consanguinity

or affinity;

(b) where an individual is related to a juristic person in that the individual directly or indirectly

controls the juristic person as contemplated in subsection (3);

“rule” means a rule made under section 33(1);

“staff member” means a staff member as defined in section 1 of the Public Service Act, 1995 (Act No.

13 of 1995);

“this Act” includes the rules and regulations.

(2) Irrespective of any provision to the contrary in this Act, co-operative shall only fall within

the ambit of BIPA where the Minister responsible for agriculture, in consultation with the Minister, by

notice in the Gazette assigns this function to BIPA and Part II of Schedule 2 shall only commence on a

date determined in such notice.

(3) For the purposes of the definition of “related person”, a person controls a juristic person,

or its business, if -

(a) in the case of a juristic person that is a company, that person has, in relation to the

company, any of the rights set out in section 1(3)(a)(i) to (iii) of the Companies Act;

(b) in the case of a juristic person that is a close corporation, that person owns the majority

of the members’ interest, or controls directly, or has the right to control, the majority of

the members’ votes in the close corporation;

the majority of the votes of the trustees or to appoint the majority of the trustees,

or to appoint or change the majority of the beneficiaries of the trust.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Objects of Act

2. The objects of this Act are:

(a) To foster economic growth and development in order to raise income and promote

investment and employment and the efficient protection and administration of

business and intellectual property in Namibia;

(b) to consolidate, in the manner herein provided, the various offices and officials

involved in the registration and administration of business and intellectual property;

intellectual property and to keep and administer the registers with regard thereto;

(d) to promote the conduct and use of business and intellectual property in Namibia;

(e) to facilitate, streamline, simplify, harmonise and expedite business and intellectual

property procedures, registrations, filings and searches;

(f) to enhance the efficient exchange and distribution of information.

PART II

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY (ss 3-14)

Establishment of BIPA

3. (1) There is established a juristic person to be known as the Business and Intellectual

Property Authority.

(2) BIPA -

(a) has jurisdiction throughout the Republic of Namibia;

(b) is independent and subject only to the laws of the Republic of Namibia and such

policy statements, directives or requests as the Minister may issue to it in order

to promote the objects of this Act or the functions and powers of BIPA;

them under Article 18 of the Namibian Constitution;

(d) must perform its functions and exercise its powers in a cost-efficient and effective

manner.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Functions and powers of BIPA

4. (1) The functions of BIPA are -

(a) to be the central focal point for the registration, administration and protection of business

and intellectual property as provided for in this Act;

(b) to be the registry of information, documents and data required to be lodged with and

maintained by BIPA under the applicable legislation and to be responsible for the

examination and safe and orderly custody thereof;

intellectual property information and transaction systems;

(d) to maintain accurate, current and relevant information concerning business and intellectual

property;

(e) to promote, expedite and simplify the flow of information between BIPA and the business

community, users of business and intellectual property, general public, regulatory

authorities and organs of State ;

(f) to prescribe by rule fees and rates for business and intellectual property transactions

and services offered and to collect such fees and rates in so far as such fees and rates

are not covered under the applicable legislation;

(g) to determine legal and procedural requirements relating to its functions and its interaction

with stakeholders and customers in so far as these are not provided for in this Act and

the applicable legislation;

(h) to promote education and awareness of laws relating to business and intellectual property

and related matters ;

(i) to protect and promote traditional knowledge systems and traditional culture and

folklore as anticipated in the Swakopmund Protocol on the Protection of Traditional

Knowledge and Expressions of Folklore;

(j) to provide guidance to the public by issuing explanatory notices outlining its

procedures, its non-binding opinion on the interpretation of this Act or other

applicable legislation or by applying to a court for a declaratory order on the

interpretation or application of any provision of this Act;

(k) to advise the Minister, Government and public sector in general and, where relevant, the

private sector, on all matters pertaining business and intellectual property falling within

the scope of BIPA;

(l) to make recommendations to the Minister or any other Minister or organ of State as

regards the amendment or promulgation of any law in order to promote the efficient

operation of business and intellectual property;

(m) to perform any related functions assigned to it by legislation or reasonably necessary to

carry out its functions under this Act and the applicable legislation.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(2) BIPA may -

(a) organise outreach and awareness creation programmes to inform, educate and sensitise

the public on matters relating to business and intellectual property;

(b) have regard to regional and international developments in the field of business and

intellectual property and interact in the manner deemed fit by BIPA with regional and

international bodies having similar or related objects;

additionally -

(i) liaise with any regulatory authority on matters of common interest and exchange

information with, and receive information from, any such regulatory authority

pertaining to -

(aa) matters of common interest; or

(bb) a specific complaint or investigation;

(ii) participate in the proceedings of any regulatory authority;

(iii) advise, or receive advice from, any regulatory authority;

(d) conduct research relating to its mandate and activities and publish the results of such

research.

(3) In order to promote the enforcement of, and compliance with, this Act and the applicable

legislation, BIPA may -

(a) promote and, if requested thereto, undertake voluntary resolution of disputes between

any parties concerning any matter relating to this Act or the applicable legislation without

intervening in, or adjudicating, such disputes;

(b) monitor, in the manner deemed fit by it, compliance with this Act and the applicable

legislation;

this Act or the applicable legislation, evaluate such complaints and investigate such

complaints;

(d) refer alleged offences to the relevant prosecuting or regulatory authority.

(4) In so far as they are applicable and relevant to BIPA, the Board must oversee the

implementation of principles of good corporate governance for BIPA.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Constitution of Board of BIPA

5. (1) BIPA is governed by a Board which consists of at least five but not more than 7

members appointed by the Minister as follows -

(a) not more than three persons nominated by the Minister;

(b) not more than four persons selected by the Minister from the persons nominated in the

manner contemplated in subsection (2),

who have appropriate and relevant expertise and experience in one or more of the following, namely,

commerce, business, law, finance, economics and intellectual property.

