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 knowledge1. 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 wealth2. 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
new3. 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

LL.M (Lagos), LL.M-IP (Piercelaw USA), Barrister-At-Law (Nigeria), Senior Lecturer, Faculty of Law,
Lagos State University. Currently The Director General, Nigerian Copyright Commission.
1
See generally William Cornish, Intellectual Property Omnipresent Distracting Irrelevant? Clarenton Law
Lectures, Oxford University Press London; 2004 at page 45 where the learned author refers to IP as now a
‘convenient genus’
2
Dr. Kamil Idris ‘Intellectual Property A Power Tool For Economic Growth’ WIPO publication No 888 at page
55
3
This has been suggested by Richard, WA in ‘The importation of firearm into West Africa in the eighteenth
century’, Journal of African History XXI (1980) p.43
punishments administered by the groups4. In the present day Africa, one of the
policies of development adopted by African Union under the New Partnership
for Africa’s Development5 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
ORGANISATION (ARIPO)
INTELLECTUAL
PROPERTY
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.
Bankole Sodipo ‘Intelectual Property and Development’ being a paper delivered at the conference marking the
African Day for technology and Intellectual Property on Wednesday September 13, 2000 in Abuja Nigeria p3,
Unpublished.
5
The 37th Summit of the Organisation of African Unity (OAU) held in July 2001 in Lusaka, Zambia adopted the
Strategic Policy Framework and a new vision for the revival and development of Africa through its declaration o
the New African Initiative called the New Partnership for Africa’s Development (NEPAD)
4
2
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 inception6. 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
6
The objectives of the organisation are provided in Article 3 of the Harare Agreement. These objectives
expanded with the amendments to the Harare Protocol of 1987, 1994, 1997, 1998 1999, and 2001; the
amendment to Banjul Protocols in 1997, 1998 and 1999; and the expansion to the mandate of the organisation
during the eight session of her Council of Ministers held in Mangochi Malawi from 20-29 August 2002 to
include Copyright, Traditional Knowledge, Genetic Resources and Folklore.
3
b.
c.
d.
e.
the organisation and is responsible for policy issues and solving
problems, which because of their nature cannot be resolved by the
administrative council.
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.
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.
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.
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 States7. 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
State8. 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
Office9. 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 office10. 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 application11. The office shall notify each
designated State of the fact that a patent application has been filed which
7
Section 1 of Harare Protocol
Ibid Section 2
9
Ibid Section 2(2)
10
Ibid Section 2(3)
11
Ibid Section 3(2)
8
4
complies with the prescribed form12 and undertake or arrange for the substantive
examination of the application13. If the application is refused, the applicant may
request the office to reconsider the matter within a given period14 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
state15. 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 protected16. The Contracting State or
the Office shall examine whether the formal requirement has been complied
12
Ibid Section 3(2)©
Ibid Section 3(3)
14
Ibid Section 3(4)
15
Ibid Section 3(6)
16
Section 2 of the Banjul Protocol
13
5
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 mark17. Every
registered mark shall be protected in each designated State as if the mark had
been filed with and registered in each such State18. 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 registration19.
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
17
Ibid Section 6
Ibid Section 8 (1)
19
Ibid Section 9 (1). Such later designation shall be deemed an application for registration of ark in that State
and be subject to examination under the national laws of that State. The filing date in that State shall be the date
on which the application for later designation is received.
18
6
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.
ORGANISATION AFRICAINE DE LA PROPRIETE (OAPI)
Up till 1962, French Laws governed patent rights in majority of the francophone
Member States of OAPI. The French National Patent Rights Institute (INPI)
was the National Authority of each of these States. On becoming independent
most of these States felt the need for a common body for their territory with
regard to conventions on patent rights20. French speaking African countries in
collaboration with INPI consequently established the African and Malagasy
Office of Industrial Property under the 1962 Libreville Agreement21. At a
revision conference in Bangui, Central African Republic on March 2, 1977 the
present OAPI was created in what is now known as the Bangul Agreement. This
agreement was further amended in February 1999 with the headquarters of
OAPI in Yaounde, Cameroon22. These Laws were modelled after the French
Laws of 1844, 1857 and 1909.
OBJECTIVES OF OAPI
20
Or The African Intellectual Property Organisation
This was signed between twelve African countries including Camerron,Central African Republic, Republic of
Congo, Cote d’Ivoire, Benin, Burkina Faso, Gabon, Mauritania, Senegal, Chad, Malagasy and Niger.
