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African Union Rising to the Need for Continental IP Protection? The Establishment of the Pan-African Intellectual Property Organization
Abstract
Intellectual property rights protection is at the forefront of some of the major controversies regarding the impact of globalization. African countries have in recent years participated to an unprecedented degree in both international and bilateral initiatives dealing with intellectual property. The negotiating positions have been varied and, from a regional perspective, have not been coherent at some levels, with different countries advancing different positions. African countries have adopted regional integration as a strategy to deal with the challenges of globalization. Regional integration is believed to increase negotiating capacities and competitiveness in global trade. It is also believed to improve access to foreign technology. The African Union is facilitating the establishment of a continental intellectual property body. Accordingly, the main aim of this article is to discuss the establishment of the Pan-African Intellectual Property Organization in line with the African Union's vision for regional integration.
Africa is one of the world’s most biodiverse regions, and many African countries have a comparative advantage in the abundance and variety of biological resources. Furthermore, a majority of the population in Africa depends directly upon biodiversity and ecosystem services for their food and livelihoods,6 whereas natural capital accounts for between 30 per cent and 50 per cent of the total wealth of most African countries.
The creation of the African Continental Free Trade Area (AfCFTA) through the entry into force of the Agreement Establishing the AfCFTA (AfCFTA Agreement), on 30 May 2019, presents important opportunities for boosting intra-African trade and promoting development that is environmentally, socially and economically sustainable.
The AfCFTA is central to achieving the continental integration envisioned in the Organization for African Unity’s Treaty Establishing the African Economic Community (Abuja Treaty) and the African Union’s Agenda 2063: The Africa We Want (Agenda 2063). It is also expected to drive the economic transformation needed to foster the sustained and inclusive growth required to help African countries to implement the 2030 Agenda for Sustainable Development (Agenda 2030) and achieve the Sustainable Development Goals.
The AfCFTA is pivotal to Africa’s development strategy and ambitions. Concerted efforts must be made to ensure that the instruments still under negotiation under the AfCFTA framework deliver a comprehensive set of agreements that boosts intra-African trade, using the opportunity to include features and policies that serve the needs of all African countries.
Supplying growing global consumer demand for natural, healthy, environmentally friendly, just and ethical products and services offers a new avenue to strengthening the legal and sustainable production, trade and consumption of biodiversity-based goods and services.
A targeted approach under the AfCFTA could thus foster intra- African trade in biological resources and derived value added products and services, while conserving globally significant biodiversity, furthering mitigation of and adaptation to climate change, and improving livelihoods.
This study reviews the potential implications of, and
opportunities presented by the AfCFTA for legal and sustainable trade in biodiversity/BioTrade and access and benefit-sharing (ABS).
Section 1 explores the concept of BioTrade, addresses the substance of the updated BioTrade Principles and Criteria published in 2020 by UNCTAD, and illustrates how BioTrade has been implemented in Africa.
Section 2 presents a historical overview of African trade integration, beginning with the creation of the Organization for African Unity (OAU) in 1963 and concluding with the entry into force of the AfCFTA Agreement in 2019.
Section 3 provides a general overview of the broader links between trade and environment, trade in goods, including non-tariff barriers (NTBs), trade in services, intellectual property rights (IPRs), competition policy, and cooperation.
The study concludes by identifying potential points for engagement, as implementation is still in the very early stages, and negotiations on protocols and additional annexes continue.
Countries are increasingly using access and benefit sharing (ABS) as a legal mechanism to support the conservation and sustainable use of the world’s biological diversity. ABS regulates collection and/or use of genetic resources/traditional knowledge and sharing benefits from their use with the provider. The purpose of this review is to assess the trends, biases and gaps of ABS literature using a regional comparative approach about the key topics of concern between each region. It analyses four key topic groupings: (1) implementation of international, regional and national ABS policy and law; (2) intellectual property and ABS; (3) traditional knowledge; and (4) research, development and commercialisation. Findings included gaps in: (1) analysing effectiveness of national level implementation; (2) addressing apparent conflicts between support for intellectual property promoting exclusivity for traditional knowledge and challenges to intellectual property exclusivity for patents; (3) examining traditional knowledge of local communities (in contrast to Indigenous Peoples); and (4) lack of practical examples that quantify benefit sharing from research and commercialisation outcomes. We conclude that future research addressing the identified gaps and biases can promote more informed understanding among stakeholders about the ABS concept and whether it is capable of delivering concrete biological conservation, sustainable use and equity outcomes.
