Caroline Ncube (right) in dialogue with Ada Ordor about her newly published book Intellectual Property Policy, Law and Administration in Africa: Exploring Continental and Sub-Regional Co-operation

Q: Let’s start with the title of the book: Why this topic?
A: There has been some scholarship on Intellectual Property (IP) in developing countries, generally, and Africa, specifically, but it’s focus has been on substantive law, that is, what the law of country x says or this is how they grant and administer IP rights. I wanted to go further to add policy and administration from a public interest perspective to the discussion, more so now, that the discussion of social justice or public interest concerns have been amplified. There are also very interesting recent developments on the African continent pertaining to a new continental IP organisation. The sub-regional economic communities are also becoming more active in relation to IP. This was therefore an opportune time to consider IP law, policy and administration in Africa through a public interest lens to ask whether current developments are beneficial to the continent.

Q: Would you like to run us through the book and its content – what does it cover?
A: I begin by setting up my evaluative framework – that is to explain the public interest. In essence what I argue is that IP is not an end in itself. African countries should not just aspire to meet the minimum standards set in relevant binding international agreements. They must do so with the public interest in mind – ensuring that these laws, policies and administrative systems that they set up are appropriate for their socio-economic context and are aligned to their developmental aspirations. In other words, do these laws, policies and systems aid access to medicines, knowledge, learning materials and so on?
I then move on to look at IP policies and present the findings of a survey I did of all of Africa’s 55 countries and state whether there is a policy in place and what its import is.
Thereafter, I look at sub-regional systems beginning with the economic communities. For instance the Southern African Development Community (SADC) is considering how to bring added impetus to its party states’ IP policy and systems; Common Market for Eastern and Southern Africa (COMESA) has an IP policy whilst the East African Community (EAC) and Economic Community of West African States (ECOWAS) have TRIPS (Agreement on trade-related aspects of IP Rights) policies.
Then I move on to IP organisations. Africa has two sub-regional IP organisations – the African Regional IP Organisation (ARIPO) for primarily Anglophone and Lusophone common- law states (there are also some francophone states with civil law systems) that has a harmonised system and OAPI for primarily Francophone civil law states that has a unified system.
The next part looks at the developments pertaining to the creation of the Pan-African IP organisation (PAIPO) by the African Union (AU).
The last two chapters consider available harmonisation models and evaluate whether the creation of PAIPO would be beneficial and if so, how it can best be achieved.
(A poster summarising the book is available online)

Q: Why this publisher?
A: I wanted my work to reach certain audiences – policy makers across the continent and relevant inter-governmental and international organisations that are primarily headquartered in Geneva. Therefore I wanted an international publisher with a global reach. Routledge has a well-respected IP series that features leading thinkers on contemporary IP matters, so it was a natural home for my work. I was honoured that my proposal was accepted as part of this series.
However, selecting such a publication forum caused me great anguish because my personal convictions are for open and wide dissemination of materials at no, or minimal, cost. A hardcover edition of work, such as mine, is often beyond the reach of most individuals particularly in the global south. So I decided to ameliorate this by working in various levels of openness into the work. First, the research leading to some parts of the work is open – I ran a blog series on http://afro-ip.blogspot.co.za/ on the country by country survey of IP policies that I did. I then summarised the findings in chapter 2. Secondly, the work is frozen in time, as it sets out the situation as at March 2015. Since it covers current developments on PAIPO it is important to continue to provide updates. So I go beyond the book by running what I call the PAIPO Watch ( a section of my personal website https://carolinebncube.wordpress.com/the-paipo-watch/) which is like bird watching, I sit patiently and watch for any developments then blog about them at that site.
Thirdly, I have written many articles and book chapters over the last decade on IP, Africa and the public interest. Where possible these are archived online on the UCT Repository, SSRN, Researchgate and my personal website.