22
This treaty was signed by fifteen countries consisting all the countries in the Libreville agreement except
Malagasy and including Republic of Guinea, Togo, Guinea-Bissau and Mali
21
7
The Bangui agreement gave the following responsibilities to OAPI
1. To implement and apply common administrative procedure deriving from
a uniform system for the protection of industrial property as well as the
provision of international agreements in this field to which the Member
States of the organisation have acceded and providing services related to
industrial property.
2. To contribute to the promotion of the protection of literary and artistic
property as an expression of cultural and social values.
3. To encourage the creation of associations of national authors in those
Member States where such bodies does not exit.
4. To centralise, coordinate and disseminate information of all kinds relating
to the protection of literary and artistic property and communicating that
information to any state party to the agreement that request for it.
5. To promote the economic development of Member States notably by
means of effective protection of Intellectual Property and related rights
6. To provide intellectual property training.
7. To undertake any other assignment connected with its objective that
might be entrusted to it by the Member States.
ORGANS OF OAPI
They have three principal organs namely:
The Administrative Council: consisting of representative of OAPI Member
States. There functions include drawing up regulation for the implementation
of the agreement, establishing the financial regulations and the fees to be
paid, supervising the implementation of the regulation and creating ad hoc
committees on specific issues. They are also to draw up appropriate
regulations for the implementation of six international treaties and
agreements, which all the Member States has agreed to enter under the
Agreements23.
The High Commission of Appeal: composed of three members selected by
drawing lots from a list of representatives designated by Member States.
There functions include to rule on appeal from rejections of applications for
titles of industrial property protection, rejections of request for the
maintenance or extension of terms of protection, rejection of requests for
reinstatement and decisions on opposition
The Directorate General: shall be placed under the authority of the Director
General and responsible for the executive work of the organisation. It is
23
The treaties are the Patent Co-Operation treaty; the Trademark Registration Treaty; the Hague Agreement
Concerning the International Deposit of Industrial Designs; the Lisbon Agreement for the Protection of
Appellations of Origin and their International registration; the International Convention for the Protection of
New Varieties of Plant; and the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the purpose of Patent Procedures
8
responsible for the daily activities of the organisation and implements the
decisions of the Administrative Council and other tasks arising from
provisions of the agreement.
FUNCTIONS OF THE OAPI
Bangui Agreement made substantive and procedural provisions for different
areas of intellectual property and have ten annexes in the following order
namely patent, utility models, trademarks and service marks, industrial
designs, trade names, geographical indications, literary and artistic property,
protection against unfair competition, layout-designs (topographies) of
integrated circuits and plant variety protection. However, rights provided for
in the agreement are independent national rights subject to the legislation of
each of the Member States in which they have effect24. The organisation
serves as both the national industrial property office for member states under
the Paris Convention and as the central patent documentation and
information body25. It also serves as the ‘national office’, ‘designated office’
and ‘elected office’ for Members States under the Patent Cooperation Treaty
and under the Trademark Registration Treaty. Application for registration of
patent, utility model, trademark, service mark, industrial design, trade name,
geographical indication, layout-design (topographies) of integrated circuit
and application for plant variety certificate shall be filed with the
organisation. Any Member State may demand that it be filed with it but a
record of it including the filing date etc will be sent to the organisation
within five working dates of such filing26. Any filing made at the
administrative office of one Member State in accordance with the provision
of the agreement or with the organisation is deemed to be equivalent to a
national filing in each Member State27. The organisation does the necessary
examination, publication and registration as the case may be. The
organisation maintains a special register for all Member States of all class of
registrations and any person may consult the registers and obtain extracts
therefrom. Any African State who is a party to WIPO, the Paris Convention,
the Berne Convention, the Universal Copyright Convention, and the Patent
Cooperation Treaty may accede to the Agreement.28
As stated earlier, the agreement has detailed provision on specific aspects of
intellectual property in annexes. These provisions are in conformity with
international standards since Member States are signatories to most
international treaties on intellectual property. It is important to observe that
24
Bangui Agreement Art 3
Ibid Art 2 (2)
26
Ibid Art. 6
27
Ibid Art 7
28
Ibid Art. 22
25
9
Annex VII on literary and artistic properties made important provisions on
cultural heritage, traditional knowledge and folklore. It defines cultural
heritage to comprise all those material or immaterial human productions that
are characteristic of a nation over time and space relating to folklore, sites,
monuments and ensembles29. Folklore is defined as the literary, artistic,
religious, scientific, technological and other traditions and productions as a
whole created by communities and handed down from generation to
generation30. In the discharge of its responsibility, the States shall carry out
an inventory and determine, classify, place in security and illustrate the
elements that make up the cultural heritage31. It is prohibited to destroy,
denature, exploit, sell, dispose or transfer illegally any or part of the property
that make up the cultural heritage. The competent national authority can
issue an authorisation to allow publication, reproduction, distribution of
copies, recitation, public performance, transmission, by wire or wireless
means, or any other form of communication to the public of any cultural
property32. Owners, holders and occupiers of national heritage property
would be informed about their property status, and would be required to
notify relevant government agency of any plan to alter or sell the property.
