Africa: Let's Re-Examine AU Intellectual Property Stance

This is the first instalment of a two-part article on the Pan African Intellectual Property Organisation (Paipo) by principal law officer on the secretariat of the inter-ministerial committee on intellectual property at the Ministry of Justice and Legal Affairs' policy and legal research division, Innocent Mawire.

THE African Union (AU) is in the process of establishing a new organ, Pan African Intellectual Property Organisation (Paipo) to deal with intellectual property issues on the continent.

The establishment of Paipo followed a decision of the Heads of States and Government of the AU in January 2007 on the need to establish such an organisation.

To that end the AU mandated its Scientific, Technical and Research Commission (AU-STRC) to come up with a draft legal instrument on the establishment of Paipo. The AU-STRC came up with a draft statute that was tabled before the AU Member States' Ministers for Science and Technology meeting held in the DRC until Monday.

Since the publication of the draft statute creating Paipo, there has been a lot of criticism from intellectual property experts who have pointed out the draft statute has a lot of shortcomings both substantively and procedurally.

These shortcomings have serious implications on the activities of the organisation when it comes into force which, admittedly, would hamper Paipo in fulfilling its intended objectives as encapsulated in Article 5 of the draft statute; that is to advance the economic well-being of the African continent using the intellectual property regime.

There is need to defer the adoption of Paipo by the AU to allow further discussions on the proposed draft statute with a view to enriching it so that Africa, like other continents, can benefit from the knowledge economy that is driven by the Intellectual Property (IP) system. The adoption of the Paipo statute in its current form will be serious indictment on the part of African leaders as it would not result in any meaningful realisation in terms of economic growth while at the same time it would jeopardise the much advanced negotiating positions on IP matters by African states at the World Trade Organisation as well as at the World Intellectual Property Organisation (Wipo).

Many African countries are seeking to harness and promote innovation and creativity to foster economic growth and development in a quest to find solutions to a myriad of pressing public policy challenges. In this context, intellectual property as a discipline has assumed a growing importance in recent years while at the same time, it continues to be profoundly a contentious topic particularly in relation to issues such as promoting creativity in the digital environment, food security, climate change, access to affordable medicines and, more broadly, access to knowledge.

African countries have been very vocal and also at the forefront of the global debates to achieve a more balanced intellectual property system that is mindful of the aforementioned issues especially at the World Trade Organisation as well as within the framework of the activities of the World Intellectual Property Organisation.

While others have cautioned against heavy-handedly criticising the idea of having such a continental body in Africa before it comes into life, other scholars have rightly pointed out the scope of the language of the statute itself causes a lot of discomfort as it gives a wrong perception about the role of the IP system in socio-economic development.

A cursory reading of the provisions of the draft statute from the very outset shows some serious deficiencies which member states should reconsider before a final decision to adopt the statute is made. On the face of it, the draft statute extols intellectual property as a panacea that will cure all the economic and social woes and bring about economic progress and development on the continent.

This view is predicated on the orthodox premise that intellectual property is an end in itself and not a means that can be employed to achieve the ultimate end result, namely economic progress on the continent. This is particularly evident from the objectives as outlined in Article 5 as read with the opening provisions of the preamble of the draft statute

As has been laconically observed by one IP scholar, Caroline Ncube in her article "Piping up on Paipo", such a view is now out of sync with the current realities since it reverberates the old, trite and banal statements from industrialised nations about intellectual property as a tool for socio-economic development without providing a nuanced and balanced approach on how IP rights should be integrated in the socio-economic set up of African countries to achieve such economic progress.

Ncube also rightly questioned the meaning of an "effective intellectual property system" as provided in opening paragraph of the preamble of the Paipo statute. While this can be understood to mean striking a right balance between rights of owners of IP assets and those of the users as espoused, for example, in Article 7 of the TRIPS Agreement, this should have been expressly stated in the preamble. In its current form such a balance between the rights of owners of intellectual property system and the rights of users is conspicuous by its absence.

Such an interpretation is even supported by the view that the draft statute seems to be more focused on a strong protection and enforcement regime for intellectual property rights, which again in my view is a wrong perception that is not supported by any empirical evidence the world over.

It must be underscored that different countries have different conditions that require different approaches to the utilisation of intellectual property assets for economic progress to be achieved. The one size fits all approach which the AU seems to be advocating is out of sync with the modern realities.

One country may need a strong IP protection regime which might not necessarily be applicable to another country, hence every country must have to decide a proper regime that will be relevant and suitable to its own national circumstances. The short of this is that the whole draft statute negates the view that intellectual property is only a means that can be used together with other approaches to aid socio-economic development in African countries rather than the view that prescribe intellectual property as a guarantee to address Africa's economic challenges.

Advancements of economic growth and development using the IP regime requires a consciously planned effort on how to integrate the IP assets into other development plans of any given country as informed by national circumstances.

It is very unfortunate the framers of the draft statute failed to draw inspiration from the grounded activities of the African Group for Wipo, issues as well as the founding principles guiding the Development Agenda Group and the Like-Minded Countries Group in their rich negotiations and discussions within the framework of the activities of Wipo in Geneva.

These regional groupings have been diligently pushing to integrate IP issues into mainstream development, mainly for the benefit of member countries particularly the developing and least developed countries. These groups have also come to the realisation that intellectual property rights are not absolute in nature and also that they are not an end in themself but rather qualified rights.

This is quite evident from the current debates within the Wipo Standing Committee on Copyright and Related Rights where proposals for draft legal instruments to allow limitations and exceptions to copyright for various public interest objectives are now at an advanced stage. Yet the draft statute of Paipo seems to maintain that IP rights are absolute in nature. This of course will undermine the efforts of African states at the Wipo to fight for the rights of users of the IP system as well as the gains achieved through the flexibilities available to member states under the TRIPS Agreement as clarified by the Doha Declaration for Public Health.

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