The AfCFTA Protocol on Intellectual Property Rights – what, when, how and why?

By Talkmore Chidede, Postdoctoral Research Fellow 

The protection and enforcement of intellectual property rights (IPRs) is critical for achieving the objectives of the African Continental Free Trade Area (AfCFTA). Particularly the objectives regarding the sustainable and inclusive socio-economic development, structural transformation, industrial development competitiveness of economies with the continent and global market. Intellectual property provides incentives to inventors to generate new knowledge, and rights to acquire patents of new inventions. The AfCFTA will enhance Africa’s cross-border trade. Consequently, authors, creators, designers and inventors will require legal protection in other countries. Does the AfCFTA cover IPRs? When and how will the IPRs regime for the AfCFTA be negotiated? What will be regime look like? How can the IPRs regime achieve the objectives of the AfCFTA?  This SARChIP blog addresses these questions.

The scope of the Agreement establishing the AfCFTA covers IPRs (trade in goods and services, investment and competition policy) (Art. 6). Trade in goods and services were negotiated in Phase II of the AfCFTA negotiations resulting in the Protocols on Trade in Goods, Trade in Services, and Dispute Settlement. Phase II negotiations will cover IPRs, investment and competition policies. More recently, the African leaders approved the addition of digital trade on the AfCFTA agenda (Phase III negotiations), which will be negotiated concurrently with Phase II issues. There are also ongoing efforts to add women and youth to the AfCFTA agenda.

The Phase II negotiations will result in Protocols which shall form an integral part of the AfCFTA Agreement, subject to entry into force. The Protocols will enter into force 30 days after the deposit of the 22^nd instrument of ratification (Art. 24 of the AfCFTA Agreement). The Protocol will enter into force – become legally binding – only on State Parties, i.e. AU Member States that deposit their instruments of ratification or accession to the Protocols. With regards IPRs protection, this means that only inventors of intellectual property holders of the State Parties will be protected and entitled to remedies under the AfCFTA Protocol on IPRs.

How will African Union (AU) member states negotiate the IPRs regime for the AfCFTA? Article 4 of the AfCFTA Agreement stipulates that the State Parties shall cooperate on investment, IPRs and competition policy. The precise details of how the State Parties will cooperate on IPRs (investment and competition policy) are not yet known. Will this be limited to cooperation and coordination of IPRs? What will be the scope of the IPRs covered under the AfCFTA? The answers to these pertinent questions will only be clear once the modalities of negotiating the Protocol on IPRs are adopted.

The AfCFTA provides an opportunity for African governments to adopt a continental regime for the promotion and protection of IPRs. Between 2012 and 2016, African governments attempted without success to adopt a continental body for IP under the auspices of the AU, the Pan-African Intellectual Property Organisation (PAIPO). PAIPO was going to be a specialised AU agency tasked with matters concerning intellectual property in Africa. Its main objectives were to harmonise IP laws and to provide a centralised registration system for IP (Art. 5 of the PAIPO Statute) The PAIPO Statute was adopted in January 2016, signed by only 6 countries[1] but never ratified. It is not clear why the establishment of PAIPO failed. Lessons therefrom could help to inform the discussion and negotiation of the AfCFTA Protocol on IPRs.

The African Union recognised eight official African Regional Economic Communities (RECs).[2] RECs FTAs are acknowledged as building blocs for the AfCFTA. None of the FTAs have a comprehensive legally binding instrument on IPRs except for provisions regarding the subject matter embedded in various regional legal instruments. EAC, COMESA and SADC purport to adopt IP rules in the Tripartite Free Trade Area (TFTA). A TFTA Protocol on IPRs will be negotiated in Phase II negotiations. More importantly, Annex 9 of the TFTA Agreement contains provides that member states shall adopt IP rules and policies to promote and protect cultural and creative industries, traditional knowledge, genetic resources and folklore, information and communications technology, copyrights and industrial property. These objectives will be achieved via promotion, facilitation, commercialisation, harmonisation, exploitation, licensing, creation and innovation of IP legislations within the region. However, the TFTA Agreement has not yet entered into force. It has been signed by 22 of the 27 member countries and ratified by only 8 member states.[3] The Agreement will enter into force upon 14 ratifications.

Noteworthy, there are two regional IP organisations on the continent – the African Regional Intellectual Property Organisation (ARIPO) and the Organisation Africaine de la Propriété Intellectuelle (OAPI). ARIPO comprises 20 Anglophone African countries[4] and OAPI comprises 17 Francophone African countries.[5] Some African countries (e.g. South Africa) belong to neither of the two regional IP organisations.  The legal systems of the two organisations are different. ARIPO members retain their national laws. IP rights granted or registered by ARIPO legal instruments have the same effect as the ones granted or registered under national laws, provided the IP rights by the ARIPO are consistent with the applicable domestic laws.  OAPI seeks to harmonise the IP of the Member States. OAPI members renounced their national sovereignty of IP laws.  Right holders are afforded a single regional title of protection valid in each country, obtained via an OAPI application and registration procedure. Will the AfCFTA Protocol on IPRs build on existing institutions like ARIPO and OAPI, and if so, how?

The AfCFTA Agreement recognises the preservation of acquis as one of the governing principles of the Agreement. The principle means building on what has been achieved. With respect to IPRs, this could mean building on what has been achieved in ARIPO and OAPI. In addition, the AU member states reaffirm their existing rights and obligations under other agreements to which they are parties (preamble AfCFTA Agreement). It is highly unlikely that the Protocol will nullify the existing IP regional and bilateral treaties of the State Parties.

Recommendations for the AfCFTA Protocol on IPRs

The AfCFTA Protocol on IPRs presents an opportunity for African leaders to adopt a continental-wide IPRs regime that can address Africa’s development needs espoused in the AU Agenda 2063, UN Agenda 2030, and WIPO Development Agenda. The Protocol has the potential to create a strong environment for IP creation, protection, administration and enforcement which would then stimulate innovation and competitiveness of businesses in Africa.

The coronavirus pandemic has revealed challenges related to IPRs and public health within the domain of the TRIPS Agreement.  The negotiators of the AfCFTA Protocol on IPRs should take heed and follow these discussions closely so that they can negotiate a Protocol that seeks to minimise the impact of patent monopolies on access to medicines and other public goods technologies.

The Protocol should also endeavour to minimise the impact of copyright monopolies on access to educational and cultural resources. It should promote and protect indigenous knowledge and cultural expressions. The Protocol should also aim to harmonise or integrate the protection of IPRs across the continent, reduce bureaucracy in the registration of IPRs, address counterfeit trade.

The Protocol should also provide for capacity building activities including educational and dissemination projects on the use of IP as a research and innovation tool, and on the enforcement of IPRs. Other important capacity building activities include appropriate coordination, training, specialisation courses, and exchange of information, enhancing the knowledge, development, and implementation of the electronic systems used for the management of IP.