Move Toward New Pan-African IP Organisation Alarms Observers

A seemingly remote African Union proposal to create a Pan-African Intellectual Property Organization appears to have gained momentum and will come before African science and technology ministers for review in early November, according to sources. A copy of the final draft statutes shows how the new body would operate, and for some observers, how it would elevate African IP standards well above current levels, with “disastrous consequences” for access, development, and human rights.

The final draft text of the Pan-African Intellectual Property Organization (PAIPO) is available here [doc].

The proposed legislation will be presented to a meeting of the African ministers on 12-16 November in Brazzaville, Democratic Republic of Congo, sources said.

“The draft statute is clearly driven by proponents of IP maximalist ideology with little understanding of the development challenges facing the region” – Sangeeta Shashikant, Third World Network

The draft emerged from the African Union Scientific, Technical and Research Commission, which was charged by heads of state in 2007 with coming up with a draft legal instrument. It consulted with AU member states, existing regional IP offices, and collective management organisations, with the support of the World Intellectual Property Organization (WIPO), according to sources.

Under the draft, a new specialised agency of the African Union would be created in addition to the two existing regional IP offices in Africa (African Regional Intellectual Property Organization [ARIPO] and the Organisation Africaine de la Propriété Intellectuelle [OAPI]).

The new body would consist of a Council of Ministers and its bureau, an Experts Committee and its bureau; a Board of Appeal; and the Office, led by the director general.

The PAIPO would have the legal authority to:

(i)              Enter into contracts and conclude agreements, except agreements and contracts for the collective management of copyright and related rights;

(ii)             Acquire and dispose of movable and immovable property; and

(iii)           Be a party to a judicial and other legal or other administrative proceedings.

The functions of the organisation would be:

(i)            Set intellectual property standards that reflect the needs of both the African Union and its Member States and Regional Economic Communities  of the Organization;

(ii)           To grant and register industrial property titles;

(iii)          Facilitate the realization and harmonization of national legislation and regional
treaties and intellectual property standards in all the AU levels;

(iv)         Facilitate the use of intellectual property to promote creativity and innovativeness on the continent;

(v)          Assist its Member States in formulating policies and addressing current and
emerging Intellectual Property issues in conformity with the Objectives of the
Organization;

(vi)          Initiate strategies that will promote and develop the Intellectual Property system;

(vii)     Strengthen the existing regional organizations or such other organizations as may be necessary;

(vii)        Strengthen the existing collective management organizations and facilitate their establishment in the Member States which have no collective management organization in the field of copyright and related rights ;

(viii)      Take deliberate measures to promote the protection and exploitation of Intellectual Property rights within the Member States, including conclusion of bilateral and
multilateral agreements;

(ix)         Collect, process and disseminate relevant information on Intellectual Property to
Member States and support the establishment of databases on genetic resources, traditional knowledge and traditional cultural expressions and folklore in order for Member States to derive regular and maximum benefit;

(x)          To develop updated policy guide lines and training modules to support Member States to achieve a world-class IP systems; and

(xi)         Do such other things as may be necessary for the achievement of the Objectives of the Organization.

The draft states the basis for the need to create this new entity. For instance, it states that: “Intellectual Property rights are tools for economic growth and dissemination of knowledge.”

And says there is an “urgent and requisite need to provide a broad-based Intellectual Property platform that would provide a forum for policy based discussions and formulation of common African position on global and emerging Intellectual Property issues; and the valuable benefits that the Member States would derive from an effective, continuous and well-coordinated stock of specialized Intellectual Property information, knowledge and services that would be instrumental in promoting and protecting creativity, invention, innovation, facilitating technology transfer, techno-industrial competitiveness and economic growth in Africa.”

It also mentions the need to raise awareness of IP rights toward a knowledge-based economy, to “promote, protect and exploit” IP rights in Africa, and to “formulate and implement strategies for the effective combating piracy and counterfeit in Africa.”

Draft Provokes Strong Concern

The circulation of the draft to members has met with strong reactions from some public interest observers.

“As a stunning example of policy incoherence given the AU’s goals of maximizing access to affordable medicines, educational resources, and other public goods, reversing the scourges of AIDS, TB, and malaria, and making full use of TRIPS flexibilities so as to promote local producers, the AU Scientific, Technical and Research Commission has drafted a proposed legislation to establish a Pan-African Intellectual Property Organization whose stated purpose is to harmonize intellectual property protections and enforcement at a heightened ‘world class’ standard and liberally grant IP monopolies throughout the region,” said Brook Baker of Health GAP (Global Access Project), a law professor at Northeastern University in Boston.

“Rather than allowing least developed country members to use and further extend their TRIPS transition periods and cooperating to ensure a balance between the interests of rightholders and users,” Baker said, “this misguided IP-maximalist policy initiative would shackle efforts in the AU to promote human and economic development so as to allow copying and adoption of existing technologies to serve the interests of Africans.”

A fuller critique by Baker was posted today to the Knowledge Ecology International ip-health listserv, available here.

Sangeeta Shashikant of the Third World Network said: “The intellectual property vision set out in the draft statute to establish PAIPO is extremely worrying.”

“It is inconsistent with the Development Agenda principles championed by the African Group in Geneva as well as Africa Group’s push in WIPO for development-oriented initiatives such as establishing minimum standards on copyright exceptions and limitations for education, archives and libraries, focusing on flexibilities relevant to public health,” Shashikant said. “The draft statute is clearly driven by proponents of IP maximalist ideology with little understanding of the development challenges facing the region, the importance of using available flexibilities to address development and public policy issues or the relationship between IP and development.

“The AU and member states must overhaul the draft statute in its entirety and reflect a development oriented vision of the intellectual property system,” she said. “As it currently stands, the draft statute will have disastrous consequences for critical development issues such as access to seeds, medicines, knowledge and technologies.”