Concern Arises Over Proposed Pan-African IP Organisation

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By Tove Iren S. Gerhardsen
A proposal to set up a Pan-African Intellectual Property Organisation (PAIPO) though still in its infancy already faces opposition and concern, including from those who fear that Africa is signing up to stricter IP protection levels than the continent is ready for, sources say.

In addition, there is anxiety that the World Intellectual Property Organization (WIPO) is, together with the African Union (AU), pushing the process with the goal of creating one larger organisation that might replace the two existing regional IP organisations in Africa. Those are the African Regional Industrial Property Organisation (ARIPO), which has 16 member states among the English speaking countries (former British colonies, headquartered in Zimbabwe), and the Organization Africaine de la Propriété Intellectuelle (OAPI), which has 16 member states among the French-speaking nations (headquartered in Cameroon).

One African IP expert told Intellectual Property Watch that “maybe” the issue would come up at the September WIPO General Assembly. A source close to the African Union said it had not requested WIPO to put it on the agenda.

“Those pushing for the creation of PAIPO are the WIPO secretariat who is driving the AU [African Union] secretariat,” a developing country source told Intellectual Property Watch. “The goal is to extend the OAPI/ARIPO model – controlled by WIPO – to the entire African continent so as to considerably reduce the capacity of important non-OAPI/ARIPO members such as South Africa, Egypt [and] Algeria to take independent positions on IP at the international level such as in the debates in WIPO on the Development Agenda.”

A source close to the African Union confirmed that WIPO has been cooperating at a “technical level” with the AU on PAIPO. In addition to consultations with WIPO, the source also indicated that the AU has been in contact with ARIPO and OAPI concerning PAIPO’s objectives, aims and functions.

The African IP expert insisted that WIPO had not been involved, but acknowledged there have been informal meetings. The expert observed that a WIPO official had said recently that WIPO was still ready if they were “formally consulted” on the matter to help the AU conduct required studies, for example.

The PAIPO idea is described in an African Union concept paper (EXT/AU/EXP/ST/8(II)), which emerged from an Extraordinary Conference of the African Ministers of Council on Science and Technology that took place on 20-24 November 2006 in Cairo. The concept paper says that the idea first emerged at a May 2006 meeting, supported by WIPO.

“Africa needs a mechanism to facilitate far-reaching changes in the arena of intellectual property,” the paper says, adding that it is necessary to “establish a new decision-making machinery that would engage the participation of all member states.”

Among PAIPO’s objectives are to: set IP standards reflecting the needs of member states; set benchmarks for best practices; promote the growth of knowledge-based economies in Africa; facilitate the rationalisation and harmonisation of IP standards; collect and disseminate IP information; facilitate the use of relevant IP information and assist in training and capacity building.

The source close to the African Union said that PAIPO likely would be an “independent organisation under the AU” and a “broad umbrella organisation,” covering OAPI and ARIPO states but also the non-members in the northern Africa.

Although there seems to be little knowledge about where exactly the PAIPO plans are at the moment, a number of parties continue to be concerned, among them ARIPO and OAPI. Between the two of them they cover 32 out of the 53 states in the African Union, leaving 21 countries mainly in the north as members of neither one, according to sources.

Concerns over Redundancy, Legalities

ARIPO is “not happy” about the proposed organisation, an attorney from South Africa told Intellectual Property Watch. They fear it will “make them redundant,” he said. The attorney said that nobody seemed to know how far the plans – which seemed to be formed at government level – had advanced. It remains uncertain, he observed, whether PAIPO could become reality shortly or if it could take years. South Africa is not a member of either existing regional organisation. The attorney predicted that South Africa would “probably not” join PAIPO as practitioners would fear it would reduce the workload.

The director general of ARIPO, Gift Sibanda, told Intellectual Property Watch that there is no opposition to the concept of PAIPO, but there are some legal concerns.

“There are some concerns that if a thorough study on the implications of such an institution are not made there is a likelihood of delay in its establishment,” he said. “The concerns are mainly of a legal nature particularly with respect to the fate of the already existing IP rights and the laws that will be applicable in administration of these rights.”

“The two regional organisations for some time now have been in the process of trying to harmonise their laws and they have a clear understanding on some of the problems associated with the development of such an organisation,” he added.

Sibanda did not appear to expect the establishment of PAIPO in the near future and said the project was still with the African Union.

“The project is at its infancy and no concrete decision has yet been taken with regard to the modalities of such an organisation. Save alone a decision on the establishment of PAIPO by the African Union Heads of State and Governance in January 2007. I believe it is after these modalities have been worked out that issues of funding will be raised. Currently the study is within the auspices of the African Union,” he said.

