Wednesday, 31 October 2012

Moyo furthers debate on PAIPO


Sara Moyo from Zimbabwe Law firm Honey & Blanckenberg has written to Afro-IP following Jeremy's post "Piping up on PAIPO (with a letter from Caroline Ncube)" to comment on the debate surrounding the establishment of PAIPO (for previous posts click here). She makes a compelling argument for focusing efforts and resource toward the creation, training and commercialisation of IP rights by Africans within existing structures but do you agree? You can join the debate by commenting directly on this post, using the Afro-IP Linkedin group or by sending us an email here.

"I read with interest Darren Olivier’s post concerning the 2006 decision of the Conference of the African Ministers of Council in Science and Technology to establish a Pan –African Intellectual Property Organization (PAIPO).

Kingsley Egbuonu responded to Olivier’s post with a caution against rushing to condemn the concept of a continental intellectual property (IP) body and provided a link to the final draft Statute establishing PAIPO which will be presented before the 5th African Union (AU) Ministerial Conference on Science and Technology scheduled to take place from 6 to 12 November 2012 in the Democratic Republic of Congo.

As commented by Caroline Ncube, Senior Lecturer in the Department of Commercial Law University of Cape Town, the news is alarming not least because there appears to have been little public debate about the benefits of establishing a continental IP body whose mandate appears to be a duplication of the current objectives and activities of the regional IP Offices on the continent, ARIPO and OAPI.

Egbuonu suggests that “we…see….what laws PAIPO would go for… and how many countries would sign up for membership”.

I beg to differ. I do not see how Member States of the AU, African IP agents and other stakeholders can be expected to make a rational decision on the benefits of establishing a new continental IP body within the AU, and especially a continental registration Office, if the constitutive Protocol for such registration Office and the implementing regulations have not been formulated.

In other words, without any details/information as to the

 legal system that will govern the grant, term, opposition procedure, infringement proceedings, revocation, cancellation, compulsory licensing and transmission of each category of industrial property that PAIPO will be empowered to handle, and

 the costs of proceedings before the new continental registration IP Office, and

 the relation of PAIPO with the Harare Protocol, the Banjul Protocol, the Bangui Agreement and the Patent Cooperation Treaty, and

 the territorial effect of industrial property titles granted by PAIPO, and

 the seat of the proposed IP Office

it is impossible to have an informed debate on the merits of constituting PAIPO as an IP registration Office.

Secondly, unlike ARIPO’s IP Protocols, the final draft Statute of PAIPO does not provide for ratification or accession by the Member States of the AU.

Article 20 of the draft Statute provides that the Statute establishing PAIPO will automatically come into force on the day of endorsement by the Assembly and Head of States of the AU.

Decisions of the AU are made by consensus or by a two-thirds majority of the Member States (Article 7 of the Constitutive Act of the AU).

In my view Article 20 of the draft Statute appears problematic as some Member States of the AU do not provide for automatic ratification or accession to a convention or treaty or agreement, or automatic recognition of the legal status of an international body, without approval by the national Parliaments of Member States.

In Zimbabwe, for instance, any convention, treaty or agreement acceded to, concluded or executed by the Executive with foreign states or governments or international organisations, and which imposes fiscal obligations upon Zimbabwe, is subject to approval by the Parliament of Zimbabwe and shall not form part of the law of Zimbabwe unless it has been incorporated into the law by or under an Act of Parliament.

Secondly, the draft Statute does not permit reservations in relation to the term or validity of registered industrial property titles insofar as they may relate, for example, to patents in pharmaceuticals. This, as observed by Ncube, would appear to be contrary to the principle that IP legislation must be complementary to the developmental goals of individual Member States.

Article 5 of the draft Statute lists the objectives of PAIPO and provides in Article 5(iv) that the Organization shall “[p]rovide common services to Member States and/or regional economic communities in the administration and management of intellectual property rights that maximizes and builds upon the solid achievements of ARIPO, OAPI and/or WIPO.”

Article 6 of the draft Statute sets out the functions of the Organization and provides in Article 6(ii) that PAIPO “shall grant and register industrial property titles”.

Apart from the fact that the draft Statute does not define what such industrial property titles will be called (African patent, PAIPO trademark, etc.), the establishment of a supranational registration Office would appear to be a costly duplication of the registration function of current national and regional IP Offices.

