Tuesday, 11 March 2014

African Union Pan-African Intellectual Property Organisation needs reexamination before adoption by Member States

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.