A review of African official IP websites: no. 31: Mali

A review of African official IP websites: no. 31: Mali

By IPcommentator   Monday, February 11, 2013   No comments:

Afro-IP visited Mali last year and left not too disappointed as experienced on visits to other Member States of  the OAPI. Nothing has changed since our last visit to Mali; but considering its recent problems, intellectual property (IP) takes a back seat. (Afro Leo discovered that the copyright office www.bumda.cefib.com appears to be plagued by malware). 

As well as bringing problems to the fore, this Leo has an interest in the range of IP-related technical assistance offered by developed nations and/or international agencies to developing countries (see here, here and here). A good example is the assistance offered by the Commercial Law Development Program (CLDP) - a division of the United States Department of Commerce. The CLDP runs a project in Mali and last year, it held an IP workshop for the benefit of Malian government officials. Hopefully, CLDP's work bears fruit in the long run.

Best wishes for Mali.

Other IP-related news

• Software Piracy: Still on malware, Microsoft's recent report highlights the indirect link between computer malware infection rates and the use of unlicensed software globally including certain parts of Africa;

• PAIPO: This blog has stirred the debate surrounding the establishment of an overarching IP office for the African continent, PAIPO, and recently posted an update by Afro-Leo's friend Caroline Ncube who reported that "....It is probable that the Council of Ministers decided to proceed with PAIPO in principle (in keeping with their earlier 2007 decision) but postponed adopting the text until it has been further consulted upon and reworked...." This Leo has further confirmation that PAIPO lives happily ever after; and

• Kenya: Tapping into Kenya's innovative use of mobile technology (cf. here), the Kenya Industrial Property Institute (KIPI) has launched a SMS service whereby pending IPR applications can be tracked on your mobile phone. (Impressive, says Afro Leo)

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PAIPO is dead! Long live PAIPO!

PAIPO is dead! Long live PAIPO!

By Jeremy   Tuesday, January 29, 2013   No comments:

"PAIPO is dead! Long live PAIPO!" Thus exclaims Afro Leo's friend and PAIPO-watcher Caroline Ncube, who has just sent us the latest news on this very sensitive, potentially valuable proposal:

"Afro-IP carried an impassioned discussion on the Draft PAIPO Statute last year and a petition on PAIPO was hosted on change.org. In a recent paper in the Journal of Intellectual Property and Practice (JIPLP -- abstract here) I outlined the gist of the debate over the Pan-Africa Intellectual Property Organization (PAIPO) and shared some thoughts on how to improve the statute. The keenly-watched Brazzaville 5th African Union Conference of Ministers of Science and Technology (AMCOST V ) has come and gone. PAIPO was discussed on 15 November 2012.  The documentation and presentations prepared for the meeting are available here.  It is not exactly clear what the Council of Ministers decided about PAIPO. The only publicly available official document on the results of the meeting is a press release that does not mention PAIPO.

Some accounts state that they have shelved the statute and the organisation (see W New). Others indicate that they decided to proceed with PAIPO (D Ndhlovu ‘Pan African IP body survives a high level attack’, here). The AU’S STRC, which is the custodian of the drafting process, does not provide any details on its website, beyond describing the project and hosting the text of the statute. I have not received a reply to my email requesting details of the outcome of the November meeting.

So what did the Ministers decide? I believe it there is accuracy in both accounts of the outcome. It is probable that the Council of Ministers decided to proceed with PAIPO in principle (in keeping with their earlier 2007 decision) but postponed adopting the text until it has been further consulted upon and reworked. In that case, the (current) PAIPO Statute is dead. Long live PAIPO as we are likely to see another attempt at creating it in the future. If this does eventuate, it is hoped that the input provided by various academics, practitioners and other commentators will be taken on board.

If anyone has documentation pertaining to the decisions made at AMCOST V, please send it to Afro-IP".

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A review of African official IP websites: no.18: Eritrea

A review of African official IP websites: no.18: Eritrea

By Anonymous   Monday, November 12, 2012   No comments:

In contrast to the fortunes of Equatorial Guinea, this Leo can't help but to simply report that Eritrea is yet to see any real urgency, if not need, for a website for its intellectual property office. It appears that the political turmoil between Eritrea and its neighbour, Ethiopia, is still a growing concern and one which would further hamper its fledgling economy.

