Thursday, 3 April 2008

"The agony and the entropy"

"Intellectual property and Africa: the agony and the entropy" is the title of the Editorial for issue 4 (April 2008) of the monthly Oxford University Press Journal of Intellectual Property Law & Practice. As editor, Afro-IP team member Jeremy has taken this opportunity to try to get the journal's subscribers and readers more aware of IP in Africa, particularly regarding the difficulties involved in finding out what's actually happening. The text of the Editorial reads as follows:
"In recent weeks, I have been considering the problems faced by those seeking to secure, protect, or exploit IP in the African continent. It seems that, despite the wide spectrum of cultural, ethnic, geographic, and economic differences demonstrated across that vast continent, there are some features which are so widely shared as to be virtually pandemic.

One problem facing Africa's 54 countries (or more, depending on how you count countries and which ones you recognize) is that it is difficult to obtain information as to what the law is and how it works. Most African countries have very small IP professions, which means that there is little or no economic incentive for any publisher to assume the financial burden of launching and selling specialist law journals, law reports, and practitioners' reference works. For the insider, this means an increased degree of reliance on one's own personal knowledge and experience, and of reliance on the assistance of one's closest colleagues; for the outsider it means that advice relating to the filing of a patent, an opposition to a trade mark or a defence to an action for copyright infringement cannot be found without making personal contact with an expert in the country or countries concerned. It also means that, where the same question is asked of several practitioners in the same jurisdiction, their answers are different not because they each analyse the application of the law to a set of facts in a different way but because they often seem to hold different pieces of their country's legal jigsaw in their hands.

A second problem relates to the relative difficulty in communication both within Africa and between Africans and the outside world. Levels of telecommunications penetration, and particularly the lack of broadband wireless internet access, place greater importance on slower and less reliable media such as the fax and the regular postal service. This means that, where IP information is available, it percolates slowly. It also means that much information which, in many developed countries, one simply gathers from an official website is far more difficult to access.

A further problem is that the general level of interest and excitement regarding IP rights which is found in those countries which own the most of them is far lower in those countries which either generate few such rights themselves or regard those rights as being matters of low priority. In many countries where IP is seen as an imported commodity that must be paid for, with consequences for their balance of payments, and where local need (in the case of patented healthcare products) or demand (in the case of branded fashion items and consumer goods) runs higher than the ability to pay for it, it is easy to see why local resentment of foreign IP runs high as well. Then there are countries in which the problems of internal security, external threats, environmental disaster, and demographic instability are so great that IP is viewed as a distraction from the immediate concern for survival.

The picture is not uniformly grim. South Africa has a vibrant and articulate IP community. Many of Nigeria's practitioners have studied the subject in depth in Europe and elsewhere and possess an impressive understanding of the field. Across the top of North Africa too, pockets of professional excellence can be found. But the overall situation remains bleak and two of the braver attempts to remedy it—the OAPI regional patent in Francophone Africa and the ARIPO system mainly English-speaking parts—have remained underutilized as IP owners display their indifference to the need to obtain protection or their lack of confidence that protection is what they will receive.

There is no obvious solution or quick fix to Africa's IP problems. In the short term, however, we must remember that we are dealing with human beings and not only with sets of rules. Before our brethren in Africa can improve the situation there, they must believe that they can do so. We must encourage them and support them, rather than confining our input to complaining about how things are and kicking out at those who have so far failed to put them right. Without the support of the wider IP community, the agony of Africa and its ensuing entropy will only continue, to the detriment of us all".
For the full contents of this issue of JIPLP click here.

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