At its own expense, the State may chose to restore any national heritage
property33. The list of national heritage property that OAPI requires each
state to create could potentially improve the protection of folklore if the
states include in their list all relevant items of folklore. It is doubtful
however, that any OAPI State has compiled such a comprehensive list34.
COOPERATION BETWEEN ARIPO AND OAPI
Recognising the important role that intellectual property plays in the
development of her Member States, and appreciating the need to strengthen
cooperation between the two bodies in order to facilitate economic
integration and exchange of technical information for economic
development, the two bodies entered into a cooperation agreement in Harare
on November 18, 1996. The agreement commits the two bodies to cooperate
in the area of intellectual property as well as other area dealing with the
development of Africa35. They are to exchange experts and information in
areas of common interest and carryout joint projects as the need arises. They
29
Annex VII, Title 11 Art. 67
Ibid Art. 68
31
Ibid Art. 72
32
Ibid Art. 73
33
Ibid Art 83
34
Paul Kuruk, ‘Protecting folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tension
between Individual and Communal Rights in Africa and United States’ American University Law Review Vol.
48 April 1999 at 812.
35
Art. 1 of Cooperation Agreement between OAPI and ARIPO
30
10
are also to undertake joint awareness training programmes and informs the
public of their Member States of opportunities offered by the other agencies.
This cooperation falls short of expectations as it was hoped that the two
bodies would have explored possibilities of merging or integrating its
activities. It appears that a major hindrance to greater cooperation between
the two bodies is more of political and cultural than legal. The history of the
two organisations, which is traceable along imperial lines, attests to this fact.
However, the dynamic of multilateral trade demands more cohesive African
representation, which a strong intellectual property body will provide the
platform. Such greater cooperation will also be of use in future multilateral
negotiations because it will enable the continent to form a lobby block on
issues that affect them most, such as the present demand for benefit sharing
for the use of traditional knowledge and genetic resources.
IMPORTANCE OF ARIPO AND OAPI TO IP DEVELOPMENT IN
AFRICA
Undoubtedly, these two regional bodies have helped in the development of
intellectual property in Africa. They provided the much-needed
administrative and technical expertise to most countries within the
agreements. It will be recalled that at the time that these agreements were
signed, most of the countries had newly gained political independence and
would not have experienced human resources to administer the different
arms of intellectual property. These bodies also relieved the member states
of the financial burden of establishing all the necessary offices in other to
meet international standards of intellectual property administration. These
were also the period of several international treaties and nations were
expected to meet standard set at the international level.
OAPI however made more extensive and detailed provision than ARIPO. It
established more substantive and procedural mechanism of right protection
and thereby avail its members of most international treaties. Most especially
the review to the Bangui agreement of February 1999 introduced a lot of
provisions that will make Members States to comply with TRIPS agreement.
Member States of OAPI are required to be signatory of most treaties on
intellectual property including Paris Convention, Berne Convention, Rome
Convention, PCT, WIPO Agreement, and TRIPS Agreement. All these are
not required of members of ARIPO. Even though the filing procedures in
both organisations are similar, under ARIPO a member state may give notice
that an application properly filed with the regional body will not apply to
her. This is unlike the provision in OAPI, which only subject application of
the regional laws to the laws of any given Member State. Furthermore, OAPI
11
agreement provided for every aspect of intellectual property including
copyright, traditional knowledge, genetic resources, folklore and cultural
heritage. These were not provided for in the ARIPO agreement. However by
a recent mandate, ARIPO is extending activities to copyright, traditional
knowledge, genetic resources and folklore. Generally the new Bangul
Agreement complied with TRIPS Agreement and to some extent granted
more extended rights.
On the other hand, the OAPI system does not allow nations to choose which
of the treaties they would adopt or opt out from. It created a regional body
that practically does all forms of registration and acts as the national office
for the member states. Though this will save cost and ensure high level of
expertise, it denies the nations the independence to decide on what should
apply to it. These could be accepted for most of the member States of OAPI
who were colonised by France and had adopted the culture of assimilation
introduced during colonial rule but it may be difficult for other States in
Africa. For example a number of the treaties that were adopted by the
Bangui Agreement sparked off opposition amongst many African States
including parties to the agreement. This includes the International
Convention for the Protection of New Plant Varieties. The technology
required to appreciate some of these treaties are not well known by the
industry in some of the nations acceding to these treaties and are only carried
out by the regional bodies administering them. These number of treaties
adopted by the Bangui Agreement may also be a major hindrance to
cooperation between the two organisations. It is doubtful whether Member
States of ARIPO will be ready to accede those treaties at least for now. The
process of filing could also be another hindrance, as not many countries in
ARIPO will accept the organisations office to be deemed as a national office
of the nation.
