Introduction

In December 2017 a saga spanning more than five years finally came to an end when all disputes between the Agricultural Research Council (ARC) and the South African and Animal Improvement Association (Stud Book) were settled. The dispute originates from a joint venture that was cancelled by the ARC, leading to Stud Book's unlawful copying in 2011 of the Integrated Registration and Genetic Information System (INTERGIS) and the Best Linear Unbiased Prediction (BLUP) system, developed by and under the control of the ARC. Stud Book thereafter operated the copy of INTERGIS and BLUP for the exclusive benefit of Stud Book members to the exclusion of the rest of the livestock industry. INTERGIS is the (now recognised) National Databank of South Africa for animal recording and improvement and the copied BLUP system was independently developed by the ARC.

Facts

Following an Anton Piller-type raid on the offices of Stud Book in October 2014, the company agreed to an interim interdict and the ARC issued summons against it in order to secure the statutory management, control and ownership of the INTERGIS database and the BLUP system to the benefit of South African cattle breeders and the wider public. As the custodian and owner of the copyright in INTERGIS and BLUP, the ARC contended that Stud Book unlawfully copied these systems (and made unlawful adaptations thereof) and thereby infringed the state's and the ARC's copyright in the INTERGIS database and the BLUP system and by setting up a privatised system built on the ARC's system, was unlawfully competing with the ARC. INTERGIS, described as the 'national database' in the animal improvement schemes established by the Minister of Agriculture, Forestry and Fisheries under the Animal Improvement Act 1998, is of particular importance and is considered as a worldwide leading facility and database.

The ARC also contended that Stud Book had, since December 2011, transgressed the provisions of the Animal Improvement Act and the animal improvement schemes by operating its unlawful, duplicated system called LOGIX. Despite admitting that it made a duplicate adaptation of INTERGIS and that it held pedigree and performance data that had not been submitted to INTERGIS as statutorily prescribed, Stud Book refused to acknowledge that it was under a statutory obligation to submit all such data to the ARC as the appointed operator of INTERGIS and the animal improvement schemes.

During the trial in October 2016, the Free State High Court was asked to determine whether in the absence of "a manner approved by the registrar" under the Animal Improvement Act, a breeders' society is obliged to submit pedigree and performance data of its registered animals to INTERGIS (the stated question). In the judgment handed down in November 2016, the court held that there was "no legal justification for Stud Book's refusal to submit all pedigree and performance data, received or captured by it on LOGIX, to INTERGIS". Therefore, the stated question was decided in favour of the ARC and Stud Book was ordered to pay the costs in relation to the trial on the separated issues. Stud Book proceeded to appeal the judgment before the Supreme Court of Appeal, which was heard in November 2017.

Settlement

In December 2017, before judgment could be handed down by the Supreme Court of Appeal, the parties reached full and final settlement. It was agreed and conceded that the copying and use of INTERGIS and BLUP was unlawful and that breeders' and breeders' societies are obliged to submit pedigree and performance data to INTERGIS. More specifically, it was conceded that:

  • the ARC is the organisation contracted by the Department of Agriculture (now the Department of Agriculture, Forestry and Fisheries) to solely operate INTERGIS;
  • Stud Book had to date failed and refused to record on INTERGIS the information of animals, falling under the auspices of the Animal Improvement Act, pertaining to their pedigrees and performance data, but instead recorded it exclusively on LOGIX;
  • the operation of Stud Book's LOGIX registration and genetic information system excluded INTERGIS and thereby jeopardised the continued existence of an updated national databank, which was a contravention of the Animal Improvement Act; and
  • Stud Book must submit available pedigree and performance data of registered animals (as defined in the Animal Improvement Act) of breeders and breeders' societies to INTERGIS, making use of Stud Book as the registering authority.

Comment

Underpinning the conclusion of this saga is a healthy dose of respect for copyright – the unregistrable, often forgotten, yet mighty IP right. The ARC was vindicated in the settlement and its invaluable contribution to livestock improvement over many decades in South Africa was finally given the recognition that it deserves.

For further information please contact Izaan Kuschke at KISCH IP by telephone (+27 11 324 3000) or email (izaanv@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.