Commission on Intellectual Property Rights Country Case Study for Study 9




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THE BANJUL PROTOCOL

The Banjul Protocol on marks, was adopted by the administrative Council in 1993. It establishes a trademark filing system similar to the Harare Protocol. Under the Protocol an applicant may file a single application either at a Contracting State or directly with ARIPO Office and designates in the application the member states in which he wishes his mark to be protected.


The Protocol came into force on 6th March, 1997 when three countries ratified, namely Malawi, Swaziland and Zimbabwe, since then Lesotho and Tanzania have joined the Protocol.

THE BANGUI AGREEMENT

Harmonization of intellectual property laws among the French-speaking African countries have been less tedious since individual countries had no intellectual property laws as they were fully dependent on the colonizing foreign country. The countries are bound by the Bangui Agreement signed at Bangui on March,1977 which came into force on 8February, 1982. The Agreement contains nine Annexes which include statutory provisions regarding patents, utility model, protection against unfair competition, and a central body for patent documentation and information with the overall purpose of protecting intellectual property rights of the signatory states in their territories in an effective and uniform manner as possible. The member nations also adhere to the Paris Convention for the Protection of Industrial Property, the Convention establishing the World Intellectual Property Organisation and the Patent Cooperation Treaty (PCT).


The Agreement established an African Intellectual Property Organisation (OAPI) with headquarters at Yaoundi in the Untied Republic of Cameroon. For the member states, the Organisation serves both as the national industrial property office within the meaning of the Paris Convention, and as the central patent documentation and information centre.
The Organisation administers the examination, grant, and publication of the patent and utility model applications. Any filing effected with one of the Member States is considered to be equivalent to the national filing in each Member State.
COOPERATION AMONG ARIPO, OAPI AND MEMBER STATES
In view of the fact that most developing countries are in financial difficulties, as the foreign debt is high and this is compounded by HIV/AIDS and the alarming levels of poverty – Regional Organisations such as ARIPO and OAPI can play a very vital role in the promotion of IP issues. It is important that Member States should ensure that the regional organisations are supported, so as to attract some support from the International Community. At the present moment ARIPO, OAPI and WIPO have an agreement which enables them at least once every year to meet and plan a strategy in matters relating to IP.

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It is this cooperation which must be supported by the International Community if the IP issues are to be of direct benefit to poor people. The two regional organisations need to be supported by the International Community in terms of infrastructure, training of human resources etc. With limited resources provide by Member States and fees collected on IP applications, the two organisations have managed to create awareness of IP Matters in Africa, but more need to be done.




  1. LEGAL OBLIGATION OF AFRICAN STATES IN INTERNATIONAL COOPERATION IN IP

Article 1 of the TRIPS Agreement provides the scope and nature of obligation for all members. It provides that; “Members shall give effect to the provisions of this Agreement”


Furthermore, Article 1 (3) provides that members shall accord the treatment provided for in the Agreement to the nationals of other members. These obligations to implement the provisions of the TRIPS Agreement do not discriminate between Developed and Developing Countries and equally bind African States. TRIPS Agreement is not the only IP convention that places obligations on African States.
In this regard, its Article 2 (2) provides that nothing in parts I to IV of the Agreement shall derogate from existing obligations that members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.
Therefore, the main obligation of Member States under TRIPS and other IP Conventions is the protection and enforcement of IPRs. The other obligation of African States in International Co-operation in IP is to participate in the formation of IP Convention if their interest and concerns are to be addressed. However, as noted earlier, protection and enforcement of IPRs requires certain structures to be in place. These include IP legislation, IP administration office, enforcement agencies and the Courts of Law. To be established and sustained, these require resources in terms of finances and skilled man power.
Not all African States have these structures in place. Thus, if these countries are to protect and enforce IPRs or their legal obligation under TRIPS Agreement, they must direct their resources to establishing this infrastructure. How ever, resource are scarce and they are other competing obligations on African governments. These states are struggling to provide the basic needs for existence to their nationals in terms of food, clean water, shelter, clothing, medical care and education to mention a few. Therefore to expect them to effectively protect and enforce IPRs without assistance from the developed countries would be expecting to much. The TRIPS Agreement provides that; “The protection and enforcement of IPRs should contribute to the promotion of technological innovation and to the transfer and dissemination of technology”. To the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations (Article 7).

