Wend Wendland
Adjunct Professor, Department of Commercial Law
Faculty of Law, University of Cape Town
Key points
The continent-wide free trade zone created by the Agreement Establishing the African Continental Free Trade Area (the AfCFTA) has the potential to catalyse intra-African trade, boost economic development and lift tens of millions of Africans out of poverty.
From a trade and development perspective, the AfCFTA advances a fresh trade model focused on inclusive and sustainable development.
In recognizing the centrality of intellectual property (IP) protection in today’s economy, and the benefits of continental cooperation on IP, the AfCFTA will include a Protocol on IP, an early draft of which has been published.
Finalization of the IP Protocol holds the promise of a home-grown, single, coherent and Africa-centred IP regime. This could harmonize the fragmented IP landscape of today while safeguarding national policy space on key issues, strengthen the hands of African negotiators in international forums and even help propel currently deadlocked international negotiations towards the finish line.
This blog post examines the elements of the draft Protocol related to genetic resources, traditional knowledge and traditional cultural expressions (expressions of folklore).
It is too soon to tell whether the IP Protocol will realise its promise and advance the policy objectives, principles and transformative potential of the AfCFTA. Future drafts of the Protocol will be followed closely by “Multilateral Matters”.
Introduction
In 2012, the African Union decided to establish an Africa-wide free trade area. The Agreement Establishing the African Continental Free Trade Area (the AfCFTA) came into force in May 2019, 30 days after the requisite number of countries had deposited their instruments of ratification. As of today, 30 of the African Union’s 55 members have signed and ratified the AfCFTA.[1]
Trading was set to commence under the AfCFTA in July 2020, but this has been delayed by the COVID-19 pandemic.
In the words of the recently-elected Secretary General of the AfCFTA, Wamkele Mene, the AfCFTA is:
“. . . a critical response to Africa’s developmental challenges. It has the potential to enable Africa to significantly boost intra-Africa trade, improve economies of scale and to establish an integrated market. It has the potential to be a catalyst for industrial development, placing Africa on a path to exporting value-added products, improving Africa’s competitiveness both in its own markets and globally. It also sends a strong signal to the international investor community that Africa is open for business, based on a single rulebook for trade and investment”.[2]
A mega-regional trade pact
Indeed, according to the African Union (AU) and the UN Economic Commission for Africa (UNECA), the AfCFTA aims to integrate the currently fragmented markets of the 55 AU member countries, with 1.3 billion people, into a single USD 2.5 trillion market. This will propel much-needed industrialization, support food security through increased intra-African trade in agricultural and food products, take advantage of Africa’s forecasted population growth, pivot away from extractive commodities to more diversified export products, provide jobs for Africa’s youth through promoting labour-intensive trade and supporting informal traders, especially women traders, and assist Africa to speak with one voice in international trade negotiations.[3]
The expected economic boost to be provided by the AfCFTA will be even more critical given the downward economic shock caused by the COVID 19-induced supply chain disruptions, production stoppages, trade and travel restrictions and lockdowns.
A recent World Bank report has concluded that the AfCFTA represents a major opportunity for countries to boost growth, reduce poverty, and broaden economic inclusion. According to the report, if implemented fully, the trade pact could boost regional income by 7% or $450 billion, speed up wage growth for women, and lift 30 million people out of extreme poverty by 2035.[4]
Focusing on the greater inclusion of women
Recognizing that women’s equal participation in international trade is critical, targeted initiatives, such as “SheTrades: Empowering Women in the African Continental Free Trade Area (AfCFTA)”[5], are underway to provide women business associations and policy-makers with capacity building and advocacy support, and bringing them together for policy dialogues, including on IP issues.
Intellectual property in the AfCFTA
The first phase of the AfCFTA negotiations focussed on the framework agreement establishing the AfCFTA and negotiations on protocols on trade in goods and services and dispute settlement. A second phase is dedicated to negotiations on investment, competition policy and IP. Phase two is intended to be completed by June 2021 but this may be delayed by the pandemic.
Regarding IP, a draft “Protocol on Intellectual Property Rights” has been prepared.
The “Multilateral Matters” series will focus on only one aspect of the AfCFTA, namely its proposed provisions on IP.
