East African Community Moves To Harmonise IP Rights Regulation

KAMPALA – As the East African Community nears full revival, a bloc market covering five countries with a population of about 145 million people has emerged. But the member countries face another challenge: they have different levels of intellectual property rights protection.

The task before them is how to align existing different national laws and policies on intellectual property rights protection to cater to a new regional framework. Intellectual property laws in EAC, like most other laws, are a colonial heritage.

One of the tools prominently guiding this regulatory process is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), introduced by the World Trade Organization (WTO) in 1994.

The TRIPS agreement introduces global minimum standards for protecting and enforcing nearly all forms of IP rights, including those for patents. Pharmaceutical and health products and processes are protected by patents.

The EAC is strategising to implement the TRIPS treaty by setting up a joint structure. The initiative started eight years ago, and the results are packaged in a regional framework titled as “The Regional Intellectual Property Policy on the Utilisation of Public Health Related WTO-Trips Flexibilities and the Approximation of National Intellectual Property Legislation.”

Apart from Kenya, which is a developing country, Uganda, Rwanda, Burundi, and Tanzania are ranked as least developed countries (LDCs). Uganda and Tanzania have ignored a 2016 transition window and already provided a range of intellectual property protection measures under their respective national laws. Rwanda and Burundi, meanwhile, have adopted laws that largely reflect the flexibilities availed to LDCs under the TRIPS agreement.

With the TRIPS agreement, least developed countries have been exempted from the obligation to implement patent protection in the health sector. The exemptions from IP protection are under clearly defined conditions. They also permit the compulsory issuance of licences for the import, export and production of essential medicines.

The extension, which runs up to January 2016 or earlier if a country develops out of LDC status, is in recognition of LDCs’ special requirements, their economic, financial and administrative constraints, and the need for flexibility so that they can create a viable technological base.

WTO has twice postponed the deadline for LDCs to provide the WTO TRIPS Council as much information as possible on their individual priority needs for technical and financial assistance for implementing the TRIPS agreement clauses.

Further Extension Sought

The extension decisions are due to the countries’ continuing needs for technical and financial co-operation so that they can achieve their individual developmental and other domestic objectives within a balanced intellectual property regime. In turn, this is so that the assistance given by co-operation partners is comprehensive, coordinated and directly relevant to the domestic circumstances of each country or region concerned.

“We were given 10 years, but I must say that it is not easy to implement,” said Elizabeth Tamale, assistant commissioner in the Ministry of Trade and Industry, Uganda. “Most EAC states still lack the technical base, coupled with lack of awareness regarding intellectual property rights. That is why we are seeking for further extension.”

“We need the laws in place and for the people to understand the laws before we can make any move,” Tamale said. “But we should also remember that the extension won’t be forever. We need to unite as an EAC bloc.”

She said without the extension, EAC states will immediately need to enact and or amend their intellectual property laws to become TRIPS complaint and would be under extreme pressure to do so.

According to Ambassador Nathan Irumba, executive director, Southern and Eastern Africa Trade and Information Negotiation institute (SEATINI), the EAC still lacks the capacity to implement TRIPS.

“We need to strictly enforce intellectual property rights so as to address counterfeit and it is not until you have acquired enough technology that you can design this,” he said.

The implementation of the regional framework shall be the responsibility of the EAC partner states, with the EAC Secretariat offering guidance in the implementation in a participatory and integrated manner.

“This policy framework focuses on supporting the full use of specific TRIPS flexibilities for optimizing access to health products and medical devices in the East African Community Partner states,” said Ambassador Richard Sezibera, the EAC Secretary General.

“The implementation of this policy in the partner states is expected to optimise the populations’ access to health products and medical devices,” he added.

The implementation of this policy in the partner states is expected to ensure that IP-embedded products and services concerning health are available and accessible at an affordable cost to the whole EAC partner states’ population.

The price of essential drugs to treat diseases such as HIV/AIDS, tuberculosis and malaria in the EAC is still high, rendering them unaffordable for people with minimum incomes. According to the Chronic Poverty Report 2014-2015, over 20 million residents of EAC are chronically poor.

“Almost 90 percent of drugs in Uganda are imports, most of which are generic versions which need protection from patent owners, who may want to stop their sale in a bid to sell their expensive brand name drugs instead; Ugandans would not be able to access cheap drugs,” said Moses Mulumba, a lawyer and director at the Centre for Health Human Rights and Development, Uganda.

The public policies and priorities of EAC, he said, should be to utilise the public health-related flexibilities contained in the TRIPS Agreement and its related instruments in order to help address public health problems affecting the 145 million citizens.