Thirdly, the draft Statute does not specify the basis on which natural or legal persons may prosecute IP matters directly in PAIPO. Neither does it specify which legal representatives of IP owners may prosecute IP matters in PAIPO.

In spite of the above reservations, the establishment of multiple think tanks or fora for policy discussions and formulation of African positions on issues concerning IP matters is welcome and should be encouraged.

Examples of this are ongoing efforts by African IP agents to convene an Africa IP Forum (in spite of the scuttling of the inaugural meeting) which will discuss the dynamic role of IP protection and enforcement in promoting knowledge based economies through innovation, trade and investment. The forum will also focus on practical approaches to the utilization, management, and protection of IP in Africa.

South African IP firm Adams & Adams recently launched its Africa Meeting which it hopes will become an annual IP event.

The preamble of the draft Statute states that PAIPO will serve as a cost effective way of streamlining IP management in Africa. This however appears to ignore the fact that the ownership, registration, and exploitation of IP rights by residents/nationals of Member States of the AU is so miniscule (at this time) as to be unworthy of creating a continental IP Office.

WIPO statistics for filings in the national IP Offices of Member States of the AU in the 10 year period from 2002 to 2010 show that the total number of patent filings (direct and PCT national phase entries) were less than 100 000.

Of that number, Kenya had 1 078 patent filings, Egypt had 15 037 and South Africa had 63 599 patent filings.

Both anecdotal accounts by African IP agents and WIPO statistics on IP activity in Africa show that more than 90% of applications for registration of IP rights in Africa are by foreign IP applicants.

There is therefore urgent need, in my view, for African governments to focus, not on creating another registration entity in circumstances where the current volume of IP activity by African nationals/residents does not justify the cost, but to apply resources towards

 increasing the creation and exploitation of IP by African residents/nationals in all technical fields

 funding research and development, and

 training patent agents and patent examiners in Member States, and

 creating capacity within Member States for commercial management of IP rights."

Monday, 29 October 2012

A review of African official IP websites: no.16: Egypt

You would think that a country which just emerged from a revolution would relent on something like intellectual property (IP); but that is not for Egypt as this little Leo found out. Last year, we were impressed by the online presence of its IP offices; on review, this blog is pleased to see that such effort has been maintained.

During this Leo's space trek, he came across two organisations working in the field of IP and ICT in Egypt: The Egyptian Center for Intellectual Property and Information Technology (ECIPIT), and the Information Technology Industry Development Agency (ITIDA). The ECIPIT is an NGO whose goal is to increase IP awareness in the ICT sector and how to use them for development; while the ITIDA supports the development of the software industry in various ways, as well as increasing social awareness of IP issues in Egypt.

This Leo was further impressed to learn that Adobe Systems launched an innovative pricing scheme for its products in an effort to ensure affordability and curb software piracy in Egypt. (Afro Leo knows that IP, patent in particular, deservedly gets the negative coverage, especially, when holders fail to innovate or unfairly stifle others)

Well, it appears Egypt has more to gain out of IP than some countries in Africa.

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Egypt and WIPO discuss boosting joint cooperation, see here

Thursday, 25 October 2012

Morocco ups its fees, substantially

Source
The latest Saba news bulletin reveals that three major changes to IP fees, rules and regulations have been effected in Morroco.

"(1) The official fees for trademark, design and patent related matters were revised in Morocco, effective October 1, 2012. Fees have substantially increased in comparison with their current level. The new schedule of fees is applicable on all new applications as well as applications that have still not matured to registration.

(2)Maintenance fees in the country will be due annually on the anniversary of the filing date of the patent. There is a six-month grace period for late payment with a surcharge. Previously, annuities were paid every five years; The 1st through the 5th patent annuities were payable at the time of filing; The remaining annuities were payable in groups of 5 years at the time of payment of the 6th, 11th and 16th annuities.

(3)The fees for the filing and the renewal of trademark applications will be payable separately for each and every class, and not up to the first 3 classes, as was the practice before."

These changes indicate a dire need for funds by the local office which is at odds with the generaly inflation rate of around 2% for the country. A few years ago WIPO provided an excellent overview of the expectations for IP in Morocco which can be accessed here.

