The African Union (AU) has proposed the establishment of yet
another new organ, the Pan African Intellectual Property Organisation (PAIPO)
to deal with intellectual property issues on the continent. This follows hardly
on the recent establishment of the African Union Commission on International
Law (AUCIL) in 2010. The establishment of PAIPO followed a decision of the
Heads of States and Government of the African Union (Assembly Council /AU/Dec.
138 (VIII) made in January 2007 on the need to establish a Pan African
Intellectual Property Organisation. To that end the AU mandated its Scientific,
Technical and Research Commission (AU-STRC) to come up with a draft legal
instrument on the establishment of PAIPO. The AU-STRC came up with a draft
statute that will be tabled before the AU Member States’ Ministers for Science
and Technology in a meeting slated for 6-12 November 2012 in Congo. Since the
publication of the first draft statute creating the PAIPO, a lot of criticism
from eminent IP experts and scholars, most of which is very constructive, has
been leveled against it from within and without the continent.
Many Africa countries
are seeking to harness and promote innovation and creativity to foster economic
growth and development in a quest to find solutions to a myriad of pressing
public policy challenges. In this context, intellectual property as a
discipline has assumed a growing importance in recent years while at the same
time, it continues to be profoundly a contentious topic particularly in
relation to issues such as promoting creativity in the digital environment,
food security, climate change, access to affordable medicines and, more
broadly, access to knowledge. African countries have been very vocal and also
at the forefront of the global debates to achieve more balanced intellectual
property system that is mindful of the aforementioned issues especially at the
World Trade Organisation as well as within the framework of the activities of
the World Intellectual Property Organisation.
While others have
cautioned against heavy handedly criticizing the idea of having such a
continental body in Africa before it comes into life, other scholars have
rightly pointed out that the scope of the language of the Statute itself causes
a lot of discomfort as it gives a wrong perception about the role of the IP
system in socio-economic development. A
cursory reading of the provisions of the draft Statute from the very outset
shows some serious deficiencies which Member States should reconsider before a
final decision to adopt the Statute is made. On the face of it, the draft
statute extols intellectual property as a panacea that will cure all the
economic and social woes and bring about economic progress and development on
the continent. This view is predicated
on the orthodox premise that intellectual property is an end in itself and not
a means that can be employed to achieve the ultimate end result, namely
economic progress on the continent. This is particularly evident from the
objectives as outlined in Article 5 as read with the opening provisions of the Preamble of the Draft Statute
As has been laconically observed by one IP scholar, Caroline
Ncube in her article “Piping up on PAIPO”, such a view is now out of sync with
the current realities since it reverberates the old, trite and banal statements
from industrialized nations about intellectual property as a tool for socio
economic development without providing a nuanced and balanced approach on how
IP rights should be integrated in the socio-economic set up of African
countries to achieve such economic progress. The scholar also rightly
questioned the meaning of an “effective intellectual property system” as
provided in opening paragraph of the Preamble of the PAIPO Statute. While this
can be understood to mean striking a right balance between rights of owners of
IP assets and those of the users as espoused, for example, in the Article 7 of
the TRIPS Agreement, this should have been expressly stated in the Preamble. In
its current form such a balance between the rights of owners of intellectual
property system and the rights of users is conspicuous by its absence which has
led many scholars like Professor Booker to conclude that the draft Statute
seems to lean in favour of rights holders much to the detriment of users of the
IP system. Such an interpretation is even supported by the view that the draft
statute seems to be more focused on a strong protection and enforcement regime
for intellectual property rights, which again in my view is a wrong perception
that is not supported by any empirical evidence the world over.
It must be underscored
that different countries have different conditions that require different
approaches to the utilization of intellectual property assets for economic
progress to be achieved. The one size fits all approach which the AU seems to
be advocating is out of sync with the modern realities the world over. One
country may need a strong IP protection regime which might not necessarily be
applicable to another country, hence, every country must have to decide a
proper regime that will be relevant and suitable to its own national
circumstances. The short of this is that the whole draft statute negates the
view that intellectual property is only a means that can be used together with
other approaches to aid socio-economic development in African countries rather
than the view that prescribe intellectual property as a hallmark to address
Africa’s economic challenges. Advancements of economic growth and development
using the IP regime requires a consciously planned effort on how to integrate
the IP assets into other development plans of any given country as informed by
national circumstances.
