PATENT AND INTELLECTUAL PROPERTY ISSUES IN AFRICA

CASE STUDY ASSIGNMENT

Many African countries are in the third-world bracket, so millions of counterfeit goods which are not manufactured in African are shipped in, because of their almost non-existent laws at their ports. These goods include clothing brands, computer software, medicines, and toiletries. These imported goods pose a serious threat to Intellectual Property Protection that could be causing manufacturers and the continent, Africa, billions of dollars annually.

So many countries in Africa have thriving industries that are struggling to compete with their international counterparts but with piracy and counterfeiting goods, the struggle will only get harder.

Take for instance Nigeria, which has a booming video and film industry, known as Nollywood, and the third largest movie industry in the world, but the piracy faced by this industry is enormous. Nollywood movies are being duplicated in China and sold in several other African countries. The lack of Intellectual Property creates an unstable market and risk on investments in the industry.

One of the major problems is that many African countries are not properly signed up to global protocols protecting Intellectual Property rights, so this has made Africa the fastest-growing market for counterfeit goods. Africa needs comprehensive intellectual property laws if not it will continue to lose the much needed foreign investments it needs at this crucial period of global recession. At the moment, as studies have revealed, billions of dollars in foreign investments are lost as African countries continue to be dumping grounds for counterfeit good.

To understand the breaches of Intellectual Property laws in Africa, one needs to be stuck in traffic in the city of Lagos first off. You will notice all sorts items being hawked on the streets by hawkers who are moving around from car to car. But most conspicuous is the selling of pirated movies, music and DVDs from Hollywood and their music industry counterparts. All sold at less than $2.

Also, a visit to the “Computer Village" in city of Lagos, Ikeja district to be precise, will only convince a visitor that as it stands Intellectual Property laws stand no match against counterfeiting. Apart from it being a den of imported fake phones like NoKLA and Blukberry (original names are Nokia and Blackberry respectively) ; there are hundreds of stands in the markets, hawking pirated software copies of almost all type of applications. Pirated CDs include all the Microsoft Windows Operating Systems, to Linux Operating systems to web design applications and Games. These counterfeit CDs are shipped into the country from mostly Asian countries like China and Malaysia, and these African countries are targeted because they are low-income countries and there is widespread poverty and ignorance. With that known, the counterfeiters feed off that and import in bulk, literally millions of counterfeited CDs are shipped in weekly and consumers would rather buy them at rates as low as $1 than buy the original copies which start from rates of about $80. This is also what entails in other African countries.

At least 80 percent of the software installations in Africa are counterfeits which results in a loss of hundreds of millions of dollars annually. Consumers are comfortable with software applications regardless of whether it’s counterfeit or not, all their concern is to make sure it’s working.

Counterfeit goods as stated earlier are not restricted to just computer software alone, other products like movie DVDs, medicine, perfumes, toothpaste and all other types of toiletries are all part of the bane of counterfeiting which contravene all Intellectual Property laws.

According to a press release by East African Community (a regional intergovernmental organization of East African Countries), http://www.eac.int/about-eac/eacnews/411.html?task=view. A recent study commissioned by East African Community (EAC) shows that the countries in that region lose about $500 million in annual tax revenues because of counterfeit products. But while the controversy over whether patents and trademarks prevent access to affordable software and other products, the east Africa’s markets are flooded with fake goods. Companies like Microsoft EMEA (EuropeMiddleEastAfrica) GlaxoSmithKline and Cussons are being affected daily and poses significant dangers not only to public health but also to the relevance of these companies in their respective zones. Every company can deal with an amount of risk, and still calculate some returns on investment, but this has to be based on infrastructure laid out and fair business practices by the countries on which they reside offer. The governments of those countries are meant to protect the companies’ investments both in that country and more also in cross-border trading.

The questions many international companies are now asking themselves is whether their investments and products are safe from the clutches of IP predators, again mainly from Asia, but in recent times from African itself. Another question that the companies asking is “Are the governments really able to enforce Intellectual Property rights of both local and international companies or is the eye-service going to continue as long as nobody gets hurts?".

