On the 19 September IP law firm Adams & Adams – the largest IP firm on the African continent hosted the biggest ever Intellectual Property of its kind on the African continent. Taking part were 50 representatives from 25 different African countries.
The keynote speaker was Gift Sibanda – current Director General of the African Regional Intellectual Property Organisation (ARIPO), as well as Chairman of the Consultative Committee of the World Intellectual Property Organisation (WIPO).
Sibanda’s speech focused predominantly on the role of Intellectual Property and its contribution to growth on the African continent.
1. SCOPE OF INTELLECTUAL PROPERTY
Intellectual Property relates to rights bordering on literary, artistic and scientific works, performances of performing artists, phonograms and broadcasts, inventions, scientific discoveries; industrial designs; trademarks, service marks and commercial names and designations; and protection against unfair competition.
In its simplest terms and based on rights covered, Intellectual Property falls under two main categories namely industrial property on one hand Copyright and Related Rights on the other. Industrial property covers inventions and industrial designs. It also extends to trademarks, service marks, commercial names and designations, appellation of origin, geographic indications and the protection against unfair competition. Copyright covers literary, scientific and artistic works. Areas such as performances of performing arts, phonograms and broadcast are clustered under related rights.
The concept of Intellectual Property in the domain of technology has assumed enhanced importance and the interest on the subject is gathering momentum. It has in recent times gained the centre stage in the “global village” and has become increasingly relevant in trade, culture and heritage, investment environment, food security, biotechnology, bio-diversity, healthcare, scientific and technological transformation. As the world moves towards a knowledge-based economy, where wealth creation is no longer based on brick and mortar, but rather on the brainpower and our ability to create, intellectual property has become an integral part of world business and a major source for wealth creation and economic growth. Its importance and usefulness in trade as well as economic and social development is illustrated by the intensive use made of the various aspects of intellectual property system by the industrialised nations in the development of their industrial base and export potential.
2. IP RATIONALE
The rationale of Intellectual Property is based on the concept that monopoly rights must be accorded to the inventor or creator of works for a limited period of time and that in return the inventor or creator must disclose the purported invention. In the case of patents, the disclosed information contains technical information which is very useful for industrial development. In the case of designs, the disclosed information embodies an industrial design or layout with an ornamental or formal appearance for a product. This visual appearance is very important in influencing consumers in purchasing the products and therefore this creates an economic value. Trademarks are seen as an important tool in product identification, marketing of commodities as well as maintaining the reputation of a firm or an institution.
In the area of copyright protection, the author or creator of work is protected against unauthorized use by third parties of his work. This protection provides an incentive to write, create or compose. The protection accorded also provides a window to a creator or an author to recoup expenses incurred in creating the work. The expense is normally in the form time, patience, skill, creativity and money. It is also apparent that the nature of work created does not only benefit the creator but since work has been created it becomes public information and therefore of benefit to society. The benefits could be as follows: encouragement of learning based on ideas and information conveyed by a work. Secondly rewards through reproduction and distribution of hard copies, sound records, films, etc as well communication in the form of radio phonic or electronic transmission. Thirdly, copyright is very important for cultural development. It is instrumental in developing talent thereby enriching creative genius expressed through music, drama, plays exposed through the mass media and public performances.
3. IP FOR ECONOMIC GROWTH
In the increasingly knowledge driven economy, intellectual property is a key consideration in day to day business decisions. New products, brands and creative designs appear almost daily on the market and are the result of continuous human innovation and creativity. The intellectual property system has therefore driven technology and innovation as well as creative industries to their current frontiers. It would therefore be a mistake to think that the intellectual property system is useful only for industrialized countries. On the contrary, it is fundamental for all countries that find themselves at the beginning of their industrial development. The leading industrialized nations such as United States, Japan, Germany, France and England, just to mention a few, introduced intellectual property protection in an era in which they were all under-developed countries in that the prevailing motivation was to surpass the gaps through progressive development of local technologies.
