Tuesday 2 February 2010

Asiimwe Paul

Update on Uganda's Current Anti Counterfeit Goods Bill, 2009

Here are a few welcome positions taken in the most current version of Uganda's Anti Counterfeit goods bill, 2009.

Key elements to note that try to mediate between those against this law, and those for it are as follows;

- Creating clarity on the definition of a Counterfeit. This version of the bill distances itself from the more expansive definition that includes patents and restricts itself to infringement of copyright and trademark rights. In particular, Counterfeiting means the "manufacturing, producing, packaging, re-packaging, labeling or making of any goods by which those protected goods are imitated in such manner and to such a degree that those other goods are identical to protected goods"

- on the contentious issue of medicines, counterfeiting includes the deliberate and fraudulent mislabeling of medicines with respect to identity or source whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging.

- Copies of articles protected by copyright or trademark law in the importing country are also deemed to be counterfeit if the permission of the rights holder is not procured. This clearly gives an option to those who wish to import generic copies to apply under the respective legislation for compulsory licenses.

- The bill gives the National Drug Authority express jurisdiction to handle matters where medicines are involved. This section allays the fears of those who felt that the Uganda National Bureau of Standards has insufficient competences to deal with or distinguish counterfeits from genuine products.

Overall, i must say that the value and urgency of passing this legislation after careful scrutiny by all stakeholders cant be overstated. The mindset that allowing products, irrespective of quality or standards will deal with our needs as a country is misplaced. What needs to happen is for the Government, private sector and donor community to come together and provide specific incentives for innovation in sectors such as drug discovery, development and manufacturing.

In the meantime, parties concerned about the excesses of the application of Intellectual property rights should put to use Compulsory licensing provisions under the law, which to the best of my knowledge have never been invoked. By so doing, the delicate balance between public and private rights in the use of Uganda's Intellectual property system will be put to test without severely undermining the attribution of creativity and ownership that form the basis for innovation.

Asiimwe Paul

Asiimwe Paul

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3 February 2010 at 16:16 delete


With respect to medicine, i note from your description of what is contained in the new version of the Ugandan Bill that counterfeiting is defined using the word "includes". To me this sort of inclusive wording does not seem to exempt counterfeit medicine from the general definition of counterfeiting.

The same scenario happened in Kenya when almost similar amendments were agreed upon between supporters and those who opposed the Kenyan Anticountefeit Bill. Despite the amendments and passing of the Bill in parliament there is still debate as to the proper meaning of those amendments.

To me the separate definition of counterfeit medicine does not seem to make any difference in the proposed law. My view is that one counterfeit product, whether medicine or dry cell “smells” as bad as any other.