Q: I see the Routledge IP Law series covers a wide range of topics including IP and community rights, human rights, equity, standard setting, health technologies, biotechnology, traditional knowledge etc. How does the book contribute to this series – in other words, what is its key ideological and legal message?
A: My contribution is a public interest based discussion on Africa from Africa. I think it is very important to have voices speaking from our context.

Q: I’m interested in knowing more about the intersection between IP Law and international trade, perhaps in relation to regional agreements on the continent such as the SADC Protocol on Trade.
A: Regional trade is concerned with the trade in goods and services across national borders. Regional economic communities concern themselves with facilitating this trade. IP is relevant because IP law protects these goods and services and may act as a barrier to trade where, for example IP protection available in one country is not available in another, so that it becomes undesirable to move the goods or services across borders due to real or perceived loss of IP protection.

Q: As you described IP regulation earlier, it is clear that there are four levels of IP regulation on the continent. With regard to the fourth level of regulation, do you see the Pan-African Intellectual Property (PAIPO) as a desirable development? Is it likely to take off soon?
A: As I see it the three levels of IP regulation are national, sub- regional via regional economic communities and sub-regional through the IP organisations. The fourth level is the proposed continental level –PAIPO. This is not a new idea, it was first mooted around 2006 and the idea seemed to lie dormant for a while but since 2012 it seems that the AU has intensified its efforts towards creating it. I expect that it will eventuate fairly soon.
The question you ask about whether or not it is desirable is a vexed one because there are contesting views on this held even by people in this room today. I am pleased to see that my friend and colleague Dr Dick Kawooya whom I have worked with over many years, is here today. In 2012 when a draft PAIPO Statute was published Dick, I and others worked very hard to show that the statute lacked an articulation of social justice or public interest aspects. Dick led a petition against the adoption of the draft via change.org which gained much traction and support. It was gratifying to see that the AU heard us because the draft was not adopted but sent back for further reflection. Other concerns pertain to the actual role of PAIPO in relation to OAPI and ARIPO as well as resource considerations.  Other scholars, see value in the creation of PAIPO in relation to some IP rights such as trademarks. For example, another colleague and friend Dr Yeukai Mupangavanhu, who is based at the University of the Western Cape and whom I had hoped to see here today, argues that a harmonised continental approach to PAIPO in relation to trademarks would be beneficial.
So what I am trying to say is that there are two sides to this debate and that I align myself with one of these sides.

Q: In terms of dissemination, as an internationally published hardcover edition, the book is on the expensive side (£90), how does it get into the hands of people – individual buyers in particular?
A: As I mentioned earlier, for me this is a multi-layered medium term dissemination project. I have shared some of the research and continue to provide PAIPO updates online which can be accessed freely by anyone. The publisher will eventually put out a paperback edition of the book at significantly lower prices and may probably also provide digital access on a chapter by chapter basis in the long run.

Q: What were the highlights and the low points of the writing process?
A: My children are in the audience so I’ll use a family metaphor to answer. I will refer to the book as ‘she’ because I have two sons and it would be nice to have a daughter as well – so writing the book was like raising a third child - an unruly girl who was sometimes hard to get to due to periods of writers’ block and so on. The highs were manifold, such as researching and writing on a live topic as the AU is still working on PAIPO. Also seeing some immediate impact of the work as it progressed was good – like the petition I spoke about and its impact.  Another high for me was the learning process. Till I began working on this project, I had mostly confined myself to Southern Africa – Uganda downwards - so doing a survey of the entire continent was enjoyable as I learnt much much more about IP on the continent than before.

Q: Who do you see as primary users of the book?
A: Policy makers across the continent, scholars who are interested in IP and Africa across the globe, relevant international and intergovernmental organisations. Also, I am happy to see a row of my students at the back of the room – they know how to sweeten me up – guys this would be a great resource for research students, so there you go.

Q: Finally, have you recovered enough to think about the next project?
A: Ada, this unruly girl is still a toddler, I haven’t recovered enough to think about another solo project like this one. I am currently involved in collaborative projects on IP and innovation in Africa and IP and Human Rights in some African states. I think around this time next year, I will be ready for another solo book project.