The development of Africa continues to pose serious challenges to governments, donors, development researchers and non-governmental organizations. The search for solutions has often been thwarted by lack of consensus and divergent views on how to address the hydra headed problems facing the continent. Africa possesses vast but largely under-developed mineral resources. Africa is also rich in energy resources, a significant portion that is yet to be developed. These energy resources include solar energy, hydroelectric power, geothermal energy, coal, and resources for nuclear energy. It is estimated that Africa has about 25-40 per cent of the world's total hydroelectric power potential. Africa, despite its enormous potential, remains the least developed of all the continents, lacking far behind in every economic indicator. Economic performance of many African countries is characterised by the declining per capita incomes and stagnant or negative rates of growth. Furthermore, food production has not kept pace with the population growth. According to projections, prospects for recovery, growth and development remain very dim unless the efforts currently under way in African countries are fully supported.
Manufacturing activity in the region is highly skewed with South Africa, Nigeria, Cote d’Ivore, Zimbabwe, Ghana, Cameroon, Kenya and Mauritius accounting for almost 90 percent of the total. South Africa’s share has fallen from over two thirds in 1970 to 54 per cent, but despite this, industrial concentration has increased since 1970, chiefly reflecting Nigeria’s increased share of African industrial activity and the success of export-led industrialization in Mauritius, whose share has risen fivefold to nearly 2 percent of the regional total. Manufacturing industry (except in the case of South Africa) is dominated by production for domestic demand and the processing of raw materials for export. This clearly shows the low level activity in the Region.
Sub-Saharan Africa’s share of global exports of manufactured goods has declined sharply at a time when that of developing countries as a whole has more than doubled. Africa’s manufactured exports have grown at 5.5 percent annually since 1970 during which period global exports of manufactured goods were increasing more than twice as fast at 11.9 percent per year. As a result, the region has lost market share, primarily to developing countries as a whole whose manufactured exports were increasing at nearly 13 percent annually. Sub-Saharan Africa’s share of developing economies exports of manufactured goods fell from 7 percent in 1970 to 1.3 per cent in 1990 and 0.78 percent in 1995. The regions manufactured exports (excluding South Africa) are dominated by foodstuff (24 per cent followed by clothing (12.4 per cent), refined petroleum (10.6 per cent), wood products (6.9 per cent) and iron and steel (5.4 per cent). Exports of high technology and skills-intensive items account for little more than 5 per cent.
The economic situation in which Africa finds itself and its international role as a primary supplier of raw materials and consumer of manufactured goods and imported technology make socio-economic transformation rather difficult in view of basically weak position and lack of capabilities. At the root of Africa's economic and technological under-development are limited financial resources, limited technical and managerial capabilities, and lack of capabilities to develop suitable technologies.
It is within this context that the use of intellectual property becomes a sine qua non. In order for developing countries including African countries to benefit from the intellectual property protection, proactive approaches should be developed by States towards taking full advantage of the intellectual property tools and also take meaningful steps towards the management of IP assets.
Copyright and Related Rights
Copyright is one aspect of intellectual property that Africans could actually benefit from. Africans are generally endowed with creativity. And in most cases this creativity comes as a talent, with no need or with very little need for training. At a more general level, copyright creates a conducive environment for creating and sharing knowledge and information. Without protection and a reserved opportunity to generate income from the commercialization of creative works, very few individuals would create and avail their works for use by others. Therefore, the commercial activity that takes place between the creation and consumption of a work enables economies to benefit from copyright protected works. There are a number of direct and indirect industries through which copyright protected works contribute towards economic development and growth. Such works include things like the written word (novels, prose, poetry), musical compositions, artwork including architectural designs, audiovisual works and certain aspects of computer software. All these products provide a large amount of consumer utility and as such are an important part of an economy. The copyright industry is booming worldwide – huge media conglomerates provide employment for a great many individuals and provide significant welfare improvement to the consuming public. Certainly, one of the most important aspects of the copyright industry is the fact that for many types of use of copyright products, it is beneficial for copyright holders to join together into collective management societies. It is most often argued that collective management of copyright is an efficiency response to transaction costs and can provide risk bearing benefit to members.
To further illustrate the above facts, the World Intellectual Property Organization (WIPO) in cooperation with the African Regional Intellectual Property Organization [ARIPO] has availed a facility through which countries can conduct studies to determine the contribution of copyright industries to their economies. Kenya, among ARIPO member states, has undertaken and completed this study. The study looks beyond the economic value of a single recordable and distributable piece of work; rather it looks at the whole value chain, which would then include all supporting, interdependent and partial industries. It considers issues such as the economic value accrued to other players in the whole chain, for example recording houses, producers, distribution channels, advertising based on the work and other uses.
