The Agreement establishing a Tripartite Free Trade Area (TFTA) among the member states of COMESA, the EAC and SADC was signed on 10 June 2015 in Egypt during the Third Tripartite Summit of Heads of State and Government. The signing of the Agreement marked the conclusion of phase I of a process that had begun in October 2008 with a meeting of the Tripartite Summit of Heads of State and Government in Kampala, Uganda. According to the Declaration Launching the Negotiations for the Establishment of the TFTA, phase II of the negotiations is meant to cover ‘the built-in agenda in services and trade-related areas’. In the Sharm El Sheikh Declaration, the third Tripartite Summit further elaborated on this mandate by directing the commencement of phase II negotiations in five areas:

• trade in services
• cooperation in trade and development
• competition policy
• intellectual property rights
• cross border investment.

This paper is concerned with the fourth of those areas. Intellectual property (IP) is a technical area that has to date received little attention in the regional integration agendas of tripartite states in spite of the fact that the world is often said to be moving from an industrial to a knowledge-based economy of which intellectual property is a critical component.

Issues concerning intellectual property, development and trade have proven to be controversial in the past due to, among other factors, the perception that strong IP laws can provide an unfair competitive advantage to certain developed countries who themselves used weak IP laws to develop economically. The territorial nature of intellectual property law, which means that every State has a right to design a legal framework appropriate to its level of development, also hinders harmonisation of IP laws. More recently, with advances in technology, issues have arisen with regard to the relationship between IP and access to medicines, IP, climate change and green technology, and IP and development. In addition, the issue of the scope of IP rights has been debated in the context of exceptions to rights under copyright law to cater for special situations such as access for visually impaired persons, educational and research institutions, and libraries and archives. All this means that the area of intellectual property is going to be a sensitive and complex issue in the context of TFTA negotiations.

The aim of this paper is to examine some of the issues related to the intellectual property track of the phase II negotiations in order to propose a few options that the member states may wish to consider as they endeavour to arrive at an outcome that will be supportive of their development objectives. The goal is therefore to explore the options available for states negotiating the TFTA so far as the development of provisions on intellectual property is concerned. In so doing it will be necessary to ask, given the differing capacities of the parties and their diverse legal frameworks, whether the provisions should focus primarily on cooperation with regard to procedural matters or whether parties should be more ambitious and aim to include more substantive, binding provisions?

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