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Africa: Whose Property? Whose Rights?
AfricaFocus Bulletin
Oct 22, 2012 (121022)
(Reposted from sources cited below)
Editor's Note
In early November, a ministerial-level meeting of the
African Union is preparing to approve the draft statute for
a new Pan-African Intellectual Property Organization. But
critics warn that the draft, developed without significant
consultation beyond a small group of experts, embodies a
restrictive intellectual property (IP) regime being pushed
by rich countries, without regard for needs to protect
development, access to health and knowledge for developing
countries, and protection of indigenous knowledge. The draft
would be a giant step backwards, ignoring African positions
presented in other international venues.
An urgent civil society petition has been launched on
http://www.change.org to ask the ministers to rethink the
issue, and is available at http://tinyurl.com/96ovr9b It
will be open for signatures until November 10.
The fact that this process has proceeded so far without
input from civil society or from a wider range of
perspectives is an indicator of how highly specialized
discussions can have serious negative consequences.
Fortunately there are groups of activists who do monitor
these issues and can decipher the technical language.
This AfricaFocus Bulletin contains the text of the petition,
with an explanatory statement, as well as a background
article by Brook Baker, of HealthGAP and Northeastern
University. Some of the language may still be a bit
difficult to follow for those of us less familiar with
Intellectual Property issues.
But the fundamental issue is whether corporations and
individuals can claim such extensive property rights that
they endanger the health and development of other people. In
international negotiations and in private fora, the United
States and Europe continue to argue for "IP-maximalist
positions" biased towards the interests of multinational
corporations.
In contrast, critics of this extreme position, including
African and other developing countries, have argued that
rights such as patents and copyrights must be balanced with
the needs of society.
Additional background and links to further information can
be found in the ongoing publications of IP-Watch
(http://www.ip-watch.org) and in particular in two recent
articles:
"Move Toward New Pan-African IP Organisation Alarms
Observers"
27 September 2012
http://www.ip-watch.org / direct URL:
http://tinyurl.com/8pyss3o
"UNCTAD Report Sees Sustainable African Growth In IP
Flexibilities"
15 June 2012
http://www.ip-watch.org / direct URL:
http://tinyurl.com/95dl5lb
++++++++++++++++++++++end editor's note+++++++++++++++++
Petition for a new course for the Pan African Intellectual
Property Organization
https://lists.critpath.org/mailman/listinfo/healthgap
Colleagues,
following extensive consultations, we now have the text of
the PAIPO petition up and ready for signing. Please proceed
to the link below and append your signature:
http://www.change.org/petitions/a-new-course-for-the-pan-african-intellectual-property-organization-is-urgently-needed
or http://tinyurl.com/96ovr9b]
In addition, circulate the above link extensively amongst
your networks so we can collect as many signatures as
possible.
The official petition will be up until November 10th 2012 at
which point the text and signatures will be delivered to The
5th African Union Ministerial Conference on Science &
Technology (AMCOST V) and the African Union.
Thank you for being part of this important exercise.
Dick Kawooya / Ahmed Abdel Latif.
18th October 2012
A new course for The Pan African Intellectual Property
Organization is urgently needed
The 5th African Union Ministerial Conference on Science &
Technology (AMCOST V) meeting Nov 12 - 16 2012 in Congo
(Brazzaville) is expected to adopt the 'final' draft statute
of a new Pan African Intellectual Property Organization
(PAIPO).
However, the draft statute as it currently stands raises
many concerns both procedurally and substantively. The draft
PAIPO statute is the result of a non-transparent process
without open consultations with relevant stakeholders
including civil society. No drafts of the statute have
previously been issued let alone publicly discussed. More
importantly, the draft statute reflects a narrow vision of
intellectual property that runs contrary to the aspirations
of Africans to devise more balanced intellectual property
regimes that effectively promote innovation while also being
supportive of public policy objectives in areas such as
public health and access to knowledge. In this regard, the
draft PAIPO statute undercuts efforts carried out by African
countries to advance such aspirations at the World Trade
Organization (WTO) and at the World Intellectual Property
Organization (WIPO), and which have resulted in important
milestones such as the Doha Declaration on TRIPS and Public
Health (2001) and the WIPO Development Agenda (2007).
Through this petition, we call upon African countries and
the African Union Secretariat to take urgent action in order
to:
- Defer the consideration of the draft statute that would
lead to the creation of PAIPO.
- Use the November meeting to the start an open and
inclusive consultative process on the nature, scope and
objectives of this new body. Moreover, the consultations
should be structured to enable various stakeholders, civil
society in particular, to contribute to the discussions with
a view towards revising the current draft statute and making
any resultant IP organization in tune with Africa's
development goals and the positions taken by the African
countries at the multilateral level.
Below, we further elaborate on the reasons for the need to
reconsider the current draft of the PAIPO statute and hold
wider consultations on PAIPO.
+++++++++++++++++++++
Why a new course for PAIPO is urgently needed?
(i) Many countries are increasingly seeking to harness
innovation and creativity to foster economic growth and find
solutions to pressing public policy challenges. In this
context, intellectual property has acquired a growing
importance in recent years. At the same time, it continues
to be a deeply contentious topic particularly in relation to
issues such as promoting creativity in the digital
environment, food security, climate change, access to
medicines and, more broadly, access to knowledge. African
countries have been at the forefront of the global debates
to achieve more balanced intellectual property regime that
is cognizant of the aforementioned issues.
(ii) In this context, the means to strengthen African
cooperation in the area of intellectual property require
careful consideration and an active process of public
deliberations where a diversity of views and interests is
represented.
