ARIPO Adopts Plant Variety Regulations, As Farmers Advocacy Groups Raise Concern

KAMPALA, Uganda — The Forty-first Session of the Administrative Council of African Regional Intellectual Property Organization (ARIPO) held this month adopted the Regulations for the Implementation of the Arusha Protocol for the Protection of New Varieties of Plants, amidst protest from civil society organisations and farmer representatives.

The regulations were passed by ARIPO’s Administrative Council meeting held in Lilongwe, Malawi, from 20-22 November.

Note: Two key documents for the meeting are here – ARIPO Admin. Council Compiled Working Documents [pdf] and ARIPO Compendium I Supporting Documents for the Technical Committees Reports [pdf].

Up to 35 organisations under the umbrella Alliance for Food Sovereignty in Africa had petitioned the Council not to approve the Arusha Protocol, calling it a “draconian” intellectual property law.

“It appears that the Secretariat is hell bent on pressurising its 19 member States to operationalize a draconian regional intellectual property law that offers extremely strong protection of breeders’ rights and that threatens Farmers’ rights and sustainable agricultural development in the ARIPO region,” says the statement.

Bright Phiri, legal advocate at Malawian NGO Commons for EcoJustice, warned that the protocol “is weighted heavily against the interests of farmers, especially small-scale farmers in the ARIPO region. It totally undermines the implementation of Farmers’ Rights as enshrined in the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).”

According to Phiri, the protocol lacks safeguards against misappropriation of local plant genetic resources. Its restrictive framework also further exacerbates concentration of and monopolisation by the global seed industry.

“A specific concern is that the Arusha Protocol provides very strong intellectual property rights to breeders of uniform varieties, at the expense of farmers’ rights. There is nothing in the Protocol or the draft Regulations that expressly safeguards the right of smallholder farmers in the ARIPO region to freely use, save, exchange and sell seeds/propagating material of protected varieties,” Hilal Elver, the UN Human Rights Council’s Special Rapporteur on the Right to Food, wrote in an open letter to ARIPO members.

Samuel Tembenu, Minister of Justice and Constitutional Affairs of the Republic of Malawi, speaking at the opening of the Council of Ministers meeting, applauded the Administrative Council for the adoption of the Regulations for the Implementation of the Arusha Protocol.

Tembenu called on ministers to ensure their respective governments ratify the Arusha Protocol as soon as possible to enable its implementation for the benefit of member states.

The Council of Ministers’ meeting was held a day after the Administrative Council session, at the same venue.

IP Operations

According to the ARIPO Director General’s Report on IP Operations, “during the reporting period ending October 31, 2017, 609 patent applications were received, while 393 patent applications were granted, representing a growth of 4%.” Fernando Dos Santos, ARIPO’s director general, presented the report on 2017 activities to the session.

The director general’s report covered the IP operations under the Harare Protocol on Patents, Industrial Designs and Utility Models, the Banjul Protocol on Marks and the Swakopmund Protocol on Traditional Knowledge and Expressions of Folklore.

A total of 4,360 patents have been granted under the ARIPO system since inception of the Harare Protocol in December 1982. During the same period, 10,267 patent applications have been received.

According to the International Patent Classification (IPC), the technology field Class C is the most applied for, followed by Class A of human necessities, Class H of performing operations and Class F of mechanical engineering.

According to the report, “81 industrial design applications were received in 2017, which represents a growth of 8% compared to 2016. This is a welcome development in view of the fact that the numbers had been continuously decreasing over the last five years.” And 55 designs were registered in 2017.

A total of 936 industrial designs have been registered since the inception of the Harare Protocol which represents 32 percent of all industrial design applications received by the ARIPO office.

“The number of utility models filed has been gradually increasing over the last few years. However as of 31 October, 2017 the number of applications received showed a negative growth of nearly 50% when compared to applications received in 2016. Only 11 utility applications were received in 2017. 7 utility models were registered,” Dos Santos added in his report.

“With regard to trademark applications, this is the second consecutive year that the trend is showing an increase of the number of applications received. This could be attributed to the aggressive promotion of the system during high level missions. As at October 31, 2017, 331 trademark applications were received corresponding to 697 class count. Of these, 156 marks were registered.”

A total of 1,238 marks have been registered since the inception of the Banjul Protocol which represents 39 percent of all mark applications received by the office.

The Swakopmund Protocol [pdf] on the Protection of Traditional Knowledge and Expressions of Folklore has not had any meaningful uptake by the users and there were no new applications lodged in 2017. The protocol entered into force in May 2015.

According to the Report on Copyright and Related Rights Activities In 2017 and Proposed Activities For 2018, activities undertaken in 2017 were in line with the Value and Growth Transformation Strategic Plan 2017-2020. Strategies addressed under this strategic plan include: Copyright and related rights advocacy; Strengthening the administration of copyright offices, collective management organisations and enforcement agencies;and partnership with other copyright institutions.

Activities to be undertaken in 2018 include: copyright & related rights advocacy, promoting recognition of the ICT on creativity, and promoting voluntary registration and notification system.

Way Forward

According to Report on Copyright and Related Rights Activities in 2017 and Proposed Activities for 2018, the “ARIPO Secretariat engaged consultants to undertake a feasibility study and development of the policy framework for the establishment of a regional voluntary copyright registration and notification system.”

The proposal for establishment of a voluntary copyright registration or notification system at ARIPO is based on the 40th Administrative Council decision as part of the implementation of the extended ARIPO mandate to include copyright and related rights.

A voluntary copyright notification system does not require the actual deposit or examination of applications.

The feasibility study helped in the drafting of a policy document and a roadmap for the implementation of the ARIPO voluntary copyright registration or notification system.

Basing on the research ARIPO did on the different copyright laws, a roadmap has been developed for an ARIPO Model Law on Copyright and Related Rights. The model law will stipulate important provisions on copyright and related rights to be considered in the national copyright laws.

This model law is expected to be adopted by the Administrative Council that will sit in 2018.

A draft Comprehensive Agenda for Copyright and Related Rights in Africa, also called the Harare Strategic Action Plan, has been formulated with the view to reaching a level playing field in the global copyright ecosystem while balancing the interest of all stakeholders.

This agenda will guide future activities of the ARIPO secretariat, member states and cooperating partners. It will be implemented in the next three years.

The pillars and areas of focus for the proposed agenda are: Policy and Legal Framework; Institutional Framework covering administrative infrastructure; Capacity Building and Awareness Creation; Building evidenced-based information pipelines for copyright/creative industries; Building Partnerships and Synergies; and Enforcement.

Whereas the Council of Ministers commended ARIPO for its contribution to the development of national and regional IP systems, it noted the low uptake of the IP systems and its use to foster creativity and innovation in the ARIPO member states in particular and Africa as a whole. The Council mandated the ARIPO secretariat to undertake studies to identify the causes and make appropriate recommendations on the remedial actions.

The Council of Ministers elected Malawi, Liberia and Sao Tome and Principe to serve as chairman, first vice-chairman and second vice-chairman respectively in the 2018-2019 biennium.

 

Image Credits: ARIPO