Deeper continental integration is considered critical for Africa’s future growth, development and transformation. This paper reports on the results of a comprehensive review of the scholarly literature on Africa’s continental integration dating back to the 1960s. We wanted to focus on publications drawing on the organization and management literature, but found these to be limited in number and scope. The review covered a range of topics relevant for continental integration including peace and security, decolonization, diplomacy and politics, cultural exchanges, social and economic development, environmental protection, and sustainable development. Although about half of the studies reviewed were atheoretical, the rest covered a range of theories from different disciplines. Most of the studies used documentary analysis and literature reviews; few used survey methods or quantitative data collection and analysis. Review results were grouped into five key areas for continental integration: organizational, economic, political, peace and security, and human rights. The paper concludes by identifying gaps and opportunities for research. Theory development in particular would help to improve understanding of the complexities of continental integration, and guide evidence-based policy and practice for deeper, more effective and sustained continental integration to improve the lives of Africans at home and in the diaspora.
This book examines the harmonisation of Intellectual Property (IP) policy, law and administration in Africa.
Two recent developments have brought this topic to the fore. The first is the escalation of long-standing efforts to establish a Pan-African Intellectual Property Organisation (PAIPO), a continental initiative. The second is the current sub-regional attempt to operationalise the IP provisions of the Southern African Development Community (SADC)’s Protocol on Trade (articles 9b and 24) and its Protocol on Science, Technology and Innovation (article 2m).
Intellectual Property Policy, Law and Administration in Africa discusses the viability of such initiatives with particular reference to the current socio-economic status of Africa’s nations. With a view to contributing to future developments in Africa at both a continental and sub-regional level, the author considers this issue through the lens of advancing the public interest in IP. Ncube argues that harmonisation initiatives ought to be crafted in a way that is supportive of the development aspirations of African states. Consequently, she urges due consideration of individual states’ unique conditions and aspirations in any harmonisation venture, a necessity outlined in article 7 of the Agreement on Trade Related Aspects of Intellectual Property Rights.
This book will be of great relevance to scholars and policy makers with an interest in IP law and African law in general.
http://www.taylorandfrancis.com/books/details/9781138820739/
By the tenor of its establishing instrument, the African Union is poised to enthrone the elusive ideals of good govern-ance and stability on the African continent. However, despite the persistent pronouncements by African leaders avowing their commitment to the founding ideals of the pan-African body, there have been expressions of doubt about the capacity of the African Union to achieve any of those goals beyond what its predecessor, the Organization of African Unity, could achieve. The skepticism that has continued to trail the existence of this regional body may, however, not be unfounded considering some formidable normative, institutional, and structural imperfections that may constitute impediments to the realization of the lofty goals of the body. There indeed remains a bundle of issues yet unresolved. As the African Union marches on in measured steps towards the realization of its set objectives, it is timely to examine some inherent and value-oriented obstacles to the actualization of the regional expectations within the scope of the African Union agenda. This concern is neither hypothetical nor abstract. To what extent have African states surrendered their sovereignty to regional scrutiny, and on what basis? What are the power dynamics that will inform the operations of certain key institutions established at the twilight of the Organization of African Unity and organs newly created or proposed under the aegis of the African Union? From past experiences of intra-regional, sub-regional, and continent-wide integration efforts in Africa, to what extent have African governments evinced the readiness to commit their resources to the sustenance of this new-fangled regional integration agenda? Are there ways in which the metamorphosis of the European arrangement portends any lessons for the African experience? In detailed analysis, this paper examines this plethora of questions and highlights the structural and institutional capacity of the African Union to succeed in its mission beyond the province of its predecessor. The paper identifies the African Union as affording a more viable platform for result-oriented activism by Africans themselves and makes a case for the African civil society to seize the opportunity created by the African Union's framework in gaining active involvement in the pursuit and implementation of the set objectives. The civil society in Africa will need to be sensitized to some of these new challenges. While acknowledging inherent and extraneous limitations, this paper attempts to proffer viable modalities for enhancing the actualization of the transformative visions of the African Union in concrete terms.
