The Harmonization Debate: Southern African Customs Union

In a well composed piece in AllAfrica Tsidiso Disenyana sets out the economic need for the proper protection of IPRs in SACU countries and the advantages of (and challenges facing) harmonization within SACU. SACU claims to be the oldest customs union in the world and consists of South Africa, Botswana, Lesotho, Namibia and Swaziland. Tsidiso Disenyana argues too that intellectual Property Rights can no longer be seen as a category separate to trade matters.

Quoting from the piece, the advantages of harmonization would be:

"Firstly, given that the Sacu member states have relatively low patent filing numbers and that pooling of resources and manpower is likely to result in increased efficiency and decreased expenditure, the benefit is self-evident. Secondly, it is probable that a more efficient regional IPR system will aid in increasing the acknowledgement and enforcement of IPR and that this might, in turn, lead to an increase in investment and economic growth.

Thirdly, as harmonisation efforts tend to strengthen IPR, member states that harmonise their legislation will tend to comply with the WTO's Trade Related Aspects of Intellectual Property Rights (Trips) agreement. Lastly, from the investor's perspective, harmonisation of IPR legislation will provide familiarity and legal certainty that will boost investor confidence in the region."

BUT he discusses too that "Conversely, some argue that harmonisation and high IPR standards might not be a recipe for innovation, investment and economic development in the region. Empirical research on East Asian economies such as Singapore and the Republic of Korea suggest that capital accumulation and not high IPR standards played a key role in their growth and development.

Social capability to absorb and master foreign technology was also vital. Sacu could learn from that experience.

In this light Sacu member states should cautiously assess whether the capacity of their domestic policy and regulatory framework will permit them to balance their interests. Otherwise it is unwise to accede to commitments that will strain domestic capacity and could lead to the application of rules in a more restrictive manner than the harmonised system requires."

And concludes that "Not only have IPR issues been raised and stumbled over time and time again in multilateral and bilateral agreements, but if knowledge is not incorporated and protected in Sacu economies, it is unlikely that the region will stand any chance of competing in the global economy on an equal footing."

Of course, harmonization has been a trend within the world IP community for a few decades now and seems unlikely to abate. The trend is fuelled by factors such as globalisation, ease of communication through the Internet and the need to allow easier trade between countries all over the world. The growth of global legal and accountancy firms and consolidation in this area is also an example of how the service industry has reacted to the the phenomenon. So, in a sense it is not surprising that Tsidiso Disenyana sees significant advantages in harmonizing SACU's efforts. He seems sensitive to some of the difficulties too.