This article is written by Jubal Raj Stephen who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
“IP is a “power tool” for economic development that is not yet being used to optimal effect in all countries, particularly in the developing world. It offers the possibility of growth and economic development in a way that is not a “zero sum game”, where if some win, others will lose.”
– Kamil Idris, Former Director-General of WIPO
Table of Contents
Introduction
Africa is set to double its population by from 1.2 billion to 2.8 billion by 2050, with over 60 percent of its population under the age of 25. This large young population and the continent’s richness in natural resources is promising of accelerated economic growth. On the other hand, it faces critical challenges such as youth unemployment and severe economic contraction due to COVID-19 Pandemic. This is evidenced by that fact that Nigeria the largest economy is projected to shrink by 3.2% and South Africa, the most industrialised by 7.1%
Previous experiences with countries like Japan, the Republic of Korea and, more recently, China, show us that having an IP system and Innovation creates opportunities for employment and economic growth. It is known that IP influences the growth of Knowledge-intensive industries as a share of GNI (Gross National Income). Thus, the growth of a robust pan-African IP regime would be essential for the transition of Africa from a natural resource exporter and manufactured goods importer to a self-sufficient high-quality manufactured goods and knowledge-services exporter.
Why Intellectual Property Rights can assist economic growth in Africa?
Agriculture is the sector employing the largest number of people in the continent, meanwhile manufacturing, the sector having the most scope to add value to raw materials only employs 6.5%. In breaking out of such unproductive allocation of labour, it is essential Africa develops a vibrant innovation ecosystem supplemented by a balanced and robust IP system.
Knowledge and exploitation of IP is particularly crucial for MSME (Micro, Small and Medium-sized Enterprises), which are the drivers of economic growth in Africa. We can see this in more than 80% of Africa’s employment, consisting of a market of about 1.8 billion being employed by the MSMEs and contribute more than 50% of the GDP of the continent. MSMEs that embrace IP perform far better in terms of growth, income, and employment.
Developing an effective IP system will play an integral role in developing a thriving innovation ecosystem. Thus, IP systems would be key in incentivising to invest in African research and development fuelling other innovations and enabling firms to commercialize and monetize their innovations and to justify and sustain R&D investments. Such investments and innovation will allow Africa to take the next step in its growth trajectory.
ARIPO, OPI and IP collaboration between African Nations
There are two regional IP systems that help coordinate IP protection and registration between multiple countries within Africa. These are namely, African Regional Intellectual Property Organization (ARIPO) and the Organisation Africaine de la Propriété Intellectuelle(OAPI) (English: African Intellectual Property Organization).
The OAPI is based on the French civil law system and involves the 17 member nations who were former French colonies, with its head office in Cameroon. The OAPI system involves the states replacing their internal patent and trademark law with the OAPI registration providing de jure protection in all its 17 member states. Though the registration made through OAPI is effective in protecting member countries, as its ascension to the Madrid Protocol is doubtful thus it is preferred to protect Trademarks in OAPI countries to file a direct application to OAPI than file an International Registration designating OAPI.
ARIPO is based on the English common law system and most of its members were former British colonies. It has four different protocols: Harare Protocol on Patents and Industrial Designs; Swakopmund Protocol on the Protection of Traditional Knowledge; Arusha Protocol for the protection of New Variety Plants; the Banjul Protocol on trademarks. 19 countries have joined for Patents and 10 countries have joined for Trademarks.
Unlike the OAPI the members of ARIPO still retain their local IP laws, with the ARIPO system playing a role like that of the Madrid Protocol, allowing applicants to make a single application to obtain a bundle of national registrations. Many of the countries within the ARIPO have yet to ratify all the protocols and even if they have, they might not have been implemented in the national laws. Thus, for to have the strongest protection it might be necessary to make individual national applications.
