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African Union Rising to the Need for Continental IP Protection? The Establishment of the Pan-African Intellectual Property Organization

Published online by Cambridge University Press:  30 March 2015

Y Mupangavanhu
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Abstract

Intellectual property rights protection is at the forefront of some of the major controversies regarding the impact of globalization. African countries have in recent years participated to an unprecedented degree in both international and bilateral initiatives dealing with intellectual property. The negotiating positions have been varied and, from a regional perspective, have not been coherent at some levels, with different countries advancing different positions. African countries have adopted regional integration as a strategy to deal with the challenges of globalization. Regional integration is believed to increase negotiating capacities and competitiveness in global trade. It is also believed to improve access to foreign technology. The African Union is facilitating the establishment of a continental intellectual property body. Accordingly, the main aim of this article is to discuss the establishment of the Pan-African Intellectual Property Organization in line with the African Union's vision for regional integration.

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Type
Research Article
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Journal of African Law , Volume 59 , Issue 1 , April 2015, pp. 1 - 24
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Copyright © SOAS, University of London 2015 

INTRODUCTION

The African Regional Intellectual Property Organization (ARIPO) and the Organization Africaine de la Propriété Intellectuelle (African Intellectual Property Organization – OAPI) are currently the two African regional organizations that are responsible for managing the different forms of intellectual property (IP) in the region. OAPI has 17 membersFootnote 1 and ARIPO has 19 members,Footnote 2 out of a total of 54 African countries.Footnote 3 The remaining countries are not represented, although some of them have observer status in the sub-regional institutions.Footnote 4 As a result, these countries rely entirely on their own national offices to address IP related matters. This state of affairs reveals that regionalism in relation to IP protection, as it currently exists in Africa, is flawed in that it fails to cover all African Union (AU) member states.Footnote 5 The absence of Africa's leading economies, in particular South Africa and Nigeria, from the membership of the two sub-regional organizations is problematic.Footnote 6 The current way of managing IP is also based on linguistic lines.Footnote 7 ARIPO is mostly for English-speaking African countries and OAPI is mostly for francophone countries.Footnote 8 It is against this background that the establishment of an all-inclusive continental entity becomes crucial.

The focus of this article is to analyse recent developments concerning the establishment of a Pan-African Intellectual Property Organization (PAIPO). The first question is whether PAIPO can successfully merge ARIPO and OAPI and integrate the non-member countries. The second question which this article seeks to answer is whether the AU is effectively rising to the need for continental IP protection. It is submitted that an attempt to establish a continental organization that deals with IP indicates the AU's efforts regarding a continental approach, not only to IP protection but also to regional integration in Africa. A continental approach is important, as PAIPO will benefit from economies of scale if it serves the IP needs of the whole continent.

The first part of this article discusses the proposal to establish PAIPO. The second examines the objectives of the new organization and the criticisms against it. The article then examines the possible obstacles to the establishment of a continental IP body and draws some lessons from the experience of the European Union (EU). The fourth part provides a general commentary on the establishment of PAIPO and the last part is a conclusion.

PROPOSAL FOR THE ESTABLISHMENT OF PAIPO

The rationale for creating a continental IP organization comes from the realization that Africa needs a mechanism to facilitate far-reaching changes in the area of IP.Footnote 9 The existing sub-regional organizations cannot effect the revolutionary reforms needed, due to geographical limitations and lack of continental inclusiveness. The establishment of PAIPO is seen as useful in sharpening “the visibility of IP issues as they relate to economic development” and in enhancing integration on the continent.Footnote 10 It is worth noting that the development priorities of AU member states differ, but common to all is the need to attract foreign direct investment, acquire technologies, promote research and development, and establish a sound industrial base.Footnote 11 The level of political will and commitment to the establishment of PAIPO may improve if member states are guaranteed clear and measurable benefits. The promotion of IP at a continental level could contribute to facilitating the attainment of these needs.

