[A2k] "Let's Re-Examine African Union Intellectual Property Stance" by Innocent Mawire
manon.ress at keionline.org
Sun Nov 18 14:12:04 PST 2012
"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
Africa: Let's Re-Examine AU Intellectual Property Stance By Innocent
Mawire, 16 November 2012
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
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
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
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
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
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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