Advanced and comprehensive intellectual property systems are important if Africa is to attract investment and develop its economy. Solid intellectual property regulation in African States will encourage foreign companies to bring their products to Africa.
"Using intellectual property as a strategy for economic growth has paid off for a number of countries in Africa," says Adams & Adams consultant attorney Nicky Garnett. Adams & Adams is a specialist intellectual property law firm based in Pretoria.
With the proper intellectual property systems in place, she explains that African countries can attract foreign direct investment (FDI). Multinational corporations will not invest in and export their products to African countries without sufficient protection for their merchandise.
Kenya, for example, has recently updated its intellectual property legislation to make it more attractive as "a destination for investment," says Garnett. In 2008, Kenya welcomed 25 international investment projects. This was not likely to have happened without the guarantee of protection for the products of investors, she adds.
Similarly, Nigeria recently signed the Patent Cooperation Treaty (PCT), which provides a unified procedure for filing patent applications. This treaty allows a period of 31 months for a patent application to be finalised. This is useful in Africa, Garnett says, as foreign companies may want the extra time to investigate the market they are entering, in order to ascertain that the country in question is a worthwhile place to take their product. Nigeria has also updated its Trademark Act and Counterfeit Goods Act to enhance the protection of trademarks, and decrease pirating of goods.
Garnett says that 80% to 90% of patent applications in Africa are filed by foreign companies wanting to protect their rights in Africa.
With regard to internal African intellectual property protection, she explains that the value of the protection of ideas was not previously recognised in Africa. In recent years, however, many African governments have started to realise the importance of home-grown research and development (R&D), and the use of intellectual property as a tool to improve gross domestic product (GDP).
South Africa is in a unique position, says Garnett. Known as the economic powerhouse of Africa, South Africa boasts superior technological advancement in comparison to most African countries.
"Without a R&D base, African countries cannot use intellectual property to improve [their] attractiveness globally," Garnett explains. South Africa is fortunate, as it has a well-developed R&D base, with the likes of the Centre for Scientific and Industrial Research and established research centres at universities.
Potecting Your Ideas In Africa
Adams & Adams proclaimed recent paper on intellectual property in Africa on its website, that the continent is becoming an increasingly attractive market for products and services. The paper also indicated that key to intellectual property protection, is the understanding that with increased opportunities comes increased risk, which highights why proper intellectual protection regulation is so important.
Garnett explains that intellectual property is territorial in nature, and this has resulted in the establishment of two organizations, the Afriican Regional Industrial Property Orginastion (Aripo) and the African Intellectual Property Organisation (Oapi), which control intellectual property registration in Africa.
Aripo was established in 1976 with the Lusaka Agreement, as a regional body to protect the common interests of its 16 member States. Aripo consists of English-speaking African countries, including: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
Aripo provides a centralised system for the registrations of patents, trademarks, copyright and industrial designs. Its central office, based in Harare, Zimbabwe, deals with all communications between the companies looking to protect their intellectual property and member States. It is from here that all registrations take place, with the result that intellectual property registrations are cost-effective and convenient.
According to Garnett, the Aripo officials in Harare have the expertise necessary to regulate the applications for intellectual property protection, and prosecute infringements of intellectual property. Thus, Aripo provides a better standard of protection as a regional body, rather than an individual State that may not have the expertise to examine an application.
The Harare Protocol, signed by 15 of the 16 Aripo member States, covers patents, utility models and industrial designs, while the Banjul Protocol on trademarks, adopted in 1993, has been signed by only eight of the Aripo member States. Trademark regulation under Aripo is therefore problematic, says Garnett, as member States, with the exception of Zimbabwe and Botswana, have not incorporated the provisions of the Banjul Protocol into their national legislation.
By registering through Aripo, prospective investors can designate either all or some of the member States. In essence, it is possible to choose the countries in which one's intellectual property would be protected.
Although the registration of intellectual property is centralised through Aripo, any enforcement of rights must take place according to the national law of the individual member States.
Adams & Adams says that "the proof of a good system lies in the ability of rights holders to enforce their rights". There is not much case law available on the enforcement of intellectual property rights in Africa, as litigation in this field is not common on the continent.
However, the case of Pfizer v Cosmos (Case No. 49 of 2006), in which global pharmaceutical major Pfizer was able to successfully enforce its Aripo patent, proves the value of intellectual property protection in Africa.
According to Adams & Adams, in this case, Pfizer alleged that Cosmos, a Kenyan pharmaceutical, had infringed on its Aripo patent for a medicinal product known as azithromycin dehydrate and the process for its manufacture. Cosmos brought the defence that Pfizer's Aripo patent was not valid and had not been renewed, and that it was entitled to use the product without authorisation in terms of the Trade Related Aspects of Intellectual Property (Trips), under the World Trade Organisation (WTO), as well as the ‘Peace Clause', an agricultural agreement made by the US during a WTO general council meeting. Cosmos's defences were dismissed and it was found to have infringed the patent.
This case is important, in that it proves that African judicial systems are capable of applying the law and enforcing patent rights. It should encourage foreign investors that Africa is a safe destination into which to bring their intellectual property.
Oapi was established by the Accord de Libreville and revised by the Accord de Bangui, as a regional body to protect the common interests of its 16 member States. OAPI consists of French-speaking African countries, including: Benin, Burkino Faso, Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritania, Niger, Senegal and Togo.
The founding documents established common intellectual property laws for the region and a single intellectual property registration office, in Yaounde, Cameroon. Unlike Aripo where a patentee can designate in which member countries the patent should apply, patents filed with OAPI will automatically cover all 16 member States.
The Bangui Accord covers all aspects of intellectual property, and through it, all member States ceded their rights to the centralised Oapi office. Oapi is a member of the Patents Cooperation Treaty (PCT), first signed in 1970 and last modified in 2001, enabling a proprietor to file for international patent protection simultaneously, in each of the PCT member States.
By registering with both Aripo and Oapi, proprietors will have their product protected in 31 out of 53 African States. Intellectually property protection in non-member States would have to be undertaken individually.
Where Does South Africa Fit In?
South Africa is not a member of either Aripo or Oapi, although both organisations are reportedly lobbying for South Africa, which is likely to attract more intellectual property applications because of its strong economy, to join. Similarly Nigeria, the fastest growing African economy owing to its rich oil reserves, is also under pressure to join.
In South Africa, intellectual property registration takes place in terms of local law and must be filed with the South African Patent and Trademark Office, in Pretoria.
Speculating on why South Africa would keep itself separate from the two regional intellectual property organisations, Garnett says that there are a number of political and economic considerations at play.