This is the seventh in a series of articles on the African Continental Free Trade Area (AfCFTA) agreement. The aim of the series is to unpack the agreement’s various protocols and related matters and highlight:
- key opportunities and potential inhibitors for businesses to consider in undertaking a regional growth strategy;
- the roles of legal advisors in navigating the AfCFTA institutions and member states in supporting a regional trade or investment strategy; and
- avenues for the private sector to influence the trajectory of the implementation of the AfCFTA instruments.
The AfCFTA is intended to create a single market for goods and services facilitated by less regulation of the movement of people in order to deepen the economic integration of the African continent.
One of the specific objectives of the AFCFTA is to enhance co-operation among State Parties on investment, intellectual property (IP) rights and competition policy. Ensuring that IP rights are protected and safeguarded is critical in achieving AfCFTA’s objectives. AFCFTA member states are therefore required to enter into phase II negotiations in respect of IP rights.
The Committee on Intellectual Property Rights was established in May 2021 by the Council of Ministers of Trade and State Parties to facilitate the negotiation of the Protocol on Intellectual Property Rights (IP Protocol).
We understand that the draft IP Protocol was published after the seventh extra ordinary session of the Specialized Technical Committee on Justice and Legal Affairs, which was held between 16 and 21 January 2023 in Accra, Ghana. However, the draft IP Protocol has not been made public.
Scope of the IP Protocol
We anticipate that the IP Protocol will follow the template adopted in the AfCFTA agreement and the other protocols that have already been enacted. It will therefore provide for such principles as national treatment and most favoured nation treatment in the context of IP rights.
It is also expected that the IP Protocol will cover the various forms of IP rights, including plant variety protection, geographical indications, trademarks, patents, utility models, industrial designs, trade secrets, copyright and related rights, traditional knowledge and cultural expressions, genetic resources, as well as emerging technologies and other contemporary issues within the realm of intellectual property rights.
The IP Protocol will therefore shine a spotlight on IP regimes that have not been sufficiently exploited in Africa such as geographical indications, plant variety protection and traditional knowledge and cultural expression.
The opportunities
There is no doubt that the AfCFTA presents tremendous opportunities for the African continent. The IP Protocol, once enacted, will ensure that there are harmonised rules and principles for the promotion, protection, cooperation, and enforcement of IP rights.
This will spur intra-African trade, promote African innovation and creativity, and deepen the IP culture in Africa. The IP Protocol will also promote coherent IP rights policy in Africa and contribute to the promotion of science, industrialisation, investment, digital trade, technology and technology transfer, and regional value chains. At the same time, there will be a harmonised system of IP protection throughout the continent thereby strengthening African negotiating positions on IPRs.
The negotiation and implementation of the IP Protocol should involve the various national IP offices as well as the existing regional IP regimes such as African Regional Intellectual Property Organization (ARIPO) and the Organisation Africaine de la Propriété Intellectuelle (OAPI). This will not only ensure that the resultant protocol addresses the most critical issues relating to IP protection in Africa, but it will also ensure that the provisions of the IP Protocol are representative of the different IP regimes on the continent.
There have also been proposals to have an AfCFTA intellectual Property Office to facilitate the protection and enforcement of IP rights by co-operating with the various national, regional and international IP offices.
The IP Protocol should ensure that there is a level playing field for all IP owners including small and medium sized enterprises. One way to achieve this would be through the IP Protocol including most-favoured-nation treatment and national treatment clauses. The most-favoured-nation principle would require a country to provide any concessions, privileges, or immunities granted to one nation in a trade agreement to all other AfCFTA member countries. By providing for the most favoured nation treatment principle, the IP Protocol will provide for equal treatment of African countries. This will eliminate the unequal treatment which currently exists as a result of dissimilar sub-regional IP regimes.
On the other hand, the national treatment clause would forbid discrimination between a national of a member state and the nationals of other member states. By making provision for this clause, the IP Protocol will ensure that African creatives and innovators have free access to the population of over one billion in the free trade area without discrimination and unnecessary restrictions.
The challenges
While the IP Protocol should provide for measures to protect and enforce IP rights, care should be taken to ensure that such measures do not constitute barriers to trade. In this regard, the IP Protocol should contain provisions aimed at facilitating access to medicines, vaccines, diagnostics and therapeutics and contribute to access to knowledge and public health.
Enforcement of IP rights will potentially cause challenges within the AfCFTA as entities seek to market and sell their products and services in the various jurisdictions. There will therefore be need for co-operation among member states as well as collaboration among custom officials, judicial authorities and other law enforcement agencies to address the infringement of IP rights.
