Thursday 12 May 2016

Caroline B Ncube

The USTR Special 301 Report 2016 - Africa in review

Afro-IP regularly reports on how Africa fares in the Special 301 Report issued annually by the USTR (see links to some previous posts below). The 2016 Report was released at the end of April 2016. The generation of the report through a unilateral US process and its goal have been protested by several countries. For instance, as noted by Mike Palmedo in his post on the 2016 report, both India and Chile have registered their displeasure. Palmedo writes:

  • Indian Commerce Minister Nirmala Sitharaman gave a statement to the Lok Sabha (Lower House of the Legislature): “The Special 301 Report issued by the United States under their Trade Act of 1974 is a unilateral measure to create pressure on countries to enhance IPR protection beyond the TRIPS agreement. Under the WTO regime, any dispute between two countries needs to be referred to the Dispute Settlement Body of the WTO and unilateral actions are not tenable under this regime.”

Similarly, some law professors and civil society groups have sounded the same caution about the listing of WTO member states  being a probable violation of  "either the WTO’s dispute settlement understanding or GSP enabling clause." Following the filing of their Joint Special 301 Comment by Law Professors and Civil Society Groups, several scholars and activists participated at the Special 301 hearing (see here for a post hearing report by Sean Flynn and here for the transcript of the full hearing).

Two African states are listed in the priority watch list  (Algeria) and the watch list (Egypt) and several others are mentioned in the 2016 report as summarized, in alphabetical order, below -  

  • pp 23 and 45: Algeria's promotion of local pharmaceutical products and medical devices is cited as the reason why she remains on the Priority Watch List.  For a contrary view, see the AU's comments on Algeria's approach in its Pharmaceutical Manufacturing Plan for Africa: Business Plan at p41. 
  • p9: Burundi's becoming party to the WCT is noted.  
  • p53: Egypt remains on the Watch List because of her "failure to combat reportedly widespread usage of pirated and counterfeit goods, including software, music, and videos, and the failure to implement a transparent and reliable patent registration system."
  • p9: Kenya receives praise for boosting her anti-counterfeiting efforts and preparing draft trademeark and copyright amendments which "strengthen IPR protection and enforcement" (see here for commentary).
  • p9: Nigeria and  other Sub-Saharan states are encouraged to "similarly to address the factors that undermine effective IPR protection and enforcement." Nigeria is also mentioned at p 15 where it is noted that she is "reported to have [an] ineffective or inadequate IPR enforcement system". She is also mentioned at p20 in relation to her government procurement regulations and their impact on the trade secret protection of source code. Her final mention is at p22 where her 2013 Guidelines for Nigerian Content Development in Information and Communications Technology (ICT) are cited, with disapproval, for their promotion of local production or the utilization of Nigerian material and labor across a broad range of ICT goods and services "at the expense of of foreign firms, investors, and multinational enterprises."
  • p10-11: South Africa's participation with the US and Brazil in the WIPO Re:Search Consortium is lauded as enhancing access to medicines. (For fundamental reform suggestions to enhance access to medicines see here for a post on the UN's High Level Panel on Access to Medicines (HLP) hearings on Johannesburg).   A note is also made of US-South Africa engagement on GI-related concerns at p24. 
  • p9: Tanzania's joining of UPOV 91 is noted with approval. For a robust discussion of the merits this development see Chidi Oguamanam Breeding Apples for Oranges: Africa's Misplaced Priority Over Plant Breeders' Rights (2015).
The USTR's views are not the last word on what is appropriate for African IP regimes and each state would do well to consider other views and its own context in arriving at its response, if any, to the above US Special 301 statements. In the words of South Africa's Minister of Trade and Industry at the WIPO International Conference on Intellectual Property and Development in April:
  • "While generalized conclusions can offer insightful guidance, it may not be applicable at all         times to all countries ... it is vital that research is undertaken in a manner that context specific,   taking into account the level of development of the country under consideration, with a clear     focus on its industrial profile and capabilities.” (For a full report on his comments see W New    South African Trade Minister Opens WIPO Conference With Call For Appropriate IP  IP-          Watch, 7 April 2016.)

The U.S. is watching you.... Monday, 3 June 2013
USTR Special 301 Report - Monday, 4 May 2009
African Countries Suggested for the USTR Special 301 Report - Saturday, 21 February 2009

Caroline B Ncube

Caroline B Ncube

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