[Guest Post] How can the AfCFTA advance transformative industrialisation? - Event Report

The IPKat is pleased to publish this report from Charlene Musiza, who attended the first session in the webinar series organised by University of Cape Town’s Nelson Mandela School of Public Governance on “How can the AfCFTA Advance Transformative Industrialisation?” Coming a day before the World Trade Organization’s (WTO) TRIPS Council debate on the proposal (IP/C/W/669) first tabled by India and South Africa for a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19, the session provides food for thought on trade, IP and access to medicines.

Here's what Charlene writes:
 

The Nelson Mandela School of Public Governance hosted a webinar session on “Pharmaceuticals, Health Care Value Chains and Health Resilience”. The webinar session held on 15 October 2020 is part of the School’s African Continental Free Trade Area (AfCFTA) and Transformative Industrialisation Webinar Series on the central question of: How can the AfCFTA Advance Transformative Industrialisation? The session on “Pharmaceuticals, health care value chains and health resilience” had a distinguished panel of speakers including Professor Caroline Ncube, University of Cape Town SARChI Research Chair: Intellectual Property, Innovation and Development who shared perspectives on the AfCFTA IP Protocol and pharmaceutical value chains.
 

The agreement establishing the AfCFTA was signed in Kigali Rwanda on 21 March 2018 at the 10th Extraordinary Summit of the African Union (AU) Assembly. AfCFTA creates the AU’s free trade area covering at least 55 countries and a potential market of more than 1.2 billion people. With the key objectives to establish a single market for goods and services and free movement of people to deepen economic integration, when fully implemented it will be the largest free trade area. It covers trade in goods, services, investment, intellectual property rights and competition policy, which are addressed in the different protocols of the agreement. The agreement establishing the AfCFTA, and protocols on trade in goods, trade in services and dispute settlement were adopted during Phase I and entered into force on 30 May 2019. Phase II of negotiations includes intellectual property rights, investment and competition policy and is currently ongoing.

What made Professor Ncube’s presentation of significant interest is that the draft AfCFTA IP Protocol is not yet publicly available, therefore this was an opportunity to know what we should expect. Also, as the Covid-19 pandemic rages and access to the vaccine on the continent remains topical, her perspectives on what mechanisms could facilitate continental access to pharmaceutical products were key.
 

She offered some insight into the structure of the document highlighting that it follows the template established in the protocols adopted under Phase I. For instance, the administrative structure will be a Committee on IP just as there are committees in all the other protocols. The negotiations have been underpinned by the same principles underlined in the AfCFTA, that is, variable geometry, flexibility and special and differential treatment, among others.

Onto the substantive aspects, Professor Ncube stated that the IP Protocol comes into a space where there already exist layers of IP regulation: national, regional and international. AU member states have their national IP regimes, some are members of the two regional IP organisations ARIPO and OAPI, and signatory to at least 34 treaties at the international level, key among these being the TRIPS Agreement. As there are already well-established regulatory frameworks and institutions, the IP Protocol can leverage policy space and establish new regulations where none exist. She outlined three key roles which the IP Protocol can fill: harmonisation (regional norm setting and cooperation), promotion of policy coherence, and guidance in unregulated areas e.g traditional knowledge.

Within the context of pharmaceutical value chains, Professor Ncube noted that the patent regime and to some extent, trademarks and trade secrets are relevant. However, as these rights are territorial, such regimes in the AU member states must be fit for purpose. She emphasised that regional frameworks should be coordinated and gave a practical example of how that could work under exhaustion of IP rights. If AU member states were to adopt patent exhaustion (which they are at liberty to under article 6 of TRIPS), it would mean once a patented pharmaceutical product/device is sold in the region, the patent holders rights are exhausted and the product can now move freely in the regional market. This would allow better and more efficient distribution of pharmaceutical products needed across the continent.

She reiterated the importance of a single African voice at the international level and that the IP Protocol's structures could provide a platform for AU member states to develop a common position on IP matters being discussed at international fora. Though the AU member states are a powerful bloc and often advance positions at the WTO and WIPO as the African Group, the IP Protocol's structures could contribute a platform for deeper discussions to take place on the continent within an AU structure. She mentioned India’s and South Africa’s waiver proposal on IP rights at the WTO TRIPS Council, intended to meet the challenges necessitated by the Covid-19 pandemic. The proposal received the support of different countries, international organisations, non-governmental organisations and civil society. She noted that in future such a proposal could be deliberated upon within the IP Protocol's Committee on IP.

Professor Ncube reiterated that it was important to act locally as whatever the substantive provisions of the AfCFTA IP Protocol and whatever would emerge from the discussions at the WTO TRIPS Council on the waiver proposal, states would need to have the necessary mechanisms for implementation. She summed up with a powerful nugget: Context (IP and African Trade), Coordination (of regional hubs), Coherence (regulatory and policy positions) and a rallying cry for national action.