Afro Leo wishes Eritrea all the best.

PAIPO: From piping up to sizing up:
A very good friend referred this Leo to this post written by Mr Sadulla Karjiker which further wades into the  PAIPO debate. Mr Karjiker argues, among others, that since a draft statute is the only thing known to be in existence by all accounts, there is not yet a clear basis to criticise PAIPO. He asks: Would the resources which are to be spent in such an endeavour not be better utilised in ensuring that the intellectual property registries and laws of the various African states are improved in order for them to participate in existing international registration systems such as the Madrid Agreement and Protocol, administered by WIPO, for trade marks? 

Afro Leo has not only spotted that Mr Karjiker shares, to some extent, a similar view to that of Sara Moyo, but also that readers of this blog are not the only ones to have witnessed the poor (or lack of) online presence of some of the IP offices in Africa - including the regional IP organisations.

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Eritrea ranks low in the World Bank's Doing Business report, see here
PAIPO petition gains 384 supporters, see here

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Moyo furthers debate on PAIPO

Moyo furthers debate on PAIPO

By Darren Olivier   Wednesday, October 31, 2012   No comments:

Sara Moyo from Zimbabwe Law firm Honey & Blanckenberg has written to Afro-IP following Jeremy's post "Piping up on PAIPO (with a letter from Caroline Ncube)" to comment on the debate surrounding the establishment of PAIPO (for previous posts click here). She makes a compelling argument for focusing efforts and resource toward the creation, training and commercialisation of IP rights by Africans within existing structures but do you agree? You can join the debate by commenting directly on this post, using the Afro-IP Linkedin group or by sending us an email here.

"I read with interest Darren Olivier’s post concerning the 2006 decision of the Conference of the African Ministers of Council in Science and Technology to establish a Pan –African Intellectual Property Organization (PAIPO).

Kingsley Egbuonu responded to Olivier’s post with a caution against rushing to condemn the concept of a continental intellectual property (IP) body and provided a link to the final draft Statute establishing PAIPO which will be presented before the 5th African Union (AU) Ministerial Conference on Science and Technology scheduled to take place from 6 to 12 November 2012 in the Democratic Republic of Congo.

As commented by Caroline Ncube, Senior Lecturer in the Department of Commercial Law University of Cape Town, the news is alarming not least because there appears to have been little public debate about the benefits of establishing a continental IP body whose mandate appears to be a duplication of the current objectives and activities of the regional IP Offices on the continent, ARIPO and OAPI.

Egbuonu suggests that “we…see….what laws PAIPO would go for… and how many countries would sign up for membership”.

I beg to differ. I do not see how Member States of the AU, African IP agents and other stakeholders can be expected to make a rational decision on the benefits of establishing a new continental IP body within the AU, and especially a continental registration Office, if the constitutive Protocol for such registration Office and the implementing regulations have not been formulated.

In other words, without any details/information as to the

 legal system that will govern the grant, term, opposition procedure, infringement proceedings, revocation, cancellation, compulsory licensing and transmission of each category of industrial property that PAIPO will be empowered to handle, and

 the costs of proceedings before the new continental registration IP Office, and

 the relation of PAIPO with the Harare Protocol, the Banjul Protocol, the Bangui Agreement and the Patent Cooperation Treaty, and

 the territorial effect of industrial property titles granted by PAIPO, and

 the seat of the proposed IP Office

it is impossible to have an informed debate on the merits of constituting PAIPO as an IP registration Office.

Secondly, unlike ARIPO’s IP Protocols, the final draft Statute of PAIPO does not provide for ratification or accession by the Member States of the AU.

Article 20 of the draft Statute provides that the Statute establishing PAIPO will automatically come into force on the day of endorsement by the Assembly and Head of States of the AU.

Decisions of the AU are made by consensus or by a two-thirds majority of the Member States (Article 7 of the Constitutive Act of the AU).

In my view Article 20 of the draft Statute appears problematic as some Member States of the AU do not provide for automatic ratification or accession to a convention or treaty or agreement, or automatic recognition of the legal status of an international body, without approval by the national Parliaments of Member States.

