Is Africa Ready For The Intellectual Property Influx: An In-Depth Analysis Of The IP Regime In Africa, With Special Attention To The Zimbabwean Position

By Brenda Matanga

Posted: 30th June 2014 09:42

A reading of the current economic news is reflective of positive projections on how Africa is emerging out of the proverbial ‘dark continent’ to be a force to reckon with amongst leading world economies.  Such positivism stems from the fact that Africa has experienced unprecedented economic growth in recent years, despite the global economic crisis.  Leading economies are sinking billions of dollars into various African countries on different projects such as mining, infrastructure development, health and all sorts of investments with many expanding into the region.  Without delving deeper into the finer details for such movement - the when, why now and the how part of it - the one thing that any progressive government and country should seek to do in this investor hype era is to strategically position itself.  Of key importance is to lay out clear policies, constitutional and legislative reforms in key growth economic areas, such as intellectual property development.  The Intellectual property landscape ought to be clearly defined and levelled to attract key investments in the region.
 
The Intellectual property regime consists of a cycle that revolves from creation to protection to exploitation.  Should this cycle be complete, then one can boast of having a good intellectual property landscape.  In a view shared with many other scholars; the basic tenets a good IP system needs to have for it to be effective are: Administration,legislation, enforcement, generationand commercialisation.  If these structures are solid then as Africa, we can count ourselves as ready for any intellectual property activity in our territories.  To test this position, this article will investigate how far Zimbabwe has gone in ensuring she is ready for any influx that can make headway into Southern Africa but will briefly comment on our regional preparedness.
 
Regional Developments
 
Whilst Europe boasts of the European Patent Office in its midst, English speaking African countries also take pride in the creation of the African Regional Intellectual Property Organisation (‘ARIPO’).  It is an intergovernmental organisation that has harmonised the registration process of intellectual property rights in some of the English speaking countries.  Currently there are 19 member states of ARIPO, including the recently joined Sao Tome and Principe. 
 
Sao Tome and Principe recently deposited its instrument of accession to the Harare Protocol on Patents and Industrial Designs within the framework of the African Regional Intellectual Property Organisation (ARIPO) on 19 May 2014.  The other member states being Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Rwanda, Zambia and Zimbabwe.  In order for one to get protection in any of the above mentioned states, one is required during the application process to designate the states in which it seeks protection.  Cost-wise it makes sense as an investor can concentrate on the specific countries it has business interests in.
 
ARIPO registers trademarks, industrial designs and patents on behalf of member countries.  There are currently nine of the member states which have acceded to the Banjul Protocol on trademark registration namely, Botswana, Lesotho, Liberia, Malawi, Namibia, Swaziland, Tanzania, Uganda and Zimbabwe whilst all member countries are party to the Harare Protocol which provides for the registration of patents.  The great attribute of this system is that ARIPO is a party to the Patent Co-operation Treaty (PCT) such that any applicant filing a PCT application may designate ARIPO which in turn means a designation of all states party to both the PCT and the Harare Protocol. 
 
The mere existence of this institution to me is indicative enough of the state of readiness within our continent in so far as protection of intellectual property is concerned regionally.  The system is simple, cost effective and very user friendly.  The applicant only uses one language, which is English; pays in one currency, United States Dollars, and; employs only one attorney/IP agent to protect his IP on his behalf.  Further to that, the user has multiple benefits of centralised processing, grant and renewal which continue to save costs.  It will definitely be expensive to do an Africa round trip or to visit all these countries country-by-country, hence, this one stop shop spares all the difficulties that arise whilst shuttling across the continent in search of intellectual property protections as they enter the region for any investment.  The focus of this article will now turn to Zimbabwe to further enlighten the African investor.
 
Zimbabwe is a member and signatory to ARIPO and its protocols-: The Lusaka Agreement which establishes the intergovernmental organisation, the Harare Protocol on the protection of patents, and industrial designs together with the Banjul Protocol which governs the protection of trademarks amongst the member countries.  It is even more appealing that this regional office is housed in Harare, Zimbabwe’s capital and therefore it can be directly accessed from Zimbabwe.
 
Zimbabwe’s Position
 
Firstly, it is important to state that Zimbabwe has recognised intellectual property as a constitutional right, in the new constitution.  Section 71 of the bill of rights under property rights which provides thus;
 
 “Subject to Section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.”
 
Literally interpreting this provision, intellectual property will also fit into this category as it says “all forms” of property.  In addition to that, the constitution further accommodates this type of property in its definition of property being “property of any description and any right or interest in property”.  It may not necessarily be as precise as countries such as the United States of America who have clearly embedded an independent Clause in Article 1, Section 8, Clause 8 of their Constitution recognising this right.  The Congress under that provision is granted the powers to promote the progress of science and useful arts by providing inventors the limited but exclusive right to their discoveries.  The mere fact that an effort has been made, is so far as recognition of IP as a constitutional right is a welcome development in our legislation.
 