African Continental Free Trade Area (AfCFTA) and IP
The African Continental Free Trade Area agreement is a long-time ambitious free trade agreement consisting of a market comprising 1.3 billion people across Africa and a combined GDP of $3.4 trillion. This agreement came into effect on the 1st of January 2021. Declared as the “hope for Africa to be lifted out of poverty” by the General-Secretary of AfCFTA it is expected to boost intra-African trade, promote industrialization, create jobs, and improve the competitiveness of African firms in the global stage.
In Phase II, negotiations are yet to happen according to Article 4 of the agreement the countries have agreed for more cooperation with respect to Intellectual Property Rights, recognizing the importance of IPR for the efficient functioning of a free trade agreement. The future negotiations will result in a protocol on Intellectual Property Rights attached to the Agreement, it has the potential to promote growth in the pan-African MSME sector, bring uniformity to laws concerning exhaustion of IP rights and eventually support protection of Traditional Knowledge, Geographical Indication and Traditional Cultural Expressions. The Draft protocol released in 2020 which in Part II addresses “regional trade and norm-setting, including articles on exhaustion of rights; traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs); geographical indications and the protection of plant varieties “
Role IP in attracting foreign Investment
Recent statistics from Johns Hopkins University SAIS China-Africa Research Initiative show that Chinese companies have substantially increased their investments in recent years to even beat the US in the foreign direct investment. shows that this investment is concentrated in construction (28%); mining (25%) and manufacturing (13%), scientific research and technological service (5%) especially in countries such as Mozambique, Zambia, Ethiopia, South Africa, and the Democratic Republic of Congo.
There has also been a trend of filing patent applications originating in China Mainland before African countries and in the regional Patent Offices, ARIPO and OAPI. The Total Patent Applications (direct and PCT national phase entries) from WIPO statistics show a massive predominance of Chinese patent applications in South Africa (2540 patent documents), followed by patent applications in Egypt (278), ARIPO (227), OAPI (168), Morocco (149), Algeria (69) and Kenya (12).
The increased investment and the increased IP activity exemplified China’s activities are not conclusive enough to determine the long-term effect of having a robust IP system in Africa. For the dream of IP to take root in Africa, the IP must be enforced in the courts and the value of Investments must be worth investing litigation. Currently, the lack of IP litigation is incentivizing players to settle outside the court, only when the value of Investment in Africa grows can the growth of IP jurisprudence also take place.
Importance of Geographical Indicators and Traditional Knowledge Protection in Africa
A geographical indication (GI) is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to that place of origin. Under the TRIPS agreement countries are free to formulate their own form of protections for GI, some countries like Kenya & South Africa have resorted to their trademark legislation to protect GI, while countries such as Morocco and Uganda. Given agriculture being the largest sector in Africa, such GI protection is essential for Africa as often African agricultural products have unique properties based on their location of production.
Examples of such GI include Guinean and Ethiopian coffees, Cameroonian honey and pepper, Mozambican goat meat, and Kenyan tea. In terms of protection African GI, the EU is in the lead, while other Lisbon treaty countries seem to be in second place. While China has invested heavily in Africa is recalcitrant in protecting African GI. GI plays a vital role in African economies as they allow exported goods to increase in value without having to increase the volume of exports. The exploitation of GIs said to benefit women and the youth the most.
The importance of GIs to the African continent cannot be underestimated as seen from the African Union (AU is a continental organization consisting of all the UN countries in Africa) which released a continental strategy for GIs where it stated, “In African countries, GIs can be used as a tool for the organization and promotion of agricultural value chains. They can create incomes for farmers and other stakeholders in the value chain, such as small processing units and petty traders, and therefore help them to face food lean periods and food and nutrition insecurity.”
Traditional Knowledge (TK) is, in according to WIPO means, “a living body of knowledge passed on from generation to generation within a community.” It refers specifically to the know-how, skills and practices that form a part of the intergenerational cultural identity of the community.