Wednesday, 24 October 2012

Time to rethink: patents and public health revisited

For the second time this month (and here is the first), Afro-IP has the pleasure of hosting a piece from guest blogger Caroline Ncube -- who increasingly needs no introduction. This post reviews an important meeting which Caroline recently attended. Her note runs as follows:
South Africa's IP Policy discussed at TAC and MSF's "Time to rethink our patent laws: A public health perspective" meeting  
Many IP enthusiasts have been eagerly awaiting details of South Africa's Draft IP Policy since it was announced at the last IP Indaba that the Department of Trade and Industry (DTI) was embarking on an IP policy making process (reported here).  Mr MacDonald Netshitenzhe, Chief Director: Policy and Legislation, DTI, revealed the following details at a meeting convened by the Treatment Access Campaign (TAC) and Médecins Sans Frontières (MSF) as part of their 'Fix the patent laws compaign'. 
1. There is currently a draft IP Policy which has been informed by 'targeted consultations' with lawyers, industry and sister government departments. 
2. A regulatory impact assessment (RIA) of the policy is being undertaken. 
3. The RIA report and the draft policy will be presented to Cabinet at its last meeting for the year (5 December 2012). 
4. It is expected that Cabinet will authorise the publication of the draft policy for public consultation at this meeting (or if the consideration of this matter is postponed, early in 2013). 
5. Public consultations will then follow in the form of meetings, workshops and perhaps a conference. 
6. After the public consultation process a final policy will be presented to Cabinet for approval (estimated to take place in March/April 2013). 
7. A Bill will then be drafted to implement the policy by amendment of existing IP legislation. Mr Netshitenzhe concluded his talk with these words "IP Policy and legislative review or reform may contribute to access to public health if done appropriately. All stakeholders should talk to the Draft in order to have a regime that is balanced". Most, if not all, of the participants at the meeting look forward to the publication of the draft policy and an opportunity to participate in the public consultation process. 
 The rest of the meeting consisted of the following presentations: 
1. Perspectives of the Department of Health by Dr Anban PIllay 
2. The use of TRIPS flexibilities in South Africa by Prof Yousuf Vadwa, University of Kwa-Zulu Natal 
3. Patent policy, innovation and diffusion in developing countries by Prof Bhaven Sampat, University of Columbia 
4. Using TRIPS flexibilities in India and other developing countries by Leena Menghaney, MSF Access Campaign 
The use of flexibilities will be the subject of future guest posts. 

Monday, 22 October 2012

A review of African official IP websites: no.15: Republic of Djibouti


This little Leo was pleased to see intellectual property (IP) issues on the African continent in kick it up a notch on this blog last week and wishes to see more of such proactive from the IP community in Africa. (Afro Leo says, "come on, let's match the IPKat").

The doom and gloom begins this week with the usual concern about the perceived neglect of the national IP offices in most African countries. Apart from this news update that Djibouti's new IP law has come into effect and that its IP office is now operational, Djibouti is as we left it in 2011.

This Leo was not even aware of WIPO's ICT equipment supply to Djibouti's IP Office back in 2010 - a project which recorded 10 participants compared to 0 for these two here and here in 2012. (Afro Leo thinks that these could just be PCs, hard drives, etc; ultimately, if a country has little or no internet infrastructure/connectivity (see here and here) what is the point having a PC?). It is indeed poignant that some of these African countries have IP laws at international minimum standards - if not above - but yet, do not operate an IP office to commensurate with such a regime.

Is it actually a lack of will or resources; or both?

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For a bit more about Djibouti's new IP law, see here

Friday, 19 October 2012

Thought for the weekend

James Bond will be drinking beer in his newest movie. The justification is that such movies cannot be made without funding and product placements, as well as branded-placements, are necessary for blockbusters.

The news made this blogger remember a recent movie scene that could only be described as product displacement. In the movie – I think it was called Crazy Stupid Love - a middle-aged man (Steve Carrell) is left by his wife and spends his evenings in a bar moaning about his misery. He looks a mess – badly dressed and unkempt. A younger man, who has great success with pickups at the bar, takes pity on him and acts as fairy godmother, giving him a much-needed makeover. When discussing the general awfulness of his appearance, he says something like ‘no-one your age should wear New Balance’ sneakers, and makes the older man repeat words to the effect that ‘I deserve better than The Gap’ (sorry about the disclaimers, but it was late and I was not concentrating). In any event, the general tone of the discussion as that he looked awful wearing these two brands of clothing. But there was no actual disparagement – the implication was rather that one could do better. After a (no-name) shopping spree that must have made his bank manager weep, he looks substantially better and his wife realises that she made a mistake.