Some of the examples of counterfeiting are quite provoking considering the fact that these countries have laws meant to protecting Intellectual Properties and Patents law. It was once common practice among developing nations in Africa that violation of Intellectual Property rights was a pathway to economic growth. And while this thinking still prevails across Africa, there’s recognition that by not protecting such rights and laws effectively, Africa’s own production and innovation of geographically unique products such as South African’s Ubuntu software releases, Malawian tea, Ethiopian coffee, and music from all artistes the continent over , will be profoundly and negatively affected.

The truth remains that many African governments have agencies in charge of enforcing these laws but the issue is taking very lightly maybe due to the fact that consumers in the country are not ‘complaining’ and it is cheaper for mostly low-income consumers in such countries to have access to counterfeit goods. The difficulty to even obtaining information on what the laid-down laws are and how they work is also present.

Looking at this issue from perspective of writer Jeremy Phillips in http://jiplp.oxfordjournals.org/cgi/content/full/3/4/205, “it will be noticed that many African countries (and probably all the 54 of them), consists of very small Intellectual Property professions, which can be translated to the fact that a publisher probably gets no incentives for launching his book or a lawyer for selling special law journals or even a music artistes for royalties on work done both in the present and from the past". What Jeremy is trying to put out is that for all these categories of professionals is that when the much needed advice to regarding to filing of a patent, opposing/defending a trademark suit or copyright infringement scenarios, there will be too much reliance on ‘experts’ in the field who now ‘interpret’ these laws haphazardly because analysis of these laws are not stamp-proof and different pieces of the laws are just mashed together to suit the intending party.

Furthermore, the general level of interest by the general populace in these countries is far lower than what pertains in the United States and Europe. In the western world, Intellectual Property is regarded as an imported service that should be paid for, but in Africa where there are more pressing issues like famine, inter-tribal wars and social instabilities, the effects of those are so great that laws in relation to issues such as Intellectual Property are deemed a distraction and not an immediate concern.

The two organizations - African Intellectual Property Organization (OAPI) – a central patent and trademark registration system for French-speaking African and its English equivalent African Regional Intellectual Property Organization (ARIPO) are the enforcement bodies in charge of Copyright, Patent, Trademark and Intellectual Property laws of the African countries.

According to http://www.wipo.int/africa/en/partners_org/partners/oapi_bg.html , “OAPI, the Intellectual Property Law body guiding the francophone nations in Africa was founded as far back as 1962, in accordance with the Libreville Agreement and it dealt with patents, trademarks and industrial designs but consisted of 11 countries". In 1977, during the Bangui Agreement, its membership grew to 16 member states and conversely the issues which the organization was bound to cover also grew as well. In 1999 the Bangui agreement was amended it covers copyrights, trade names, plant variety rights, utility models, industrial designs, Intellectual property rights, just to name a few. Some of the member states include Togo, Senegal, Gabon, Cameroon, Chad, Guinea, Mali, Niger, Benin, Burkina Faso and Cote d’Ivoire.

According to http://www.aripo.org/index.php?option=com_content&view=article&id=19&Itemid=53,

“ARIPO was founded in the early 1970s when a seminar for the English-speaking countries had to come together to discuss patent, trademark, copyright and Intellectual Property cases". The major aim was to pool resources of those countries together to be "aware of the advantage to be derived by them from the effective and continuous exchange of information and harmonization and co-ordination of their laws and activities in intellectual property matters". At the moment the organization contains 17 member-states. Some of which include Liberia, Algeria, Egypt, Burundi, Eritrea, Ethiopia, Nigeria, Libya, Swaziland, Zambia, Zimbabwe, Uganda, Sudan, Somalia, Sierra-Leone, Gambia, Botswana, Ghana, Kenya, Malawi, Lesotho, and Mozambique.

Before the creation of both bodies, the World Trade Organization’s TRIPS (trade-related aspects of Intellectual Property rights) and United Nation’s World Intellectual Property Organization (WIPO) guided and enforced the Intellectual Property rights of multinational and domestic firms but in the last quarter of a century or so, ARIPO and AIPO were founded to manage only the issues as it pertains to Africa for both the English-speaking and the French-speaking countries, as such issues sooner or later had to be regionalized.

According to http://www.wipo.int/about-wipo/en/what_is_wipo.html, WIPO was created at the WIPO convention in 1967 to build an Intellectual Property system which would safeguard public interest and stimulate innovation. Its Member States include countries from all parts of the world and their unity and collaboration promotes the protection of Intellectual Properties with the cooperation of other regional bodies like ARIPO AND OAPI.