This analysis of the draft IP provisions will, first, be cognizant of the transformative quality of the AfCFTA, and of its aspiration to embody a new normative approach to trade and development that could affect global trade well beyond the African continent. As Katrin Kuhlmann and Akinyi Lisa Agutu write:
“The AfCFTA reflects both Africa’s new model of what a trade agreement should look like and aspects of the multilateral legal framework of the World Trade Organization (WTO). The AfCFTA has a strong development focus, highlighting economic and social development and legal harmonization among its objectives and incorporating aspects of the AU’s Agenda 2063, which prioritizes inclusive social and economic development and links Africa’s growth and integration to the Sustainable Development Goals (SDGs).”[6]
Second, the AfCFTA’s own guiding principles and objectives are also points of reference against which to examine the IP provisions. Notable amongst these are the objectives and principles related to sustainable and inclusive socio-economic development, resolving the challenges posed by the crow’s nest of obligations arising from multiple and overlapping trade regimes (including IP regimes) that accompany the existing eight African regional economic communities (RECs) and existing IP organizations such as ARIPO and OAPI, expediting regional and continental legal harmonization, reaffirming countries’ rights to regulate within their territories and use flexibilities to achieve legitimate policy objectives,[7] and drawing on best practices in the RECs, States Parties and international conventions binding the AU.[8]
The analysis will also examine the IP provisions in relation to the objectives spelled out in the draft Protocol itself. The succinct Article 2 of the draft reads:
“The objective of this Protocol is to foster continental norm-setting and co-operation within the policy space available to State Parties while respecting their commitments under international treaties which they have entered into, with a view to:
- Establishing a continental framework on intellectual property which advances the interest of the State Parties and fosters innovation;
- Realizing the aspiration in Agenda 2063 for a continental market in goods and services;
- Formulating a common position on matters related to intellectual property during international negotiations.”
Finally, Caroline Ncube, Tobias Schonwetter, Jeremy de Beer and Chidi Oguamanam remind that process is also critical. As they cogently write, it will also be critical that the process followed by negotiators in the finalization of the Protocol be “geared towards ensuring good, fair, balanced and widely-supported policy through democratic, open, transparent, inclusive and diligent processes, such as public consultation and debates”.[9]
The draft IP Protocol
The text of the draft Protocol as of today is accessible on this blog’s complementary readings page.
It contains a Preamble and then a Part I covering definitions, objectives, principles, international treaties, national treatment and most-favored nation treatment. Part II deals with regional trade and norm-setting, including articles on exhaustion of rights; traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs); geographical indications and the protection of plant varieties (which is expanded upon in Annex I). Part III addresses “cooperation”, while, finally, Part IV covers institutional matters. Annex II comprises guidelines for the enforcement of IP rights. The draft includes explanatory notes.
The IP Protocol is still a draft and will evolve. The annotations below are therefore initial. “Multilateral Matters” will follow the evolution of the IP Protocol closely and provide updated blog posts in due course. This particular blog post addresses the provisions of the Protocol dealing with GRs, TK and TCEs only.
Initial annotations on the GRs, TK and TCEs elements in the draft IP Protocol
| Art 2.c, ObjectivesOne of the objectives of the Protocol is “Formulating a common position on matters related to intellectual property during international negotiations” | An international negotiation is underway in WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC). This is the most relevant and significant process currently underway. African countries have played a leading role in these negotiations, and are demandeurs for new legally-binding international legal instruments that will provide specific, tailored intellectual property-similar protection for GRs, TK and TCEs. |
| Art 3.2, PrinciplesOne of the principles in the draft Protocol states that parties must undertake cost-benefit analyses and consultations with national stakeholders before acceding to or ratifying international treaties. | This article echoes elements of Recommendation 15 of WIPO’s Development Agenda, adopted in 2007, which enjoins WIPO’s norm-setting activities to “take into consideration a balance between costs and benefits”, and to be “participatory”. A distinction is that the IP Protocol refers to what ought to be done before acceding to or ratifying international treaties, rather than before embarking on norm-setting activities. According to one analyst, negotiations at WIPO towards a new Design Law Treaty commenced without any cost-benefit analysis.[10] A cost-benefit analysis has never been undertaken by the IGC, and the undertaking of “studies” has become controversial. In the last few years, some countries have submitted proposals for the conducting of studies such as cost-benefit analyses, but this has not been agreed to. The current mandate of the IGC states that “(S)tudies or additional activities are not to delay progress or establish any preconditions for the negotiations”[11]. |
| Article 8This is the article dealing squarely with TK, TCEs and GRs. | The article is brief and general and provides minimal or no guidance on core issues such as beneficiaries, scope of rights, scope of protectable subject matter and exceptions and limitations. These questions are perhaps intended to be left to domestic law. This could a suitable solution: international and regional instruments should provide high-level guidance, leaving detail to domestic law (see Multilateral Matters # 4 “Intellectual Property Norm-Building: Some Reflections on the Interplay between the National and International Dimensions”). More specific comments on Articles 8(1) to (3) follow. |