The question of whether particular types of legal institutions influence the effectiveness of the rule of law has long been answered with conjecture. Common law lawyers and judges tend to believe that the common law system is superior. This opinion is based on the idea that the common law system inherited from the British is more able to protect the rights of the individual than civil law judicial systems. Quite the opposite point of view can be found in lawyers from civil law countries, who may view the common law system as capricious and disorganised. This paper compares the effectiveness of the rule of law in common law and civil law countries in Africa, through a cross-national statistical comparison using Freedom House and Political Risk Services data. The comparison reveals that common law countries in Africa are generally better at providing ‘rule of law’ than are civil law countries.
It is an axiomatic principle of domestic and international trademark law that trademarks and trademark law are territorial. This paper critiques the principle of territoriality in four ways. First, I suggest that statements about trademark territoriality mask a variety of related propositions. In disaggregating the "principle of territoriality" into its component parts, it becomes apparent that different rules of trademark law possess a territorial character for different reasons. For example, common law trademark rights are territorial because the intrinsic purpose of trademark law suggests extending (and limiting) rights to the geographic reach of goodwill. In contrast, registration systems designed to promote economic expansion derive their territorial character from their grounding in economic policymaking, effected by institutions that focus on the regulation or development of discrete economic regions. And rules regarding the enforcement of trademark rights assume their territorial quality because of their connection to political institutions with territorially defined sovereignty. Thus, some aspects of territoriality are rooted in social and commercial practices that dictate the reach of a brand, while other aspects are a function of political or policymaking authority. In an era of global trade and digital communication, social and commercial practices are less territorially confined and less commensurate with the nation-state. But economic policymaking and political institutions may prove more resistant to change than social or commercial behavior. Second, I argue that although the principle of trademark territoriality has nominally remained constant since the conclusion of the Paris Convention, recent developments at both the national and international level suggest that the principle may have a different intensity today. Third, the paper begins an investigation of the ways in which the principle of territoriality should be revisited in light of the globalization of markets and concomitant changes in modern marketing practices. Although the multidimensional nature of the territoriality principle suggests that an overarching reconfiguration would be unwise and perhaps impossible, some shared dilemmas can be derived from analysis of discrete rules. If the territorial character of a rule reflects the intrinsic purpose of trademark law and is thus rooted in social practices that are already in flux, the character of these doctrines will almost inevitably mutate as the notion of territoriality evolves in line with social change. Such revisions will swim with the current of socially constructed territoriality. If, however, the territoriality of a doctrine instead mirrors the national nature of economic and political institutions, then efforts to revise the doctrines will first require altering the underlying institutional and policymaking apparatus. Moreover, in deciding whether particular territorial aspects of trademark law warrant reassessment, it is important to consider whether trademark law should be structured reactively to protect whatever consumer understandings or producer goodwill develops, or should it instead proactively seek to shape the ways in which consumers shop and producers sell or seek to acquire rights, thus shaping how the economy functions? Finally, the paper briefly highlights the extent to which there is, or should be, an assimilation of the "territorial" and the "national." Analysis of the choices facing trademark law might be better achieved by consciously separating nationality and territoriality. Recognition of the territoriality of goodwill is linked to the basic purposes of trademark law, while nationality-grounded doctrines are more likely driven by economic policy and by institutional issues such as the practical demands of current political structures. Recognizing this distinction would assist in highlighting where reform is likely to be evolutionary and where modification of political structures - whether judicial or administrative - must first occur.
The report examines the extent to which developing countries influence outcomes in the international intellectual property standard-setting process. It concludes that developing countries have comparatively little influence. The main reason lies in the continued use of webs of coercion by the US and EU, both of which remain united on the need for strong global standards of intellectual property protection. Analytical framework The study draws on the analytical framework developed by Braithwaite and Drahos in Global Business Regulation (GBR). 1 GBR ranged across more than 15 different areas of business regulation, including intellectual property. It found that regulatory globalisation is a process in which different types of actors use various mechanisms to push for or against principles. More than 500 people were interviewed for GBR. The study also draws on a forthcoming book by Drahos and Braithwaite (Information Feudalism: Who Controls the Knowledge Economy?) dealing with the globalisation of intellectual property rights. Further interviews were undertaken for the purposes of the study, including interviews at WIPO and the WTO.
