Chidi Oguamanam

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AFRICA: Charting the Course for Intellectual Property

Posted by Chidi Oguamanam on March 29, 2014 at 3:55 PM

Africa’s experience with intellectual property rights or IPRs is dismal and in urgent need for re-evaluation. Not many dispute the observation that “for more than a century, African states have participated in IPR regimes with little or nothing to show for it in terms of economic development and transfer of technology”. IPR is that branch of law that deals with the governance of knowledge, information and innovation, including the allocation of benefits or rights arising from their production and exploitation. Many industrialised nations of the West and erstwhile African colonial powers in Europe promote, as a matter of received wisdom, the idea that IP is a tool for economic progress, a stepping stone in the transition of less developed countries to industrial economies. Colonial legacy Africa’s encounter with IP is part of its colonial experience. IP laws and policies on the continent were mere legal and policy transplants from colonial powers. While Africa was busy developing its human and constitutional rights, land tenure jurisprudence and indigenising of transnational colonial corporations after independence, IP never appeared on the radar of priority. Unsurprisingly, colonial IP statutes remained untouched for too long after the independence of many countries on the continent. In the early stage of internationalisation of IP norms, colonial powers entered into relevant agreements on behalf of their African colonies. Colonialists had their eyes on own interests as producers of IP and finished products. Africa’s relevance was only as a cheap source of raw materials and an export market for empire. Africans and African creativity were considered neither capable of intellectual creation nor worthy of IP protection. African legal and bureaucratic practitioners of IP law have been compared to the 19th century Asian compradors. Like the compradors, most of these elites saw and have continued to see their role as protecting the interests of overseas IPRs holders on the continent through sustaining status quo, which only facilitates registration and enforcement of foreign IPRs. The implementation of the World Trade Organisation’s Trade-related aspects of Intellectual Property Rights agreement or TRIPS in the mid-1990s added insult to the injury of IP in Africa and elsewhere in the developing world. The TRIPS agreement required member states of the WTO (which includes virtually all African countries) to extend IP protection to pharmaceuticals, agricultural innovations, life forms and literarily any human-made device without regard to cultural sensitivities. Whatever wiggle-rooms that remained to attune IP policies to national exigencies were rolled back. A country’s ability to optimally participate in the post-cold war free trade regime was tied to how it protected IPRs. For Africa, this largely meant how it protected foreign IPRs. Majority of patents, copyrights and trademarks – the cardinal regimes of IP – on the continent were and are still foreign owned. TRIPS stoked resentments on several fronts on the African continent. It quickly proved to be a let-down, with sobering and negative empirical impacts across the continent and elsewhere. TRIPS-instigated constraint on access to essential drugs at the height of AIDS pandemic in Africa, escalation of costs of educational materials, not to mention aggravated IP enforcements by transnational rights holders, especially in the creative industries put Africa under enormous pressure. African genetic resources and associated traditional knowledge became targets of foreign appropriation through questionable patents and other forms of IP, a practice generally known as biopiracy. In the meantime, the US and the industrialised world continued to ratchet up IP protection through stronger bilateral measures and aggressive building of trade alliances with expansive IP content while failing to deliver on their promise to open their markets to African exports under the WTO regime. The industrialised world has for the most part shown reluctance to relax subsidies on agricultural products. Pursuant to the plant breeders’ rights, they press for the marginalisation of smallholder farmer’s ability to share and re-use farmed-saved seeds. In Africa, smallholder farmers, especially women, who rely on customary seed exchange, do the bulk of agricultural production. Lately, industrialised countries continue to push the IP envelope onto the internet; a development that threatens Africa’s ability to leverage the limitless prospects of the internet for economic growth as evident in such initiatives as M-pesa, Ushahidi, and various creative inversions and adaptations of mobile technologies that demonstrate limitless potential on the continent. Africa is yet to rise up to the challenge of a radically changed global IP landscape. According to an observer, Africa is literarily “missing in action”, at global fora on IP and its cultural and regional interests are under-argued. Charting the future As a result of its underdeveloped IP history, Africa’s contribution to the negotiations of the TRIPS agreement was ineffective. But TRIPS was an eye opener as it laid bare the urgency for capacity building in IP on the continent. In adjusting to its new role post TRIPS, the World Intellectual Property Organization or WIPO quickly took the lead on IP training through its network of academies. Other actors such as the United States Patent and Trademark Office or USPTO, the European Patent Office or EPO, etc. and some transnational corporations continue to support strong IP in Africa through their rights owner-focused training and capacity building initiatives. Not only did these initiatives target African IP bureaucratic elite, they invested in upgrading of IP offices and infrastructures in Africa. The principal aim of this form of elite socialisation process is to make African countries TRIPS-compliant or more (TRIPS-plus). Beyond IP bureaucrats, private lawyers and law firms have capitalised on the band-wagon of strong IP protection for their clients. These groups of comprador stakeholders, perhaps more than their counterparts in the academy, understand the urgency for abridgment and expedited development of African expert manpower in the IP field. All over the continent, stakeholders engage in ad hoc cash-and-carry certificate training of one form or another on aspects of IP practice. However, for private sector lawyers and sometimes members of the bench, these forms of training focus on IP enforcement, without reflexive or critical attention to how IP can advance innovation and economic empowerment in specific African contexts. Role of universities As a continent, Africa needs a more independent and less suspect capacity building on IP that breaks from the prevailing status quo. Such an initiative could serve as integral part of tertiary education curriculum development and deliverable at graduate level, as a congenitally interdisciplinary endeavour. At present, there are a number of graduate programmes or specialist research and teaching centres/institutes in IP across law faculties on the continent. Those could benefit from an interdisciplinary re-modeling. From access to medicines, agriculture and food, engineering, library science, sports, broadcasting, the internet and ICTs, movie and entertainment, to biotechnology, traditional knowledge, human rights, to name the few, IP traverses virtually all disciplines. And within law itself, it is an intra-disciplinary subject matter. Specialist graduate program in IP on the continent ought to develop from an interdisciplinary foundation and not limited to law schools. As Africans continue to assert themselves in the democratic creative opportunities of the digital era, and as the continent continues on the path of economic transformation, graduate curriculum in IP on the continent must be developed from a balanced calibration of contextual bottom-up model that reflects and responds to the continent’s experiences and its extant marginalisation in global IP law and policy. Africa has the latecomer advantage and can learn from failures of developed countries in order to craft a responsive, proactive regional IP curriculum for the 21st century. Graduate training in IP is only an item in the package of responses that ought to cut across primary, intermediary and constructive public awakening on IPRs. The continent does not need to re-invent the wheel. It can readily look to India, Brazil, China and other countries that have inverted IP to advance national interests even in a post TRIPS era. An African-driven graduate training in IP ought to be an important nest for incubating the continent’s capacity to reassert itself as a historically creative civilisation with unparalleled cultural heritage. It is still possible for IP to advance the continent’s economic empowerment rather than perpetuate its historic exploitation.


First Published in the University World News on 28 March 2014


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