WIPO African ministerial should embrace a pro-competitive and pro-development IP vision
An African ministerial meeting, organised by the World Intellectual Property Organization (WIPO) and the Japan Patent Office (JPO), to be held in Senegal next November 3-5 should embrace a balanced and development-oriented approach to intellectual property. Such an approach ought to take into account the needs, priorities and socio-economic circumstances of African countries as well as the most recent empirical evidence on the dynamics of intellectual property and innovation on the continent.
The World Intellectual Property Organization (WIPO) has recently announced it is organising with the Japan Patent Office (JPO) an African ministerial conference on intellectual property (IP), in Senegal, November 3-5, in cooperation with the African Union (AU) and the Government of Senegal. The ministerial conference on ‘IP for an Emerging Africa” aims to “explore the opportunities as well as the challenges facing Africa in building a vibrant innovation system and in effectively using the IP system,” according to meeting’s provisional programme.
A focus on an expansive use of IP
A cursory look at the meeting’s provisional programme reveals a focus on strong IP protection and an expansive use of IP in the orthodox sense. Under the cluster on science, technology and innovation, most sessions focus on the ‘centrality and contribution of IP for innovation, competitiveness wealth creation.’ Under the cluster on copyright and creativity, sessions focus on ‘copyright as an incentive and growth driver for digital development’ and on the ‘strategic use of IP’ in the sports and fashion industries. Only one of the conference’s sessions is specifically devoted to public interest concerns: the implementation of the WIPO Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons (2013).
The conference features speakers mostly from governments and the private sector, with almost no speakers from civil society and non-governmental organizations, denoting a potential lack in diversity of views, and paucity of broad-based consultations, on topics which are often controversial and hotly debated in the public arena. Neither did conference organisers seem to have engaged a number of credible researchers and research networks that focus on the contextualization of IP and innovation policy dynamics with reference to African realities.
Finally, the conference’s programme does not reflect the main priorities and proposals which African countries have put forward in recent years, at the international level, at WIPO and the World Trade Organization (WTO). At these forums, African countries have consistently strived for the promotion of IP regimes which are balanced and supportive of their public policy objectives. For instance, they have continuously advanced the need to ensure that patents are supportive of the protection of public health and access to medicines and to promote technology transfer to poorer countries. They have also been strong advocates for the conclusion of legally binding global norms for the protection of genetic resources, traditional knowledge and traditional cultural expressions against misappropriation particularly in the context of WIPO’s main body dealing with these issues, the IGC.
Empirical research on innovation and IP in Africa
Any approach to promoting IP and innovation in Africa must be solidly grounded in African realities and experiences. Empirical research points to a diverse and contrasted situation in this regard.
For instance, research findings point out to the usefulness of “branding, whether through reputation alone or protected by geographic, communal or certification marks” for enhancing the value added of some agricultural products of African countries such as coffee, and this is an issue that is indeed duly addressed by the ministerial conference.
In contrast, when it comes to copyright, a major research project in eight African countries, found that copyright laws in these countries addressing the Internet “restrict access to learning materials by supporting the use of Technological Protection Measures (TPMs) and prohibiting their circumvention, even for non-infringing purposes” and that ”such restrictions may deny opportunities for learning offered by digital technologies in general and ICTs in particular.” In many cases, provisions in these laws “exceed the standards reflected in existing international treaties and agreements.”
In the area of agriculture, a recent study has noted that, through several regional initiatives and national laws, African countries are fast adopting standards of plant breeders’ rights that are even in excess of UPOV 1991, the latter being the strongest regime of protection for plant breeders’ rights with minimum accommodation of the rights of farmers’ who provide over 90 percent of food on the African continent. Farmers are being criminalized over their traditional practices of seed exchange. Plant breeders’ rights, and other forms of IP, challenge the sustainability and survival of traditional farming practices and land races on the continent with significant consequence for food security.
The findings of another important research  undertaking on future scenarios for innovation in Africa, as well as on the IP dynamics, point out, for instance, that “patent systems are irrelevant to many of the modes of innovation and creativity happening in Africa.” One author goes further arguing that “that dysfunctional national patent regimes not only contradict the spirit of national laws but may also disincentives R&D and hamper the dissemination of technological knowledge, in turn undermining social welfare and development.”
These trends raise many concerns which should also be addressed by ministers meeting in Dakar.
The need for a pro-competitive and pro-development IP vision for Africa
In light of the above, a number of questions arise: why do the poorest African countries adopt IP standards which often exceed their international obligations? Which IP rights are more adapted to African realities to promote innovation and creativity based on empirical evidence? And how can African countries avail themselves of the limitations, exceptions and flexibilities in IP laws and treaties, if needed, to address their vast educational and technological needs? More importantly, how do these issues connect to the broader efforts needed from African countries to implement the Sustainable Development Goals (SDGs) which have been recently adopted at the international level? These are the key questions that the forthcoming African IP ministerial should address as it embraces a pro-competitive IP vision at this critical juncture of Africa’s development path.