Few examples of Traditional Knowledge in Africa:
- The rotational farming system used in Tanzania where ingeniously farmers use several pits surrounded by four ridges on steep slopes to plant cereals on a rotational basis. As it starts to rain, the pits act as a reservoir preventing the destruction of the planted cereals on the slopes.
- Kenyan indigenous people have been successful throughout the years, managing the risks and impacts of natural variability and extreme weather, through a method of growing traditional crop varieties over a single high-yield mono-cropping system.
- In Bushbuckridge, South Africa many traditional healers who provide primary healthcare services for people in this region and have had the knowledge on diverse types of local medicinal plants, which they use and develop.
While TK does not have any explicit positive protection, it is slowly becoming a reality globally and particularly in the African Continent. South Africa and ARIPO have taken the lead in formulating pan-African TK protection policies through sui generis means. The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore within the Framework of the ARIPO was adopted by the Diplomatic Conference of ARIPO at Swakopmund (Namibia) on August 9, 2010 and amended on December 6, 2016.
Currently, the Protocol has the following states as its adherents: Botswana, Gambia, Liberia, Malawi, Namibia, Rwanda, Zambia, and Zimbabwe. The protocol defines TK as: “any knowledge originating from a local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community, or contained in the codified knowledge systems passed on from one generation to another. The term shall not be limited to a specific technical field, and may include agricultural, environmental or medical knowledge, and knowledge associated with genetic resources.” The sui generis protection provided to Traditional Knowledge is like copyright in the sense that it does not require registration and is not subject to any formality.
Section 5.1 of the Swakopmund Protocol confers on the owners the exclusive right to authorize the exploitation of the traditional knowledge and allowing the owner to without prior consent. The same concept of Prior Informed Consent (PIC) is also reflected under Article 8.1 of the draft IP protocol of the AfCFTA agreement.
Exploring Nigeria as a Model country for potential IP driven growth
Nigeria is a notable example of a country which could experience economic growth through use of Intellectual Property systems while being the largest economy in Africa it has not joined any of the regional IP organisations. (ARIPO or OAPI) nor has it gone a long way in implementing International IP treaties as required by its constitution to make it effective.
Nigeria is currently facing following changes with respect to supporting IPR to enable economic growth: Extensive acts of Piracy that destroys the incentive to invest and participate in the creative and artistic enterprise, this is especially important as its film industry (Nollywood) is the second largest revenue generator. Nigeria is also being weighed by outdated IP laws that had inherited British which have not been updated, with its Patent, Trademark and Design registries facing administrative bottlenecks such as lack of funding, space, and well-trained personnel.
Nigeria can move forward in tackling the IP challenges it faces by taking simple yet effective steps towards modernizing its IP system; It could protect sound and smell marks, ratify the International IP treaties by incorporating it in its national laws, modernization and digitization of its IP infrastructure, training of lawyers, regulatory bodies, and judges so to promote the growth of IP jurisprudence and increase IP sensitization among its general populace. Such reforms could bolster economic growth in Nigeria through technology transfer agreements and direct investments Nigerian tech start-ups. This hope on IP is supported by the WIPO opening its second African office in Nigeria with 1.6 million swiss francs being invested in the same.
Conclusion
The key factors driving the growth in Intellectual Property in Africa include:
Substantial health care investments across Africa. “Mega Projects based on the discovery of oil and gas reserves along the east and west African coasts. The fastest-growing middle class in the world, having tripled over the last 30 years has placed African Countries among 7 of the 10 fastest-growing middle classes. African middle class is now projected to grow to 1.1-billion (42%) by 2060. Technology and rising productivity provide opportunities for early adoption of innovative technologies, avoiding investment in older technologies. Such technological growth is followed by substantial investment in clean technology infrastructure projects, with solar power projects leading the way in South Africa, Egypt, and Kenya.
To know that IP is driving growth in such sectors in Africa reminds us that IP can truly be forced for good in Africa, from unlocking its traditional knowledge to promoting advanced technological research. We can now say with much certainty investing in IP in Africa would provide a multi-fold return on investment.
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