P100m BAITS intellectual property infringement lawsuit hits govt

Consult IT decry loss of business due to infringement No transfer of proprietary rights made to Government Govt. has given a third party, Modisar Net ( Pty) Ltd, access to Claimant’s database - Consult IT

The government of Botswana through the Department of Veterinary Services at the Ministry of Agriculture finds itself in a tight corner over allegations of infringement of Intellectual Property.

A local company, Consult IT ( Pty) Ltd, is demanding P100 million against government, for infringement of copyright of the Botswana Animal Information Traceability System ( BAITS).

In Botswana all cattle must be identified with ear tags through use of BAITS within three months of birth. There are two ear tags used; the electronic tag which contains a Radio Frequency Identification Device ( RFID) and the analogue ear tag.

The electronic ear tag is the primary identifier recognised in BAITS. The tagging system makes it possible to trace cattle from birth to slaughter.

Cattle tagging involves the farmer buying the combo tags ( digital and analogue) tagging his animals and submitting data to the data base. The farmer also needs to request movement permits and also report departures; arrivals and mortalities. Tag replacement needs to be reported and is the responsibility of the farmer.

Consult IT ( Pty) Ltd in its notice to sue argues through its lawyers Collins Chilisa Consultants that on 24th August 2005, Claimant ( Consult IT ( Pty) Ltd) concluded a Service Level and Maintenance Agreement (“the initial Agreement”) with the Government of Botswana for the services, maintenance, procurement of computer hardware and associated software for the Livestock Identification Traceback System. The company avers that in terms of clause 23.2 of the initial Agreement, any intellectual property in any invention, idea, developed by Claimant remained the property of the Claimant, and Government was given a right of non- exclusive use.

“During the currency of the initial Agreement, Claimant developed and allowed Government use of the Botswana Animal Information Traceability System (“BAITS”). The most recent version of this software system is BAITS 2.0.

“Similar, but not identical, agreements were subsequently entered into, on a number of occasions, following the expiration of the initial Agreement. Claimant continued to provide similar services, until the lapse of the last agreement in May 12, 2023,” attorney for the company Mboki Chilisa, said.

It is argued that at no point in time did Claimant transfer its proprietary rights in respect of its software system to the Government. It has recently come to Claimant’s attention that in breach of its copyright in BAITS 2.0, Government has not only continued to use the software system, but has also given a third party, Modisar Net ( Pty) Ltd, access to the Claimant’s database.

“As a result of Government’s aforesaid infringement of Claimant’s copyright, it has suffered damages that run into millions of Pula. The Claimant estimates its loss to be about P100 million. Claimant will upon expiration of the statutory notice, institute an action for payment of P100 million.

“As Government’s infringement of Claimant’s copyright is ongoing,

Claimant seeks an undertaking that Government will immediately cease and desist from continuing to make use of Claimant’s software system or any modified version thereof. Such undertaking must be delivered to our office on or before close of business on 15 August 2023.” The company has since filed a court application against government following failure of the undertaking. The company is also interdicting Government’s continued unlawful infringement of Claimant’s copyright in respect of its software system. Investigations by Botswana Guardian have revealed that the first selective bidding involves the procurement of BAITS 3 to replace the current BAITS 2. How the company got selected for single sourcing still remains a mystery as Consult IT which used to provide maintenance and support for BAITS 2 is suing Government for breach of Intellectual Property rights.

The BAITS controversy is said to have led to unavailability of ear tags. Failure of BAITS 3, according to sources will compromise the beef sector, especially “our beef exports to the

EU”. There are also fears that butcheries are going to run out of cattle for slaughter and there will be increase in cattle rustling. According to the Agricultural Finance Scoping - Botswana Report prepared by Imani Development International Ltd, Botswana has an estimated 1.4 – 1.5 million head of cattle, around 80 percent of which are smallholder- owned. Over 95 percent of beef production is exported. The report stated that in 2019, Botswana was the ninth largest exporter of beef to the European Union. “However, between 2010 and 2018, earnings from beef exports dropped from $ 130 million to $ 80 million. Botswana’s exports of fresh and chilled beef products dropped from $ 62 million in 2015 to $ 29 million in 2019.

“Exports of frozen beef products dropped from $ 53 million to $ 32 million over the same period. Livestock production is particularly affected by weak market linkages. The lack of clustering of production centres also has implications for access to services such as extension services, water, energy, and product interchange,” the report says.