Lack of transparency and broad consultations result in a
one-sided view:
(iii) Since the idea of PAIPO emerged in 2007, deliberations
surrounding it have lacked transparency and have been
confined to a small number of experts and consultants with
little information made available to the wider public and
relevant stakeholders. No broad multi-stakeholder
consultations regarding the objectives and functions of the
new entity have taken place. The lack of transparency and of
open consultations has led to the one-sided view evident in
the narrow focus of the current draft statute of PAIPO.
Innovation should be at the forefront:
(iv) Rather than focusing on the promotion of innovation,
the draft statute focuses narrowly on intellectual property
as an 'end in itself' and on a 'one-size fits all' approach.
The word 'innovation' is only mentioned once in the entire
statute while it embodies the ultimate goal that African
countries should be pursuing. The draft statute advocates
the promotion of IP rights and the harmonization of IP laws
across the continent without any consideration for
differences in levels of development and in socio-economic
circumstances in individual countries in Africa. Such an
approach to intellectual property runs contrary to the
spirit and letter of the WIPO Development Agenda initiative
supported by African countries. Moreover, the value of
greater collaboration, open-source research, and alternative
reward systems for innovation which are being actively
considered at the international level should figure in the
PAIPO statute.
Public policy objectives should be addressed:
(v) The PAIPO statute should make reference to the need to
achieve a balanced IP regime by incorporating the language
of article 7 of the TRIPS Agreement. It also should mention
the importance of African countries using limitations,
exceptions and flexibilities to promote access to medicines
and knowledge. It has been pointed out that the draft
statute of PAIPO might not differ much, in this regard, from
the statutes of OAPI (African Intellectual Property
Organization) and ARIPO (African Regional Industrial
Property Organization). However, the statutes of these
regional organizations were drafted decades ago at a time
when intellectual property rights did not have the far
reaching public policy implications they have today.
A new African body dealing with IP should address the
advantages as well as the limitations of IP and provide a
flexible policy space for AU Members to calibrate IP
protection according to their needs and different levels of
development. Finally, the draft statute should reaffirm the
existing rights of least-developed African Union Members to
use and seek further extensions under TRIPS so as to promote
the development of technological capacity and to ensure
affordable access to essential commodities and public goods.
(vi) Finally, the draft statute should make reference to
important milestones which crystallize the vision of
intellectual property defended by African countries at the
global level such as the Doha Declaration on TRIPS and
Public Health (2001), the WIPO Development Agenda
Recommendations (2007) and the WHO Global Strategy and Plan
of Action on Public Health, Innovation and Intellectual
Property (2008) let alone the key principles and priorities
which they advance, as well as other reference documents
such as the Millennium Development Goals (MDGs). In
addition, African countries have advanced, in recent years,
specific proposals at the WTO and WIPO on patents and public
health, technology transfer, limitations and exceptions for
libraries, education and research as well as the protection
of genetic resources, traditional knowledge and folklore
that should be included.
An incremental bottom-up approach is needed:
(vii) PAIPO ambitions to grants unified IPRs throughout
Africa is simply not feasible in any near future or medium
term for many technical reasons. There is no evidence in the
draft statute that PAIPO is not attempting to supplant ARIPO
and OAPI let alone create another layer of bureaucracy. The
logical step to start should be to build synergies between
OAPI and ARIPO. Rather than a bottom-up approach, PAIPO
promoters have taken a top-down approach that will remain
ink on paper for many years without practical
implementation, a shortcoming that is often criticized in
efforts towards African integration. This can be avoided by
taking a more gradual or incremental and deliberative
approach involving extensive consultations with various
relevant stakeholders and organizations.
All stakeholders should be treated equally:
(viii) When mentioning the intergovernmental organizations
with which PAIPO should cooperate such as ARIPO, OAPI and
WIPO, the statute makes reference the International
Confederation of Authors and Composers Societies (CISAC)
which is not an intergovernmental organization but an
international non-governmental organization which promotes
the rights of authors and creators through stronger
copyright protection and enforcement. Such a reference is
unheard of in the statute of any intergovernmental
intellectual property organization but is a sign, among
others, about the extent to which PAIPO's draft statute is
more tilted to the views and interests of right holders to
the detriment of other stakeholders.
An evidence based approach to IP:
(ix) There is a growing consensus at the international level
that work on IP, particularly in the area of norm setting
and capacity building, should be based and informed by
sound, neutral and objective empirical evidence. The draft
statute of PAIPO could incorporate such an important
consideration and thus become the first IP intergovernmental
organization to do so.
An organization for the 21st century:
(x) In a nutshell, the proposed statute establishing PAIPO
reads as if it could well have been written in the 1980s or
the 1990s. The vision of IP it carries is outdated. It is
imperative for AU to change course on PAIPO in order to
establish an organization that truly embodies African
aspirations for the 21st century in the areas of
intellectual property, innovation, dissemination of
knowledge, and development.
Intellectual Property Policy Incoherence at the African
Union Threatens Access to Medicines - Proposed Pan-African
IP Organization a Terrible Idea
Professor Brook K. Baker, Policy Analyst Health GAP,
Northeastern University School of Law
September 26, 2012
https://lists.critpath.org/mailman/listinfo/healthgap
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 patentmonopolies
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 TradeRelated
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.
AfricaFocus Bulletin is an independent electronic
publication providing reposted commentary and analysis on
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international policies. AfricaFocus Bulletin is edited by
William Minter.
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