In the 1990s, the fight between North and South over intellectual property (IP) reached new heights. The result was the World Trade Organization's (WTO's) deeply contested agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Widely resented by developing countries, TRIPS nonetheless permits them some hard-won flexibility. Puzzling, however, is why some developing countries have used that flexibility and others have not. Even more curious is that despite securing some extra concessions, many of the poorest countries have made least use of them. For scholars of international political economy and law, this book is the first detailed exploration of the links between global IP politics and the implementation of IP reforms. It exposes how power politics occur not just within global trade talks but afterwards when countries implement agreements. For developing countries, TRIPS did not end the IP offensive. At the urging of lobbyists from large multinational companies, powerful countries backtracked on the flexibilities in TRIPS and pursued even stronger global IP rules. To prevent precedents for weaker IP standards in poorer countries, they issued threats to market access, aid, investment, and political alliances. Further, they used new trade deals and, more subtly, 'capacity-building' (assisted by the World Intellectual Property Organization, among others) to leverage faster compliance and higher standards than TRIPS requires. Meanwhile, 'pro-development' advocates from civil society, other UN agencies, and developing countries worked to counter 'compliance-plus' pressures and defend the use of TRIPS flexibilities, sometimes with success. Within developing countries, most governments had little experience of IP law. They often deferred TRIPS implementation to IP offices cut-off from trade politics and national policymaking, making them more vulnerable to the TRIPS-plus agenda. In francophone Africa, regional IP arrangements magnified this effect.
Major issues of regional economic integration in Africa could be grouped into two interrelated broad areas: issues of implementation and the limitation of insight form both the theoretical and empirical literature regarding the specific approaches that are appropriate for the continent. Implementation issues cover the economic, political and institutional constraints that surface at the implementation stage of economic integration treaties. The approach issue refers to the menu of options available to pursue economic integration. These options range from a step-wise bilateral cooperation to continent-wide integration. This paper critically reviews these issues and tests the determinants of trade flows using the experience of COMESA as a case study. The major conclusions that emerge from the study are, first, bilateral trade flows among the regional groupings could be explained by standard variables as demonstrated by the results of the conventional gravity model. The result shows that regional groupings had insignificant effect on the flow of bilateral trade. Second, the review of the issues indicates that the performance of regional blocs is mainly constrained by problems of variation in initial condition, compensation issues, real political commitment, overlapping membership, policy harmonisation, lack of diversification and poor private sector participation. These problems seem to have made building successful economic groupings in Africa a daunting task, despite its perceived importance in the increasingly globalised world. Copyright 2008 The author 2007. Published by Oxford University Press on behalf of the Centre for the Study of African Economies. All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org, Oxford University Press.
Globalization is having a profound effect on the political economy of trade. More countries than ever before have been persuaded to push aside protective barriers and compete for world markets. These new entrants include a wide range of developing countries and the former Soviet or Eastern bloc economies. The result is a pattern of international trade relations which casts a new light on the multilateral regime which evolved under the auspices of the General Agreement on Trade and Tariffs (GATT) and continues under the World Trade Organization (WTO).
Copyright, the category of intellectual property (IP) most associated with the arts, is currently undergoing scrutiny from several sectors. Industry-oriented copyright owners, like music labels, are lobbying for more control of their songs. At the same time that digital rights management models are being reworked, the public is demanding greater access and less cost for copyrighted works. Authors and artists (who are not necessarily owners of their copyrighted work) are, ironically, not at the centre of this debate, although it is usually their creations over which these other parties are debating.
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Traditionally, conflict of law rules designate only national substantive law as the applicable law. Many unifying and harmonizing substantive law instruments of both States and non-State organizations, however, are designed specifically for application to cross-border relationships. Achieving this objective is, generally, hindered by conflict of law rules. The requirements which non-national law needs to fulfil in order to be accepted as the law governing a cross-border relationship deserve clarification. Not only uniform law, such as the CISG and the envisaged European substantive law instrument for the law of obligations, but, particularly, instruments which are aimed at harmonizing substantive law, challenge the established systems of conflict of laws. In seeking a positive approach towards the application of a law other than national law various aspects need to be considered: (1) is the decision taken by a court or an arbitral tribunal; (2) what field of law (contract/delict/tort or family relationships) is involved; and (3) the objective or subjective (choice by the parties) designation of the applicable law.
The legal regime of intellectual property has insinuated itself more deeply into our lives and more deeply into the framework of international law, affecting everything from the recreational home user’s ability to share music, to the farmer’s ability to replant seed, to the production and distribution of life-saving drugs. Indeed, with full compliance to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement now required (as of January 1, 2005) in all but the world’s very least developed countries, intellectual property law becomes literally a question of life or death. Despite these real world changes, intellectual property scholars increasingly explain their field through the lens of economics.