(2) For the purposes of nomination of persons for appointment in terms of subsection

(1) (b) -

(a) the Minister must in at least two newspapers circulated throughout Namibia invite such

nominations, to be submitted to the Minister in writing within the period specified in the

invitation; and

(b) if no nomination is submitted as contemplated in paragraph (a) within the period specified

in the invitation referred to in that paragraph, the Minister may appoint any person

complying with the relevant requirements set out in that subsection as a member.

(3) The members must elect from their number a chairperson and a vice-chairperson of the

Board of BIPA at their first meeting.

(4) The CEO is an ex officio member but does not have voting powers.

Disqualification for appointment as member

6. A person may not be appointed as a member, if such person -

(a) is an unrehabilitated insolvent;

(b) during a period of 10 years preceding the date of the proposed appointment as a

member, has been convicted of any offence and was sentenced to a period of not less

than six months imprisonment without the option of a fine;

(d) is a member of the National Assembly or a regional council.

Term of office of member

7. A member holds office for a term of five years and is eligible for re-appointment at the

expiration of that term except for the CEO who is an ex officio member.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Vacation of office by member

8. (1) A member vacates office, if such member -

(a) becomes disqualified for appointment as a member in terms of section 6;

(b) resigns from office, after giving the Minister 30 days’ written notice of his or her intention

to resign;

(d) has been absent from three consecutive meetings of the Board without the permission

of the chairperson of the Board; or

(e) is removed from office under subsection (2).

(2) The Minister, by notice in writing, may remove a member from office on a valid reason,

after giving such member a reasonable opportunity to be heard.

(3) If a member dies or vacates office before the expiration of his or her term of office, the

Minister must appoint a person to fill the vacancy for the remainder of such term in accordance with

section 5.

Alternate member

9. (1) The Minister, with due regard to section 5, may appoint for every member a person

as alternate member to act in the place of a member in the event of such member’s absence or inability

to act as a member.

(2) The provisions of this Act relating to a member apply in the same manner to an alternate

member when acting in the place of a member.

Meetings of Board of BIPA

10. (1) The first meeting of the Board takes place at a time and place determined by the

Minister, and thereafter at least four meetings must be held per year at a time and place determined by

the chairperson of the Board.

(2) The chairperson of the Board may at any time call a special meeting of the Board, and

must within seven days of receipt of a written request -

(a) by the Minister; or

(b) signed by at least three of the members,

call a special meeting of the Board and place on the agenda of such meeting such matter as may be so

requested by the Minister or such members.

(3) The Minister may in writing request that any matter pertaining to the functions of BIPA

be placed on the agenda of a meeting of the Board and be considered by the members.

(4) A simple majority of members forms a quorum for any meeting of the Board.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(5) If a quorum cannot be formed at any meeting of the Board, the meeting must be adjourned

to a time and date determined by the chairperson of the Board.

(6) A decision of a majority of the members present and voting at a meeting of the Board

constitutes the decision of the Board, and in the event of an equality of votes, the chairperson of the

Board has a casting vote in addition to a deliberative vote.

(7) The chairperson of the Board must cause minutes to be kept of every meeting of the

Board which must be approved by the members, and a copy of such minutes must be submitted to the

Minister as soon as practicable after every meeting.

(8) The Board may invite any person to attend and participate in the deliberations of a meeting

of the Board, but such person has no right to vote.

(9) The chairperson of the Board presides at a meeting of the Board and in his or her absence

the vice-chairperson and, in the absence of both the chairperson and the vice-chairperson, the members

present must elect for that meeting a chairperson from among their number.

(10) Despite anything to the contrary in this section, the Board need not hold a meeting if the

members agree thereto in writing, and in such event -

(a) a decision in writing dealing with a matter to be dealt at such a meeting and signed by

the requisite majority of members is deemed to be a decision taken by the Board and

held in terms of this section on the date on which the last signature to such decision is

affixed;

(b) a decision contemplated in paragraph (a) must be recorded in the minutes of the first

meeting of the board held subsequent to such a decision being taken.

(11) The Board regulates its own procedures for meetings in so far as such are not contained

in this Act.

Committees of BIPA

11. (1) BIPA may establish any committee to perform such functions as BIPA may assign

or delegate to such committee, and -

(a) unless there is a good reason not to do so, must appoint a member to be the chairperson

of a committee; and

(b) may appoint persons who are not members to be members of a committee.

(2) BIPA may at any time dissolve or reconstitute a committee.

(3) Subject to the rules and directives of BIPA, either in particular or general, a committee

determines its own procedures relating to its meetings.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Remuneration and allowances

12. (1) Members of the Board and members of the committees must be paid such

remunerations and allowances determined in terms of subsection (2).

(2) The Minister -

(a) determines the remunerations and allowances payable to members of the Board and

members of the committees; and

(b) may determine different rates of remunerations or allowances with regard to different

positions occupied by such members of the Board or members of the committees.

Chief Executive Officer

13. (1) Subject to the approval of the Minister, BIPA must appoint suitably qualified and

experienced person as CEO.

(2) The CEO -

(a) is appointed for five year terms of office and on such terms and conditions of service,

as the Board, in concurrence with the Minister, may determine;

(b) is eligible for reappointment at the expiration of a five year terms of office; and

the terms of the CEO’s contract of employment.

(3) The CEO is responsible for the day-to-day management and administration of BIPA and

all other matters as may be assigned or delegated to the CEO.

(4) An Acting CEO, designated by the Board, may perform any function of the CEO when

the office of the CEO is vacant or when the CEO is absent or is for any reason unable to

perform the functions of that office.

(5) Whenever the office of the CEO becomes vacant or the CEO is for any reason unable to

perform his or her functions, the Board may -

(a) designate any suitable employee of BIPA; or

(b) if circumstances so require, appoint any suitable person, after consultation with the

Minister, to act as CEO, until the vacancy is filled or the CEO is able to perform his or her

functions.

