US Sees Weak African IP Protection, But Not Enough To Lose Unilateral Trade Benefits

The Office of the United States Trade Representative (USTR) today (29 June) released its annual report on the eligibility of African nations for unilateral trade benefits offered by the US. While some countries were praised for progress on intellectual property protection, others were found to be weak in this area, but none were removed from eligibility for that reason. Overall, reporting on IP rights varied widely in the report.

The 2016 Biennial Report on the Implementation of the African Growth and Opportunity Act (AGOA) is available here [pdf].

[Update: USTR announced on 30 June a “major expansion of trade preferences for least developed and African countries. This will add more goods, particularly travel goods, to the duty-free list, subject to criteria including adequate IP rights protection.]

According to the biennial report, 38 of the 49 sub-Saharan African countries are eligible for AGOA. After the 2015 review, Burundi’s eligibility “was terminated effective January 2016 due to its failure to meet rule of law, human rights, and political pluralism eligibility criteria,” it said. But with perhaps bigger issues involved, there was no mention of IP rights related to Burundi.

Adequate enforcement and protection of IP rights is one of the basic criteria for determining eligibility, as established by the 1974 US Trade Act (see page 7 of today’s report). It is also a basic criterion for eligibility in AGOA (report p. 85), as well as under the US Generalized System of Preferences (report p. 87).

Protection and enforcement of IP rights can be a topic for negotiation in trade and investment framework agreements (TIFAs) with African countries, the report notes on page 10. It was raised by USTR Michael Froman in the 2015 meeting of the US-South Africa TIFA, according to the report (p. 11). But IPRs were not mentioned as one of the reasons South Africa was subjected to an out-of-cycle review of its AGOA eligibility, which it passed.

IPRs are also a target of upcoming second phase of the 26-nation Tri-Partite Free Trade Area negotiations between the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC), and the Southern African Development Community (SADC).

But in the USTR report, individual country assessments ranged widely in reporting on IP rights.

For instance, for Botswana, a country profoundly dependent on diamond exports, it was said, “The government actively enforces intellectual property rights and is working to stop the smuggling of counterfeit goods over its borders.”

Cameroon was noted for being a member of the World Intellectual Property Organization and “several other international and regional intellectual property conventions.” But it was criticized for the determination that “intellectual property laws are not consistently enforced.”

For Guinea, it says simply: “Enforcement of intellectual property rights is weak.”

In Mauritius, meanwhile, which is mentioned elsewhere as showing interest in a trade deal with the US, the report found: “Property rights are respected, and the government recently reformed its intellectual property legislation.”

Namibia, for its part, is praised for the fact that “The Ministry of Industrialization, Trade, and SME Development has established the Business and Intellectual Property Authority to provide entrepreneurs with streamlined services that should help improve the business climate.”

And in Nigeria, the biggest economy, “Enforcement of intellectual property laws has not been adequate to stem widespread IP violations,” USTR said.

But for Sierra Leone, the report says tidily: “Laws generally protect intellectual property rights.”

Togo on the other hand is a problem country for the US: “Togo has a large informal market in pirated intellectual property, and the judicial system does not protect private property sufficiently.”

And yet the opposite is true for Zambia where, USTR says: “Laws are mostly adequate in protecting intellectual property rights.”

In sum, given the wide variability in country descriptions, it might raise the question of where this information is being drawn from (not immediately evident from the report). But given the magnitude of challenges African countries face as described in the report, it is little wonder that IP rights reporting is uneven.

 

 

Image Credits: USTR