Tuesday, 16 October 2012

Piping up on PAIPO

Afro-IP has received the following piece from African academic Caroline Ncube, Senior Lecturer Department of Commercial Law University of Cape Town, which not only explains and contextualises the current state of play in terms of Africa's role in resolving its own intellectual property issues but also leads neatly into the post which immediately follows it here. This is what she writes:
Piping up on PAIPO 
In the last few weeks there have been reports of the imminent birth of a new IP organization to be known as the Pan African Intellectual Property Organisation, or PAIPO (see for example William New ‘Move Toward New Pan-African IPOrganisation Alarms Observers’ IP Watch, 27 September 2012). These reports have generated much discussion and criticism which has been noted on Afro-IP.  Writing on the matter on 8 October, Kingsley argued

‘But before we all know whether this is a dangerous path, we need to see, for instance: (a) what IP laws PAIPO would go for and whether it would go beyond the already existing TRIPS-plus Bangui’. 
 Kingsley is of course right in cautioning against rushing to condemn PAIPO before we are certain of its true colours. However, this post explains that much of the discomfort around PAIPO stems from the language of the Draft Statute (AU Final Draft Statute of the PAIPO Ref No AU/STRC/522) which signals a worrying lack of focus on the public interest and the appropriate calibration of IP systems. So, while we do not yet know ‘what IP laws PAIPO would go for’, current indications are worrisome. 
To illustrate this point, let’s take a look at the Draft Statute’s preamble and compare it to more progressive documents authored by African states themselves namely the proposal by Morocco on behalf of the African Group entitled ‘The African proposal for the establishment of a development agenda for WIPO’ (WIPO Doc IIM/3/2 Rev, 31 July 2005: the ‘African Proposal’) and the Development Agenda Group’s (DAG) Guiding Principles authored by the Africa Group (WIPO Doc CDIP/5/9 Rev, 26 April 2010).  Admittedly, the documents being compared to the Draft Statute are of an inherently different nature as they are proposals and a statement of principles respectively. However, they are relevant and are a critical yardstick against which to measure the Draft Statute because they espouse the first principles upon which the Draft Statute ought to have been based. Further, although not authored by the AU, these documents have been authored by the leading African voices at WIPO, many of whom are AU members, which have consistently sought to advance African development.  It is precisely on such foundations that the AU PAIPO Statute should be building. 
 Now, for that look at the Preamble: 
 PREAMBLE We the African Union Head of States and governments, 
DETERMINED to promote the development of the continent through an effective intellectual property system in order to achieve objectives of the African Union; 
RECOGNIZING that Intellectual Property rights are tools for economic growth and dissemination of knowledge; 
BEING FULLY AWARE of the urgent and requisite need to provide a broad-based Intellectual Property platform that would provide a forum for policy based discussions and formulation of common African position on global and emerging Intellectual Property issues; and the valuable benefits that the Member States would derive from an effective, continuous and well-coordinated stock of specialized Intellectual Property information, knowledge and services that would be instrumental in promoting and protecting creativity, invention, innovation, facilitating technology transfer, techno-industrial competitiveness and economic growth in Africa 
RECOGNIZING the need to address the continued necessity to promote creativity and utilization of the Intellectual Property system amongst Member States;  
RECOGNIZING FURTHER the need for positive efforts designed to raise effective awareness on Intellectual Property issues in Africa, and the need to encourage the creation of a knowledge-based and innovative society and to promote the creation, use and exploitation of Intellectual Property assets in Africa; 
DESIRING to encourage creativity as well as to promote, protect and exploit Intellectual Property rights throughout Africa; 
BEING DESIROUS to formulate and implement strategies for the effective combating piracy and counterfeit in Africa; 
REALIZING the role that an efficient continental intellectual property organization can play in promoting the socio-economic development of Africa and face more effectively the challenges posed by globalization; 
APPRECIATING and RESPECTING the crucial role played by national Intellectual Property offices of Member States, as well as the autonomy of ARIPO and OAPI, in recognizing the need to modernize and harmonize Intellectual Property legislation throughout Africa and to render more efficient the administration of Intellectual Property rights; 
BEING DESIROUS of supplementing and complementing the role played by ARIPO and OAPI
REALIZING the need to strengthen the capacity of national Intellectual Property institutions and boosting manpower development in Intellectual Property management; 
RECOGNIZING the cross-cutting nature of Intellectual Property and the need to have a streamlined co-ordination system for Intellectual Property within the framework of the African Union, and the importance of addressing Intellectual Property matters within the African Union; 
  Commentary 
Whilst the preamble makes the right noises in relation to socio-economic development and effective IP systems, it does not go far enough in affirming the perspectives on IP and development that the Africa Group and the DAG have been cultivating over the last several years. For example what exactly is the ‘effective intellectual property system’ envisaged by the Preamble? In my view it is an appropriately balanced or nuanced system that takes a country’s socioeconomic condition and development goals into account and this ought to have been expressly stated in the Preamble.  The reference to IP rights as ‘tools for economic growth’ is reminiscent of a former director of WIPO’s take on IP, which has been criticized for lacking nuance as it subscribes to a ‘one size fits all’ and ‘IP as an end itself’ perspective rather than advocating for calibrated systems that use IP to attain certain developmental goals.  This turn of phrase is far removed from African states’ following statement in para 7 of the African Proposal:

‘IP is just one mechanism among many for bringing about development. It should be used to support and enhance the legitimate economic aspirations of all developing countries including LDCs, especially in the development of their productive forces, comprising of both human and natural resources. IP should therefore, be complimentary and not detrimental to individual national efforts at development, by becoming a veritable tool for economic growth’. 
Another example of a more progressive statement is para 1 the DAG’s Guiding Principles: 
The adoption of the Development Agenda (DA) at the General Assembly of the World Intellectual Property (WIPO) in 2007 was a milestone in achieving the historic aspiration of developing countries for a paradigm shift in the international perspective of intellectual property (IP): a shift from viewing IP as an end in itself, to viewing it as a means to serve the larger public goals of social, economic and cultural development.  This vision has refuted the universal applicability of ‘one size fits all IP protection models’ or the advisability of the harmonization of laws leading to higher protection standards in all countries irrespective of the levels of development’.
There is no mention of the challenges facing Africa with respect to access to medicines and learning materials, its efforts to realize the MDGs, among many others. 
Consequently, the preamble fails to assert the importance of public interest imperatives as done by articles 7 and 8 of TRIPS and in proposals for a Development Agenda at WIPO. Africa needs to ‘strive for an outcome that unequivocally acknowledges and seeks to preserve public interest flexibilities and the policy space of [AU] member states’ (p2 Argentina & Brazil’s Proposal for the Development Agenda). As noted in Brook Baker’s critique, the preamble fails to consolidate on many notable achievements that have been made by developing countries at WIPO and the WTO. This leaves readers of the Draft statute wondering how PAIPO is intended to further the advances that have been made at these fora and fearing that they be lost in the new dispensation.  
Reference to combatting piracy and counterfeits against a backdrop that exhibits the shortcomings highlighted above lends credence to the view that the Preamble may be advocating a one-sided view. 
 These are just a few of the issues that arise from a perusal of the preamble. Other issues include the lack of detail on how PAIPO is going to complement OAPI and ARIPO and concerns about how it may be counter productive to use substantial resources in creating yet another African IP organization rather than spending those resources on strengthening existing ones or advancing the African cause at WIPO and other international fora. Another issue is the reference to the harmonization of IP laws in Africa which needs to be handled with utmost care to ensure a beneficial result for Africa. A post such as this one cannot do justice to all these pertinent issues. However, the few examples cited above hopefully suffice to show that there are real concerns about PAIPO even at this stage before the full IP plans of the organization have been revealed. 
 The news that PAIPO is about to be launched (possibly at the AU’s African Ministers at their meeting scheduled for 12  - 16 November 2012) after being in the works for such a long time is alarming for two other reasons. The first of these is that although the draft statute has been long in the making, this has not been through an open or participatory process. There has been no public consultation on the continent nor have civil society, academics and public interest advocates been afforded an opportunity to engage with the proposal or participate in the crafting of the statute. This is so even when voices of concern were first raised as long ago as 2007 (see for example Tove Iren S. GerhardsenConcern Arises Over Proposed Pan-African IP Organisation’ IP Watch 30 August 2007). Secondly, the AU has not provided detailed information about its deliberations and decisions pertaining to the establishment of PAIPO. It is ironic that African states have been chastising WIPO for not being transparent enough (for example see para F of the Joint Proposal by the DAG and the Africa Group on WIPO’s technical assistance in the area of co-operation for development, CDIP/9/16, 8 May 2012) when the same can be said of them with regard to the establishment of PAIPO. 
Is it asking too much of the AU to request that it defer the establishment of PAIPO until a more inclusive and transparent consultative process is carried out? Certainly not, these are the same demands African states make of WIPO. Are the calls for a more nuanced PAIPO statute with a preamble that resounds with developmental goals, public interest concerns and an emphasis on the appropriate balancing of stakeholder interests unreasonable or unachievable? Certainly not, as shown by the following extracts from the TRIPS Agreement’s preamble:
‘Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives; 
Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base’ 
If even the much maligned TRIPS Agreement can include these perspectives, then surely so can the AU’s PAIPO Statute, more so when it has precedents such as the Doha Declaration on Public Health to draw from.

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