2019 · Human Rights · Intellectual Property · IP Policy

The Harmonization of IP Law in Africa: A Human Rights Perspective

There is a trend towards legal harmonization in Africa. Or so it seems. Only time will tell how the current events and developments will eventually play out. This trend towards harmonization is quite noticeable in the field of intellectual property law. In recent years, there have been two key initiatives aimed at the harmonization of intellectual property law at the continental level in Africa. The first of these is the creation of the Pan-African Intellectual Property Organisation (PAIPO) via the adoption of the Statute of the Pan-African Intellectual Property Organisation (PAIPO Statute) by the African Union in January 2016. The second is the inclusion of intellectual property in the second round of negotiations on the African Continental Free Trade Area (AfCFTA) Agreement. While the PAIPO Statute is not yet in force (only 3 signatories so far and no single ratification out of the 15 required for entry into force), the second round of negotiations on the AfCFTA is set to commence soon. The goal here is not to comment on the merits or otherwise of this trend but to highlight some core guiding principles that should be taken into account by the relevant actors involved in all these processes.

Firstly, the negotiations on intellectual property rights in the context of the AfCFTA should be guided by the need to ensure that there is a balance between the protection of intellectual property rights on the one hand and securing access to important knowledge goods such as medicines, books, and seeds on the other hand. This approach to designing intellectual property law and policy is equally grounded in International Intellectual Property Law and it is enshrined in Articles 7 and 8 of the WTO’s TRIPS Agreement. It is thus important that the mistakes made in the process leading to the adoption of the PAIPO Statute are not repeated here. Importantly, a cursory look at the PAIPO Statute reveals that its drafters were primarily concerned with protecting intellectual property rights while they overlooked the importance of securing access to knowledge goods for members of the society. This lack of balance is most noticeable in Article 4 of the PAIPO Statute.

Secondly, the negotiations should also be informed by the need to ensure that intellectual property rights are used as tools for promoting and protecting human rights. The preamble to the PAIPO Statute recognizes ‘international human rights laws and international agreements on sustainable development…’ However, a critical examination of the Statute reveals that it merely pays lip service to human rights. This is apparent from the provisions of Article 4 of the PAIPO Statute which lists the functions of PAIPO. There is no single reference to human rights or the interface between intellectual property and human rights in Article 4 of the Statute. Importantly, there is also no reference to the African Charter on Human and Peoples’ Rights in the PAIPO Statute. The drafting of the PAIPO Statute suggests a lack of awareness of the potential impact that intellectual property rights can have on the enjoyment of certain human rights such as the right to health and the right to education.

In conclusion, it is crucial to incorporate both a balanced approach and a human rights perspective into the negotiations on intellectual property in the context of the AfCFTA. Notwithstanding the merits or otherwise of the creation of a centralized intellectual property organisation in Africa or the harmonization of IP Law in Africa, one cannot help but wonder whether or not both of these activities should be a priority for Africa at this point in time. In order to spur technological and economic development in Africa, it is suggested here that greater investment in human capital development (especially education) should be the priority for countries in Africa. While intellectual property rights are important, they should be seen as a means to an end and not an end in themselves. Importantly, intellectual property rights should be seen as tools that can be used to promote and facilitate the enjoyment of human rights.

 

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