Could either company do anything about this? Did they possibly try? And why did the producer use actual names, rather than generic descriptions such as ‘badly fitting chinos’ or ‘cheap trainers’?

Do readers have any ideas or suggestions? You have all weekend to think about it – or channel-surf on DSTV until you find the movie!

Wednesday, 17 October 2012

Model Provisions for Patents in Uganda

imageUganda’s Industrial Property Bill of 2009, one only needs to look at the name to know this would-be-could-be law has been under discussion for sometime.  Last month, the Center for Health Human Rights and Development (CEHURD) released a document of model provisions outlining desired changes to the Industrial Property Bill.  These model provisions were a result of of consultations between CEHURD, various government ministries including trade and justice, the United Nations Development Program and other interested parties.  The document, Model Provisions to Promote Access to Affordable Medicines in the Industrial Property Bill 2009, is available in full here.

The main push of the model provisions is to rebalance the patent law teeter-totter such that neither drug companies nor Uganda citizens are stuck in the bum-to-the-ground position.   The model provisions urge bringing Uganda in-line with TRIPS, which includes avoiding TRIPS-plus legislation and adding in TRIPS-required remunerations.  A few highlights:

  • Mention the important goal of balance in the preamble
  • Remuneration for compulsory licenses (Section 1)
  • Accessible databases of registered patents (Sections 4 and 5)
  • A heightened novelty standard (Section 10)
  • Importation of a provision from the India Patents Act that limits inventive steps (Section 11)
  • Taking advantage of the TRIPS LDC exceptions (e.g. Section 16)
  • Requirement of best mode disclosure (Section 21)
  • Opportunity to correct applications (Section 28)
  • A record of non-granted patent applications (Section 31)
  • Post-grant Oppositions (Section 32)
  • Removal of Criminal liability (Section 96)

Uganda’s parliament is currently on break, but they will be taking a look at these model provisions and the Bill when sessions resume in November.

Tuesday, 16 October 2012

The Great Race for Africa: who will win?

Goodness, how quickly everyone seems to be focusing on Africa now that the continent's IP community is starting to take steps to address its own intellectual property issues.  Attempts to launch a Pan-African Forum and to establish a Pan African Intellectual Property Organisation (PAIPO) have received a good deal less support than they deserve, on grounds on which this blogpost will not elaborate, as well as some well-informed constructive criticism.  However, some major non-African bodies have coincidentally turned an almost simultaneous focus on to the continent.

Yesterday I read the of the following initiative from the International Trademark Association:
INTA Bulletin October 15, 2012  Vol. 67  No. 18  
INTA Launches “Africa Rising” Initiative 

Through its Trademark Office Practices Committee’s OAPI/ARIPO Subcommittee, INTA is launching a new initiative, “Africa Rising,” to highlight the value of trademarks and their protection in Africa, as well as the Association’s activities that focus on this increasingly important arena in global commerce.

INTA’s efforts over the years to develop its presence in Africa have focused on building strong relationships with the African Intellectual Property Organization (OAPI), which is based in Yaoundé, Cameroon, and the African Regional Intellectual Property Organization (ARIPO), which is headquartered in Harare, Zimbabwe. These two regional systems, which together comprise 34 African jurisdictions, were established to promote cooperation and coordination among African states in harmonizing their intellectual property laws, practices and procedures.

In the mid-1990s, INTA established the OAPI/ARIPO Subcommittee to assist these regional systems in their efforts to promote economic development through improving trademark registration and protection. For almost two decades the Association has been instrumental in the effort to achieve this goal, providing advice, recommendations and assistance to OAPI and ARIPO in amending their treaties and procedures and encouraging other African countries to join these regional systems. Reflecting the value of INTA’s contribution, both OAPI and ARIPO have joined INTA, participate in the Subcommittee’s work and have entered into cooperative agreements with the Association.

Given its sole focus on Africa, the OAPI/ARIPO Subcommittee is taking the lead in raising the awareness of INTA members about African trademark systems, not only at the regional level but at the national level as well. The Subcommittee also will reach out to other parts of INTA active in policy development (anticounterfeiting/legislation/nontraditional and well-known marks), education and publishing in order to help coordinate INTA activities in Africa.

