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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:

  1. Defer the consideration of the draft statute that would lead to the creation of PAIPO.
  2. 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 African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

AfricaFocus Bulletin can be reached at africafocus@igc.org. Please write to this address to subscribe or unsubscribe to the bulletin, or to suggest material for inclusion. For more information about reposted material, please contact directly the original source mentioned. For a full archive and other resources, see http://www.africafocus.org


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