Comparative analysis of hindrances to African intellectual property rights and development

TEBOHO RAKOLOI

According to the World Intellectual Property Organization (WIPO), Intellectual Property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.

It refers to a number of distinct types of creations of the mind for which exclusive rights are recognised. These rights are granted to creators and inventors to regulate the use of their products.

The main purpose of these rights is to provide an incentive to promote worthwhile innovation in a variety of areas, such as technology and pharmaceuticals.

However, it is important to strike a balance to ensure that these innovations are made accessible to all which is why intellectual property rights are granted for a limited period.

Intellectual Property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.

Laws governing intellectual property rights are put in place for two reasons: first to give authorised expression to the moral and economic rights of creators in their creations and, to the rights of the public in accessing those creations; second is to promote creativity, the dissemination and application of its results, and to encourage fair trade, which would contribute to economic and social development.

Although some of these assets are intangible, with intellectual property rights owners receive certain exclusive rights.

World countries are governed by World Trade Organisation (WTO)’s Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement working in tandem and in collaboration with WIPO laws and protocols.

In Africa, following the establishment of the African Continental Free Trade Area (AfCFTA), the protocol on intellectual property rights will promote innovation and enterprise and allow access to essential medicines.

Article 4 of the AfCFTA Agreement states that for the purposes of fulfilling and realising the objectives of the AfCFTA the State Parties shall co-operate on investment, intellectual property rights and competition policy.

Like other property rights, intellectual property rights are relations between individuals but unlike real property law, intellectual property law posits rights in abstract objects.

Many people need, use and depend on such objects; many of the relationships of interdependence that characterise social life and work in modern online societies are linked to such objects.

A property form that allows private hands to capture important abstract objects creates, among other things, many person-dependent relationships in a society.

In Africa, just like in other regions, there are two existing intellectual property organisations, namely; the Organisation Africaine de la Propriete Intelluelle (OAPI) and African Regional Intellectual Property Organisation (ARIPO).

The AfCFTA will have to work hand and glove with these IP international organisations when implementing the protocol on Intellectual Property Rights to advance co-operation among African countries to the highest level.

The basic objective of the AfCFTA is to create a single market for goods and services facilitated by movement of persons in order to deepen the economic integration of the African continent.

The effective protection and promotion of IPR are part of this agenda.

Because Sub-Saharan African countries were at some point colonies of other countries, their intellectual property laws were imported from the colonising countries.

Currently, most Sub-Saharan African countries are members of the WIPO and are required to conform to international standards of intellectual property rights protection.

This poses a problem for individual countries because domestic laws are tailored to international laws, and are not written specifically for the intellectual output produced within the country. This means that the intellectual output these countries specialise in, especially cultural intellectual output, is not always included among the intellectual property that needs to be protected.

This is especially key for individualised innovators such as artists, musicians, etc., who have some difficulty in taking advantage of the property rights system to protect their work.

To this end, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement was drafted for all member countries to address the provision and applicability of adequate intellectual property rights, the provision of effective enforcement measures for those rights, multilateral dispute settlement, and transitional arrangements.

The agreement recognises that there are widely varying standards in the protection and enforcement of intellectual property rights and the lack of a multilateral framework of principles, rules, and disciplines dealing with international trade in counterfeit goods have been a growing source of tension in international economic relations.

A standard, universally accepted framework could be the much-needed solution to coping with these tensions.

There are several benefits to implementing policies that establish intellectual property rights some of which accrue from the fact that ideas share some qualities with public goods.

An example of such qualities is non-excludable consumption.

This means that consumption of the good by one individual does not reduce the availability of the good for consumption by others and that no one can be effectively excluded from using the good.

Inventors are rewarded for their creativity and are motivated to continue to produce goods and services that the entire society benefits from.

These rights protect the innovator’s investments and create a market for them.

Without clearly defined rights, these intellectual outputs are subject to copying, which can impede a return on investment sufficient to cover fixed costs and compensation for the high degree of market uncertainty.

 

Challenges to the development of IPRS in Africa

The administration of IPRs in Africa is incapacitated by inadequate skills since persons involved in its administration are usually not experts.