Africa Rising is an exciting opportunity for INTA members to learn more about new opportunities as Africa’s importance to the world economy increases, and to become engaged in INTA’s activities on the continent....
Only last year the International Trademark Association could find no room for a session on Africa in its Annual Meeting. It's good to see that the continent is coming in from the cold.

Meanwhile, the Internet Corporation for Assigned Names and Numbers (ICANN)  has suddenly thrown its hat into the ring with its own initiative.  I've just received this:
16 October 2012: for Immediate Release   
Initiative Unveiled to Increase ICANN’s Presence and Participation across Africa Plan Receives Enthusiastic Support of CEO and Board Chair  
Toronto, Canada… 
Leaders of Africa’s Internet community have unveiled a comprehensive plan designed to dramatically increase African involvement in ICANN’s multi-stakeholder model. 
The initiative was presented to ICANN during the organization’s 45th public meeting in Toronto, Canada by the Africa Strategy Working Group (ASWG). It was formed after ICANN’s new President and Chief Executive Officer, Fadi Chehadé encouraged a stronger voice from the African continent in ICANN’s multi-stakeholder model.“When we met three months ago at the ICANN meeting in Prague, I felt a sense of frustration at our inability to come together and move the Africa agenda forward,” said Chehadé. “It’s incredible what this working group has achieved in such a short period of time by engaging with many concerned groups and individuals through the multi-stakeholder process.”“We employed a bottom-up, open and public process in developing this initiative,” said Nii Quaynor of Ghana, a well-respected Internet leader in Africa and Chair of the ASWG. “We think this plan will lead to dramatically increased African participation in ICANN and greater presence for the organization on the African continent.”  The plan was written with the input and broad support of ICANN’s African community, Africa's Regional Registry for Internet Number Resources (AFRINIC) and other influential African organizations involved in the Internet ecosystem.“We are taking a new approach to Africa,” said Tarek Kamel, a Senior Advisor to the ICANN President. “This plan is based on capacity building, business development, specifically developing the Domain Name System (DNS) business in Africa and insuring inclusion.”The three year initiative, entitled ICANN's New Approach to Africa, lays out clear goals and milestones and an action plan for the first 12 months.  It is a collaborative effort by AFRINIC, Africa's Regional Registry for Internet Number Resources and the ICANN community.  The initiative will now be posted for public comment. Currently, African internet users represent only 6 per cent of Internet users worldwide. ...              
The apparent distance between ICANN's activities, particularly its venture into gTLDs, and any sort of African interest has been noted in the past. Now, suddenly, Africa is the flavour of the month. Which organisations will be next, this blogger wonders.  Will we have "AIPPI for Africa", LES promoting "Africa Licenses" and so on? Afro Leo waits expectantly for the next initiatives ...

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.

Monday, 15 October 2012

A review of African official IP websites: no.14: Côte d'Ivoire


In September 2011, this blog reported on the lack of any website for the intellectual property  (IP) offices in Côte d'Ivoire (by the way, nothing has changed). The following month, we missed out on this news that piracy is driving Ivorian artists out of their country.

One of those artists, Zouglou musician, Téhé Ella (a.k.a Ella Mèlèkê), is quoted to have said this: "The financial difficulties in which artists find themselves because of piracy are unspeakable. For the time being, moving to a place where intellectual property rights are respected seems to be the only solution to our problem [...] I've decided to leave, to travel the world and live off my talent,".

The African continent - with its diverse cultures and heritage - is bursting with talented people who need to make a living out of their creativity. Increasingly gaining international momentum is the entertainment sector (see hereherehere and here). Piracy is an obvious global problem in this sector and digital technology has its positive and negative impacts too. It is not that the continent lacks the relevant IP laws crucial for this sector (see here for the one in Côte d'Ivoire), the problem often stems from inadequate and/or ineffective: (a) distribution and collective rights management systems; (b) investment e.g. by recording and publishing houses (who are scared of making no ROI); and (c) state support which include the willingness to address the aforementioned issues.

As Darren pointed out in this post on the Sugar Man: it is not whether IP should exist or not, but how to effectively utilised it for the benefit of people like Ella and for socio-economic development across the continent.