In Zimbabwe, for instance, any convention, treaty or agreement acceded to, concluded or executed by the Executive with foreign states or governments or international organisations, and which imposes fiscal obligations upon Zimbabwe, is subject to approval by the Parliament of Zimbabwe and shall not form part of the law of Zimbabwe unless it has been incorporated into the law by or under an Act of Parliament.

Secondly, the draft Statute does not permit reservations in relation to the term or validity of registered industrial property titles insofar as they may relate, for example, to patents in pharmaceuticals. This, as observed by Ncube, would appear to be contrary to the principle that IP legislation must be complementary to the developmental goals of individual Member States.

Article 5 of the draft Statute lists the objectives of PAIPO and provides in Article 5(iv) that the Organization shall “[p]rovide common services to Member States and/or regional economic communities in the administration and management of intellectual property rights that maximizes and builds upon the solid achievements of ARIPO, OAPI and/or WIPO.”

Article 6 of the draft Statute sets out the functions of the Organization and provides in Article 6(ii) that PAIPO “shall grant and register industrial property titles”.

Apart from the fact that the draft Statute does not define what such industrial property titles will be called (African patent, PAIPO trademark, etc.), the establishment of a supranational registration Office would appear to be a costly duplication of the registration function of current national and regional IP Offices.

Thirdly, the draft Statute does not specify the basis on which natural or legal persons may prosecute IP matters directly in PAIPO. Neither does it specify which legal representatives of IP owners may prosecute IP matters in PAIPO.

In spite of the above reservations, the establishment of multiple think tanks or fora for policy discussions and formulation of African positions on issues concerning IP matters is welcome and should be encouraged.

Examples of this are ongoing efforts by African IP agents to convene an Africa IP Forum (in spite of the scuttling of the inaugural meeting) which will discuss the dynamic role of IP protection and enforcement in promoting knowledge based economies through innovation, trade and investment. The forum will also focus on practical approaches to the utilization, management, and protection of IP in Africa.

South African IP firm Adams & Adams recently launched its Africa Meeting which it hopes will become an annual IP event.

The preamble of the draft Statute states that PAIPO will serve as a cost effective way of streamlining IP management in Africa. This however appears to ignore the fact that the ownership, registration, and exploitation of IP rights by residents/nationals of Member States of the AU is so miniscule (at this time) as to be unworthy of creating a continental IP Office.

WIPO statistics for filings in the national IP Offices of Member States of the AU in the 10 year period from 2002 to 2010 show that the total number of patent filings (direct and PCT national phase entries) were less than 100 000.

Of that number, Kenya had 1 078 patent filings, Egypt had 15 037 and South Africa had 63 599 patent filings.

Both anecdotal accounts by African IP agents and WIPO statistics on IP activity in Africa show that more than 90% of applications for registration of IP rights in Africa are by foreign IP applicants.

There is therefore urgent need, in my view, for African governments to focus, not on creating another registration entity in circumstances where the current volume of IP activity by African nationals/residents does not justify the cost, but to apply resources towards

 increasing the creation and exploitation of IP by African residents/nationals in all technical fields

 funding research and development, and

 training patent agents and patent examiners in Member States, and

 creating capacity within Member States for commercial management of IP rights."

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Piping up on PAIPO

Piping up on PAIPO

By Jeremy   Tuesday, October 16, 2012   No comments:

Afro-IP has received the following piece from African academic Caroline Ncube, Senior Lecturer Department of Commercial Law University of Cape Town, which not only explains and contextualises the current state of play in terms of Africa's role in resolving its own intellectual property issues but also leads neatly into the post which immediately follows it here. This is what she writes:

Piping up on PAIPO 

In the last few weeks there have been reports of the imminent birth of a new IP organization to be known as the Pan African Intellectual Property Organisation, or PAIPO (see for example William New ‘Move Toward New Pan-African IPOrganisation Alarms Observers’ IP Watch, 27 September 2012). These reports have generated much discussion and criticism which has been noted on Afro-IP.  Writing on the matter on 8 October, Kingsley argued

‘But before we all know whether this is a dangerous path, we need to see, for instance: (a) what IP laws PAIPO would go for and whether it would go beyond the already existing TRIPS-plus Bangui’. 