In Kenya, it was found that in 2007, the copyright industries of Kenya contributed 5.3% of the country’s economy based on GDP. This was higher than the contribution of Agriculture at 2.3%, Education at 2.5% and Health and Social Work which stood at 3.9%. The findings of the study of the Kenyan copyright industries also indicated that copyright industries create employment and contributed 3.1% to the country’s employment which translated to 2% of the total national employee income and this was higher than the contribution of mining and the quarrying or the electrical and water sectors. In addition, South Africa has also undertaken the study. It is reveled that when the study was carried out, copyright industries contributed 4% to the overall national employment and 4.1% to the country’s GDP.
The study of copyright industries brings to light the fact that the IP system as a whole is a catalyst to using local creativity, talent and resources to contribute towards economic development and growth in Africa.
4. IP PROTECTION
The prowess of Intellectual Property as a tool for economic development is hinged on its rationale. The existence of IP regimes in a given country plays a pivotal role in attracting the necessary investments. Investors in recent years attached a greater value to IP assets and therefore more willing to invest in those countries that protect their IP rights. It is therefore apparent that for Africa to attract investment it is important to put in place appropriate legal regimes for the protection of IP. These IP regimes should be up to date or TRIPs compliant. Where countries have acceded to regional or/and international treaties, domestication of these regional international treaties should ensure.
While in the past Intellectual Property was largely considered as a tool providing monopoly rights to its rightful owners, in recent years Intellectual Property has become an important tool for socio-economic dev elopement and has been able to find its way in business profiles of major industrial firms and companies world-wide. We now live in a world where we have a handful of success stories in the field of industrial property. Started by Steve Jobs, Steve Wozmak and Roland Wayne, Apple has expanded from computers to consumer electronics over the last 30 years, officially changing its name from Apple Computers to Apple Inc in January 2007. Steve Jobs has over 300 patents in his name including 7 iconic ones. Among the key offerings from Apple’s product are the iPod, the iPhone and the iPAD. The success of iPhone cannot be better demonstrated than by the number of imitations that popped up following its 2007 launch. The far-reaching impact of Steve Jobs entrepreneurship and innovation on our lives today demonstrated through his patents and trademarks reveal the importance intellectual property plays in the global market place.
Another case in point is the hoodia plant which has been used for centuries by the san people who have lived in the Kalahari Desert to block feelings of hunger and give them energy when hunting or on long trips across their inhospitable land. The research conducted by the CSIR of South Africa which led to the filing of a patent, grant of a patent and license of the patent to pharmaceutical companies to commercialize the hoodia patent has become a disputed case for some time now. Even though efforts are being made to resolve the case involving several players in different countries, it continues to pose a number of questions on IP management, transfer of technology and knowledge between the North and the South and mutually beneficial and sustainable partnerships of all the parties.
For sustained economic development leveraging on intellectual property it is very important that an appropriate infrastructure for the promotion of innovation and creativity should be developed in those countries where they do not exist and where they exist innovative and inventive infrastructures should be strengthened. The infrastructures required include in the area of copyright collective management societies, databases on copyright and copyright management societies, etc. The infrastructures required for innovation are much more complex and include the industrial property offices which are responsible for the grant and registration and documentation of IP titles, IP agents who should be intermediaries between the patent office and innovators and inventors. Inventors’ associations group together inventors for the purposes of supporting each other in their endeavors to invent. Industrial property departments within industrial sectors who should be responsible for monitoring the developments in the field of technologies of their respective industrial sectors and also provide advice on what should be protected. Similar units should also be available in R&D institutions including universities.
IP advisory service should also be available to advise on commercialization and marketing of IP products. Alongside these, innovation centers and technological parks and incubators should also be encouraged to show case products of inventions. In the area of IP enforcement, IP courts as well anti-piracy and counterfeiting should complement the innovation infrastructures. In addition the teaching of intellectual property should be introduced at all levels to address shortages of skilled manpower in the field of intellectual property as well as to create awareness on the importance of intellectual property for economic development.
A deliberate policy on IP education should be cultivated to deal with shortages of expertise in the field of IP in Africa. The education system on IP should have a broad target group inclusive of all the key players in the field of economic development, such as , the Judiciary, policy makers, innovators and inventors, industries, IP Practitioners, etc.