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Although African Sates are under a legal obligation to enforce IPRs under international co-operation, it is questionable whether there is mutual advantage of producers and users of technology and a balance of rights and obligation.


One of the justifications of a Patent system is that it encourages technology transfer from developed to the developing countries. The agents for this transfer are multi-national corporations (MNCs). However MNCs objective is to maximise profits through the monopoly created by the patent whereas the host African nations object it to acquire advanced technology to enhance development. Once a MNC acquires a patent it can prevent other companies from making identical products or processes in that country. If the product or process is insufficiently exploited, which is usually the case, the country is prohibited by its own IP system for enjoying the benefit of that technology. MNCs usually obtain patents to protect their markets in African States and these countries are bound by the TRIPS Agreement to enforce them. This reflects a conflict between social and economic welfare of African States and the balance of right and obligations under TRIPS Agreement.
This conflict is further reflected in the incident in South Africa where pharmaceutical companies that own patents for AIDS treatment drugs sough protection and enforcement of their IPRs against the use of generic. Their drugs were too expensive for the ordinary South African in numbers but were now being saved through the affordable generic drugs. The country was faced with a legal and social obligation of enforcing IPRs at the expense of sacrificing its population to the scourge of the AIDS pandemic.
Therefore, in considering the legal obligation of African States in international cooperation in IP, the question to be asked is, where there is a conflict between a legal obligation and a moral obligation should these countries direct their scarce resources to the protection and enforcement of IPRs at the expense of the social and economic welfare of its citizens?
However, under TRIPS Agreement a developing country is entitled to delay for 4 years the application of the provisions of the Agreement and the Least Developed Country to delay for a period of 10 years. These period are inadequate considering the extent of their economic, financial and administrative constraints. It is for these reasons that the level of participation in international cooperation has not reached satisfactory levels.
Recognising the importance of International Cooperation the TRIPS Agreement provides that; “In order to facilitate implementation of this Agreement, developed country members shall provide, on request and on mutually agreed term and condition technical and financial cooperation in favour of developing and leasting developed country members”. (Article 67)
But what is seen on the ground is more demand for protection and enforcement of IPRs from the developing and least developed countries and less of the technical and financial cooperation. African Countries are required to comply with TRIPS Agreement but there is a conflict with their other obligations. It is not enough to put a burden on third world countries without adequate provisions to take into account their special circumstances.

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CONCLUSION

In order for African countries to attract the much need technology for development, it is vital that the IP regimes in their respective countries should provide for a high level of protection required by the TRIPS Agreement. The majority of African countries are working towards that goal. Most of the IP Legislation in Africa is under consideration by the authorities, so as to ensure that by the year 1st January, 2006 it is TRIPS compliance.


However, the African countries are faced with adverse effects of high foreign debt repayment obligations, the HIV/AIDS pandemic, high levels of poverty, lack of clean water, decent shelter, the majority of school going age children are out of school systems, the health facilities in general are not available to the poor people, these and many pressing issues.
The African governments find themselves in a very difficult situation, whether they should put their meager resources into improving their IP regimes in order to provide high levels of protection of IPRs or channel these resources to social obligations as responsible governments. The need to find ways and means of ensuring that IP benefits, the poor cannot be achieved without the cooperation of the Developed World and International Community in general.
It is not fair to expect Developing and Least Developing countries to meet their part of the obligation and yet the Developed Countries` whose IPRs is being protected continue to pay lip service.
At the recent meeting of the World Bank and International Monetary Fund, the British Minister of Finance Mr. Gordon Brown is reported in the Economist of 24th –30th November, 2001 to the effect that: “Too little is done for more than one billion people who scrape by less than a dollar a day”.
Therefore, the onus is on the Developed Countries and IPRs owners to make a contribution to poor people. As the saying goes Developed Countries and their industries must put real money where their mouths are.


ANNEX ONE
THE REPORT OF THE MISSION TO ASMARA, ERITREA FROM 17TH APRIL TO 17TH MAY, 2000 BY ANDERSON R. ZIKONDA, WIPO EXPERT.

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