 Kingsley is of course right in cautioning against rushing to condemn PAIPO before we are certain of its true colours. However, this post explains that much of the discomfort around PAIPO stems from the language of the Draft Statute (AU Final Draft Statute of the PAIPO Ref No AU/STRC/522) which signals a worrying lack of focus on the public interest and the appropriate calibration of IP systems. So, while we do not yet know ‘what IP laws PAIPO would go for’, current indications are worrisome. 

To illustrate this point, let’s take a look at the Draft Statute’s preamble and compare it to more progressive documents authored by African states themselves namely the proposal by Morocco on behalf of the African Group entitled ‘The African proposal for the establishment of a development agenda for WIPO’ (WIPO Doc IIM/3/2 Rev, 31 July 2005: the ‘African Proposal’) and the Development Agenda Group’s (DAG) Guiding Principles authored by the Africa Group (WIPO Doc CDIP/5/9 Rev, 26 April 2010).  Admittedly, the documents being compared to the Draft Statute are of an inherently different nature as they are proposals and a statement of principles respectively. However, they are relevant and are a critical yardstick against which to measure the Draft Statute because they espouse the first principles upon which the Draft Statute ought to have been based. Further, although not authored by the AU, these documents have been authored by the leading African voices at WIPO, many of whom are AU members, which have consistently sought to advance African development.  It is precisely on such foundations that the AU PAIPO Statute should be building. 

 Now, for that look at the Preamble: 

 PREAMBLE We the African Union Head of States and governments, 

DETERMINED to promote the development of the continent through an effective intellectual property system in order to achieve objectives of the African Union; 

RECOGNIZING that Intellectual Property rights are tools for economic growth and dissemination of knowledge; 

BEING FULLY AWARE of the 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 

RECOGNIZING the need to address the continued necessity to promote creativity and utilization of the Intellectual Property system amongst Member States;  

RECOGNIZING FURTHER the need for positive efforts designed to raise effective awareness on Intellectual Property issues in Africa, and the need to encourage the creation of a knowledge-based and innovative society and to promote the creation, use and exploitation of Intellectual Property assets in Africa; 

DESIRING to encourage creativity as well as to promote, protect and exploit Intellectual Property rights throughout Africa; 

BEING DESIROUS to formulate and implement strategies for the effective combating piracy and counterfeit in Africa; 

REALIZING the role that an efficient continental intellectual property organization can play in promoting the socio-economic development of Africa and face more effectively the challenges posed by globalization; 

APPRECIATING and RESPECTING the crucial role played by national Intellectual Property offices of Member States, as well as the autonomy of ARIPO and OAPI, in recognizing the need to modernize and harmonize Intellectual Property legislation throughout Africa and to render more efficient the administration of Intellectual Property rights; 

BEING DESIROUS of supplementing and complementing the role played by ARIPO and OAPI

REALIZING the need to strengthen the capacity of national Intellectual Property institutions and boosting manpower development in Intellectual Property management; 

RECOGNIZING the cross-cutting nature of Intellectual Property and the need to have a streamlined co-ordination system for Intellectual Property within the framework of the African Union, and the importance of addressing Intellectual Property matters within the African Union; 

  Commentary 

Whilst the preamble makes the right noises in relation to socio-economic development and effective IP systems, it does not go far enough in affirming the perspectives on IP and development that the Africa Group and the DAG have been cultivating over the last several years. For example what exactly is the ‘effective intellectual property system’ envisaged by the Preamble? In my view it is an appropriately balanced or nuanced system that takes a country’s socioeconomic condition and development goals into account and this ought to have been expressly stated in the Preamble.  The reference to IP rights as ‘tools for economic growth’ is reminiscent of a former director of WIPO’s take on IP, which has been criticized for lacking nuance as it subscribes to a ‘one size fits all’ and ‘IP as an end itself’ perspective rather than advocating for calibrated systems that use IP to attain certain developmental goals.  This turn of phrase is far removed from African states’ following statement in para 7 of the African Proposal:

‘IP is just one mechanism among many for bringing about development. It should be used to support and enhance the legitimate economic aspirations of all developing countries including LDCs, especially in the development of their productive forces, comprising of both human and natural resources. IP should therefore, be complimentary and not detrimental to individual national efforts at development, by becoming a veritable tool for economic growth’. 