| Article 8(1)Access to TK must be subject to prior informed consent (PIC) of the holders of the TK. Parties must provide in their domestic law for compliance and enforcement of this obligation | It’s notable that only access to TK would be subject to PIC, and that all TK would be subject to PIC: no distinction is made between different forms of TK (such as between secret TK and TK that has been widely diffused) and nor is a mention made of other kinds of IP rights, such as moral rights or rights to compensation/remuneration. By contrast, in other forums a “tiered” or “differentiated” approach is under consideration, albeit not universally supported.[12] “Traditional knowledge” is not defined in the Protocol, nor are the “holders of” the TK. Detail would perhaps be left to domestic law. |
| Article 8 (2)This article would require parties to provide for a new “disclosure requirement” in their patent and/or plant breeders rights laws. The “use of” GRs and TK “in inventions” would have to be disclosed. Domestic law would provide for colouring in key issues such as the scope of such a requirement, the formalities for compliance with it, and the consequences of non-compliance. | This article references the controversial question whether or not patent law should include a new mandatory disclosure of origin requirement. In brief, such a requirement would oblige the disclosure of certain information in applications where the subject matter/claimed invention uses or is based on GRs and associated TK. The information that would need to be disclosed would include information about the country of origin or source of the GRs and associated TK and evidence that that country’s access and benefit-sharing regime has been complied with.[13] Some countries argue that such a requirement might also be necessary in other branches of IP law too, such as industrial design law. There are around 30 countries[14]that already have disclosure regimes related to GRs and associated TK in their patent laws or other laws. The policy, legal and operational issues around such additional disclosure requirements are by now relatively well known, and there is a growing body of national experience around their inclusion in national law. A compilation of key policy questions on and national experiences related to such a requirement is a useful resource.[15] In April 2019, the IGC Chair prepared, under his own authority, a draft international legal instrument on GRs and associated TK, which lays out a model for a mandatory disclosure requirement in patent law.[16] |
| Article 8(3)This article provides for what is referred to as “defensive protection” for TCEs. This is the first reference to TCEs in the draft Protocol. | Whereas TK receives a measure of “positive protection” in article 8(1), meaning that the holders of TK would receive actionable rights in their TK, TCEs are endowed with “defensive protection” only and in some situations only. Under draft article 8(3), communities can prevent the registration of trademarks and industrial designs that represent, imitate or are based on their TCEs, unless the applications are made by the community itself or with its express consent. No reference is made to the use of TCEs in literary, artistic or musical works which might be protected under copyright. |
| Article 11 (2)(a) and (d)Article 11 provides for cooperation among States Parties in the field of IP to support industrialization, intra-African trade and economic growth. Sub-articles 2(a) and (d) refer directly to TK and TCEs. Sub-article 2(a) provides that State Parties must share experiences on national IP policy, law and institutions, “including sui generis protection of traditional knowledge and traditional cultural expressions”, and where applicable identify areas for harmonization at continental level, while sub-article 2(d) enjoins countries to enhance the use of geographical indications, collective marks and certification marks to add value to the commercialization of inter aliaTCEs. | Regarding the sharing of experiences on the sui generis protection of TK and TCEs, fortunately there are already sources that can be consulted.[17] Referring to sharing national experiences contributes towards the AfCFTA’s Principle of using best practices in the State Parties. Indeed, several African countries recently enacted new sui generis laws on GRs, TK and/or TCEs, such as Kenya, Zambia and South Africa.[18] Sub-article 2(d) picks up on the cogent argument that geographical indications, collective marks and certification marks are elements of the conventional IP system that are suited for use by communities to brand their TCE-based goods and services, thus building a reputation and goodwill in the marketplace and distinguishing authentic products from cheap imitations. These IP tools provide for community ownership and indefinite protection, thus responding to the needs of communities. There may be conceptual and operational challenges with using these conventional IP tools, however.[19] Several technical assistance programs assist indigenous peoples and local communities to make strategic use of geographical indications and collective and certification marks if they so wish.[20] |
Concluding remarks
The successful negotiation and adoption by all African countries of IP provisions in the AfCFTA could, for the first time, produce a home-grown, single, coherent, Africa-centred IP regime that, by also leaving national policy space, responds to and addresses the continent’s specific development realities, potentialities and aspirations. This would not only benefit the continent but also strengthen Africa’s hand in international IP negotiations. It may also help to propel those negotiations forward, especially in areas where they are encountering difficulties, such as in relation to GRs, TK and TCEs.
It is too early to judge whether the IP provisions on GRs, TK and TCEs align with the aspirations, objectives and principles of the AfCFTA, in particular whether they would contribute to the continent’s socio-economic development, foster harmonization of diverse existing IP regimes, draw effectively from the best practices of State Parties, strengthen Africa’s negotiating position in international negotiations or help uncork long-outstanding blockages in those negotiations. At this stage, based on my initial annotations above, it seems the provisions on GRs, TK and TCEs need more work if they are to achieve these goals. Further, to gain a more complete appreciation of the Protocol, it needs to be looked at holistically, examining all its provisions. Future “Multilateral Matters” blogs will follow both process and substance as the Protocol evolves.
Additional readings are listed on the Multilateral Matters portal.
