12 August 2003. Thanks to A.
These questions were first posed on 30 May 2003. Answers were provided recently, and have not yet been published on the Parliament of South Africa web site for papers.
NATIONAL ASSEMBLY [of South Africa]
QUESTIONS FOR WRITTEN REPLY
QUESTION No. 909
Mr Vincent C Gore (Democratic Alliance) to ask the Minister of Trade and industry:
[QUESTION] (1) Whether his Department controls the
(iii) transportation and
(iv) export of(aa) data encryption/decryption equipment,
(bb) data encryption/decryption computer software,
(cc) cryptanalytic equipment and
(dd) cryptanalytic computer software,
(b)(i) import and
(ii) export of(aa) human speech recognition/comparison(aaa) equipment and
(bbb) computer software and
(bb) human voice analogue electronic transceiver scrambling(aaa) equipment and
(bbb) computer software and
(cc) human voice digital electronic transceiver scrambling(aaa) equipment, and
(bbb) computer software and
(c) use of encryption/decryption over telecommunication facilities, but excluding internal computer services, if not, which department controls these matters, if so, in terms of which statutes are these matters regulated.
[REPLY] 1. The importation of the goods referred to in question (1) is not subject to import or export control measures in terms of the provisions of the International Trade Administration Act. Cryptographic devices for use within government must be approved by the South African Communications Security Agency, which will be incorporated into Electronic Communications Security (Pty) Ltd, established in terms of the Electronic Communications Security (Pty) Ltd Act, 2002 (Act 68 of 2002). There is no restriction on private use in terms of this Act.
Section 44 of the Regulation of Interception and Provision of Communication-related Information Act, 2000 (Act No 70 of 2002 -- which is not yet in force), provides that the Minster of Justice, in consultation with the Ministers of Communications, Defense, Intelligence Services and Policing is obliged by notice in the Government Gazette and after relevant consultation, to declare any electronic, electro-magnetic, acoustic, mechanical or other instrument, device or equipment, the design of which renders it primarily useful for purposes of the interception of communications, under the conditions or circumstances specified in the notice, to be listed equipment. Certain of the equipment referred to by the Honourable Member in parts (a), (b) and (c) of his question may fall within this category.
If the equipment does, in terms of Section 45 of the same Act, no person may manufacture, assemble, possess, sell, purchase or advertise any listed equipment. However any telecommunication service provider or other person who, or law enforcement agency which, manufactures, assembles, possesses, sells, purchases or advertises listed equipment under the authority of a certificate of exemption issued to him or her or it for that purpose by the Minister of Justice under section 46 of this Act is exempted from such provision.
In addition the Department of Communications has control over certain of the devices referred to by the Honorable Member, in terms of Chapter V of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002).
In terms of Section 29 of this Act the Director?General of the Department of Communications is obliged to establish and maintain a register of cryptography providers. In terms of Section 30 of the same Act, no person may provide cryptography services or cryptography products in the Republic until the particulars referred to in Section 29 in respect of that person have been recorded in the register contemplated in Section 29. It would appear that certain of the products referred to by the Honourable Member fall within this category.
Section 30 (3) of the Act provides further that a cryptography product is regarded as being provided in the Republic if it is provided
(a) from premises in the Republic;
(b) to a person who is present in the Republic when that person makes use of the service or product; or
(c) to a person who uses the service or product for the purposes of a business carried on in the Republic or from premises in the Republic.
The majority of the equipment referred to by the Honourable Member in part (a) of Question 1 seems to fall within the ambit of this legislation and the Honourable Member is referred to the Department of Communications for clarification.
Lastly, Chapter VI of the Telecommunications Act, 1996 (Act No 103 of 1996)
provides for the approval of telecommunications equipment (such as that referred
to in part (c) of Question 1 and possibly of the types referred to in part
(b) of this question) by the Independent Communication Authority of South
Africa. In addition the Authority is entitled to prescribe standards for
the performance and operation of any telecommunications facility or equipment,
including radio apparatus. Any such standard shall be aimed at protecting
the integrity of the telecommunications services network, ensuring the proper
functioning of connected facilities or equipment and avoiding radio or other
interference with telecommunication. Again, the specific questions should
be put to the Authority, through its responsible Department, being the Department
[QUESTION] (2) where a legal regime does exist far each of the categories
mentioned, (a) how many individual validated licences have been granted each
year since May 1994 and (b) what are the names and contact details of each
of the licensees;
[REPLY] 2. As indicated above, the Regulation of Interception and Provision of Communication-related Information Act, 2000 (Act No 70 of 2002) has been enacted but the commencement date has not yet promulgated.
Regarding the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002), I am informed that the Minister of Communications is in the process of promulgating Regulations relating to Chapter V and until such Regulations have been promulgated, a register of cryptography providers is not yet being maintained.
Statistics relative to telecommunications equipment will need to be obtained
from the Independent Communication Authority of South Africa.
[QUESTION] (3) whether any government regulatory regime in respect
of the categories of export in paragraph 1(a) (iv) and (b) materially affects
South African patent (a) application, (b) award or (c) registration; if so,
in what manner;
[REPLY] 3. Patent rights, i.e. one species of intellectual property rights, is limited to the relevance of patents to the categories of exports listed in paragraph 1(a)(iv) and 1(b).
The application and registration of patents have to do with inventive concepts,
not with the goods or products as such. Computer programs as such are expressly
excluded from the ambit of the Patents Act and do not constitute patentable
subject matter. The exclusionary rights afforded by a South African patent
do not extend to exports. The right to export, in the context of patent law
principles, would be governed by the patent laws of the country of importation.
[QUESTION] (4) whether he will make a statement on the statutory regime
and its administration regulating the domestic development and sale, including
foreign sale, of the above cryptologic products, with specific regard to
the unencumbered use by South Africans of their intellectual property rights
or fruits of their own mental labour?
[REPLY] 4. No.