(6) A person designated or appointed in terms of subsection (5) has all the powers and

performs all the functions of the CEO.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(7) Subject to this Act and the directives and policies of BIPA, the CEO -

(a) is responsible for the day-to-day performance of the executive and administrative functions

of BIPA;

(b) supervises the employees of BIPA and exercises disciplinary powers over such employees;

and

(i) the proper control and management of BIPA;

(ii) the effectiveness and efficiency of BIPA;

(iii) all income and expenditure of BIPA including accounting therefor in accordance

with prevailing international financial reporting standards so as to give a true

reflection of the transactions and financial situation of the BIPA and to represent

accurately the state of affairs and business of BIPA;

(iv) all revenue collected by BIPA;

(v) all assets and the discharges of all liabilities of BIPA;

(vi) the proper and diligent implementation of and compliance with the State-owned

Enterprises Governance Act, 2006 (Act No. 2 of 2006).

(8) Unless BIPA directs otherwise in relation to any matter, the CEO must attend every meeting

of the Board and may participate in discussions on any matter under consideration at such meeting,

but has no right to vote at such meeting.

Employees of BIPA

14. (1) BIPA -

(a) may employ such persons as it may consider necessary to perform the functions of BIPA;

(b) determines, subject to the general directions of the Minister, the remuneration and other

terms and conditions of service of its employees, which may include medical aid, housing,

gratuities or pension benefits.

(2) BIPA may enter into agreement with any person to perform any act or provide any service

for or on behalf of BIPA in respect of any matter related to the functions of BIPA.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

PART III

REGISTERS, INVESTIGATIONS AND COMPLIANCE (ss 15-20)

Registers

15. (1) BIPA must establish and maintain -

(a) the registers for business and intellectual property as required in terms of the applicable

legislation;

(b) any other register contemplated in this Act or in any other legislation which assigns a

registry function to BIPA,

and therein register and deregister business and intellectual property and such other information

pertaining thereto as is required under this Act or the applicable or other legislation.

(2) BIPA must receive and deposit in the register such documents as are required to be filed or

deposited in terms of this Act or the applicable or other legislation.

(3) Where any person, organ of State, regulatory authority or the public in general is entitled

to information on a register kept by BIPA, BIPA must make such information available efficiently and

effectively and in accordance with this Act or the applicable or other legislation.

Inspection of register

16. (1) Subject to subsections (2) and (3), any person, on payment of the relevant fee

or rate, may, in so far as a document is open for inspection, and whether in person or through any

electronic medium approved by BIPA -

(a) inspect a document filed in a register;

(b) obtain a certificate from BIPA as to the contents or part of the contents of any document

which has been filed in respect of any business or intellectual property;

(2) Subsection (1) does not apply to any part of a filed document if such part has been

determined to be confidential, or contain confidential information, in accordance with section 17.

(3) Notwithstanding any law to the contrary, BIPA -

(a) must waive a fee or rate contemplated in this section if it is satisfied that -

(i) an inspection, certificate, copy or extract is required on behalf of a foreign

government accredited to the Republic of Namibia; and

(ii) that no fees or rates are payable in the foreign country concerned in respect of

such inspection, certificate, copy or extract required on behalf of the Republic of

Namibia; or

(iii) an inspection, certificate, copy or extract is required by a regulatory authority in

the performance of its functions or exercise of its duties; and

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(b) may waive any such fee or rate if it is satisfied that an inspection, certificate, copy or

extract is required for the purposes of research by or under the control of any institution

for higher education.

Confidential information

17. (1) When submitting information to BIPA or an inspector appointed in terms of this

Act, a person may, in so far as it is provided for in applicable legislation or any other law, claim that

all or part of that information is confidential.

(2) A claim contemplated in subsection (1) must be supported by a written statement explaining

why the information is confidential.

(3) BIPA must -

(a) consider a claim made in terms of subsection (1); and

(b) as soon as practicable, make a decision on the confidentiality of the information and

access to that information, and provide written reasons for that decision.

(4) Subsections (1), (2) and (3) are subject to any provision dealing with confidentiality,

disclosure or secrecy as contained in the applicable legislation.

(5) This section does not derogate from a statutory right which a regulatory authority has

in terms of its legislation to obtain information from BIPA.

Investigations

18. (1) The investigation powers granted to BIPA under this Act is in addition to any

powers, functions and duties relating to investigations and the appointment of inspectors or investigators

under the applicable legislation and for this purpose -

(a) the Minister may in writing delegate to BIPA any powers, functions and duties relating

to investigations and the appointment of inspectors and any other powers, functions

and duties which the Minister has in terms of the Companies Act, the Close Corporations

Act and the Industrial Property Act (excluding the power to make regulations); and

(b) in such instance an inspector contemplated in the Companies Act or Close Corporations

Act is deemed to be an inspector under this Act; and

Act and the Close Corporations Act, as the case may be.

(2) BIPA may, out of own accord, or upon receipt of a complaint investigate -

(a) an allegation that a person has acted in a manner inconsistent with this Act or the

applicable legislation;

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(b) an allegation that the complainant’s rights under this Act or the applicable legislation

has been infringed;

substance to investigate.

(3) As regards the undertaking of investigations by BIPA, BIPA may make rules prescribing -

(a) the manner in which complaints may be initiated;

(b) the manner in which BIPA must deal with complaints received and the procedures with

regard thereto;

(d) the persons to whom complaints may be referred if not investigated by BIPA;

(e) the powers of inspectors and the manner in which they must investigate and inspect

complaints and report thereon;

(f) the cost and expenses relating to an investigation and the person responsible therefor;

(g) the manner in which BIPA may deal with the outcomes of an investigation.

(4) The Minister may at any time direct BIPA to investigate -

(a) an alleged contravention of this Act or the applicable legislation;

(b) any matter or circumstances with respect to business or intellectual property whether

or not the matter or circumstances appear at the time of the direction to amount to a

possible contravention of this Act or the applicable legislation.

Inspectors

19. (1) For the purposes of conducting investigations, BIPA may appoint as an inspector -

(a) any suitable employee of BIPA;

(b) any other person whether in the employment of the public or private sector.

(2) An inspector must be issued with an identification card and must show such card upon

request thereto or when exercising functions under this Act.

(3) In performing his or her functions, an inspector -

(a) must be in possession of a certificate of appointment issued to that inspector in terms

of this section;

(b) must show that certificate to any person affected by the inspector’s actions in terms of

this Act or who requests to see the certificate;

complaint;

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(d) may investigate any person whom the inspector reasonably considers may have information

relevant to the investigation of the complaint;

(e) has such additional powers as are assigned to him or her under this Act, the applicable

legislation or as prescribed by the rules.