Another example of a more progressive statement is para 1 the DAG’s Guiding Principles: 

‘The adoption of the Development Agenda (DA) at the General Assembly of the World Intellectual Property (WIPO) in 2007 was a milestone in achieving the historic aspiration of developing countries for a paradigm shift in the international perspective of intellectual property (IP): a shift from viewing IP as an end in itself, to viewing it as a means to serve the larger public goals of social, economic and cultural development.  This vision has refuted the universal applicability of ‘one size fits all IP protection models’ or the advisability of the harmonization of laws leading to higher protection standards in all countries irrespective of the levels of development’.

There is no mention of the challenges facing Africa with respect to access to medicines and learning materials, its efforts to realize the MDGs, among many others. 

Consequently, the preamble fails to assert the importance of public interest imperatives as done by articles 7 and 8 of TRIPS and in proposals for a Development Agenda at WIPO. Africa needs to ‘strive for an outcome that unequivocally acknowledges and seeks to preserve public interest flexibilities and the policy space of [AU] member states’ (p2 Argentina & Brazil’s Proposal for the Development Agenda). As noted in Brook Baker’s critique, the preamble fails to consolidate on many notable achievements that have been made by developing countries at WIPO and the WTO. This leaves readers of the Draft statute wondering how PAIPO is intended to further the advances that have been made at these fora and fearing that they be lost in the new dispensation.  

Reference to combatting piracy and counterfeits against a backdrop that exhibits the shortcomings highlighted above lends credence to the view that the Preamble may be advocating a one-sided view. 

 These are just a few of the issues that arise from a perusal of the preamble. Other issues include the lack of detail on how PAIPO is going to complement OAPI and ARIPO and concerns about how it may be counter productive to use substantial resources in creating yet another African IP organization rather than spending those resources on strengthening existing ones or advancing the African cause at WIPO and other international fora. Another issue is the reference to the harmonization of IP laws in Africa which needs to be handled with utmost care to ensure a beneficial result for Africa. A post such as this one cannot do justice to all these pertinent issues. However, the few examples cited above hopefully suffice to show that there are real concerns about PAIPO even at this stage before the full IP plans of the organization have been revealed. 

 The news that PAIPO is about to be launched (possibly at the AU’s African Ministers at their meeting scheduled for 12  - 16 November 2012) after being in the works for such a long time is alarming for two other reasons. The first of these is that although the draft statute has been long in the making, this has not been through an open or participatory process. There has been no public consultation on the continent nor have civil society, academics and public interest advocates been afforded an opportunity to engage with the proposal or participate in the crafting of the statute. This is so even when voices of concern were first raised as long ago as 2007 (see for example Tove Iren S. Gerhardsen ‘Concern Arises Over Proposed Pan-African IP Organisation’ IP Watch 30 August 2007). Secondly, the AU has not provided detailed information about its deliberations and decisions pertaining to the establishment of PAIPO. It is ironic that African states have been chastising WIPO for not being transparent enough (for example see para F of the Joint Proposal by the DAG and the Africa Group on WIPO’s technical assistance in the area of co-operation for development, CDIP/9/16, 8 May 2012) when the same can be said of them with regard to the establishment of PAIPO. 

Is it asking too much of the AU to request that it defer the establishment of PAIPO until a more inclusive and transparent consultative process is carried out? Certainly not, these are the same demands African states make of WIPO. Are the calls for a more nuanced PAIPO statute with a preamble that resounds with developmental goals, public interest concerns and an emphasis on the appropriate balancing of stakeholder interests unreasonable or unachievable? Certainly not, as shown by the following extracts from the TRIPS Agreement’s preamble:

‘Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives; 

Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base’ 

If even the much maligned TRIPS Agreement can include these perspectives, then surely so can the AU’s PAIPO Statute, more so when it has precedents such as the Doha Declaration on Public Health to draw from.

