Flora IP’s Dr Titilayo Adebola moderated a webinar on Thursday, 02 July 2020, organised by the Africa International Trade and Commerce Research (AITCR). See her opening presentation and initial questions below.
Topic: Towards Intellectual Property Rights Harmonisation in Africa.
Good day everyone. Bienvenue a nos ami.
Innovation and creativity are widespread in Africa. From the cultural viewpoint, take provenance associated goods that are protected under geographical indication systems as an example. We have Oku white honey and Penja pepper from Cameroon, Ziama-Macenta coffee from Guinea, Rooibos tea from South Africa and Argan Oil from Morocco. From the creativity viewpoint, we have a thriving Nollywood industry in Nigeria, which is the second-largest film producer in the world. We also have Gollywood in Ghana. The creative works produced in these film industries are protected under copyright systems. Similarly, we have a plethora of award-winning authors around the continent whose works are protected under copyright systems. These authors include Ms Chimamanda Ngozi Adichie (winner, PEN Pinter Prize, 2019), Mr Chigozie Obioma (nominee, Booker Prize, 2015 and 2019), and Ms Leila Aboulela (winner, first Caine Prize for African Writing, 2000).
Prof. Caroline Ncube in her chapter for the Oxford Handbook in Intellectual Property Law, published in 2018, neatly delineates the emergence and development of intellectual property rights (IPRs) in Africa through four periods. (i) Pre-Colonial; (ii) Colonial (fifteenth century onwards); (ii) Post-Colonial (twentieth century onwards); and (ii) Post-TRIPS (1995 onwards). The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) establishes minimum standards of IPRs and many members of the World Trade Organisation (WTO) had to revise their laws to meet these standards. I add that the negotiations for the Intellectual Property (IP) Protocol marked for Phase II of the African Continental Free Trade Area (AfCFTA) is set to precipitate the emergence of the fifth period. The Agreement establishing the AfCFTA was adopted on 21 March 2018 and it entered into force on 30 May 2019. The discussions and deliberations in this webinar can contribute to shaping the outcome of the fifth period for IPRs development in Africa.
IPRs, broadly covering (i) Industrial Property -Patents, Trade Marks, Geographical Indications, Industrial designs, (ii) Copyrights and Allied Rights, and (iii) Sui Generis Rights, are neither unmalleable nor derived from science. They are socially and culturally construed through negotiations between state and non-state actors. The IPRs developments in Africa, as outlined earlier, were mostly driven by external influences such as colonisation and the multiple multilateralisms. With the dismantling of regional cooperation and crisis in multilateral systems, Africa now has the unique opportunity to re-examine and re-construct its IPRs architecture to suit its social and development realities, needs and aspirations.
This high-level panel brings together key stakeholders to discuss the current IPRs landscape in Africa. Three central issues that the panelits will address are the fragmented IPRs systems on the continent and attempts at harmonisation, the IP Protocol in the AfCFTA, and the state of the Pan-African Intellectual Property Organisation (PAIPO). The PAIPO concept paper was published in 2006. The African Union adopted the PAIPO Statute in 2016. Sierra Leone signed the Statute in 2016, Ghana in 2017, and Comoros in 2018. PAIPO is scheduled to enter into force after the 15th ratification instrument is deposited with the African Union Commission.
Panelits
Mr Million Habte: Coordinator, Intellectual Property Rights Negotiations, AfCFTA. African Union Commission.
Mr Denis L. Bohoussou: Director-General, African Intellectual Property Organisation (OAPI).
Mr Fernando dos Santos: Director-General, African Regional Intellectual Property Organisation (ARIPO).
Ms Uche Nwokocha: Partner, Aluko & Oyebode.
Prof. Adejoke Oyewunmi: Professor of Intellectual Property, Faculty of Law, University of Lagos.
Prof. Johnson Ekpere: Former Executive Secretary and Head of Mission, African Union Commission, Scientific, Technical and Research Commission.
Co-Moderator
Mr. Sand Mba Kalu: Executive Director, Africa International Trade & Commerce Research.