Compliance directives

20. (1) BIPA must supervise compliance with this Act and the applicable legislation and

may give such written compliance directives to any person to whom this Act or the applicable legislation

applies which BIPA on reasonable grounds believes has contravened this Act or the applicable legislation

in order to ensure compliance with this Act or the applicable legislation.

(2) A compliance directive given by BIPA under subsection (1) -

(a) must identify the person to whom it is addressed

(b) must set out the provisions of the relevant Act which is alleged to have been contravened

and the details of the nature and extent of the non-compliance;

the compliance directive and may require the person to whom it is addressed to -

(i) cease, correct or reverse any action in contravention with this Act or the applicable

legislation;

(ii) take any action required under this Act or the applicable legislation;

(iii) take any other steps reasonably related to the contravention and designed to

rectify its effect;

(d) must request the person to whom it is addressed to make written presentations to BIPA

regarding the compliance directive within the time frame specified therein;

(e) may contain such other information as BIPA may deem appropriate.

(3) After consideration of the written representations or, in the event where notwithstanding

the request, no representation was received within the time frame specified, BIPA may -

(a) withdraw the compliance directive;

(b) issue a final compliance directive with or without amendments and specify a reasonable

time frame or time frames within which the person to whom it is addressed must comply

with the compliance directive.

(4) Any person who fails to comply with a compliance directive of BIPA given under this

section is -

(a) liable to a penalty imposed by BIPA subject thereto that such penalty may not exceed

N$50 000; and

(b) is guilty of an offence and liable to a fine not exceeding N$50 000 or imprisonment for

a period not exceeding two years.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(5) An additional penalty of not exceeding N$5 000 for each day which the failure contemplated

in subsection (4) continues, may be imposed by BIPA.

(6) When imposing a penalty under this section, BIPA must consider the extent and the gravity

of the issue with regard to which the compliance directive was given and the non-compliance involved.

(7) A person with regard to whom a compliance directive is given or on whom a penalty is

imposed by BIPA under this section, may appeal against such compliance directive or penalty to the

High Court within the period and in the manner prescribed by the rules and as if the penalty were a

sentence in a Magistrate’s Court and as if the person who presided at the hearing at which the penalty

was imposed, were a magistrate presiding at a criminal trial in the Magistrate’s Court.

(8) BIPA may postpone compliance with a compliance directive given or payment of a penalty

imposed, pending the outcome of an appeal under subsection (7).

(9) A penalty imposed by BIPA is payable to BIPA, is deemed to be a debt due to BIPA and

may be recovered by BIPA by way of judicial process in a competent court.

(10) Steps taken under this section -

(a) do not exempt a person from civil or criminal liability in respect of an act or omission

on account of which those steps were taken;

(b) do not preclude BIPA from taking any other appropriate action as provided for in the

applicable legislation.

(11) The Minister may, whenever deemed necessary by him or her, by notice in the Gazette

amend the amounts specified in subsection (4)(a) and (5) in order to counter the effect inflation.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

PART IV

FINANCIAL PROVISIONS (ss 21-25)

Moneys of BIPA

21. (1) The funds of BIPA consist of -

(a) money appropriated by Parliament for the purpose of BIPA;

(b) fees, tariffs, charges, administrative fines and penalties received under this Act and the

applicable legislation for the benefit of BIPA including any interest on unpaid amounts;

functions under this Act or any other law;

(d) interest or dividends earned on any investment made in terms of subsection (5);

(e) all money derived from the sale of any assets of BIPA;

(f) money borrowed with the approval of the Minister in consultation with the Minister

responsible for finance;

(g) money received by way of donations or grants from any source in Namibia, and, subject

to the approval of the Minister in agreement with the Minister responsible for finance,

from any source outside Namibia;

(h) money obtained through the sale of-

(i) publications prepared by or for BIPA;

(ii) reference material, data and information; and

(iii) all other money which may accrue to BIPA from any other source.

(2) BIPA must manage its funds in accordance with sound principles of financial management,

and, in particular, by observing the measures implemented to protect the liquidity of BIPA.

(3) Subject to section 23(2), the funds available to BIPA must be used -

(a) to pay the administrative expenses of BIPA;

(b) to fund the costs of any project or other activity of BIPA undertaken by BIPA;

by BIPA in the performance of its functions;

(d) for any other expenditure provided for in BIPA’s budget.

(4) Money received by way of a donation for the benefit of BIPA may be administered on

such conditions as may be agreed upon between the donor and BIPA.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(5) Any money standing to the credit of BIPA and not required for immediate use or as a

reasonable operating balance may be invested by BIPA, subject to the consideration of the determination

of the budget for the ensuing financial year.

(6) Any unexpended balance at the end of a financial year of BIPA must be carried forward

as a credit to the ensuing financial year.

Bank accounts

22. (1) BIPA must open and maintain such bank accounts at one or more banking

institutions in Namibia, registered in terms of the Banking Institutions Act, 1998 (Act No. 2 of 1998) as

are necessary for the performance of the functions of BIPA.

(2) BIPA must ensure that -

(a) all money received by or on behalf of BIPA is deposited into its bank account as soon as

practicable after being received;

(b) any payment by or on behalf of the BIPA is made from its bank account; and

authority.

(3) In furtherance of section 21(2), BIPA must, whether by means of internal procedures or by

its rules, determine prudent financial procedures, including internal control measures and mechanisms,

to guard against fraud and the improper administration of its funds.

Financial year and budget

23. (1) The financial year of BIPA ends on 31 March in each year.

(2) BIPA may not incur any expense except in accordance with a budget drawn up in terms

of this section.

(3) BIPA, once during every financial year, must draw up a budget for the ensuing financial

year and submit it to the Minister for approval.

(4) The budget drawn up in terms of this section must contain particulars regarding the

expense of BIPA as referred to in section 21(3).

