DEVELOPMENTS IN INTELLECTUAL PROPERTY IN AFRICA

Adebambo Adewopo[(]

INTRODUCTION

Current developments in the global economy have brought about the ascendancy of intellectual property (IP). The brick-and-mortar economy is being replaced with that of ideas in which intellectual property (IP) has become one of the major currencies. In the new global economy, wealth is generated through creating and harnessing the value of knowledge[1]. This is the concept of creative enterprise crystallised in the ‘harvesting of ideas and innovation.’ Throughout the history of human civilisation, both material and intangible assets have always formed the constituent of wealth. Today, however, knowledge forms the greater part of the new wealth[2]. Consequently, intellectual property rights, the results of the industry of innovation have continued to play a leading role in the wealth of nations. Intellectual property (IP) rights have continued to play a leading role in the development of most countries and regions of the world. Europe and North America have fully apprehended the dynamics of intellectual property and inexorably driving developments in the global and international arena. Other regions like South America and Asia are responding in measured steps that underscores the role of intellectual property in the current pursuit of national, regional and international initiatives. Consequently, different nations have standards of protection of intellectual property. The recent trend of globalisation strengthened by several multilateral and regional treaties further creates some international minimum standard for intellectual property protection. In Africa, intellectual property issues are assuming central stage in discussions on development of the continent.

However, before the advent of modern intellectual property the recognition of proprietary rights in intangibles in many African communities is not entirely new[3]. In Nigeria for example, earlier proprietary rights in intangibles vest exclusively in groups such as families, clans, age or sex group, cults, professional guilds, or individuals such as particular elders, chiefs or kings. The enforcement of these rights was based on magical or religious beliefs, or punishments administered by the groups[4]. In the present day Africa, one of the policies of development adopted by African Union under the New Partnership for Africa’s Development[5] was the establishment and strengthening of a common market for Africa. If the common market is about the removal of barriers to the free movement of goods and services, then intellectual property laws play a key role.

The existing platforms for IP administration in the African region are two major regional bodies the African Intellectual Property Organisation (AIPO) and the African Regional Industrial Property Organisation (ARIPO). This paper will review the operation of these bodies; examine their contribution to the development of IP in Africa and areas of possible improvement and reform for a more effective IP administration in Africa.

AFRICAN REGIONAL INTELLECTUAL PROPERTY ORGANISATION (ARIPO)

ARIPO was established following the request of English speaking African Countries for assistance in pooling resources together toward creating a regional body responsible for industrial property. The process started from 1973 when the United Nations Economic Commission for Africa (UNECA) and World Intellectual Property Organisation (WIPO) held meetings at UNECA headquarters in Addis Ababa and in Geneva leading to a draft agreement on the creation of the Industrial Property Organisation for English-speaking Africa Countries (ESARIPO). This document known as the Lusaka Agreement was adopted at a Diplomatic Conference in Lusaka, Zambia on December 9, 1976.In December 1985, the Lusaka Agreement was amended in order to open up the membership of the organisation to all African countries who are members of the United Nations Economic Commission for Africa or members of the then Organisation of African Unity (OAU) now African Union (AU). The name was also changed to African Regional Industrial Property Organisation (ARIPO) to reflect the new African outlook. ARIPO presently has a membership of sixteen nations including Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe with its headquarters in Harare, Zimbabwe.

OBJECTIVES OF ARIPO

ARIPO was initially created mainly to pool the resources of its member countries in industrial property matters together in order to avoid duplication of financial and human resources. The objectives have however continued to expand with the review to the protocols since its inception[6]. Its objectives however include

1. To promote the harmonisation and development of the intellectual property laws, and matters related thereto, appropriate to the needs of its members and of the region as a whole.

2. To foster the establishment of a close relationship between its members in matters relating to intellectual property.

3. To establish such common services or organs as may be necessary or desirable for the co-ordination, harmonisation and development of the intellectual property activities affecting its members.

4. To establish schemes for the training of staff in the administration of intellectual property laws.

5. To organise conferences, seminars and other meetings on intellectual property matters.

6. To promote the exchange of ideas and experience, research and studies relating to intellectual property matters.

7. To promote and evolve the common view and approach of its members on intellectual property matters.

8. To assist its members as appropriate in the acquisition and development of technology relating to intellectual property matters.

9. To promote in its members the development of copyright and related rights and ensure that copyright and related rights contribute to the economic, social and cultural development of members and of the region as a whole.

ORGANS OF ARIPO

Some of the important organs of the organisation include:

a. The Council of Ministers who are in charge of the governance of the organisation. They are composed of ministers of the Government of member states of the organisation who are responsible for the administration of industrial property. The council is the supreme organ of the organisation and is responsible for policy issues and solving problems, which because of their nature cannot be resolved by the administrative council.

b. The Administrative Council that is surbodinate to the council of Ministers is responsible for the formulation and execution of the organisation’s policy, the approval of the programs of activities and budget as well as the appointment of its Director General. The council is composed of heads of intellectual property offices of member states.

c. The Secretariat headed by the Director General who is the Principal Executive Officer of the Organisation. They are responsible for implementation of the programs of the Organisation.

d. The Board of Appeal established by the administrative council to hear appeal against administrative decisions of the organisation under both the Harare and Banjul protocol as well as any other protocol that may be adopted by the organisation.

e. The Finance Committee also established by the Administrative Council assists the secretariat in preparing of budget of the organisation for consideration of the Administrative council.