WIPO was not available for comment.

Carolyn Deere, director of the Global Trade Governance Project at the University of Oxford, said that consideration of stronger regional cooperation must not override attention to building the national capacity necessary to ensure IP laws advance national public policy objectives and to provide solid oversight of regional organisations. Drawing on a recent study of the politics of the IP decision-making in the OAPI region, she said “the risk is that regional secretariats become the agents of international donors and IP rights holders who finance their operations rather than of their member states.”

“The AU’s emphasis on greater regional cooperation on science, technology and innovation warrants strong support,” Deere said. Noting that ARIPO and OAPI already face significant complaints from member states regarding lack of accountability, she said that “many governments in the region lack the technical and human resources needed to provide proper oversight of the activities of regional IP organisations.”

Call for Accelerated Process But Progress Slow

At an AU General Assembly meeting in January, heads of state “decided to establish PAIPO” and to “accelerate action” on the issue consulting WIPO and others, the source close to the AU said.

In the meantime, the AU has consulted OAPI and ARIPO, but there were no developments at the 28-29 June Eleventh Ordinary Session of the AU Executive Council meeting in Accra, the IP expert said.

There is “nothing new on this matter,” the African expert said, emphasising that there was strong opposition to the process that has led to the creation of PAIPO and it would probably not become functional within the next 10 years.

One issue is that OAPI has a regional IP law that applies to all 16 member states and offers regional protection for most IP rights. ARIPO on the other hand does not have a regional law. Instead, its focus is on facilitating the administration of national IP laws through cooperation among its members, including through the pooling the financial and human resources of its members. ARIPO’s scope is limited to industrial property, while OAPI also addresses issues of copyright and cultural heritage, according to a source. Nobody knows which of the “completely different” systems PAIPO would choose, the expert said.

The developing country source said that the problem with the PAIPO recommendation was that it came from science ministers, while IP is under the jurisdiction of other ministries such as trade, industry and culture. The expert said the science ministers in Cairo had hoped IP would help promote research results in Africa.

The 2006 concept paper from the Cairo meeting was presented to WIPO and its member states during the 19-23 February meeting of the Provisional Committee on Proposals for a WIPO Development Agenda (PCDA) (IPW, WIPO, 16 February 2007), the African IP expert said.

Other observers also have the perception that the PAIPO plans have not moved too far yet. “My initial feeling is that it has not received as much attention as it needs to get real financial support and/or organisational momentum behind it,” International Intellectual Property Institute Vice President Molly Torsen told Intellectual Property Watch.

Torsen said in a presentation that there is “no one-size-fits-all IP plan for Africa,” referring to limited resources for regional cooperation, such as language barriers (1,000-1,500 regional languages and 8,000 dialects) and geographical limitations.

Deere emphasised that the differences in the stages of development of countries within the region call for a nuanced approach to IP protection. “In the case of OAPI, the lessons are clear – its regional legal framework fails to provide differential treatment for its LDC members, which have thereby forfeited many of the benefits of the transition period available to them under TRIPS,” she said.

ARIPO member countries are: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Sudan, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe. OAPI members are: Benin, Burkina Faso, Cameroon, the Central African Republic, The Congo, Côte d’Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad and Togo.

Examples of non-members are Morocco and Tunisia, according to Torsen, which are both members of the World Trade Organization (WTO) and several international intellectual property agreements.

Tove Gerhardsen may be reached at info@ip-watch.ch.

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Comments

  1. Henry Nampandu says

    On ARIPO’s mandate, please note that the Eight Session of ARIPO’s Council of Ministers held in Mangochi Malawi in August 2002, extended the mandate of ARIPO to include Copyright and Related Rights, Traditional Knowledge, Genetic Resources and Folklore.

  2. Mzondi Chirambo says

    Regarding ARIPO, two things must be said. The first is that the mandate of the Organization was increased in stages- at Ezulwini, Swaziland in August 2000 to include traditional knowledge and then in Mangochi, Malawi in August 2002 to include copyright, genetic resources and expressions of folklore because of the establishment of the IGC within WIPO in September 2000. Secondly, following the expanded mandate, theOrganization changed its name to AFRICAN REGIONAL INTELLECTUAL PROPERTY ORGANIZATION. The acronym of course remains the same.

  3. Wilson Rading Outa says

    Thank you Mr. Mzondi for your insight.I believe that intellectual property is a necessity for economic growth in an increased globalized world.Consequently,the idea of a PAIPO is a welcomed move so as to simplify the procedure for the grant of a patent or trademark and to have effect in multiple countries.However,the cost should not be excessive so as to encourage African nationals to take out the trademarks and patents.

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