After more than 50 years of cooperation between the African countries with a view to creating a common market, the African Continental Free Trade Area (AfCFTA) agreement was signed on 21 March 2018, making this day a memorable date in the history of the continent. The agreement entered into force on 30 May 2019. Phase I of the agreement, covering goods and services, was launched on 1 January 2021.
The AfCFTA follows a “framework agreement” model that shall culminate in a foundation agreement, built out through a multi-stage process of negotiations, and whose full implementation is expected to take years.
Phase II of the negotiations (which relate to IP rights, competition policy, and investment) is ongoing, while some important phase I issues (for instance, rules of origin) are still under consideration. At the end of phase II, an IP Protocol will be adopted, which will attract a great deal of attention because it is expected to solve most of the weaknesses in the IP regime in many African countries.
Among the numerous issues that arise, this article will focus on three of them: (1) what continent’s IP regime could look like; (2) what AfCFTA's contribution to IP rights issues could be; and (3) what place will be reserved in the agreement for traditional knowledge, traditional cultural expressions and genetic resources protection.
As highlighted by the United Nations Economic Commission for Africa's 2019 report titled “Assessing Regional Integration in Africa IX”, three optional systems can be adopted by the member states: (i) a general cooperation, (ii) a regional filing system, and (iii) an implementation of one substantive law or unification of laws. These systems are well-known to the countries and the main characteristics of each are summarily exposed below.
(i) General regional cooperation and sharing of experience on IP rights
Commonly applied by the African Union Instruments, for instance, the Continental Strategy on Geographical Indications of 2017, this approach is characterized by non-binding IP recommendations to the countries, and it appears to be a serious candidate to become the official system of the AfCFTA.
Indeed, not only is it followed by many other African regional communities such as the Common Market for Eastern and Southern Africa (cf. Articles 104(1) (d) and 128 (e) of the COMESA Treaty), but, more importantly, Article 4 of the AfCFTA Agreement stipulates that the State Parties shall “cooperate on investment, intellectual property rights and competition policy”.
This approach is very tempting because it permits member states to retain control over their public policy objectives and to respect their obligations to multilateral IP treaties and bilateral trade agreements.
However, being too flexible, the implementation of a cooperative framework for IP rights would miss the opportunity for the continent to create an advancing regional integration based on legal security and the non-discrimination between countries.
(ii) Creation of a regional filing system
Illustrated by ARIPO's two-tier system, which provides for regional registration and administration of IP rights through a central office while permitting member states to guard their national IP law and IP offices, this approach has notable advantages.
It simplifies IP rights protection for applicants who wish to invest in the region. It allows members to maintain control over their national interests and retain considerable room for manoeuvre when implementing multilateral IP treaties and bilateral trade agreements. It also permits member states to profit from programmes, initiatives and projects undertaken by the regional organisation.
However, as stated in the above-mentioned UN report, several studies have shown that ARIPO has generated limited advantages for its members. For this reason, this model may not be sufficient to cover the objectives of the AfCFTA.
(iii) Implementation of one substantive law or unification of laws for members
Adopting a unified legal regime like the OAPI system, which is an implementation of one substantive IP regime for the member states, would be very challenging.
Besides being almost impossible to reach an agreement among many different countries, whose positions will inevitably vary on important IP issues, it would eliminate the existing flexibilities that permit the countries to fulfill their multilateral and bilateral IP commitments, leading to possible legal conflicts.
Additionally, there is a considerable risk that such a substantive regional IP law would be eroded through time whenever a member state would consider that a bilateral or multilateral treaty would be more advantageous. Several studies have shown that OAPI has generated limited gains for its members.
For all these reasons, a rigid unified legal system appears to not be the most appropriate for the AfCFTA region. These three models are also illustrated in other parts of the world, including The Andean Community and The Association of Southeast Asian Nations (ASEAN), from which the AfCFTA countries can learn. Each model has advantages and disadvantages that shall be taken into consideration when implementing the IP protocol. One can guess what difficulties member states will have to overcome to create a model that responds to the objectives of the AfCFTA and the specific needs of each country.
Most of the African countries are members of the World Trade Organization (WTO) and the WTO TRIPS Agreement. They are also members of the World Intellectual Property Organization (WIPO) and party to its IP treaties. All these instruments are important tools towards the implementation of IP laws on the continent. However, many national IP legislations have important gaps that could be addressed by AfCFTA’s Protocol on IP rights.