Zimbabwe has publicly embraced intellectual property by becoming a party to the international legal instruments that govern intellectual property.  Like many other countries, it is a member of the World Intellectual Property Organisation (WIPO) through the WIPO Convention of 1967.  This is the constituent instrument of the specialised agency of the United Nations.  WIPO’s objective is to promote the protection of intellectual property worldwide and to ensure cooperation among the intellectual property unions established by the treaties that WIPO administers.  Further to this Zimbabwe has been a party to the following; Paris Convention (Industrial Property), since April 1980, Berne Convention (Literary and Artistic Works), since April 1980, Patent Corporation Treaty (PCT) (Patents), since June 1997 – therefore it is a part of the global recognition of intellectual property. 
 
As a major milestone, Zimbabwe is a member and signatory to the World Trade Organisation’s (WTO) celebrated Trade Related Aspects of Intellectual Property Rights known as (TRIPS Agreement) which sets out the basic minimum standards regarding the protection of intellectual property.  Unlike many of our fellow African countries Zimbabwe has gone a step further and has incorporated these minimum standards in its legislation.  As a country it has the necessary intellectual laws in place and the laws are TRIPS compliant, a rare find amongst the developing countries, non-African countries included. 
 
Zimbabwe’s domestic IP legislative framework is one of the most modern frameworks in Africa and it is compliant with some major international treaties such as the TRIPS Agreement (compliant since 2002), the Berne Convention and the Paris Convention.  It has incorporated these treaties in its national laws in terms of Section 111B of the Constitution which requires the domestication of any treaties into the local legislation.  Zimbabwe is one of the three countries (Zimbabwe, Botswana and Liberia) that have incorporated the provisions of the Banjul Protocol into its Trade Marks Act through the Trademarks Amendment Act No.10 of 2001 under Section 97.  The legal framework is intact, all the basic forms of IP are protected; Industrial Designs Act [Chapter 26:02], Patents Act [Chapter 26:03], Trade Marks Act [Chapter 26:04], Copyright and Neighbouring Rights Act [Chapter 26:05], Geographical Indications Act [Chapter 26:06], and Integrated Circuit Layout Designs Act [Chapter 26:07] are basic laws that exist in this jurisdiction.
 
It’s also worth noting that we actually have a fully-fledged office (Zimbabwe Intellectual Property Office (‘ZIPO’)that is responsible for the grant and administration of intellectual property in Zimbabwe.  Indeed it is possible to register one's intellectual property interests in Zimbabwe as it has institutionalised IP.  There is a special court (IP Tribunal)that has been created through an Act of Parliament,Intellectual Property Tribunal Act (26:08).  The bench also comprises of judges well versed in this subject of the law and intellectual property law practitioners with extensive and international training and expertise in this area of the law.  There are enforcement structures that are in existence.  Aspects of enforcement that relate to criminal matters, are adequately provided for in the Constitution of Zimbabwe, the Customs and Excise Act, the Criminal Procedure and Evidence Act, the Magistrates Court, High Court and Supreme Court Acts and Rules amongst other laws that are in place.
 
A system of customs recordals is available and border enforcement measures are clearly provided for in the laws and customs, if alerted will actively be on the lookout for any counterfeited products being imported and exported out of Zimbabwe.  An Anti-Piracy Agency which deals with piracy of copyright materials is also in existence.  With the assistance of the IP enforcement agencies in Zimbabwe, Interpol carried out a meaningful and successful act in trying to curb the influx of counterfeit drugs at pharmacies and doctors surgeries amongst other enforcement procedures.  

At national level intellectual property emerges in areasas diverse as public health, food security, environment, education, trade and commerce, biotechnology, the internet, entertainment et ceterasuch that the necessary policies are in place for some sectors whilst some are being drafted to ensure that Zimbabwe as a country has the right intellectual property landscape should investors consider entering this region or consider Zimbabwe as an investment option.
 
Current Trends
 
Although there are some areas that still need to be improved and addressed.  The administration of the IP office still requires a bit of attention so that the country is in line with global trends.  Automation of the IP office being a key priority area.  However, in so far as the automation process is concerned, the country is not too many steps from completing this process as an efficient software for file management has already been installed at the IP Office whilst online searches and registration are yet to be implemented.  The local laws do not necessarily require any radical overhaul but an update of some sections of the statutes in place so as to encompass and come to speed with current technological developments. 
 
In conclusion, it is safe to say Africa is headed in the right direction in so far as having a good IP landscape.  Whilst one needs to understand the African IP landscape, it is important to further understand that each country within the continent is inherently different.  Generally speaking, the initiative is there, the political willingness of most countries to be a part of this global phenomenon is apparent; all that needs to be done is for Africa countries to tidy up its backyards and do a bit of housekeeping, as could be ascertained from the Zimbabwean position.  From this writer’s stand-point, the continent is not doing badly at all, from a wholesome and global perspective.  However if the continent yearns to be a real economic giant, intellectual property should be at the fore of luring investments into the country whilst resources should be channelled in key sectors which promote innovation and technological development.  It goes without saying that, technology is the lifeblood of any progressive economy and Africa needs to strategically position itself before all investments are headed south wards as has been projected by leading economists in the region.
 
© June 18 2014, Brenda Matanga.
 All rights reserved.
IP specialist lawyer with BMatanga Intellectual Property Attorneys
Contact details: brenda@brenmatip.com
Website: www.bmatanga.com

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