Against the backdrop of Final Draft Statute of the Pan-African Intellectual Property Organization (PAIPO) (Ref: AU/STRC/522), this paper takes a look at the desirability, efficacy and practicability of an African-continental-wide intellectual property organization (Pan-African Intellectual Property Organization).
Regional integration remains an integral part of Africa's development strategy and has underpinned most pan-African development policies for the past 50 years. This paper explores the issue of regional integration in the context of ‘development’ theory and the neo-patrimonial state system in Africa. A central contention of the paper is that Western, Euro-centric conceptions of regionalism, particularly those centred on the market integration approach, have promoted a very biased understanding of regional integration in many parts of the developing world. Using southern Africa as an exemplar case study, the paper argues that the various meta-theories focused on explaining the political economy of regionalism, often closely allied to a development theory paradigm, fail to account for the nature, character and evolution of regional integration. Regional integration in sub-Saharan Africa has been conceived and analysed in the light of the market-led approach, modernity and development. Thus far, it is has failed. This paper therefore explores why market-led regional integration has failed and why, for the foreseeable future, it will continue to do so.
Increasing globalisation of the world economy, particularly relating to trade and investment flows, is accompanied with continuing marginalisation of many countries in Africa. Sub-Saharan Africa (SSA) in particular stands out as a region of the world which is being largely by-passed in the rapidly unfolding process of global integration. Many efforts to reverse SSA's marginalisation are based on a belief that fuller integration into the global economy, on appropriate terms, could enhance the conditions for more rapid economic growth by providing more favourable and secure market access for the region's exports, and by fostering the expansion and diversification of those exports. The World Trade Organisation (WTO) has emerged as a key institutional mechanism that shapes the global economy. This imposes new and challenging demands on SSA countries, in particular as the WTO is the international institution in which the SSA voice is, perhaps, least heard. Full-fledged integration of SSA countries into the global trading system requires building the requisite capacity to enable them to contribute to shaping and designing the rules and regulations for its management by active participation in WTO activities, backed up by active and informed support from home-based analysts and policy makers.
A number of regional instruments relating to the African Union and its predecessor, the Organisation of African Unity, refer to the objective of harmonising the policies and laws of member states. The following examples may serve as an illustration: The Charter of the Organisation of African Unity (1963) places as one of its purposes a duty on member states to co-ordinate and harmonise their general policies, especially in the following fields: (a) political and diplomatic co-operation; (b) economic co-operation, including transport and communications; (c) educational and cultural co-operation; (d) health, sanitation and nutritional co-operation; (e) scientific and technical co-operation; and (f) co-operation for defence and security. The Constitutive Act of the African Union (2000) similarly determines as one of its objectives the co-ordination and harmonisation of the policies between the existing and future Regional Economic Communities for the gradual attainment of the objectives of the Union. In the same vein, the Protocol to the Treaty Establishing the African Economic Community relating to the Pan-African Parliament (2001) lists as the functions and powers of the Parliament, inter alia, to work towards the harmonisation or co-ordination of the laws of member states; and to promote the co-ordination and harmonisation of policies, measures, programmes and activities of the Regional Economic Communities and the parliamentary fora of Africa. The Protocol relating to the Establishment of the Peace and Security Council of the African Union (2002) contains a similar provision as one of its objectives, namely, to co-ordinate and harmonise continental efforts in the prevention and combating of international terrorism in all its aspects. The African Union Convention on Preventing and Combating Corruption (2003) describes as one of its objectives the co-ordination and harmonisation of the policies and legislation between state parties for the purposes of prevention, detection, punishment and eradication of corruption on the continent. The African Convention on the Conservation of Nature and Natural Resources (2003) describes environmental protection and the conservation and sustainable use of natural resources as its objectives. It then determines as a further objective the harmonisation and co-ordination of policies in these fields with a view to achieving ecologically-rational, economically-sound and socially-acceptable development policies and programmes. The calls for the harmonisation and co-ordination of the laws and policies within the African Union must be seen against the background of the purposes of the Organisation of African Unity as spelled out in the Charter of the Organisation of African Unity (1963) and the objectives of its successor, the African Union, as listed in the Constitutive Act of the African Union (2000), namely, to achieve greater unity and solidarity between African states.
Current Trends and Future Scenarios
- Human Property
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