The proposed AfCFTA Protocol on Intellectual Property Rights
The AfCFTA Protocol on Intellectual Property Rights (IPR) will be negotiated during Phase II. The draft legal text has to be submitted to the January 2021 Session of the AU Assembly for adoption. This process must include a continent-wide overview of the current manner in which IPR is being addressed, and what cooperation in the field of IPR means.
The negotiators would benefit from the work previously done by the African Regional Economic Communities (the RECs) and by dedicated African organisations dealing with IPR. There is an opportunity now to develop a systematic and comprehensive approach for blending IPR issues into the fabric of the AfCFTA agenda. IPR has not been a priority concern of African regional integration initiatives before.
How could the AfCFTA IPR Protocol contribute to the aims of the AfCFTA, which are about boosting intra-African trade? What is the significance of the fact that Article 4 of the AfCFTA Agreement says that for the purposes of fulfilling and realising the objectives of the AfCFTA the State Parties shall cooperate on investment, intellectual property rights and competition policy? The proposed IPR Protocol should answer these questions in a comprehensive manner. “Cooperation” in these disciplines should not be relegated to an inferior set of undertakings. The basic objective of the AfCFTA is to create a single market for goods, services, facilitated by movement of persons in order to deepen the economic integration of the African continent. The effective protection and promotion of IPR are part of this agenda.
International trade is about much more that moving goods across borders. Innovation, creativity and branding represent a large amount of the value that changes hands in international trade. Trade policy should enhance this value and facilitate the flow of knowledge-rich goods and services across Africa’s (and other) borders. It has been said that the AfCFTA will promote innovation and enterprise through the protection of the intellectual property rights of African entrepreneurs. A strong IPR regime also protects consumers, encourages innovation, rewards entrepreneurs and attracts investment.
Africa and developing countries have, for some time, expressed concerns about certain aspects of the global protection of IPR. One such concern is about access to essential medicines. The Doha Declaration sought to clarify this aspect but more needs to be done. Africa should be able to speak with one voice on these matters. The AfCFTA Protocol on IPR provides an opportunity to articulate that voice and to provide it with a suitable platform.
What follows hereunder is a non-exhaustive list of the issues which the proposed Protocol could deal with:
A comprehensive review should investigate new developments such as trade mark registrations for services, new types of IPR gaining prominence as a result of technological developments, relevant rulings, and further developments in relation to the existing international agreements. This could lead to the adoption of new undertakings.
Supporting the objectives of the two existing African intellectual property organisations, namely OAPI (Organisation Africaine de la Propriete Intelluelle) and ARIPO (African Regional Intellectual Property Organisation) and advancing their work. This could include support for their current initiatives to cooperate, as well as extending their membership to include all African countries.
Another aim could be to develop a unified approach with regard to IPR matters in Africa. The present state of affairs is characterized by some degree of fragmentation. This undermines the use of scarce resources and of legal certainty.
Consider the appropriate and preferred role of regional registration systems such as those developed by OAPI and ARIPO. A consistent approach to these systems, coupled with support for effective implementation, could be of considerable benefit.
Cooperation and technical assistance on compliance with the major global intellectual property agreements, such as the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), the instruments of the World Intellectual Property Organisation (WIPO), the Paris Union, the Berne Convention and others, will benefit from joint action. Consistent compliance can play a significant role in effectively harmonising IPR regimes in Africa and removing administrative obstacles to the use and enforcement of IPR.
Consider the appropriate role of international registration systems such as the Patent Co-operation Treaty (PCT), the Hague System regarding registration of designs, and the Madrid Protocol regarding the international registration of trade marks. Agreement on a consistent approach in using these systems could benefit the use and protection of IPR in Africa.
Cooperation in the fight against the production of and the trade in counterfeited and pirated goods in Africa should be included, as it is in the IPR instruments of the RECs. The Phase II negotiations offer an opportunity to consider whether the AfCFTA can advance cooperation to a higher level.
More comprehensive utilization of the flexibilities provided in IPR arrangements (such as the Doha Declaration on the TRIPS Agreement on Public Health) to improve access to medicines is of particular importance to Africa. The negotiators may want to consider enhanced cooperation and technical assistance. A 2005 report by the Word Health Organisation has found that many developing countries have not incorporated TRIPS flexibilities (compulsory licensing, parallel importation, limits on data protection, use of broad research and other exceptions to patentability, etc.) into their legislation to the extent authorized under Doha.
Other areas to be considered are traditional knowledge, genetic resources and folklore. A range of initiatives have been taken or are considered. The AfCFTA negotiations on IPR present an opportunity to review the progress made and to consider the next steps. These are areas where Africa could play a leadership role.
Several African governments are considering legislative initiatives on even more novel and progressive issues such as reasonable access to IPR, equitable compensation for owners of IPR rights, and rights held by communities. The AfCFTA IPR negotiators may want to consider the implications.
 Art 3 AfCFTA Agreement.
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