Africa Should Speed Formation Of Pan-African IP Body, UN Report Says

NAIROBI, KENYA — A recent report by the United Nations Economic Commission for Africa (UNECA) is calling for faster establishment of a Pan-African Intellectual Property Organisation (PAIPO) to bring about what it sees as badly needed IP policy coherence on the continent.

The report, Innovation, Competitiveness and Regional Integration [pdf], was authored in collaboration with the African Union (AU) and the African Development Bank (AfDB). It found that two regional IP bodies in Africa, the anglophone Africa Regional Intellectual Property Organization (ARIPO) and the francophone Organisation Africaine de la Propriété Intellectuelle (OAPI), do not help countries to exercise their patent rights and counter intellectual property “mercantilism,” nor do they have links to free trade and bilateral investment agreements with external partners.

“The African Regional Intellectual Property Organization made up mainly of Anglophone countries, and the Organisation Africaine de la Propriété Intellectuelle incorporating mainly Francophone countries—and science, technology and innovation policy frameworks at national, regional and continental levels are tenuous, and the two organizations’ mandates generally preclude them from helping countries to exercise their patent rights and counter intellectual property ‘mercantilism,’ including the use of flexibilities,” says the report.

It notes, however, that a PAIPO mandate must be consistent with the aspirations of the African Union’s Agenda 2063, which outlines a roadmap for social-economic transformation of the continent in the next 50 years.

The report calls for reforms in regional cooperation arrangements on intellectual property policy require reform, noting that they had failed to exploit “flexibilities open to developing countries” under the World Trade Organization.

“The Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) under the World Trade Organization (WTO) took away some policy space open to developing countries under World Intellectual Property Organization treaties,” says the document, but adds, “yet it has flexibilities that developing countries should use in their intellectual property regimes.”

“Least developed countries in particular have an extendable transition period to apply the agreement. However, all African countries—least developed countries and not least developed—can adopt strategies to maximize policy space in agriculture, manufacturing and public health and more broadly on access to knowledge, historical conditions have changed but countries still have freedom to operate,” the document adds.

The Sustainable Development Goals (SDGs) adopted by the United Nations in 2015 includes one target on technology transfer through a balanced approach to intellectual property rights, the document observes. It also notes that while the design and operation of the proposed technology transfer mechanism has not yet been agreed, African countries should keep pushing for an agreement for their own benefit.

The report laments African countries have been active at the WTO and WIPO in Geneva in pursuing initiatives on intellectual property rule-making, and says the 2001 Doha Declaration on the TRIPS Agreement and Public Health marks a rare example of their success. Their moves on global intellectual property rules for genetic resources, traditional knowledge and folklore, and geographical indications which can help to counter bio-piracy, have yet to bear fruit, it said.

The report drafted last month recommends that African negotiating teams should continue engaging with the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) for text-based negotiations for an international legal instrument.

At the WTO, African negotiators should continue engaging the WTO TRIPS Council and related bodies, in areas including in extending an international register on geographical indications and technology transfer.

Continental Free Trade Area negotiations and efforts to establish the PAIPO should use mechanisms to safeguard TRIPS flexibilities, the document further appeals.

It advises African countries to establish IP policies and laws appropriate to their development challenges, and consider adopting “differential” standards of IP protection within the flexibilities of the TRIPS Agreement.

Developed countries come in for criticism in the document for applying IP protection in a selective manner at earlier stages of their development to meet their industrial and other policy objectives. The report adds that today too, IP rules and policies should be adaptable to countries’ changing needs.

“A Continental Free Trade Area agreement on intellectual property could provide the basis for establishing a common approach to negotiation of intellectual property rules in trade and investment agreements with external partners and a Pan-African approach to intellectual property policy can provide the basis for cooperation and pooled resources to build the capacities required for intellectual property governance, administration and adjudication,” the document says in conclusion.

In January 2013, the African Union declared that it would proceed with formation of PAIPO despite misgivings about potential impacts such a body would have on economies of individual countries.

The union at the 2013 heads of states summit resolved that as a first step a summit of all concerned parties be convened in a matter of five months to hammer out issues in implementation of the resolution and appointed Tunisia as the host of the proposed body.

Progress has however been painfully slow, mainly held back by bureaucracy and development of various statues necessary to actualise the dream.

Later, the African Ministerial Council on Science and Technology (AMCOST) met in Brazzaville, Congo, and approved a draft PAIPO statute – AMCOST and a Science, Technology and Innovation Strategy for Africa 2024 (STISA-2024). This expressly refers to PAIPO and confirms its mandate as a lead IP policy direction, patent information dissemination and the provision of technical and financial support to innovation and research endeavours.

The AU Assembly subsequently adopted STISA-2024 and directed that the draft PAIPO statute be sent to the Specialized Technical Committee on Justice and Legal Affairs, directing that an implementation roadmap be prepared by the AU Commission, in consultation with host Tunisia.

The PAIPO draft statute would be reviewed by the Specialized Technical Committee on Justice and Legal Affairs and thereafter be approved by the heads of states summit in 2016, and consultations with Tunisia would be undertaken by 2017, with a view to having the organisation commence operations in 2018.

However, the 2016 summit made no mention of PAIPO, at least going by the official communiqué released at the conclusion of the meeting in Addis Ababa, Ethiopia.

 

Image Credits: African Academy of Sciences