It is very unfortunate
that the framers of the Draft Statute failed to draw inspiration from the
grounded activities of the African Group for WIPO Issues as well as the
founding principles guiding the Development Agenda Group and the Like Minded
Countries Group in their rich negotiations and discussions within the framework
of the activities of the World Intellectual Property Organisation (WIPO) in
Geneva. These regional groupings have
been diligently pushing to integrate IP issues into mainstream development
mainly for the benefit of Member countries particularly the developing and
Least Developing Countries. These groups have also come to the realization that
intellectual property rights are not absolute in nature and also that they are
not an end in themself but rather qualified rights which can be derogated from
for public interest reasons and that they too are a means that can be employed
for the public good. This is quite evident from the current debates within the
WIPO Standing Committee on Copyright and Related Rights where proposals for
draft legal instruments to allow limitations and exceptions to copyright for
various public interest objectives are now at an advanced stage. Yet the draft
statute of PAIPO seems to maintain that IP rights are absolute in nature. This
of course will undermine the efforts of African States at the WIPO to fight for
the rights of users of the IP system as well as the gains achieved through the
flexibilities available to Member States under the TRIPS Agreement as clarified
by the Doha Declaration for Public Health.
It cannot be assailed
that the Preamble language of the Statute is rather very limiting in scope as
it appears that the main consideration is to combat piracy and counterfeiting
only as espoused in paragraph 7. The
failure by the AU draft PAIPO Statute to make reference to the WIPO Development
Agenda in any of its provisions is a serious drawback especially when such an
Organ is being established to create a robust IP system for the African
Continent. It should not be emphasized that African countries including many
other developing countries and Least Developed Countries from across the globe
worked tirelessly to mainstream the Development Agenda into the framework of the
WIPO activities leading to the adoption of the WIPO Development Agenda in 2007.
The WIPO Development Agenda is a set of 45 recommendations that
are aimed at integrating intellectual property in development activities for
the benefit of Member countries. Quite surprisingly, the draft PAIPO Statute’s
graveyard silence on this aspect leaves one wondering whether a proper
groundwork was really done before this Draft Statute was drawn up. Surely, any
progressive agenda on the continent for the utilization of intellectual
property as one of the means to promote socio-economic development should have
made allusions to this WIPO Development Agenda which has brought a paradigm
shift in the way intellectual property is now viewed the world over. Such a
paradigm shift was ably expressed by the Development Agenda Group (DAG) at its
inception. DAG put it thus, ‘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’
Africa is faced with so many challenges which have contributed
to slow developmental progress on all fronts of the country economies. Such
challenges inter alia include the high incidence of HIV and AIDS and as well as
many other epidemics like tropical diseases as well as challenges of access to
education and educational materials, poverty and high unemployment levels.
These are issues of public interest which any forward looking policies should
take into consideration. The draft PAIPO Statute as a policy instrument does
not expressly outline these public interest considerations which has led
scholars like Professor Brook Baker to question among other issues how, such a
proposal will be consistent with Member States’ human rights obligations to
progressively realize the right to health, including access to medicines;
access to educational resources; climate control/mitigation and green
technologies, and other public goods.
As such the draft PAIPO Statute is not grounded on the
challenges particularly facing Africa at large hence it will be difficult to
understand what really inspired those who are behind it. Such lack of focus is
quite evident when one mirrors the PAIPO Objectives versus the provisions of,
say for example, the TRIPS Agreement particularly Articles 7 and 8 which
outlines the objectives and principles that inspired the birth of the WTO
Agreement on the Trade Related Aspects on Intellectual Property. Articles 7 and
8 of the TRIPS Agreement provide express recognition for policy objectives that
are fundamental to international intellectual property protection. Not only do
they identify the goals of technological innovation and dissemination, but they
also acknowledge the wider public interest agenda behind the TRIPS Agreement.