For instance, in most countries patents are not filed and in some cases patent examiners are not experts in the field of science and technology, therefore the grant of a patent is a matter of form only since there is no substantive examination.

The infrastructure for operation of IPR in sub-Saharan Africa is still largely undeveloped. Information technology is also at the early level of development which does not encourage proper research by IP experts, students and scholars.

Filing of applications is always slow in the region whereas IPRs vest on the date of filing as against the date of grant.

The process of grant of IPR could take years due to the limited infrastructural facilities at the Trade Mark and Patent Registries. These infrastructure deficiencies have not encouraged business development in Africa with bottlenecks in passage of goods and services between borders in the region.

It is quite disappointing that after decades of independence most countries in the sub-Saharan Africa have not made any significant change in their IP laws, which have remained outdated.

Some of the major problems facing development in IP law in most African Countries are enumerated below.

  1. Africa still lags behind in developing an indigenous law that will address basic issues on IPRs germane to its economies and intergovernmental activities in the region. In the area of trademarks, there have been developments of other forms of marks different from marks relating to goods. There are service marks, scent marks, sound mark and slogans. The granting of patents on some plant varieties and seeds already in force in England has been recognised and regulated in Kenya and South Africa which is indeed a milestone development, according to WIPO. The rest of sub-Saharan Africa still regards plant varieties as non-patentable in their laws.

 

  1. The judiciary is not up-to-date with issues relating to IPRs. Most cases found in these courts are only limited to trademarks, while there are very few on copyright and patents in most African countries. Also most IP cases are settled by the parties before they get to the appeal courts.

 

WIPO indicates that Trademark seems the most active IPRs in sub-Saharan Africa most especially in Kenya, Ghana, Gambia, Nigeria, and South Africa. This is the area of IPRs which had witnessed numerous applications from nationals of the region. Copyright has not really witnessed any notable activity in the region.

Most transactions involving copyright are, instead, done on an informal basis. It is ironic that the region produces a significant number of home entertainment videos with few African countries leading the chart. Still some of these works are not protected due to lack of awareness of IPRs, according to research conducted by the WIPO.

Today, the intellectual component of production is far greater than in the past and IP is an indispensable mechanism for translating that know-how into a tradeable commercial asset and capturing the competitive advantage that it represents.

IP rights establish a secure legal framework for investment in – and commercialization of – innovation and creativity, enabling firms, including innovative start-ups, to navigate the perilous process of transforming an idea into a commercially viable product and to compete with success in the global marketplace, while safeguarding the public interest.

As such, IP is a key factor in creating an environment in which innovation and creativity can flourish and generate future growth and prosperity.

It can only deliver these benefits, however, when the IP system is based on an appropriate policy mix that balances the often competing interests of producers, on the one hand, and consumers on the other hand. This is the challenge that faces policy-makers in Africa and across the world.

Over the years, the main IP focus in Africa has been to establish and develop basic IP infrastructure, regulatory frameworks, capacity-building, and human capital. The goal now is to put these IP tools to work in support of the economic objectives of African economies.

Africa has a great tradition of innovation and creativity and has extraordinary creative resources but has often struggled to realise their full economic potential.

That is changing.

Increasingly, African economies are seeking to add value to their innovative and creative resources through the IP system.

However, it is worth mentioning that a growing number of African economies are punching above their economic weight in the area of innovation (2015 Global Innovation Index).

Despite limited means, these African economies are proving efficient in translating the investments they make in innovation and the creative economy into concrete outputs.

Some countries such as South Africa, have managed to successfully use intellectual property rights to protect developing industries, which have grown to become some of the largest and most effective in this region (WIPO).

To gain the full benefits of a strong intellectual property rights system, Sub-Saharan African countries should develop industries most important to manufacturing output for which they have comparative advantage and develop intellectual property rights to protect the intellectual output that is unique to their countries.

Similarly, in order for them to have a comparative advantage and unleash their potential African universities need to co-operate with universities in China, US and other Western countries, as well as other developed economies, to enhance their research and development and innovative potential.

This can be realised when sound infrastructure is in place and robust policies are crafted and implemented. Each nation must find the right mix of policies to mobilise the innate innovative and creative potential of its economy.

 

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