African Contributions in Shaping the Worldwide Intellectual Property System

Tshimanga Kongolo

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317184324
• Edition: 1
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

Africa is playing an increasingly more significant role in the domain of international intellectual property law, and this book underlines the contributions made by African countries as a group to the development of the current international IP system. It examines in detail their breakthrough proposals and initiatives at the WTO, WIPO and WHO with regard to IP and public health; IP and traditional knowledge, traditional cultural expressions and genetic resources; IP and biodiversity; and exceptions and limitations to copyright. Using Botswana, Burundi, Egypt, Ghana, Kenya, Mauritius, Morocco, South Africa and Tunisia as examples, it examines the systems under which these IP subject matters are protected. From a regional perspective, the book also analyses some initiatives taken by ARIPO, OAPI and the African Union to protect traditional knowledge and traditional cultural expressions, especially in relation to protection of the rights of local farming communities and breeders, regulation of access to biological resources, genetically modified organisms and the proposed establishment of the new Pan-African Intellectual Property Organization (PAIPO). Demonstrating how Africa is now an active player on the international IP scene, this book will be invaluable to those interested in intellectual property law, business and commercial law, and African and international law.

Chapter 1
Introduction

The world has changed. Africa must change and is changing. The contribution of African nations, as a group, in the setting of international intellectual property (IP) norms is more and more significant nowadays. This may be evidenced by those initiatives taken in this field by the African Group1 that have been recently adopted as international norms or guiding principles.

Intellectual property in the sense it is widely understood today was traditionally a foreign concept to most African countries. Consequently, Africa had no say in most of the early norm-setting negotiations on IP at the international level. It largely accepted those arrangements that were based on the interests of the former colonial powers. Up until recently, most of the IP laws of African countries were based on the legal systems they had inherited during the colonial era. These laws were just the reflection of European-based IP laws without any adjustments having been made to accommodate their national conditions, needs, or interests. Most of the African countries belonging to the common law system, for instance, did not have their own IP laws during the colonial era. This was true even up until the 1990s for a number of countries. The registration of intellectual property rights (IPRs) was carried out in the United Kingdom, and that protection was extended to its colonies. At the same time, African civil law countries were very active in ‘cutting and pasting’ the French IP-related laws without any adjustments to their national needs and priorities.

It was obvious that these IP laws did not serve their national interests. Intellectual property rights had a very bad reputation in the developing world in general and African countries in particular. The IP system was not considered to be a development tool by those countries. Not long ago, not only was the importance of IP questioned, but so was the appropriate level of IPR protection in developing countries. There was a division of interests between the developed and developing countries.

However, circumstances changed with the globalization of the world economy and the adoption of the Agreement Establishing the World Trade Organization (WTO), including the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPs Agreement), which provides the so-called minimum standards of protection of IPRs applicable to all WTO Members. Before and during the negotiations that led to the adoption of this Agreement, a large number of African countries’ trade negotiators were not knowledgeable about IP. Consequently, it was extremely difficult for them to perceive the implications that IP norms could have, particularly in connection with such other fields as agriculture, public health, and biotechnology. As a result, the overall ‘deal’ that was reached in regard to IPRs was accepted under this circumstance of ignorance.

Nowadays, the situation has improved considerably and the importance of IP is accepted worldwide, even though the conflict of interests is yet unsettled. Why have African expectations toward IP been raised in the last 15 years? Some external factors contributed to the change in perception of IP in the late 1990s, the main ones being the conflict between patent rights and public health, the need to provide adequate protection to traditional knowledge (TK), and the necessity of safeguarding genetic resources from widespread misappropriation through controlled access.

Public health-related cases challenged the raison d’être of the patent system by bringing to light new issues pertaining to the interface between patents and public health. The aftermath of the South African case,2 to cite just one example, required the international community to tackle public health issues in a different manner and to increasingly consider the human face of the IP system. Africa played a very important role in the shift in perception of the relationship between IP and public health. The African Group within the WTO initiated the discussions about IP and public health in 2001 and took the lead in determining their direction. This can be perceived through the first Draft Doha Declaration on the TRIPs Agreement and Public Health, which was submitted by the African Group to the WTO and subsequently endorsed by most developing countries. As a result, it was adopted with a few amendments as the Declaration on the TRIPs Agreement and Public Health on November 14, 2001. The Decision of the General Council of WTO implementing Paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health of August 30, 2003 attempted to respond to the concerns of African countries that lacked manufacturing capacity to produce the needed drugs to save human lives. To render this Decision permanent, the Protocol amending the TRIPs Agreement was adopted in 2005 and remains open for acceptance by WTO Members. Discussions on the relationship between public health and IP have also taken place under the auspices of the World Health Organization (WHO) through a variety of forums, and Africa’s voice has been loudly heard therein. Africa expressed its views, for example, in the context of the adopted Global Strategy and Plan of Action.3 Recently, within the World Intellectual Property Organization (WIPO), discussions on patents and health were initiated by the African Group, which requested that the Standing Committee on the Law of Patents debate this issue, among others.