While many African countries have bought into the concept of such protection, only a few have the appropriate legislative and legal environment necessary for effective enforcement, especially in relation to cross-border trade.

According to WIPO, Africans are especially keen to protect traditional knowledge, such as those pertaining ecosystems and medicinal plants, along with patents and trademarks covering inventions, branding and company names. From their studies, some of the most affected areas of Intellectual Property infringements are medicines, computer software, spare parts of vehicles, designer clothes and all these products are being shipped in from Asia which is primarily the main problem. The protection of IP rights require a system of interaction between countries covering global and regional treaties and national legislation, OAPI and ARIPO provide member states with a centralized filing and registration system for Intellectual Property as provided by their own country’s regional offices. This in turn, helps members upgrade legislation to levels of international practice, so they can push through amendments that bring them in line with agreements such as WIPO and TRIPS. The difficulty is to engender political will and align such legislation with policies which are in line with other superior bodies like the AFRICAN UNITY, ECOWAS, NEPAD and SADC.

There is an upside in all these though; ARIPO states that Nigeria and Egypt are becoming more active in protecting Intellectual Property but willingness and cooperation do not necessarily translate to coherent enforcement. There is also the powerful need for companies and multi-nationals groups operating in the countries to encourage African authorities to develop the capacity to enforce effective penalties. And for this reason, even the current direct investment from abroad that should be invested in industries such as manufacturing, software and content development, investors tend to target the oil and mining sectors because the former industries lack Intellectual Property protection. Even the local companies are afraid to innovate new ideas and develop local contents for fear of having those ideas stolen, all these hinders the development of the African continent.

In Nigeria, even the due to the active nature and awareness surround IP protection and the development of a number of institutions responsible for protecting it, they still lack the explicit policy and legislative backing. Even when such policy and legislation exist there has never been a trial in court for any group of persons who smuggle pirated CDs, software and movie DVDs into the country, in essence, there are no baseline criminal justice codes applied to these crimes to these areas would continue to be vulnerable to Intellectual Property loss. Nigeria is very corrupt nation and ranked amongst the top five corrupt nations so the ports which are supposed to be the gateway into the country are leaking literally and even the ports authorities cannot account for the number of infringement goods that enter into the country on a daily basis. The ports need to be tightened and have these laws enforced and it also needs to be depoliticized. Technology also has to come in, because records have to be kept, and the status quo is that there is almost a complete lack of data around IP theft in areas such as medicine, software and entertainment. If data is not kept properly there is nothing much legal firms and legislation can do to resolve IP protection issues in the country.

And as seen on http://afro-ip.blogspot.com/ , a website that follows the rising Intellectual Property trends in Africa, according to one of their articles on http://afro-ip.blogspot.com/2010/08/libya-and-rwanda-improve-ip-systems.html, Libya and Rwanda, two struggling economies are making efforts to improve their IP systems. Libya passed a trademark law last year called the Ministerial Resolution No. 316 of May 2009, and in August 2010 the Libyan Trademark Office issued the first Registration Certificate in over 30 years.

According to http://www.wipo.int/wipo_magazine/en/2010/04/article_0003.html, Rwanda has been making great strides towards developing a modern legal framework for Intellectual Property. Though, it may still be a long time to come before it’s fully appreciated by the Rwandan public but an array of new laws in 2009 is slowly transforming Rwanda’s IP landscape. Some of the laws include SecuredTranscation Law, Electronic Transactions Laws and Insolvency Law which all translated in making Rwanda being awarded with “top global reformer" award by the World Bank in February this year.

In conclusion, Africa has no quick fix to its Intellectual Problems. Firstly its laid-down Intellectual Property laws must not only be put in effect but must also be enforced with clear cut punishments for offenders. In the long term, the technical support from the global IP community, ARIPO, OAPI WIPO and TRIPS in conjunction with the important unions like African Unity(AU), East African Community(EAC) and Economic Community of West African States(ECOWAS), must support these laws and provide legislative advice in drafting modern-day IP law; realizing that failure to do so will only maintain the status quo and make it harder to direct investments into the continent which is supposed to boost its economic performance in the global landscape