First, the AfCFTA’s IP protocol may create a common coordination and an operational cooperation mechanism that would enable the countries to share experience, stimulate linkage, diffuse knowledge, and collaborate in various matters such as the examination of patents and the enforcement of IP rights.
Second, it is expected that the Protocol will establish a regional IP exhaustion system. Article 6 of the TRIPS Agreement leaves it to member states to decide on the principle of exhaustion of IP rights to adopt. As a result, the African countries have either different positions on this matter or none at all. This creates fragmentation in the region’s markets, excessive bureaucracy, and legal uncertainty.
Adopting a regional IP exhaustion system would not only give legal clarity to economic operators, but also it would favour economic integration and strengthen the group. This point was highlighted by the Tripartite Free Trade Area (TFTA) in 2017 and thus there is a high chance that it will be included in the AfCFTA’s Protocol.
Third, it is hoped that the AfCFTA’s Protocol will oblige members to ensure the protection of geographical indications (GIs), either through a sui generis system or by certification and collective marks.
Article 22.2 of the TRIPS Agreement allows countries to determine which form of protection would be appropriate for GIs. So, once again, besides the differences between the approaches followed by the countries, some countries do not, in fact, provide any protection for these IP rights. This reality led the African Union to adopt the Continental Strategy on Geographical Indications in 2017, and ARIPO recently organised a conference on GIs for its members.
Indeed, even though some countries are familiar with GI protection, for instance Morocco and South Africa, other countries such as Mozambique and Benin registered their first GIs in 2020 and 2021, respectively. Countries such as Angola offer no effective protection to GIs.
Fourth, draw up a position on plant variety protection (PVP) by determining the minimum standards on plant variety protection or implementing a substantive law. In light of the “SADC Plant Variety Protocol”, adopted in 2017 by the Southern African Development Community (SADC), an agreement on this subject appears to be possible even though the Protocol is yet to enter into force.
Fifth, develop and implement regulations to enhance protection of the traditional knowledge, cultural expressions and genetic resources.
Traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs) are part of the cultural heritage of a community, as far as they bear witness to a set of cultural goods to which identifiable meanings are attributed.
The TK and TCEs, identified as knowledge with ancient roots (often oral), cannot be protected by conventional IP rights. However, IP law has proved to be a possible tool for the management and transmission of cultural heritage.
IP law may, on the one hand, ensure that TK and TCEs are not protected, used and commercialised without the consent of the communities (defensive protection). On the other hand, it would permit their right owners to exploit their cultural heritage to their full potential (positive protection).
The defensive protection, which supposes that TK and TCEs belong to the communities as a good of fruition, aims to prevent people outside the communities in question from acquiring IP rights over the TK and TCEs by prohibiting it as an absolute or a relative ground of refusal in the IP law.
To that end, the creation of databases or other inventories of TK and TCEs, available to the IP Offices, would be essential. However, this solution is difficult to set up in some countries because documentation and preservation requires organization, means of action, financial capabilities, and is dependent on the goodwill of civil servants to implement it.
The positive protection recommends that communities use the IP system to protect their TK and TCEs. Effectively, innovations or creations based on TK and TCEs and the commercialisation of traditional goods may be protected by IP rights.
However, it may not be a convenient remedy for four main reasons. First, IP rights are private rights that transform cultural goods into mere commodities and place in the background the importance they have at the symbolic and identity levels. Second, it presumes the existence of a representative for each community. Third, it implies the effective use of IP rights, especially trade marks. And lastly, it would be too expensive to obtain an effective protection.
Obviously, finding the right solution will be hard work. However, the absence of international recognition of these rights, despite the great efforts from the African Group in this sense, and the complex systems of international institutions such as UNESCO make it difficult to obtain any protection. The African countries must take a strong position to permit their heritage, which is also the heritage of all humanity, to be preserved.
IP rights are directly linked to both trade and development and have a direct impact on developing economies and their citizens. The adoption of the AfCFTA IP protocol will deeply affect member countries, whatever IP provisions are implemented.
As the African continent attracts international investment, the effects of this agreement will affect trade well beyond the continent.