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    Inside Views
    Inside Views: Sizing Up The “Ill-Conceived” PAIPO Draft Statute

    Published on 6 November 2012 @ 2:51 pm

    Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

    Intellectual Property Watch

    By Sadulla Karjiker

    Introduction

    Because intellectual property rights are territorial in nature (i.e., they have to be recognised by the country in which protection is sought), since the expansion of cross-border trade in the 19th century, authors, creators, designers, inventors and traders have sought similar protection in other countries to that which they enjoy in their domestic legal systems, or, at least, be afforded the protection enjoyed by nationals of the foreign country. This need initially gave rise to a number of bilateral agreements, and then multilateral treaties or conventions.

    These treaties or conventions can be broadly classified as falling into three kinds (or a combination of these), depending on what is sought to be achieved. First, they may require that signatories provide a minimum level of protection in terms of their domestic law, which should also extend to protecting the interests of foreigners. This latter requirement is the principle of “national treatment,” which requires that foreigners be afforded the same protection as nationals of the relevant state. The problem, however, is that national law often requires registration before any rights are afforded to a person, which places a considerable burden on authors, creators, designers, inventors and traders in securing registration in the various countries. The second kind of multilateral treaty or convention is thus concerned with facilitating the registration process in multiple jurisdictions. An example of such a centralised registration system is the African Regional Intellectual Property Organisation (ARIPO), which provides for patent and trade mark registrations in multiple jurisdictions pursuant to the Harare (1982) and Banjul Protocols, respectively. The last kind of multilateral treaty seeks to go even further, and aims to harmonise the laws of the signatories to the treaty, as well as providing for a common registration system. Examples of this approach are the African Intellectual Property Organisation (known by its French acronym OAPI), comprising 16 West African states, established under the Bangui Agreement of 1977, and the European Union’s Trademark Directive (and the Community Trade Mark Regulation).

    Proposed Establishment of PAIPO

    At the forthcoming meeting of African Union (AU) science and technology ministers on 12-16 November in Brazzaville, Democratic Republic of Congo, one of the matters for consideration will be the Final Draft Statute of the Pan-African Intellectual Property Organization, produced by the AU’s Scientific, Technical and Research Commission (the “Draft Statute”). The Draft Statute seeks to establish the Pan-African Intellectual Property Organization (PAIPO), a specialised agency of the AU tasked with matters concerning intellectual property in Africa (Article 2).

    According to the Draft Statute, PAIPO’s stated objectives (Article 5) include: the promotion of harmonisation of intellectual property laws of its member states, with membership being restricted to the members of the AU; to provide for common administration and management services of intellectual property; and, to provide a vehicle for addressing political issues and developing African common positions relating to intellectual property matters. Thus, among PAIPO’s main goals is to harmonise intellectual property laws and to provide a centralised registration system to facilitate registration, building on existing institutions like ARIPO.

    Other than being the constitutive document for PAIPO, the Draft Statute provides no details (not even by way of a separate explanatory memorandum) on the substantive legal requirements and principles for the proposed basis of harmonisation of the different forms of intellectual property.

    PAIPO and its Critics

    Critics have been quick to condemn the PAIPO initiative, claiming that it panders to the demands of foreign intellectual property rightsholders (by seeking to adopt “first-world” standards of protection), and that it fails to adequately appreciate, or address, the needs of the least-developed countries in Africa, particular in the area of providing affordable healthcare. For example, they require that the Draft Statute expressly include among its goals the utilisation of the rights afforded by TRIPS to promote access to affordable medicines, educational resources, and other public goods. A petition has been circulated to oppose the adoption of the Draft Statute and the establishment of PAIPO on the basis proposed.

    In my opinion, unless there is a subtext which I have been oblivious to, or a particular context out of which this initiative was born (or is being driven), the text of the Draft Statute does not support a clear basis for such criticism. For example, among the stated objectives of PAIPO is to maximise the benefits of the intellectual property system to improve public health. I too could, for example, become easily exercised about the potential inclusion of traditional knowledge within the intellectual property framework (which is a stated objective), but because the Draft Statute is so thin on detail, it is something which I would prefer to address when more concrete proposals are made in this regard. Having said that, the lack of consultation and transparency in the process leading up to the production (and potential adoption) of the Draft Statute is something that should be condemned. Intellectual property has become a highly politicised issue, and it is imperative that there be an inclusive and transparent process when initiatives of this nature are embarked upon.

    My principal concern at this point in time is of a more pragmatic nature. One has to question the wisdom of trying to establish an African centralised registration system. Would the resources which are to be spent in such an endeavour not be better utilised in ensuring that the intellectual property registries and laws of the various African states are improved in order for them to participate in existing international registration systems such as the Madrid Agreement and Protocol, administered by WIPO, for trade marks? There is no cogent argument for proliferating registration systems, and for focusing on, comparatively, parochial initiatives in an era of ever-expanding cross-border trade.

    The fact that I spent about 20 minutes on the African Union’s website attempting to find the Draft Statute (and failed to locate it via that route), and that the ARIPO website was unavailable when I attempted to access it, convinces me that this is an ill-conceived initiative, built on structures that have proven to be dysfunctional (and largely ignored), and, therefore, unsuited to warrant the extra resources which would be dedicated to them.

    [Note: This post originally appeared on the Anton Mostert Chair of Intellectual Property website, here.]


    Sadulla is lecturer of Intellectual Property Law (LLB & LLM), Information Technology Law (LLM) and Company Law (LLB) in the Department of Mercantile Law at Stellenbosch University Faculty of Law. He is also admitted as an attorney in South Africa and a solicitor in England, and has practiced in corporate and commercial law in both jurisdictions. He also worked for a UK legal publisher on its technology-related projects. Sadulla is part of the IP Unit at the Faculty of Law, which is made up by the members of the Chair and other lecturers. In this capacity, he is also a contributing member to the Chair’s academic programmes.

     

    Comments

    1. Dalindyebo Shabalala says:

      Dear Sadulla,

      I think you are far too sanguine about the actual text of PAIPO, precisely because it looks harmless when viewed out of context. In the context of the the TRIPS Agreement, Special and Differential treatment for LDCs and most importantly: the very specific position AGAINST substantive patent law harmonization that the African group has taken at WIPO, the WTO, the CBD, the UNFCCC and other international fora. The precise criticism is that it is an incoherent piece of legislation that fails to take into account the lessons of the EPO and the OHIM with such a process in Europe. So, beyond just the process, there is a substantive case against the PAIPO and its text.


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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