Unfortunately, many countries in Africa are not members of any of the
regional organisation. While ARIPO currently has sixteen members, OAPI
has fifteen. There are fifty-one countries in the continent. Most importantly
some of the countries with the strongest economy in the continent like
Nigeria, South Africa, and some North African Countries such as Egypt are
not members of either organisation. There not joining any of these
organisation may not be unconnected to the diverse position to most
international treaties on intellectual property issues by different countries in
Africa. There is still feeling in many quarters that even though intellectual
property is vital to economic development, Africa have not built the
necessary infrastructure and technical know how to be able to take advantage
of these treaties. These explain why developmental issues have continued to
12
be presented by Africa in any multilateral negotiations on intellectual
property.
CONCLUSION
It has become clear that for any country, region, or continent to be actively
involved in the global economy, it must be competitive. Competition flows
from intellectual capital, which is protected by intellectual property laws.
Africa should therefore strive to develop its copyright-based industries in the
production & distribution of entertainment products, the development of
global brands, pharmaceutical, bio technical products and other forms of
intellectual properties, which are the commanding heights of the global
economy. It should be able to build a strong regional block that will enable it
come together not only to develop a strong intellectual property system that
will energise economic development but also to effectively negotiate issues
that will enhance its competitiveness and comparative advantage in
multilateral treaties negotiations. To achieve this, there will be the need to
establish a regional organisation in the spirit of African Union to harmonise
administration of intellectual property in Africa which will ensure foreign
investment through the process of effective administration and in the same
vein protect African products including traditional knowledge, genetic
resources, folklore, brands and values36.
It has been severally suggested that a single intellectual property system is
desirable for Africa. This will be in accordance with the aim of African
Union to establish a common market. It was suggested that African Union
use its mechanism for merger to fuse the two regional bodies since a single
intellectual property organisation would be attractive to the region, as it will
serve as one-stop access to fifty-one African countries37. While agreeing that
a single organisation would be desirable or preferable for Africa, it is more
fundamental that the two organisations does not represent up to fifty percent
of African States including the economic giants of the region. There also
appear to be a prevalent pessimism towards harmonisation of the two organs.
It is proposed that the current co-operation agreement between ARIPO and
OAPI should integrate the two systems and extend protection afforded
36
It has earlier been observed that the non-existence of a common intellectual property system in the continent
emanate from a prevalent pessimism towards harmonisation. For a discussion on this, see Adebambo Adewopo,
‘Trademark in Africa; A proposal for the Harmonisation of the ARIPO and OAPI Agreements on Marks’
Journal of World Intellectual Property Vol. 6 No 3 of May 2003, 473-484.
37
See Enyinna Nwauche “ An Evaluation of the African Regional Intellectual Property Rights Systems” The
Journal of Intellectual Property, Vol. 6, January 2003 at 137-138
13
member countries under their respective treaty to each other38. It is further
proposed that the African Union set a committee of experts to find out the
reasons for refusal of most African countries to accede to any of these
treaties. The committee will have the mandate to advise on how to establish
a regional organisation under the auspices of the African Union that will take
into consideration the differences between African States and proffer
appropriate harmonisation39.
Interestingly there is a current renewed effort at strengthening intellectual
property administration in Africa and particularly to encourage South Africa
and Nigeria to accede to ARIPO. It is however hoped that these efforts be
coordinated under the broad agenda of the New Partnership for African
Development (NEPAD) which is the main economic agenda of the African
Union for the development of Africa. This will properly situate the efforts to
build a strong intellectual property system as an economic imperative like it
is all over the world. It may also help to remove cultural and political
differences hindering harmonisation of intellectual property administration.
This way the continent could have a common organisation in intellectual
property that protects the rights and diverse cultural heritage peculiar to the
African continent.
END OF DOCUMENT
38 Adewopo, op. cit at P. 482/483
39
However, the full development of intellectual property in Africa and many developing countries depends on
two factors, internal and external. The external factor depends largely on the direction of the North/South
equation as envisioned within the current international intellectual property protection regime. The internal
factor refers essentially to the response of policy and law enforcement initiative including administrative and
enforcement of rights in these countries. This is fully discussed in Adebambo Adewopo, “ The Global
Intellectual Property System and Sub-Saharan Africa: A Prognostic Reflection” The University of Toledo Law
Review Vol. 33 Number 4 of September 2002.
14