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Could African music save Western pop? see here
How African innovators are tackling piracy, see here

Thursday, 11 October 2012

Kenya: We've switched off your fake mobile, get a genuine one

Get ready for the big switch off
If you asked this little Leo last week or so about Kenya and mobile technology, you would get at least two responses: home to 26,135,115 mobile phone connections in Africa and M-Pesa, a renowned innovative concept in finance. As for intellectual property (IP) and Kenya,  it only takes a few minutes for anyone to find out on this blog, for example, here, here and here. This Leo adds to his IP current affairs knowledge with this news (better late than never) that the Communications Commission of Kenya (CCK) has begun the fight against counterfeits within the telecommunications sector.

Switch off
Oh dear, they just did!
The widely anticipated switch off campaign by the CCK - in association with Safaricom, Airtel, Telkom, and Yu, supported by Nokia, Huawei and Samsung - has just come to past. According to this news report, it is estimated that around 1.5 million counterfeit handsets were switched off by the 30th of September deadline. Apparently, this campaign was particularly aimed at: tackling m-banking fraud; violence and protecting consumers from hazardous components. (Afro Leo wants to know how 3 million counterfeit mobile handsets made their way into Kenya in the first place. In respect of fighting crime, Afro Leo thought the CCK said that SIM registration was the solution?

Wednesday, 10 October 2012

Uganda producing generic drugs: QCIL

How We Made It in Africa has published a groundbreaking story about an African pharmaceutical company that has successfully begun to produce generic drugs. The article is in the form of an interview with CEO and founder Emmanuel Katongole of Quality Chemical Industries Limited (QCIL), an Ugandan-based pharmaceutical company, which manufactures and sells combination therapy antiretroviral and antimalarial drugs.


The entire interview with HWMIIA's Kate Douglas is worth a read because the reasoning behind the business strategy has as much to do with worldwide IP policymaking as it does with servicing an African need with an African solution. It is also an abject case study on how least developed countries can take advantage of concessions within TRIPS, how partnering and agreement structuring should set the tone for successful technology transfer and also how an Indian drug company is offering their expertise and IP to benefit the company. Katongole describes their input as their “greatest source of competitive advantage”.

The insightful CEO is acutely aware of challenges which he describes as being “behind the experience curve”, "lack of [supporting] infrastructure" eg roads and "economies of scale", and "dumping from overseas":

“There is a practice of certain countries in the world to subsidise their exports in a bid to buy markets or export their unemployment...This means that such products are artificially cheap by world market standards, which are tantamount to dumping. Further, some multinationals .... dump their excess capacity into Africa disguised as corporate social responsibility (CSR). They also manipulate prices by cross-subsidising sales to Africa at low margins with more profitable sales in the West at high margins. Afro Leo says cross-subsidising this is not necessarily a bad thing and we see it in most industries but admits that it creates a challenge for local business

An additional interview with Katongole can be located here.

Tuesday, 9 October 2012

Book for review

The jiplp weblog has been looking for reviewers for various books, including the Adams & Adams Practitioners' Guide to Intellectual Property Law. So far, no-one has volunteered to review this tome. If you'd like to be considered for the privilege of reviewing it, email Sarah Harris here as soon as possible and, if you've not previously reviewed a book for the Journal of Intellectual Property Law & Practice before, let her know why you think you should be the person to review it.

The Sugar Man without the sugar coat

Remember him!

Afro-IP has come across an inspiring tale of an American musician whose songs had become the fabric of South African society during the 1970s and 80s. The musician was not only oblivious to his fame and following on the African continent, his modest lifestyle and anonymity (many thought him to be dead) in his home country were in stark contrast to the iconic image he had created (and not exploited). Apparently he did not receive a single cent in royalties for the numerous record sales he had made. In fact, by all accounts he was financially very poor. Yet, after watching the short documentary by 60 Minutes, one wonders whether he (and us) are in fact richer for his experience especially if one compares him to the lifestyles and images of his contemporaries.

In a sense Rodriguez's story also contributes to the evangelism of creative commons and open access for it is an example of under exploitation (by Rodriguez anyway) and a resultant greater good that, in many ways, also elevates the individual, his image legacy and original creations. At the same time IP (copyright, reputational rights and trade marks) are extremely important as they are crucial to protecting and enhancing his legacy even beyond his lifetime, if they are used appropriately. It is an illustration, amongst many others, of why it is important to consider how IP is used and not focus on whether it should exist, if used inappropriatelty, as is so often the case in Africa.

The story also highlights why artists have such a dim view of collection societies and production companies. Rodriguez apparently did not receive a cent from his record sales as this post elaborates.