HARARE PROTOCOLS

On 10th December 1982, the Administrative Council of ARIPO adopted the protocol on Patents and Industrial Design otherwise called the Harare Protocol. The Protocol empowered ARIPO to grant patents and to register utility models and industrial designs and to administer such patents, utility models and industrial designs on behalf of Contracting States[7]. Application for the grant of patent or the registration of utility models and industrial designs shall be filed with the ARIPO Office (otherwise called the Office) or where the law of the contracting State so permit, in the industrial property Office of a Contracting State[8]. An application filed with the Industrial Property Office of a Contracting State shall have same effect as if it had been filed on the same date at the Office[9]. Where the application is filed with the industrial property office of a Contracting State, such State shall within one month of receiving the application, transmit that application to the office[10]. Upon receipt of application the office shall examine whether the formal requirements of applications have been complied with and if it has been complied with shall accord the appropriate filing date to the application[11]. The office shall notify each designated State of the fact that a patent application has been filed which complies with the prescribed form[12] and undertake or arrange for the substantive examination of the application[13]. If the application is refused, the applicant may request the office to reconsider the matter within a given period[14] and if the office still refuses to register thereafter, the applicant may lodge an appeal against the decision of the Office to the Board of Appeal. Before, the expiration of six months from the date of notification, each designated State may inform ARIPO in writing that a patent granted by it shall have no effect in its territory because it considers the invention not patentable in accordance with the provisions of the protocol or because of the nature of the invention, a patent cannot be registered or granted or has no effect under the national law of that state[15]. A patent is granted and published after the expiration of six-month from the notification of a successful substantive examination and it shall have effect in those designated States, which have not declared that the patent shall not apply in their territory. Where the Office refuses to register a patent notwithstanding the applicants request for reconsideration, the applicant may within three months of being notified of such refusal, request that his application be treated in any designated State as an application according to the national law of that State.

The Protocol further provided that where there is an international application affecting a Contracting State which is also bound by Patent Cooperation Treaty (PCT) and designated for the purpose of obtaining patent under the provision of this protocol, such application shall be considered an application under this protocol. The provision of the Patent Cooperation Treaty shall have effect to the application in addition to the provision to the Protocol but in case of conflict of regulations between the two, provisions of the Patent Cooperation Treaty will prevail. The Office will serve as a receiving Office under article 2(xv) of the PCT in relation to international application filed by applicants resident or national of a Contracting State. It will also serve as designated or elected office of the PCT in relation to an international application.

BANJUL PROTOCOL

The Administrative Council on November 19, 1993 adopted a protocol on Marks at Banjul, The Gambia, called the Banjul Protocol. The Protocol established a filing system similar to the Harare Protocol. Under the Banjul Protocol, an applicant may file a single application either at one of the Contracting States or directly with the Office and designate states in the application where he wishes his mark to be protected[16]. The Contracting State or the Office shall examine whether the formal requirement has been complied with. If the Office considers that the application complies with formal requirement, it shall so inform the designated States which, shall then proceed to examine the application in accordance with their national Laws. Before the expiration of twelve months from the period of notification of the success of the formal examination, each of the designated States may declare that the registration shall have no effect on its territory because it does not comply with the procedural and substantive requirement of its laws. After the expiration of the twelve-month period, the ARIPO Office shall register the mark[17]. Every registered mark shall be protected in each designated State as if the mark had been filed with and registered in each such State[18]. Where a mark has been registered or is pending registration in a Contracting State, the applicant shall have the right to designate any other States, which becomes a party to the Protocol, subsequent to the registration or the application for registration[19].

OTHER ACTIVITIES OF ARIPO

Further to administering its Protocols, ARIPO offers other services towards advancement of intellectual property in Africa. In order to improve registration and granting procedure it initiated the Polite Projects. This is a software product funded by the European Patent Office (EPO) intended to automate the ARIPO Office procedure for administration and management of patent, trademark, industrial design and utility models. It is expected that in due course the project will network all ARIPO National Offices.

ARIPO also has in custody worldwide patent documents. Using its documentation and information retrieval system, it offers the following services

a. Novelty Searches: to determine patentability of inventions and registration of utility models and industrial designs.

b. State of art searches: to investigate existing technology in a given field of technology. These are mainly used for licensing and other negotiations.

c. Selection and dissemination of information (SDI): this is a periodic technological information delivery services offered/extended to select affirms, enterprise and institutions.

d. Validity Searches: search for validity of patent, utility models, industrial designs and trademark..

e. Similarity searches: for marks and industrial designs.

ARIPO activities have gone beyond administering mainly industrial property. In the Eight Session of her Council of Ministers held in Mangochi Malawi in August 2002, the council extended the mandate of ARIPO to include Copyright and Related Rights, Traditional Knowledge, Genetic Resources and Folklore. According to the Director General G H Sibanda, ARIPO is working on a strategic plan, which will include programmes to facilitate the compatibility of copyright management systems of her Member States with international standards and systems such as accession to WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). It is also working on access to international databases and data distribution networks such as the proposed WIPO Africa Copyright Common Network (ACCN), AFRINET and development of anti-piracy and anti-counterfeit programmes. Furthermore, it is working towards the establishment of database on public domain on traditional knowledge, development of model legislation for the protection of genetic resources, traditional knowledge and folklore, training and awareness creation especially among traditional knowledge-holders of their rights and obligations, creating an enabling environment to facilitate the promotion, development and exploitation of traditional knowledge assets and the promotion of cultural industries and recognition of their contribution to economic development at national and regional levels.