Speakers Outline Ideas For Africa To Find Appropriate IP Policies

Johannesburg, South Africa – Africa is still held captive by colonial borders and has failed to collectively leverage benefit-sharing agreements that result from multinationals’commercial pursuit of indigenous knowledge, said speakers at the Africa IP conference this week.

The Africa IP conference was held in Johannesburg from 25-27 February. Presentation from the event are available here.

Rachel Wynberg, natural scientist and environmental policy analyst at the University of Cape Town, said that countries that lagged behind with intellectual property laws are being overlooked by companies eager to show their ethical side when entering into benefit-sharing agreements with communities over indigenous knowledge that they would want to commercially exploit.

Rachel Wynberg said: “What happens when there is shared knowledge and resources across countries? Companies are targeting countries where they know they won’t have biopiracy connotations.”

Wynberg proposed that regional benefit-sharing arrangements be explored amongst African countries, given that indigenous knowledge is often not strictly contained within country borders.

She used the example of the indigenous San community in southern Africa who after reaching a landmark agreement with the Council for Scientific and Industrial Research (CSIR) benefitted from a share of royalties from potential drug sales of an appetite suppressant drug derived from the species of Hoodia. The succulent plants are indigenous to southern Africa and were used by the San to stave off hunger and thirst. Wynberg pointed out that while the case represented a regional benefit sharing arrangement for all San communities in Southern Africa, it was by no means a significant windfall.

“I have to say that there are not many practical examples of communities financially benefitting (from benefit sharing agreements with companies),”Wynberg said.

Edward Hammond, a biopiracy expert based in the United States, added: “National sovereignty applies to generic resources in all cases. In many cases genetic resources have traditional knowledge attached to them. The key there is to have regional cooperation to address cross-border sharing of genetic resources.”

Both Hammond and Wynberg warned of the threat of biopiracy in Africa where genetic resources are being pillaged in a more underhanded fashion by big multinational companies.

Biopiracy refers to biological materials, typically rooted in indigenous knowledge, that get used by others for profit, without permission from and with little or no compensation or recognition to the indigenous people.
While the “cowboy” pillaging days of genetic resources of the colonial era and the era between the 1940s and 1970s are over, modern day biopiracy still takes place, the two experts explained.

Hammond said that contemporary biopiracy typically involves intellectual property and a more complex approach to accessing to resources which would include “intermediaries” such as academia and aid projects and repurposing genetic resources “to ends not explicit at the time of access.”

“Another route of biopiracy is the professor … collecting species for academic or scientific research. In the developed world, professors are not able to work in that way anymore,” he said.

Hammond described a case of an American professor who had never signed a benefit-sharing agreement yet a number of his discoveries have been taken up by the pharmaceutical companies.

“There’s a wilful ignorance to the traditional knowledge associated with the use of these plants and then claimed as an invention,” Hammond said.

He asked delegates to consider these questions: “How does the scope of patentable subject matter in the biological sciences and biopiracy relate? What role does the patent system have in detection of biopiracy?”

Wynberg added that bilateral agreements are being negotiated by companies with communities who were already organised.

“This is leading to exclusivity and is monopolistic,” he said. “Companies are using benefit sharing to gain monopolies over trade. These are very complex issues, the role of traditional authorities is all not what it should be.”

The issue of applying intellectual property rights to indigenous knowledge, in order to protect holders of this knowledge from exploitation, while at the same time leveraging it for development was a vibrant thread of debate throughout the conference, which was themed “intellectual property and economic growth in Africa.”

However, at the start of the conference, Professor Carlos Correa, special advisor for the intergovernmental South Centre, warned against the oversimplified assumption that the theme of the conference might suggest and recommended flexibility in drawing-up national IP policies.

Correa told delegates during the opening plenary of the conference that historical evidence has shown little or no support for the view that intellectual monopoly is an effective method of increasing innovation.

Quoting a 2010 survey (Hu AGZ & Png IPL ‘Patent Rights and Economic Growth: Evidence from Cross-Country Panels of Manufacturing Industries’ [2010]), Correa highlighted the finding that said “to date, there is no robust empirical evidence that stronger patent rights indeed stimulate growth.”

Meanwhile, Herman Ntchatcho, senior director, department for Africa and special projects, in the Development Sector at the UN World Intellectual Property Organization (WIPO) explained the organisation’s Development Agenda in assisting least developed countries in putting together an intellectual property strategy that would aid development.

Ntchatcho said in his presentation that, in general, intellectual property is not accorded a prominent place in the national political and economic agendas of African countries.

However, he listed several African countries that have already adopted IP policies and plans: Liberia, Mozambique, Rwanda, Senegal, Seychelles and Zambia.

He mentioned two countries that have been receiving WIPO’s technical assistance in the framework of WIPO’s Development Agenda projects – Mali and Tanzania.

Ntchatcho said that the regional body OAPI, the Organisation Africaine de la Propriété Intellectuelle, had recently invited its member states to engage in the formulation of national intellectual property strategies – “a process in which it has committed to cooperate closely with WIPO.”