The need to protect traditional knowledge (TK) and prevent its widespread misappropriation pushed the international community to debate the issue and to seek ways to resolve it. For three decades, the issue of the protection of folklore has been heavily discussed on the international scene under the auspices of WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO) with no satisfactory outcome. The amendment of the Berne Convention for the Protection of Literary and Artistic Works in 1967 to include the international protection of unpublished and anonymous works did not provide an adequate solution. Other attempts through Model Laws in 1976 and 1982 did not bring the expected results even though they influenced a great number of laws of developing countries in general and African countries in particular. A new approach was required.

Unlike traditional cultural expressions (TCEs) or expressions of folklore (EoF), which have quite a long history of seeking appropriate systems of protection, TK is a relative newcomer in this field. The issue of the protection of TK came to light when persons who did not belong to the communities which were the traditional owners of such knowledge used it for commercial purposes without rewarding the community owners. WIPO undertook a Fact Finding Mission between 1998 and 1999 to examine the importance attached to the protection of TK. The Fact Finding Mission on TK was carried out worldwide, covering some selected countries from North to South and from East to West. Its objective was to identify and explore the IPR needs and expectations of new beneficiaries, including the holders of indigenous knowledge and innovations, in order to promote the contribution of the IP system to their social, cultural, and economic development.4 The findings of the Fact Finding Mission revealed the urgent need to protect TK. They also demonstrated that the conventional IP system was not adequate to protect TK and to meet the expectations of TK holders. The Intergovernmental Committee on Intellectual Property and Genetic Resources, and Traditional Knowledge and Folklore (IGC) was established by the WIPO General Assembly in 2000 to deal with issues relating to IP, genetic resources, TK, and TCEs or EoF.5 The IGC became operational in 2001.

The misappropriation of TK and uncontrolled access to their huge biological resources, including genetic resources (GRs), prompted African countries to take the lead at the international level on these issues. The world’s dependence on biological resources puts Africa in a better position than in the past as its natural resources could serve as a bargaining tool to offset the imbalance of power with the rest of the world. At WIPO, the African Group submitted the first document on the Objectives and Principles in respect of TK and TCEs that was discussed by the IGC. Under the IGC, the African Group has taken a number of initiatives that have both changed the direction of the debates and contributed to general understanding of TK. Within the WTO, the African Group has made tremendous contributions during the discussions of TK issues, revision of TRIPs Article 27.3(b), and the relationship between the TRIPs Agreement and the Convention on Biological Diversity (CBD). The African Group supports the revision of the TRIPs Agreement to include the proposed Article 29bis, which would establish a requirement to disclose the country of origin of GRs, including associated TK, in patent applications.

Finally, the relationship between TK and the public domain is not yet settled given that some still consider TK to comprise part of the public domain while owners of TK continue to explore ways to gain recognition of their positive rights over their knowledge. The African Group supports narrowing the scope of the public domain in the context of TK.

The African Group has been very dynamic in the course of the ongoing discussions on exceptions and limitations to copyright that are taking place in the WIPO Standing Committee on Copyright and Related Rights (SCCR). Exceptions and limitations to copyright were set out under the Berne Convention to balance the interests of authors with the interests of society as a whole. The content of such exceptions and limitations, as well as the accepted degree or levels of free access to copyright works, have been seriously questioned with the advent and growing importance of digital production, storage, and transmission of information. In addition, the terminologies used in this regard are not always the same and meanings may differ from one concept to another. The typical examples are the ‘private use’, ‘fair use’, and ‘fair dealing’ concepts. The issue of access to copyright works for the purposes of education, libraries, and disabled persons has been likewise discussed in the past in the framework of UNESCO. Under the SCCR, three possible international instruments on exceptions and limitations have now been negotiated, one covering exceptions and limitations for persons with print disabilities/visually impaired persons and those with other reading disabilities, one dealing with exceptions and limitations for libraries and archives, and the other covering exceptions and limitations for educational, teaching, and research institutions and persons with other disabilities. The African Group has made a significant contribution with its proposal on the Draft WIPO Treaty on Exceptions and Limitations for the Disabled, Educational and Research Institutions, Libraries and Archive Centers. Negotiations on the international instrument on exceptions and limitations to copyright for visually impaired persons/persons with print disabilities have progressed in the right direction.

Among other issues, the protection of life forms has been one where positions of countries have not yet fully evolved. From the beginning of the discussion, African countries were reluctant to provide any protection—mainly patent protection—to life forms. This has been reiterated by the African Group on many occasions and in many forums. The same goes for the patenting of micro-organisms and non-biological and microbiological processes for the production of plants and animals. Another area where African countries have not settled their positions is the suitability of genetically modified organisms (GMOs). Discussions are ongoing in several African countries as to whether to accept or refuse the use of GMOs. The AU Model Law may be a useful guide in this respect. On the other hand, the African Group is in favor of expanding the scope of the research exemption/exception. This is also acknowledged under the national IP laws of many African countries.

