Intellectual Property Policy Incoherence at the African Union Threatens Access to Medicines

Proposed Pan-African IP Organization a Terrible Idea

In a stunning development, following an obscure vote of Heads of State at the Africa Union in 2007 (Assembly Council/AU/Dec. 138(VIII)), the AU Scientific, Technical, and Research Commission has proposed a draft statute to establish the Pan-Africa Intellectual Property Organization (PAIPO).  This proposed legislation will be presented to a meeting of the African Ministers in charge of Science and Technology on 6-12 November 2012 in the Democratic Republic of Congo.

The statute, drafted by true believers of IP-maximalist ideology, proposes to establish a region-wide intellectual property organization with the sole agenda of expanding IP rights, strengthening enforcement, harmonizing regional legislation, and eventually facilitating the granting of IP monopolies by a central granting authority that may well be legally binding on Member States.

The Preamble eulogizes the expansion of IP as the engine of economic growth; of creativity, innovation, and invention; of technology transfer and competitiveness; of protection of indigenous knowledge; and of dissemination of knowledge and knowledge-based goods.  The objectives of PAIPO (Art. 5) include:  “the harmonization of intellectual property systems of its Member States, with particular regard to protection, exploitation, commercialization and enforcement of intellectual property rights;” the provision of common services in the “administration and management” of IPRs; “activities that strengthen the human, financial and technical capacity to Member States to maximize the benefits” of the IP system and to “eradicate the scourge of piracy and counterfeits;” and finally to lead African negotiation on IP issues.

The proposed statute thereafter establishes a Council of Ministers and its bureau, an Experts Committee and its bureau, a Board of Appeals, and the Office of the Director General (Arts. 7-11).  Although PAIPO will initially cooperate with regional IP bodies like ARIPO and OAPI along with WIPO and the WTO, the longer term objective will be to establish a single, monolithic clearinghouse for examining, granting, and registration of intellectual property rights (see Arts. 5(iv) and 6(ii)).  In addition to this function, PAIPO will “take deliberate measure to promote the protection and exploitation of Intellectual Property rights with the Member States, including conclusion of bilateral and multilateral agreements.”  The ultimate goal is the establishment of “a world-class IP systems (sic).”

Throughout the proposed legislation, there is not one reference to achieving a balance between the interests of rightholders and users of technology and creative endeavors.  There is not a word on preserving permitted limitations or exceptions to IPRs or controlling misuse of IP monopolies.  There is not a single commitment to withstanding pressures from the US and EU for ever expanding intellectual property rights that are longer, stronger and broader nor for the draconian enforcement obligations that suppress legitimate competition and impose costly border, criminal, and civil enforcement obligations on Africa taxpayers.

• How in the world is this proposal consistent with the development agenda being pursued by other African ministers at WIPO?
• How is it consistent with the efforts of the East African Community to pass policies designed to maximize adoption of TRIPS compliant flexibilities into EAC region IP laws or with the effort of SADC members to do the same?
• How is it consistent with the current effort of Uganda to modify its Industrial Property law to maximize access to medicines and the complementary civil-society led campaign in South Africa to “Fix the Patent Act” to restrict patent-monopolies on medicines?
• How is it consistent with the policy space currently given to least development country members of the World Trade Organization to not become TRIPS compliant until at least 2013, and with respect to medicines not until at least 2016?
• How is it consistent with the efforts of Africa LDCs to seek further extensions of both of those extended transition periods?
• How is this consistent with the policies of the the African Union in Pillar Three of its Roadmap on Shared Responsibility and Global Solidarity for AIDS, TB and Malaria Response in Africa, to create “a legislative environment that incorporates the full use of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) flexibilities and develops awareness to avoid the incorporation of “TRIPS-plus” measures in trade agreements?”
• How is it consistent with Member States human rights obligations to progressively realize the right to health, including access to medicines?
• How is it consistent with affordable access not only to medicines, but to educational resources, climate control/mitigation and green technologies, and other public goods?
• How is it consistent with the needs of farmers to have access to seeds, plant varieties, and other agricultural resources that are currently being enclosed by IPRs?
• How is it consistent with the desire to establish regional pharmaceutical capacity when all the medicines will be tied up with patent rights owned by multinational corporations domiciled in the US and Europe?
• What evidence is there that increased intellectual property protections leads to direct foreign investment in any sector let alone IP, since all IP rights can be fulfilled by import rather than local production?
• What evidence is there that local innovators will benefit proportionately where the evidence shows that the vast majority of patent and other IP filings in Africa are from Northern and Western inventors, authors, and trademark holders?
•  What evidence is there that technology transfer happens automatically as a result of heightened IPRs and enforcement activity?

The truth of the matter is that the proposal to establish PAIPO is a misinformed and misguided effort by a small subset of policy makers at the AU that undermines other policy initiatives at the AU and by Member States that seek to: (1) minimize the impact of patent monopolies on access to medicines and other public goods technologies, (2) minimize the impact of copyright monopolies on access to educational and cultural resources, (3) preserve the livelihoods and agricultural vitality of small-scale farmers that still make up the bulk of the Africa economy, and (4) retain policy space for other more creative mechanisms that promote both knowledge creation and cultural expression while preserving affordable access to the same.

This wrongheaded proposal must be stopped.  Normative agency like UNAIDS and UNDP and WHO must immediately engage AU stakeholders and issue statements cautioning against adoption of the imbalanced PAIPO proposal in its current form.  Other AU bodies must demand a review of the proposed legislation and determine its consistency or inconsistency with other AU policy objectives in the IP, health, education, and development arena.  African civil society organizations and their allies must insist that the proposal be euthanized and that policy space be preserved for innovation and access measures that better meet human development needs.