Such a vision is in harmony with the fact that the majority of African countries are Least Developed Countries (LDCs) and have been exempted until 2021 from the need to implement most of the obligations of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS), the World Trade Organization (WTO) instrument that sets the minimum international IP standards for all WTO members. This is the second time such exemption is extended by the WTO. This year, the WTO might further extend the specific exemption granted to LDCs concerning the enforcement of patents on pharmaceuticals which was set to expire in 2016, the deadline set by the 2001 Doha Declaration on the TRIPS Agreement and Public Health.
Such a vision is also in sync with global policy debates on IP which have witnessed growing interrogations about the extent to which IP is central to the innovation process in light of recent economic evidence. Last August, The Economist examined the relationship between patents and innovation arguing that while “today’s patent regime operates in the name of progress, it sets innovation back” and that there was a pressing need to “fix it.“’ Several other influential economic media outlets have featured pieces airing similar views over recent years. Many countries are engaged in efforts to reform their patent laws and systems to make them more supportive of innovation.
It is thus rather surprising that at a time when such an intense global debate on the role of IP is taking place, the poorest countries in the world are being exposed to a partial view of IP which is precisely under heavy criticism and challenged in industrialised countries.
The mainstreaming of the WIPO Development Agenda recommendations into question
The WIPO has had a long standing tradition of promoting a one sided view of IP which exalts the absolute benefits of IP protection even though it became a UN organisation in 1974. Such a view is rooted in WIPO’s history - marked by a close association with IP right holders - and amplified in modern times by the fact that most of the organisation’s revenues (90 percent) come from the IP registration system which it administers, most notably the Patent Cooperation Treaty (PCT).
The adoption of the TRIPS Agreement, and the ensuing debate on patents and access to medicines, made WIPO’s traditional views on IP increasingly untenable. In 2004, a group of developing countries launched the WIPO Development Agenda (DA), an initiative aimed at having WIPO adopt a more balanced and nuanced approach of IP that is more supportive of innovation and sensitive to public interest and development concerns. In 2007, a set of 45 DA recommendations were adopted by consensus with the aim of integrating the development dimension in the organisation’s work and ensure that it recognises both the benefits and costs of IP protection, particularly in its technical assistance to developing countries. Recommendation 1 of the WIPO DA underlined that “WIPO technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States.”
In recent years, there has been much debate over the extent to which the WIPO DA recommendations have been effectively implemented as well as reservations over the extent to which the development dimension has been mainstreamed in the organisation’s work. An independent review of the implementation of the WIPO DA is currently being undertaken by a set of independent experts.
While many WIPO DA recommendations aim at assisting developing countries to make better use of IP systems, several recommendations are directed at ensuring that IP regimes are more balanced, particularly through the use of flexibilities in IP laws and treaties. For instance, Recommendation 17 states that in “its activities, including norm-setting, WIPO should take into account the flexibilities in international intellectual property agreements, especially those which are of interest to developing countries and LDCs.”
The approach that permeates through the program of the forthcoming African IP ministerial shows that the implementation of some of these recommendations remains at best a work in progress, particularly when it comes to the delivery of technical assistance to poorer countries and the promotion of innovation and access to knowledge.
The forthcoming African IP ministerial offers a unique opportunity to pursue a differentiated and nuanced approach to IP in Africa which takes fully into account the dynamics of innovation and IP on the ground on the continent, rather than a narrow and one-sided- approach. This opportunity should not be wasted. In addition, African countries themselves must ensure more effective coherence and coordination between the positions and priorities they advance at the international level, at the WTO and WIPO, and discussions in such regional gatherings.
Ahmed Abdel-Latif is Senior Programme Manager, Innovation, Technology and Intellectual Property at the International Centre on Trade and Sustainable Development (ICTSD). Previously, he was an Egyptian delegate and coordinator of the African group at WIPO.
Dick Kawooya is an Assistant Professor, School of Library and Information Science, University of South Carolina.
Chidi Oguamanam is a Professor of Law in the Centre for Law, Technology and Society, Faculty of Law (Common Law Section) at the University of Ottawa and a founding member of the pan-African Open African Innovation Research (Open Air) Network.
 Chidi Oguamanam, Breeding Apples for Oranges: Africa's Misplaced Priority Over Plant Breeders' Rights, Journal of World Intellectual Property, AUG 2015.
 Knowledge & Innovation in Africa: Scenarios for the Future, 2013 and Innovation & Intellectual Property: Collaborative Dynamics in Africa, 2014, Open A.I.R. Project.