Translators (French and English)
Ms. Elizabeth Ngole Nneh Obi: Doctoral Researcher, University of Buea, Cameroon.
Mr. Ayuketah Tambe: CEO, Cameroon Intellectual Property Awards Association, CIPAAS.
Initial Questions
Mr Million Habte: Please discuss the current state of IPRs at the African Union in view of PAIPO and AfCFTA? For example, how will the two main IP organisations, OAPI and ARIPO, as well as the Regional Economic Communities (RECs) function within PAIPO? What are the plans and aspirations for the IP Protocol in Phase II of the AfCFTA negotiations?
Mr Denis Bohoussou: OAPI was created by the Bangui Agreement of 2 March 1977, which entered into force on 8 February 1982. Please discuss the structure of OAPI and how it operates? From the OAPI perspective, please discuss the move towards harmonisation with ARIPO, as established by agreements signed in 1996, 2005 and most recently, the four-year Cooperation Agreement signed on 09 February 2017.
Mr Fernando Dos Santos: ARIPO (originally ESARIPO – English-Speaking Africa Intellectual Property Organisation) was created by the Lusaka Agreement of 9 December 1976, which entered into force on 15 February 1978. Please discuss the structure of ARIPO and how it operates? From the ARIPO perspective, please discuss the move towards harmonisation with OAPI, as established by agreements signed in 1996, 2005 and most recently, the four-year Cooperation Agreement signed on 09 February 2017.
Ms Uche Nwokocha: From a legal practice perspective, please discuss the implications of the current fragmented IPRs landscape in Africa, the attempts at promoting cooperation and harmonisation between OAPI and ARIPO, PAIPO and the IP Protocol in the AfCFTA.
Prof. Adejoke Oyewunmi: From an academic perspective, please discuss the implications of the current fragmented IPRs landscape in Africa, the attempts at promoting cooperation and harmonisation, PAIPO and the IP Protocol in the AfCFTA. Furthermore, please share your thoughts about the IPRs landscape in Nigeria, as an example of the realities on the continent.
Prof. Johnson Ekpere: From January 1993 to December 1998, you were the Executive Secretary, Organisation of African Unity (now African Union) Scientific, Technical and Research Commission (OAU/STRC). During that period, you doggedly pushed for the introduction of contextually informed IPRs frameworks at the OAU. Your living legacy is the African Model Legislation for the Protection of Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources. You were also involved in the initial discussions around the harmonisation of intellectual property rights in Africa and PAIPO. Please share your thoughts on IPRs in Africa, both from historical and contemporary perspectives.
A recurrent point from the panelists is the need to design and introduce effective IPRs systems for Africa.
Mr Habte noted that the IP Protocol in the AfCFTA Agreement would offer an opportunity to set common rules on IP protection and use the flexibilities in the global IP regimes. He added that the IP Protocol in the AfCFTA would provide a framework for sub-regional cooperation. Mr Bohoussou and Mr dos Santos emphasised continued interest in promoting the existing coordination and harmonisation between OAPI and ARIPO. Ms Nwokocha explained potential benefits of IPRs on the continent including enhanced business and career opportunities. However, she pointed out the importance of addressing challenges such as enforcement of IPRs around the continent. For example, (i) the different volumes of NICE classification of goods that apply in different jurisdictions (ii) the differences in patent examination around the continent; some jurisdictions engage in substantial examination of patents while others examine as to form only. Prof Oyewunmi drew attention to the importance of ensuring that IPRs systems protect local innovators and such systems are suited to domestic realities. Prof. Ekpere submitted that constraints to harmonisation on the continent include dependence on donor funds, limited legislative and implementation capacity and conflict of interests. He offered that one way forward would be to establish a multi-disciplinary team of IP experts and consultants, fully funded from African sources to craft an IP harmonisation instrument for Africa.
To translate these robust discussions into actions that would contribute to building effective IPRs systems in Africa, Mr Mba Kalu proposed a private sector driven IP Network for Africa. This Network will support the established cooperation between OAPI and ARIPO, and the negotiations of the IP Protocol in the AfCFTA. Anyone interested in joining the Network can send an email to oluwafemi@africainternationaltrade.com.