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A review of African official IP websites: no.13: Republic of the Congo (RC) and PAIPO

A review of African official IP websites: no.13: Republic of the Congo (RC) and PAIPO

By Anonymous   Monday, October 08, 2012   No comments:

Reviewing the Republic of the Congo (RC), twelve months on, is actually nothing but exciting because this Leo gets to briefly comment on an apparent ground-breaking intellectual property (IP) regional development in Africa since 1979. Like its neighbour, there is nothing to report on how RC plans to develop its domestic IP regime or set up a website for its IP office. 

Pan-Africa Intellectual Property Organisation (PAIPO)

This Leo has learned, from this post by Darren, that PAIPO will be created - while maintaining the autonomy of national offices and the two current regional organisations, ARIPO and OAPI - under the aegis of the African Union (AU). The final draft statute establishing PAIPO will be presented before the 5th AU Ministerial Conference on Science &Technology on the 12^th to 16^th November 2012, in Brazzaville, Republic of the Congo (Afro Leo can see a pattern developing here: remote or obscure countries tend to host landmark international agreements or discussions e.g. Central Africa Republic and the Bangui Agreement, see here). 

Comment

As expected, this move has already attracted criticism from a global health advocate who argues that PAIPO is not only incoherent with AU's and WIPO's development agenda, but also restricts access to medicines in Africa. Having skimmed through the draft, PAIPO appears – in terms of structure - no different from the two existing regional organisations except that it would be supported by the AU – the latter aiming to emulate Europe. However, this Leo agrees that on the face of it, the draft appears to give PAIPO a supranational status to potentially enter into bilateral and multi-lateral agreements on behalf of its members. (Afro Leo wonders, as the case may be, if this will be any worse than what African countries have, in the past, entered into by themselves. For example, the Bangui Agreement which some - in support of a regional system - see as “TRIPS-plus”)

Looking at the vision and objectives of the AU, this Leo is also now slightly confused on who and what to believe after former President Thabo Mbeki apparently said that AU policies do not originate from its Commission. (Afro Leo would like to know who sets AU's policies. He also says, "perhaps, African countries do not need a collective, coherent and responsible voice on global IP issues since they can make-do with open letters by civil society on how to run their affairs before the mighty WTO. This is not to disregard the remarkable achievements by civil society on IP issues in Africa, for instance, this project in Ethiopia.")

But before we all know whether this is a dangerous path, we need to see, for instance: (a) what IP laws PAIPO would go for and whether it would go beyond the already existing 'TRIPS-plus' Bangui; (b) how many countries would sign up for membership; and (c) if some or all do sign up, will the benefits of having a co-ordinator and/or technical assistant in PAIPO, outweigh the negatives for those countries? (Afro Leo would rather see efforts and energy on how African countries can cope or navigate through the same international set of rules which other countries like India (see here, here and here) have managed to utilise for itself, and in the process, have grown a global generics powerhouse. Essentially, there needs to be a great shift in discourse for the pertinent question to be about what resource-rich countries, in particular, can and/or should do for its people.)

In as much as this Leo has mooted his preference (here, here and here) for a robust regional institution championing IP development in Africa, he urges caution as there are lessons to be learned from Europe. We can already see this IP development resembling the co-existent and co-operative European structure: PAIPO acting as EPO and OHIM; OAPI and ARIPO as Benelux IP office; and then national offices acting almost like satellite offices for the "preferred" regional rights. 

Whether the PAIPO will reverse the somewhat decline in activity or complacency on the part of national offices - as we have seen throughout the A-Z series - is something this Leo is keen to observe.

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For the decision on the establishment of PAIPO, see here 

For a Concept Paper on PAIPO, see here 

Report on WIPO’s support to NEPAD, see here 

AU plans to rebrand Africa’s image, see here

South Africa emerging as generic drug powerhouse in Africa, see here

Generic-drug solution for Africa not needed?, see here
Joseph E Stiglitz on IPRs and public health, see here
Can China become an IP powerhouse?, see here
Has TRIPS hindered India?, see here

For TRIPS and Public Health: What should African countries do? see here

EU Commission's Roadmap on Community Trade Mark, see here

On how to Max out on Trade Mark Reform in Europe, see here

For Unitary Patent debate in Europe, see here, here and here

Has the European Union experiment failed? See here, here, here here and here 

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