(5) BIPA, during the course of a financial year, may submit to the Minister for approval

supplementary estimates of expense of BIPA if BIPA considers it necessary.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Auditing

24. (1) BIPA, in agreement with the Auditor-General, must appoint a person registered

as an auditor in terms of the Public Accountants’ and Auditors’ Act, 1951 (Act 51 of 1951), to annually

audit its accounting records and financial statements and submit a report to BIPA.

(2) The auditor referred to in subsection (1) audits the accounting records and financial

statements of BIPA subject to such directives as the Auditor-General may issue to such auditor.

(3) Not later than six months after the end of each financial year BIPA must submit audited

accounting records and financial statements together with a report referred to in subsection (1) to the

Auditor-General who reviews and reports thereon.

Annual report

25. (1) Not later than six months after the end of each financial year BIPA must prepare and

submit to the Minister an annual report relating to such financial year.

(2) The annual report referred to in subsection (1) must contain -

(a) particulars of all activities of BIPA during the financial year under review;

(b) audited financial statements of BIPA contemplated in section 24(3), including a statement

of income and expenditure, a balance sheet and the report contemplated in section 24(1);

and

law.

(3) The Minister must table the annual report in the National Assembly within 60 days, if

the National Assembly is in session, or, if it is not in session, within 30 days after the commencement

of its next session.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

PART V

GENERAL PROVISIONS (ss 26-38)

Relationship with other authorities

26. (1) If a regulatory authority, in terms of any public regulation, has jurisdiction in

respect of any conduct or matter regulated in terms of this Act within a particular sector, BIPA and that

authority -

(a) must negotiate an agreement to co-ordinate and harmonise the exercise of jurisdiction

over such matters within the relevant industry or sector and to secure the consistent

application of the principles of this Act; and

(b) in respect of a particular matter within their jurisdictions, may exercise jurisdiction by

way of such an agreement.

(2) In addition to the matters contemplated in paragraph (a) of subsection (1), an agreement

in terms of that subsection must -

(a) identify and establish procedures for the management of areas of concurrent jurisdiction;

(b) promote co-operation between the regulatory authority and BIPA; and

(3) An agreement referred to in subsection (1) must be published in the Gazette.

Conflict of interests

27. (1) A member of the Board or a committee must promptly inform the Board in writing

after that person or a related person to that person acquires a personal financial interest that is, or is

likely to become, an interest that may conflict or interfere with the proper performance of the duties

of such member.

(2) A member of the Board or a committee must not -

(a) engage in any activity that may undermine the integrity of the BIPA;

(b) attend, participate in or influence the proceedings during a meeting of the Board or a

committee if, in relation to the matter being considered, that member has a personal

financial interest -

(i) contemplated in subsection (1); and

(ii) that precludes that person from performing the functions of a member in a fair,

unbiased and proper manner;

matter contemplated in paragraph (b);

(d) make private use of, or profit from, any confidential information obtained as a result of

performing that person’s functions as such member.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(3) If, at any time, it appears to a member of the Board or a committee that a matter being

considered at a meeting concerns a personal financial interest of that member or a related person to

that member, other than as contemplated in subsection (2)(b)(i) and (ii), that member must -

(a) immediately and fully disclose the nature of that interest to the meeting; and

(b) withdraw from the meeting to allow the remaining members to discuss the matter and

determine whether the member should be prohibited from participating in any further

proceedings concerning that matter.

(4) The disclosure by a member in terms of subsection (3)(a), and the decision by the Board

or committee must be expressly recorded in the minutes of the meeting in question.

(5) Proceedings of the Board or a committee and any decisions taken by a majority of the

members present and entitled to participate in those decisions, are valid despite the fact that -

(a) a member failed to disclose an interest as required by subsection (3); or

(b) a member who had such an interest attended those proceedings, participated in them in

any way, or directly or indirectly influenced those proceedings.

Conflict of interests of employees

28. The CEO and each employee of the BIPA must not -

(a) engage in any activity that may undermine the integrity of BIPA;

(b) participate in any investigation, proceedings or decision concerning a matter in respect

of which that person has a personal financial interest;

performing that person’s official functions in BIPA.

Confidentiality

29. A member of the Board or member of a committee, the CEO, an employee of BIPA or any

other person who is or was involved in the administration of this Act, may not disclose to any other

person any confidential information acquired in the performance of any function whether before, during

or after his or her involvement in the affairs of BIPA, except for the purposes of the performance of his

or her functions in terms of this Act, or when required to do so by any other law or a court of law.

Personal liability

30. A member of the Board or member of a committee, the CEO, any employee of BIPA or

any person or body to whom or to which any power or function has been delegated or assigned under

this Act, is not personally liable for any damage or loss arising out of any act or omission committed

in good faith by such person or body except such damage or loss was caused as a result of the gross

negligence or dishonesty or unlawful conduct of such person or body.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Delegation of powers and assignment of function

31. (1) The Board, in writing and on such terms and conditions as it may determine, may

delegate any power or assign any function conferred or imposed upon it by or under this Act other

than those contained in sections 13(1) and 33(1), to any member of the Board, the CEO, any employee

of BIPA, or to a committee.

(2) The CEO, subject to such conditions as the CEO thinks fit, may assign in writing any

employee of BIPA to perform in general or in a particular case any function assigned to the CEO by or

under this Act.

(3) The Board, the CEO, as the case may be, is not divested of any power or function delegated

or assigned under this section, and, without prejudice of rights, may at any time -

(a) amend or withdraw any decision made by virtue of such delegation; or

(b) withdraw any function so assigned.

(4) A delegation or assignment under this section does not absolve the Board or the CEO

from the ultimate responsibility to govern or manage, as the case may be, the affairs of BIPA as set out

in this Act.

Validity of decisions

32. A decision taken by the Board or an act performed under the authority of the Board is

not invalid by reason only of -

(a) a vacancy in the Board; or

(b) the fact that a person who is not entitled to sit as a member of the Board sat as a member

at the time when the decision was taken or the act was authorised,

if the decision was taken or the act was authorised by the requisite majority of the members who were

present at the time and entitled to sit as members.

