|Commission on Intellectual Property Rights
Country Case Study for Study 9:
Institutional Issues for Developing Countries in IP Policy-Making, Administration and Enforcement
Ziconda & Associates
Patent & Trademark Attorneys
This report has been commissioned by the IPR Commission as a background paper. The views expressed are those of the author and do not necessarily represent those of the Commission.
AN OVERVIEW OF INTELLECTUAL PROPERTY POLICY, ADMINISTRATION AND ENFORCEMENT IN SELECTED AFRICAN COUNTRIES
ANDERSON R. ZIKONDA
The aim of this paper is to explore and examine issues of Intellectual Property Policy, Administration and Enforcement in Africa in general and in particular Eritrea, Liberia and Zambia. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which is an integral part of the Marrakesh Agreement Establishing the World Trade Organisation has created obligations to which WTO Members must comply with its provisions. The provisions set minimum standards which Members must comply with irrespective of whether or not a country has the necessary manpower and resources. No doubt the TRIPS Agreement does not seem to have taken into account the lack of resources by Least Developing Countries (LCD’s). For the Least Developing Countries, protection of Intellectual Property Rights (IPR) is not a priority as most of its citizens struggle to survive. Indeed the available UN and World Bank statistics indicate that in Africa two thirds of its population, particularly in Sub-Saharan Africa live on less than one US dollar per day. This means that this population lives in abject poverty, that is to say they live on the margins of existence, without adequate food, clean water, sanitation or health care and indeed without education.
The TRIPS Agreement can be said to be most comprehensive agreement adopted by WTO Members on Intellectual Property Rights. The negotiations of this Agreement was spearheaded by the United States of America, who wanted to protect Intellectual Property Rights of its citizens. In 1992 the US Trade Representative (USTR) affirmed that “The importance of a strong, unyielding stance on intellectual property protection as part of our global trade strategy cannot be overestimated”1
No doubt the TRIPS Agreement has created the forces of globalisation, and the emerging information Age has placed a premium on the protection of intellectual property. This fact is more evident in the international trade policy of the United States. The position taken by United States on IPR and globalisation should be considered and reconciled with the UN Secretary General’s report to the Millennium Assembly, “The central challenge we face is to ensure that globalisation
becomes a positive force for all the world’s people, instead of
leaving billions of them behind in squalor. Inclusive globalisation
must be built on the great enabling force of the market, but
market forces alone will not achieve it. It requires a broader
effort to create a shared future, based upon our common
humanity in all is diversity” 2
The protection of intellectual property through the TRIPS Agreement has become an integral party of the multilateral trading system as reflected in the World Trade Organisation. WTO Members are under an obligation to ensure that they comply with the provisions of the Agreement. No consideration or exceptions are given or provided in the Agreement for the poor of the poorest members who may not be able to comply with provisions for lack of manpower and resources in all its forms. Is such an Agreement fair?
How can one expect the LCD’s to provide resources for compliance of the TRIPS Agreement, when its population is barely surviving by the grace of God? Is it morally right for the Developed countries such as UK, US, Germany indeed all G 8 to expect a government of a Least Developing Country to put its resources on IPR compliance instead of providing education to its children; providing health care to its citizens who 70% of the population in the Sub-Saharan Africa are infected with HIV/AIDS.
The majority of the applications of IPR being sought for protection in Developing countries come from Developed Countries. Is it asking for too much if a mechanism is worked out to ensure that IPR owners, should make a contribution towards the eradication of poverty? Does globalisation not mean a shared future, based upon common humanity in all its diversity as stated in the report of the UN Secretary General?
These are some of vexing question which must be properly addressed by the Developed Countries and the IPR owners.
IP POLICY IN GENERAL
The Developed countries have dealt with IP policy matters as far back as 1883 when they held a diplomatic conference which was convened in Paris at which the Paris Convention for the Protection of Industrial Property Treaty was adopted.
The majority of African States did not have any IP policy, as issues pertaining to IP were a privilege of the colonial master, such as UK. Prior to 1980s most English –Speaking African countries did not have independent Intellectual Property Laws and IP offices, and therefore did not grant any IPR. Most of these countries were tied to UK Patent office, for example in order to have an IP right protected in Kenya, Uganda, Tanzania etc, one had to file an application in UK and once granted then the IPR owner upon production of the Certificate of Registration or grant issued by the controller of UK-Patent Office, the official in the given country was obliged to protect the IP rights.
In 1972, the World Intellectual Property Organisation (WIPO) held a conference in Addis Ababa at which for the first time the African Governments sent delegation to the meeting. At that meeting, it was decided that there was a need of updating and enacting of new IP Laws and therefore WIPO and United Nations Economic Commission for Africa (UNECA) was tasked to organise future meetings.
In late 1970s, the English-speaking African countries formed two committees namely Committee on Patent Matters and Committee on Trademark Matters. The two Committees with the support of WIPO and UNECA published two model laws, commonly known as ESARIPO Model Laws on Patents and Trademarks.
The ESARIPO Model Laws have been the basis upon which a number of African Regional Industrial Property Organisation (ARIPO) Member State legislation on Industrial Property is based.
The participation by African States in IP policy only dates back to 1970s whereas the Developed Countries goes back to 1883 when the Paris Convention for the Protection of Industrial Property was adopted in Paris. This was followed by the Berne Convention for the Protection of Copyright and Neighbouring Rights in 1886.
It seems that the African experience in IP policy is not well grounded, particularly in negotiating such as TRIPS Agreement. No doubt, it would appear that the Africans did not understand the implications of the TRIPS Agreement. This is evidenced by the fact that the TRIPS Agreement does not make any exceptions or allow any country to make reservations on certain provisions regarding the compliance of the Agreement.
IP ADMINISTRATION IN SELECTED COUNTRIES
The Administration of IP in most African countries is vested in Ministries of Justice, or Ministry of Commerce and Trade or Ministry of Information and Broadcasting. Prior to Zambia’s Independence, the IP matters were under the portfolio of the Government of the Federation of Rhodesia and Nyasaland and the IP Administration was based and administered from Harare in Zimbabwe. The IP Office was established in Zambia in 1968 at the end of the Federation of Rhodesia and Nyasaland in the Ministry of Commerce, Trade and Industry.
In Zambia, issues of IPR are vested in two Ministries namely the Ministry of Commerce, Trade and Industry and the Ministry of Information and Broadcasting. The Patents, and Companies Registration Office (PCRO) administers the Industrial Property aspect of Intellectual Property rights, while the Ministry of Information and Broadcasting deals with Copyrights and Neighbouring Rights.
The PCRO was a department within the Ministry, until 1998, when it was transformed into an Executive Agency on similar lines like the UK Patent Office. When it was a department its finances were budgeted and approved by Parliament.
Although, the Office generated a lot of revenue nevertheless the funding of the Office was not adequate. Due to financial constraints, the Office could not develop to its full capacity in terms of human resources, equipment and Office space. This resulted in having operational difficulties in the running of the Office. It was almost impossible for the Office to finance the attendance of the Governing Bodies Meeting of WIPO and ARIPO. This had a negative impact on the development of IP Administration in Zambia. Zambia could not effectively attend most of important Meeting pertaining to the IP matters due to lack of financial Resources.
The Industrial Property Administration in Eritrea is non existence. There is no Industrial Property Office. There is only one officer who attends to Industrial Property Matters. The Officer has received no training in Industrial Property Matters. The findings of the Report commissioned by the World Intellectual Property Organisation (WIPO) in April, 2000 is still valid. The detailed Report is submitted as ANNEX ONE.