Paradoxically, the African countries have consistently
criticized the harmonization agenda of intellectual property laws at WIPO (see
for instance the discussions within the Standing Committee on Geographical
Indications, Trademarks and Industrial Designs (SCT) as well as those within
the Standing Committee on the Law of Patents) yet the draft statute
establishing PAIPO in its preamble talks of the need to harmonise intellectual
property legislation throughout Africa. This is apparent contradiction of
policy positions especially at such an international level leaves a lot to be
desired. This has led critics to argue that there is a lot of policy
inconsistency and coherence at the African Union. Such a shift in policy at AU
is very much detrimental to the many rich deliberations by the African Group at
the WIPO where African States are pretty much antagonistic to the harmonization
agenda for the acceptable reason that different countries are at different
levels of development hence the harmonization of IP laws could be prejudicial
to some Member States.
There have also been
criticism especially from the civil society organization and academics alike
that the whole process from the mooting of the PAIPO idea to the decision by
Heads of States and Governments to establish such an entity to the coming up
with the draft statute have been marred in obscurity and without much
transparency. Such criticism is now without merit. Caroline Ncube, for
instance, argued that, since news came to light that AU was putting forward the
idea of having an IP continental body, the whole process has not been open for
public participation and civil society and academics were not even consulted.
She further pointed out that this is ironic since the African countries have
been quite vocal at criticizing WIPO for being not transparent in the way it
carries out its technical cooperation activities yet the continent also is
guilty in the way it is handling the PAIPO issue. It is therefore prudent that
the adoption of the draft statute by AU member States be delayed to allow for
further consultations and deliberations in order to come up with a document
that is well informed and very objective in character if African countries are
to benefit from the proposed activities of the yet to be born entity.
In short, it must be underlined that the AU needs to go back to
the drawing board and review the whole draft statute for it to be imbued with
grounded perspectives that are critical for the economic progress and
well-being of the continent. The above exposition has shown some of the
inadequacies in the draft statute which needs to be corrected before the
proposed entity come into operation. There is need for an inclusive approach
which will see the participation of the African academia and civil society
organization. There is also need for clarification of the fate of regional
organisations such as the African Regional Intellectual Property Organisation
(ARIPO) and the African Intellectual Property Organisation (OAPI) once the
proposed continental body becomes operational. How will the continental body
relate to these two regional organisations? What benefit will the proposed body
bring to Africa which the WIPO is currently failing to provide? What is the
fact of the flexibilities African states are enjoying under the WTO TRIPS
Agreement? What is the fate of the current discussions and push for limitations
and exceptions to IP rights by African States at WIPO? How will the proposal
help Africa in achieving its MDGs targets including the fulfillment of the
Abuja Declaration for Public Health? All these questions need clarification
before a decision to adopt PAIPO is taken. It must also be highlighted that the
African Union should understand the realities obtaining its Member States. Not
all countries have IP offices under the Ministries of Science and Technology.
For example in Zimbabwe, all IP activities fall under the Ministry of Justice,
yet the AU has invited the Ministries of Science and technology to its meeting
slated for 6-12 November 2012.
In conclusion, it must be highlighted that the call for the
establishment of PAIPO under the auspices of the provisions of the current
draft Statute is very misguided as it is not informed by the current realities
obtaining in Africa. African countries rather need to pursue some grounded
perspectives that will inform how intellectual property can be harnessed and
integrated into the national processes to achieve economic growth and
sustainable development on the continent. Such aspirations for economic growth
and development cannot be achieved if PAIPO is adopted in its current form. The
criticisms leveled against the PAIPO draft statute is a wake-up call for Africa
countries to adopt and embrace plans and policies that are born out of concrete
and grounded research perspectives rather than to uncritically absorb the
received wisdom especially from those continents that have, since time
immemorial, never wished Africa well in
its quest for development.