Offences

33. (1) It is an offence to hinder, obstruct or improperly attempt to influence the Board,

a member of the Board or a committee, the CEO, an employee of BIPA or an inspector when any of them

is exercising a power or performing a duty delegated, conferred or imposed by this Act.

(2) A person commits an offence, if such person -

(a) after requested by BIPA under this Act, fails to give information, or gives false or misleading

information to BIPA;

(b) does anything calculated to improperly influence the Board, the CEO, an employee of

BIPA or an inspector concerning any matter connected with an investigation;

a person obtained -

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(i) in the carrying out of any function in terms of this Act; or

(ii) as a result of initiating a complaint, or participating in any proceedings in terms

of this Act;

(d) contravenes or fails to comply with particular section of this Act in terms of which non-

compliance is an offence.

(2) A person who is convicted of an offence under subsection (1) is liable to a fine not

exceeding N$50 000 or to imprisonment for a period not exceeding five years, or to both such fine and

such imprisonment.

Rules by BIPA

34. (1) BIPA, after consultation with the Minister, may make rules relating to -

(a) the procedures in respect of meetings of and committees of the Board;

(b) the functions of committees and the manner how remuneration and allowances are paid;

of its functions;

(d) any fee, rate or other charge which BIPA may impose under this Act including fees and

rates for and the manner in which and conditions under which a person may consult,

inspect or make a copy of, or obtain an extract from, a document lodged and kept with

BIPA in so far as not covered under applicable legislation or prescribed under this Act;

(e) in so far as the applicable legislation does not determine or prescribe a procedure, form

or other relevant matter, to determine such procedure, form or other matter by means

of rules;

(f) any matter with regard to which BIPA is authorized to make rules elsewhere in this Act;

(g) any other matter which the Board considers necessary or expedient for the effective

carrying out of its functions, or for the achievement of the objects of this Act.

(2) A copy of the rules made under this section must be available at BIPA’s offices for

inspection by any interested person during business hours.

Regulations by Minister

35. (1) The Minister may make regulations relating to -

(a) the manner and form in which BIPA must keep any or all registers under this Act provided

that such regulation does not conflict with the applicable legislation;

(b) the matters, manner and form in which BIPA must keep statistics and must report thereon;

(d) generally any other matter which the Minister considers necessary or expedient to give

effect to the objects of this Act.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

(2) A regulation made under subsection (1) may prescribe a penalty for any contravention

of or failure to comply with such regulation not exceeding a fine of N$ 16 000 or imprisonment for a

period not exceeding two years, or not exceeding both such fine and such imprisonment.

Transitional and savings provisions

36. (1) Subject to this section, the Minister, after consultation with the Minister responsible

for finance, and on such conditions as the Minister may determine, must transfer to BIPA, with effect

from a date determined by the Minister by notice in the Gazette, such agreements, assets, liabilities,

rights or obligations of the State which relate to or are connected with the functions of BIPA, as may,

in the opinion of the Minister, be required by BIPA for the efficient and effective performance of those

functions.

(2) Despite any law to the contrary, BIPA is vested with the ownership of the assets and

rights, and is charged with the liabilities and obligations, transferred or assigned to it under subsection

(1), with effect from the date of such transfer or assignment.

(3) A certificate issued by the Minister in which it is stated that any State land or a servitude

or other real right or lease or any other asset or right described in such certificate has been transferred

to BIPA in terms of subsection (1), is sufficient proof that the asset or right so described is vested in

BIPA.

(4) Upon submission of the certificate referred to in subsection (3) to the Registrar of Deeds

or to any other person in charge of any other office where a register or record of ownership of or

entitlement to an asset or right described in such certificate is being kept, the Registrar or such person

must make such entries in or on any relevant register, title deed or other document in his or her office

or submitted to him or her as may be necessary to effect the transfer in the name of BIPA.

(5) BIPA is substituted for the State as a contracting party in respect of any agreement

transferred to BIPA in terms of subsection (1).

(6) The value of assets and liabilities transferred to BIPA in terms of subsection (1) must be

determined by the Minister after consultation with the Minister responsible for finance.

(7) Despite any law to the contrary, no duty, fee, tax or levy payable in terms of any law for

the acquisition or transfer of assets or rights is payable in respect of the transfer of assets or rights by

the State to BIPA in terms of subsection (1).

(8) Despite other provisions of this Act, and for the purposes of implementing certain

provisions of this Act, the Minister, where applicable, in agreement with the Minister responsible for

finance, may exercise any power or perform any function conferred or imposed upon BIPA by or under

this Act until such time BIPA is constituted under section 3.

(9) A body established by or under a provision of a law repealed by section 37 and which

exists at the commencement of this Act continues to exist until the Minister dissolves it.

(10) Anything done under a provision of a law repealed by section 37 and which could have

been done under a corresponding provision of this Act is deemed to have been done under such

corresponding provision.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Amendment of laws

37. The laws specified in the second column of the table contained in Schedule 2 are amended

to the extent indicated in the third column of that Schedule.

Short title and commencement

38. (1) This Act -

(a) is called the Business and Intellectual Property Authority Act, 2013; and

(b) commences on a date to be determined by the Minister by notice in the Gazette;

(2) Part II of Schedule 2 commences on a date to be determined by the Minister responsible

for agriculture by notice in the Gazette.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

SCHEDULE 1

APPLICABLE LEGISLATION

• Companies Act, 28 of 2004

• Co-operatives Act, 23 of 1996

• Close Corporations Act, 26 of 1988

• Industrial Property Act, 1 of 2012

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

SCHEDULE 2

AMENDMENT OF LAWS

PART I

Act No. and Year Short title Extent of Amendment

28 of 2004 Companies Act

28 of 1988 Close Corporations Act

6 of 1994 Copyright and Neighbouring Rights Protection Act

9 of 1916 Patents, Designs, Trade Marks and Copyright Act

17 of 1923 Patents, Designs and Trade Marks Proclamation

57 of 1967 Designs Act

37 of 1952 Patents Act

17 of 1941 Merchandise Marks Act

2012 Industrial Property Act

Pre-1923 Ordinances and Proclamations relating to

intellectual property

1978 Patents Act

1973 Trade Metrology Act

LIST OF CHANGES

• Provide for all fees to be paid to BIPA and not to Receiver of Revenue

• Delete IP Office under IP Act

• Change IP Registrar and Deputy Registrars to BIPA

• Change Companies Registrar and Deputies to BIPA

• Change CC Registrar to BIPA

• Retain Standing Advisory Committee on Company Law?