The dissemination of intellectual property information has been widely acknowledged as a sine qua non for socio-economic transformation of many countries. Of great importance, however, is the technology contained in patent documents which provide new solutions to technical problems and tools for technological advancement. Indeed, the utilization of patent information acts as an inspiration or catalyst for further inventions, a valuable asset that is lacking in most developing countries especially in Africa. Another important aspect in the dissemination of information is the tools that are available for retrieving information, the so called World Wide Web and its most common use, the E-mail. This new mode of communication, which shows no immediate sign of slowing down, has brought a continuous avalanche of new ideas, new features and many possibilities. The question is how to respond to this new global image and what challenges this image places on our countries.
The exponential growth in the volume of scientific and technological information generated in the world as well as the increasing complexity and inter-relationship of problems facing each country’s plan for economic development makes it imperative for countries to share their knowledge, experience and other resources, to facilitate the study and transfer of scientific and technological achievements, and to make such achievements accessible on a mutually advantageous basis. The exchange of technological information is therefore an essential pre-requisite for developing and strengthening the national economic potential of any country to enable for the bridging of the technological gap between and within countries and for further scientific and technological progress in the world.
Patents generally disclose technological information by describing the inventions completely to enable a skilled person in the art to independently work the invention. Patent documents therefore constitute a large collection of technical solutions in all the different fields of human activity. This store of information is supplemented by about one million patent documents published each year describing some 350,000 new approaches to technological problems. In terms of size alone, this is a unique collection of technological information, which forms a unique source of world scientific and technological breakthroughs.
An important part of the patent examination process requires that patent applications are the first disclosure of the invention they describe. This means that the novel technical information contained in a patent must not have appeared in any other publication or have been reproduced in any other media prior to the details being published as a patent. This key feature of the patenting process is designed to ensure that the technical “knowledge” within patent specifications is genuinely novel. Patents are therefore highly valuable source of both prior art and current awareness information forming a unique set of data. Patent applications generally contain the following:
• Bibliographic data
• Analysis and appraisal of the prior art
• Explanation of the novel features and usefulness of the claimed invention
• Detailed description of the inventive technology with drawing/chemical formulae where applicable
• A set of claims that define the legal scope of the invention.
Given that a patent must be the first disclosure of an invention, the details published within it are often not published anywhere in the world, thus making patent documents a key source of technological information. Patent Information can therefore be used:
• To provide technological information for research activities
• To identify alternative technologies
• To evaluate a specific technology offered for acquisition
• To identify enterprises which are active in a specific field of technology
• To identify solutions to a technical problem
• To generate ideas for research and development
• For the analysis of R & D activities
• In marketing decisions and as performance indicators
Intellectual property management has become a critical component of an Organization’s capacity to compete in a global market. Many companies often take painstaking steps to carryout yearly stock taking and also physically ascertain how much stock is actually available compared to its book value. In undertaking this exercise, nearly every employee is involved in the process in some form and it is the one working day in a year when managers are guaranteed to get their hands dirty. One wonders how many companies have similar procedures in place to monitor an account for their intellectual property assets. It is important for businesses, particularly SMEs to critically carryout IP audit with the view to developing intangible assets which can be valued and provided in the balance sheets. It is therefore essential for all companies to understand and account for intangible assets often referred to as intellectual property by establishing structures within the establishment with the responsibility of preparing and maintaining IP audit and reporting them to management for the promotion of brands and technologies as well as creation of a culture that allows for more lucrative ways to exploit IP.
In the environment where arrangements for the protection of intellectual property has been put in place, enforcement measures should also be put in place to deal with civil and criminal offences in the area of Intellectual Property. Mere protection alone without enforcement will not suffice. By its very nature IP has become a victim of crime in the form of infringement, piracy, counterfeit, etc. The respect for Intellectual Property can only be guaranteed where appropriate enforcement is obtainable.
5. AUTOMATION OF IP OFFICES
Consistent with the contemporary development trends worldwide, it is mandatory that the IP offices should be fully automated to provide for electronic filing and information storage digitally. Automated IP offices will allow users of the IP system to obtain accurate information available online timeously.
To conclude, it is my belief that if intellectual property is well utilized and afforded to operate in a conducive environment it can contribute extensively towards the economic development of Africa. In this respect, concerted efforts involving private and public partnership [PPP] should be seriously considered.
Nicky Garnet, partner at Adams & Adams
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