Here’s the clip to the “Sugar Man” - unfortunately with adverts - how else could content like this be worthwhile -  I Wonder (sorry I could not help myself).

If the links do not work please try:

Preview: Rodriguez - 60 Minutes - CBS News http://www.cbsnews.com/video/watch/?id=7424316n

Monday, 8 October 2012

A review of African official IP websites: no.13: Republic of the Congo (RC) and PAIPO


Reviewing the Republic of the Congo (RC), twelve months on, is actually nothing but exciting because this Leo gets to briefly comment on an apparent ground-breaking intellectual property (IP) regional development in Africa since 1979. Like its neighbour, there is nothing to report on how RC plans to develop its domestic IP regime or set up a website for its IP office. 


Pan-Africa Intellectual Property Organisation (PAIPO)
This Leo has learned, from this post by Darren, that PAIPO will be created - while maintaining the autonomy of national offices and the two current regional organisations, ARIPO and OAPI - under the aegis of the African Union (AU). The final draft statute establishing PAIPO will be presented before the 5th AU Ministerial Conference on Science &Technology on the 12th to 16th November 2012, in Brazzaville, Republic of the Congo (Afro Leo can see a pattern developing here: remote or obscure countries tend to host landmark international agreements or discussions e.g. Central Africa Republic and the Bangui Agreement, see here). 

Comment
As expected, this move has already attracted criticism from a global health advocate who argues that PAIPO is not only incoherent with AU's and WIPO's development agenda, but also restricts access to medicines in Africa. Having skimmed through the draft, PAIPO appears – in terms of structure - no different from the two existing regional organisations except that it would be supported by the AU – the latter aiming to emulate Europe. However, this Leo agrees that on the face of it, the draft appears to give PAIPO a supranational status to potentially enter into bilateral and multi-lateral agreements on behalf of its members. (Afro Leo wonders, as the case may be, if this will be any worse than what African countries have, in the past, entered into by themselves. For example, the Bangui Agreement which some - in support of a regional system - see as “TRIPS-plus”)

Looking at the vision and objectives of the AU, this Leo is also now slightly confused on who and what to believe after former President Thabo Mbeki apparently said that AU policies do not originate from its Commission. (Afro Leo would like to know who sets AU's policies. He also says, "perhaps, African countries do not need a collective, coherent and responsible voice on global IP issues since they can make-do with open letters by civil society on how to run their affairs before the mighty WTO. This is not to disregard the remarkable achievements by civil society on IP issues in Africa, for instance, this project in Ethiopia.")

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; (b) how many countries would sign up for membership; and (c) if some or all do sign up, will the benefits of having a co-ordinator and/or technical assistant in PAIPO, outweigh the negatives for those countries? (Afro Leo would rather see efforts and energy on how African countries can cope or navigate through the same international set of rules which other countries like India (see here, here and here) have managed to utilise for itself, and in the process, have grown a global generics powerhouse. Essentially, there needs to be a great shift in discourse for the pertinent question to be about what resource-rich countries, in particular, can and/or should do for its people.)

In as much as this Leo has mooted his preference (here, here and here) for a robust regional institution championing IP development in Africa, he urges caution as there are lessons to be learned from Europe. We can already see this IP development resembling the co-existent and co-operative European structure: PAIPO acting as EPO and OHIM; OAPI and ARIPO as Benelux IP office; and then national offices acting almost like satellite offices for the "preferred" regional rights. 

Whether the PAIPO will reverse the somewhat decline in activity or complacency on the part of national offices - as we have seen throughout the A-Z series - is something this Leo is keen to observe.



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For the decision on the establishment of PAIPO, see here 
For a Concept Paper on PAIPO, see here 
Report on WIPO’s support to NEPAD, see here 
AU plans to rebrand Africa’s image, see here
South Africa emerging as generic drug powerhouse in Africa, see here
Generic-drug solution for Africa not needed?, see here
Joseph E Stiglitz on IPRs and public health, see here
Can China become an IP powerhouse?, see here
Has TRIPS hindered India?, see here
For TRIPS and Public Health: What should African countries do? see here
EU Commission's Roadmap on Community Trade Mark, see here
On how to Max out on Trade Mark Reform in Europe, see here
For Unitary Patent debate in Europe, see herehere and here
Has the European Union experiment failed? See hereherehere here and here