• Retain IP Tribunal?

PART II

23 of 1996 Co-operatives Act

GENERAL NOTES AND COMMENTS

Note on the Copyright and Neighbouring Rights Protection Act, 1994

A comment was received to investigate whether BIPA should have specific functions regarding copyright.

Note that the IP Act does not cover copyright. Copyright is covered in the Copyright and Neighbouring

Rights Protection Act, 1994. The portfolio Minister under this Act is the Minister of Information and

Broadcasting although he has few functions thereunder. The Act provides for the establishment of a

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

SUMMARY OF IMPORTANT COMMENTS ON BIPA BILL

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

Section 1 – Definitions Definition of staff

member – revisit to

ensure Bill aligns with

definition whenever

expression is used.

Section 2 – Objects of PS comment – include Compare with section Broaden focus on

Act “to foster economic 186 of SA Companies development – for

growth in order to” Act and with concern example economic

Objects must reflect expressed by BIPA growth. Include to the

that BIPA is a chairperson on objects effect “has as its object

registering authority. clause. a registering …”.

Section 2(1)(a) – to Comment that intent is

consolidate various to harmonise and not

functionaries & consolidate as there

officers involved in are other business

registration, regulation registration and

& administration of regulation bodies (e.g.

businesses and IP BoN and NAMFISA)

Section 2(1)(c) Proposed deletion of

(c)

Section 2(1)(f) – (g) – NAMFISA proposes

proposed additions additions to objects

clause similar to

section 186 of SA

Companies Act – i.e.:

• Promote education

& awareness of

businesses and IP

• Promote compliance

with laws

• Efficient, effective

& widest possible

enforcement of

applicable laws

Section 3(2)(c) – BIPA Move to section 4 See concern of BIPA

must act in manner Consider taking out chairperson – think

which is fair, impartial, completely s 188(1) & (2) of SA

without reservations, Companies Act covers

Refer to Article 18

favouritism or research aspect in way

prejudice of Constitution suggested.

The traditional

functions of a

regulator which

BIPA will be do not

come out clearly

(the compliance

monitoring,

supervision and

enforcement of

applicable legislation).

See section 187 of SA

Companies Act.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

Section 4 – Functions FIA – accommodate Include consumer Since FIA does not

and powers of BIPA beneficial information education and fall under “applicable

Incorporate information to public legislation” include

interaction/functions on optimum form of in 4(1)(a) &(b): “to be

of BIPA w.r.t. FIA business to operate the central registry

Investigate whether under. of information,

BIPA should have any documents and data

specific functions required to be lodged

mentioned w.r.t. with BIPA under the

and the FIA Act, 2012,

and to be responsible

for the examination

and safe and orderly

custody thereof”.

Alternatively, FIA

should be considered

for inclusion under

Schedule 1 under

applicable legislation.

Section 4(3) Consider making

– Co-operatives clause more generic

so that Minister can

assign any functions

to BIPA under any

other law as and when

identified/required/

appropriate.

Section 5 – The requirement that

Constitution of BIPA a member must be an

Board auditor may be too

strict and limiting.

Proposed to generalize

requirements for board

members and just

align with SOE Act.

Section 9 – Alternate Consider changing

Commissioners Minister “may” appoint

alternates to Minister

“must” appoint.

Section 10 – Meetings Make specific Make specific

of BIPA provision for round provision for round

robin decisions. But robin decisions.

then everybody must

vote in favour and not

just majority vote.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

Section 4(3) Consider making

– Co-operatives clause more generic

so that Minister can

assign any functions

to BIPA under any

other law as and when

identified/required/

appropriate.

Section 2(1)(c) Regarding section 14(a)

(b) which provides

that BIPA in agreement

with Minister

determines the pay

and employment

conditions of staff

– comment that

below lever of snr

management Minister’s

approval not required.

It may also be

restrictive as it may

mean that Minister’s

approval is required

for every staff salary

increment, change of

pension funds, etc.

Section 15 – Registry Since FIA requires the

to be established and keeping of beneficial

maintained by BIPA ownership information

it is proposed that it

be included that BIPA

keeps: “any other

in this Act, the FIA

Act or any applicable

legislation which

assigns a registry

function to BIPA

and therein register

and deregister

businesses.” And

“BIPA must receive and

deposit in the registry

such documents and

information as are

required to be filed

or deposited in terms

of this Act, the FIA

Act or any applicable

legislation”.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

Section 16(3)(b) –

Inspection of registry

Section 17 – Revisit Companies In terms of s 44 of

Confidential and IP Acts to ensure FIA, no duty of secrecy

information that confidentiality or confidentiality,

provisions align in all whether imposed by

relevant acts legislation or arising

from common law

or agreement affects

the compliance with

the provisions of FIA.

Thus, FIA overrides all

confidentiality rules

in instances where the

FIC or a competent

authority should

request information

from BIPA under

FIA. S 6 of FIA is

also a superseding

clause in as far as it

stipulates that the FIA

will prevail should

conflicts arise between

FIA and any other

Act. It is proposed

that this exception

be specifically noted

under section 17 of the

BIPA Bill.

Section 18 – Section 18 provides Asking why BIPA needs Questions whether

Investigations/ for the appointment investigations may investigations are

compliance monitoring of inspectors by BIPA clarify the need for really necessary.

who can undertake this section. Seems Check what is in IP

investigations. section wants to deal Act.

Questions were with investigations

posed on whether & complaints

this does not conflict but concepts not

with Companies Act sufficiently defined.

(chapter 9) as well as Makes it difficult to

s 207 of IP Act where appreciate section.

Registrar can order Why would functions

discovery, etc during set out in this Act

hearing. Look into require investigation?

giving BIPA general

powers to request

information.