Is the dynamism of African countries present at the regional level? This question will be answered by looking at the work of the existing IP organizations, namely the African Regional Intellectual Property Organization (ARIPO) and the Organisation Africaine de la Propriété Intellectuelle (OAPI). In addition to an examination of the legal framework governing the two organizations, new initiatives taken within the regional level will be scrutinized. The newly adopted Protocol on the Protection of TK and Expressions of Folklore under ARIPO is one of these. In addition, a new initiative on the protection of plant varieties is on the table under ARIPO. OAPI is also in the process of revising its legal text.

The regional level is also marked by the ambitious initiative of the African Union (AU) to set up a Pan-African Intellectual Property Organization (PAIPO). The Final Draft Statute was adopted in mid-November 2012 at the Ministerial Conference which took place in Brazzaville in November 2012. Would the proposed PAIPO add value or bring new issues? The African Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, adopted in 2000, has been another important contribution of the African Union. It will be examined here whether or not the Model Law has been a good guide for African countries. In addition, to guide African countries concerned about the safety and regulation of GMOs, the African Union adopted a Model Law on Biosafety in 2001 which is again under review.

At the national level, many African countries have revised their laws to comply with the TRIPs Agreement. National perspectives on various IP issues will be scrutinized to see whether African countries are managing to strategically use IP for their own benefit and also to learn whether the international dynamism of the African Group is being reflected at the national level.

The aim of this book is to highlight most of the main African contributions in the enhancement of the current international intellectual property system. It is divided into five chapters, including the Introduction and the General Conclusion. Each chapter will be divided into three to four sections.

Chapter 2, entitled ‘African Countries’ National Perspectives on Various Intellectual Property Issues’, will address selected subject matter related to scope of protection of patents; disclosure requirements; exclusions from patentability; exceptions to patent rights, including the research exemption/exception and exhaustion of patent rights; compulsory licensing; non-traditional marks; well-known marks protection; trademarks and the Internet; exceptions to breeders’ rights; TK, TCEs, and GRs; and genetically modified organisms (GMOs), taking into consideration both the existing legal systems and ongoing discussions in Botswana, Burundi, Egypt, Ghana, Kenya, Mauritius, Morocco, South Africa, and Tunisia where appropriate. The choice of those countries is based on four parameters:

• geographical representations (East, West, North, South);

• legal systems (civil law and common law);

• memberships to regional systems (Botswana, Ghana, and Kenya are Member States of ARIPO, whereas Burundi, Mauritius, Morocco, South Africa, and Tunisia are Members of neither ARIPO nor OAPI);

• adoption of new IP laws (all of these countries have adopted new IP laws or revised their laws principally to comply with the TRIPs Agreement).

Chapter 3 will deal with the situation at the regional level. How well are ARIPO and OAPI playing their roles? ARIPO was originally composed of only English-speaking African countries and OAPI of French-speaking nations. The situation has evolved now, as some of the Member States in each of the two institutions are neither English- nor French-speaking countries. Are African Members of these organizations actively engaged at the regional level in creating regional IP systems that are suitable to their needs and priorities and adaptable to their interests? To respond to these questions, a study of these regional systems will be presented. An analysis of some regional initiatives such as the newly adopted Protocol on the Protection of TK and Expressions of Folklore under ARIPO and the Draft Protocol on Plant Variety Protection will be presented before highlighting the African Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources as well as the AU Model on Biosafety and the discussions on the establishment of the Pan-African Intellectual Property Organization.

Chapter 4, entitled ‘African Initiatives at the International Level’, will mainly examine various proposals, initiatives, and positions of the African Group or individual African countries in connection with matters pertaining to TK, TCEs, or expressions of folklore (EoF), GRs, biodiversity, and patents and public health in WIPO, the WTO, and WHO, where appropriate. African contributions to the ongoing debates on exceptions and limitations to copyright within WIPO will also be examined. Other selected issues of particular importance to African countries, namely protection of life forms, the patenting of micro-organisms and non-biological and microbiological processes for the production of plants and animals, the research exemption/exception, and IP and GMOs, will also be highlighted.

Chapter 5, ‘General Conclusions’, will summarize different findings and propose the way forward.

1 The Member States of the United Nations (UN) are unofficially divided into five geopolitical regional groupings. The African Group, comprising 54 Members, is the largest regional group both in membership and in percentage of Members (28 percent of all UN Members). Each specialized UN agency (International Organization) is comprised of these regional groupings. This is sometimes also the case in some intergovernmental organizations, such as the World Trade Organization (WTO), which is not part of the UN family.

2 Pharmaceutical Company Lawsuit against the Government of South Africa, Case number: 4183/98 of February 18, 1998, reprinted at http://www.cptech.org/ip/health/sa/pharmasuit.html (last accessed on November 26, 2012).

3 In May 2008, the Sixty-first World Health Assembly adopted Resolution WHA 61.21: ‘The Global Str...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Preface
• Acknowledgments
• Disclaimer
• Acronyms and Short Forms
• 1 Introduction
• 2 African Countries’ National Perspectives on Various Intellectual Property Issues
• 3 African Regional Intellectual Property Systems and Regional Initiatives
• 4 African Initiatives at the International Level
• 5 General Conclusions
• Bibliography
• Index