Section 19 – Inspectors Look into combining If section is retained,

& investigators sections 18 and 19 make provision for

external investigators.

There may be capacity

issues necessitating

outsourcing.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

Sections 22 & 23 – BIPA BIPA Fund – change Check whether

funds and money to “Moneys of can benefit from

BIPA” rather than similar provisions in

establishing a NAMFISA’s Act.

statutory fund.

Statutory obligation on

BIPA to open necessary

bank accounts.

BIPA must ensure

that no money is

withdrawn/taken

out of account

without BIPA

authority – comment

received to follow

up with Competition

Commission on how

this works in practice.

Section 26 – BIPA’s Align with section 26

Annual Report of SOE Act since, for

example, section 26(2)

requirements in the

SOE Act.

Inserted section X Section inserted as

between ss 26 and per comment received

27 – Relationship with regulating BIPA’s

other authorities relationship with

other authorities and

the entering into an

agreement with such

other authorities.

Section 27 – Disclosure Comment that section Proposal that clause be

of interest by BIPA is too narrow on generalized to avoid

board members certain issues while conflict of interest.

being too broad on Specifics can go into

other which allows for rules.

undisclosed interests

to continue. Proposal

to compare with SA

Companies Act’s ss

205, 206 & etc

Section 30 – Delegation Include that Board

and assignment of remains ultimately

powers & functions responsible

irrespective of

a delegation or

assignment.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

Section 32 – Offences Consider inclusion of Penalties should Note that penalties in

% fines of damages consist of criminal and FIA for non-compliance

caused – see examples administrative. Give are much higher than

in Marine Resources BIPA general powers penalties prescribed

Act. Also look to have enforcement in this subsection of

into possibility of powers. the BIPA Bill. Section

administrative fines 4 of FIA prescribes

and penalties / a penalty of N$ 10

undertaking to get million or 10 years (in

companies and CCs case of an individual).

etc to comply with It is suggested that

legislation especially the drafters revisit

where there is constant the fine and perhaps

and flagrant disregard find a middle ground

of laws. on this point. It

is also suggested

that the creation of

administrative fines

and penalties be

considered in order

to address non-

compliance with the

law especially for

instances where the

non-compliance is

not that serious. The

criminal offences/

penalties should

however be retained

for cases of serious

non-compliance and

cases of constant,

persistent and flagrant

disregards for the law

Section 33 – Rules by Request was submitted Requiring Minister’s

BIPA to revisit rules which approval for rules in

BIPA can make to section 33(1)(h) – (l)

differentiate between defeats object of BIPA

what should be rules making rules and then

and what can be can be regulations,

internal procedures. namely:

Fees, tariffs, levies

which BIPA may

impose under this Act

• Fees for copies

and extracts from

documents

• Determination of

forms, procedures,

etc

• Any other matter

on which BIPA may

make rules

• Any matter Board

deems expedient to

make rules on

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

Section 35 – Request was submitted Requiring Minister’s

Transitional provisions to revisit rules which approval for rules in

BIPA can make to section 33(1)(h) – (l)

differentiate between defeats object of BIPA

what should be rules making rules and then

and what can be can be regulations,

internal procedures. namely:

• Fees, tariffs, levies

which BIPA may

impose under this

Act

• Fees for copies

and extracts from

documents

• Determination of

forms, procedures,

etc

• Any other matter

on which BIPA may

make rules

• Any matter Board

deems expedient to

make rules on

Section 35 – Comment received on

Transitional provisions transfer of MTI staff

from MTI to BIPA. To

take up with MTI as to

how it anticipates this

should happen

Section 36 – It is suggested that

Amendment of laws a consequential

amendment be made

to section 4 of the

FIA, since section 4

refers to the Registrar

of Companies and

the Registrar of Close

Corporations. It is

common cause that

the mandates of these

Registrars will be given

to BIPA; while BIPA

will have a CEO and

Acting CEO who will

be responsible for all

matters pertaining to

the functions of BIPA

and all other matters

assigned to the CEO

in terms of applicable

legislation.

Schedule 1 Check up on the

Protection of Business

Names Act to see if

needs to be covered

under BIPA Bill.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

GENERAL COMMENTS

BIPA Fees Fees charged by BIPA

not to be subject to

VAT

Beneficial ownership FIC makes reference

and application of to section 4 of the FIA

FIA to Registrars of Act and the concept of

Companies and CCs “beneficial ownership”.

I assume their major

comment/ concern

on this matter to be

that the BIPA Act must

align with the FIA

Act on these matters.

It is my personal

opinion that a general

reference to (which will

now become) BIPA’s

responsibilities under

the FIA Act in a section

such as the general

functions of BIPA

will suffice. Section

4 of the FIA Act is an

independent section

on its own which

places obligations on

companies, CCs, the

Registrars, etc. It is

not necessary to repeat

the section in the

BIPA Act and a cross

reference will suffice.

Neither do I foresee

any provision in the

BIPA Act which will

limit the application of

the FIA Act. However,

in future BIPA will

have to coordinate

with FIC on how to

ensure compliance

with section 4 of the

FIA Act.

References to Registrars Companies Act and CC

Act refer to Registrars

as well as the FIA Act.

These will have to be

changed to the CEO.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

Section & Workshop NAMFISA Comments from BoN/Financial

Topic Matter Comments Comments BIPA Board Intelligence

Members @ Centre (FIC)

12/3/13 Meeting Comments

Accountability of BIPA BIPA needs to be

accountable to

customers especially as

regards performance

& decisions. Twofold

issue: (a) Customers

amongst themselves;

(b) Customers towards

BIPA.

General gist of BIPA ocus predominantly

Bill on businesses and

should be balanced to

include IP as equally

important. For

example, electronic

trading for IP and

electronic payment etc.

BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

NOTES

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BUSINESS AND INTELLECTUAL PROPERTY AUTHORITY BILL (DRAFT)

NOTES

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7 Gold Street, Prosperita

P.O.Box 185

Windhoek, Namibia

Tel: +264 61 299 4400

Fax: +264 61 401061

E-mail: info@bipa.na

Website: www.bipa.na