Under the final draft of the statute establishing PAIPO (Final Draft), the organization will be a specialized agency of the AU.Footnote 12 The idea of establishing PAIPO under the auspices of the AU is important, in that its objectives can easily be aligned to the AU's goal of regional integration. OAPI and ARIPO are not attached to the AU. Instead, the two sub-regional IP organizations have been co-operating and working closely with the World Intellectual Property Organization (WIPO) to which they are affiliated.Footnote 13 The fact that the existing organizations do not fall under the AU probably explains why harmonization of the two organizations has been difficult and partly why they could not attract membership from all African countries. It is argued that having PAIPO as a specialized agency of the AU is crucial for regional integration.Footnote 14

The importance of regional integration in Africa

Regional integration is a strategy that African countries are adopting to deal with the challenges posed by globalization, which has had such a profound effect on international trade and foreign direct investment.Footnote 15 For African countries, regional integration has been one of the significant post-colonial efforts which they have adopted with the objective of developing African economies and integrating them into the global economy.Footnote 16 It is argued that African countries have small markets, are small, often landlocked, and are poorly endowed with natural resources.Footnote 17 Regional integration is thus expected to combine these small markets to become a single market through which member states are able to benefit from economies of scale.Footnote 18 An all-inclusive continental IP organization is perceived as necessary in order to increase economies of scale and for the development of scientific and technological resources.Footnote 19 It is also important for promoting and protecting the forms of IP relevant to Africa.

Regional integration is also important in ensuring that African countries develop a common African position on global and emerging IP issues. It is acknowledged that the need to harmonize and co-ordinate negotiating positions constitutes part of a strategic approach for strengthening the participation of African countries in WIPO and the World Trade Organization (WTO). It would also strengthen their participation in regional trade agreements, including preferential trade agreements.Footnote 20

It should be noted that, despite increased active participation, African countries have not been influential in some substantive debates, whether under WIPO or the WTO.Footnote 21 Lack of clear governmental positions has been one of the reasons for their limited influence in negotiations.Footnote 22 The result has been treaties that do not necessarily reflect the contributions or needs of African countries, especially on “sticking” issues.Footnote 23 There is no doubt that the benefits that developing countries have reaped from multilateral agreements fall short of expectations.Footnote 24 A continental body may represent the only possible solution available for African countries unless the globalized economy is reshaped, and properly and fairly run with all member states having a meaningful voice in the agreements affecting them.Footnote 25 A continental body would enable African countries to formulate negotiating positions and to be able to compete against developed countries.Footnote 26

The author submits that it would be important for PAIPO to provide a broad-based IP platform that would provide a forum for policy-based discussions as well as the formulation of a common African negotiating position.Footnote 27 PAIPO should, therefore, be able to assist African countries in negotiating better concessions for the region, based on a co-ordinated continental position.

Regional integration is consequently the driving force towards the integration of OAPI and ARIPO into PAIPO. A single market would require a continental IP organization. Nwauche rightly points out that a single IP rights organization would be attractive to investors, as it might serve as a one-stop access and as an engine for increased innovative activity.Footnote 28 The organization would enjoy such legal capacity as is accorded to legal persons in the territory of each member state, “as may be necessary for the fulfilment of its objectives and the exercise of its functions”.Footnote 29

The relationship between trade and intellectual property

The proposal by African heads of state to establish PAIPO is a positive development in the history of IP in Africa.Footnote 30 PAIPO is intended not only to serve as a cost-effective entity for streamlining IP management in Africa,Footnote 31 but would probably also assist in the integration of laws. Its establishment would also promote stronger regional co-operation if all 54 African countries become members. The current fragmentation, which has seen 22 countries, mostly from North Africa, not being part of the two IP regional organizations, negatively affects efforts to integrate the region. Kongolo correctly argues that a single continental IP organization is not only desirable but necessary.Footnote 32 The necessity of setting up a new organization derives from the need for an IP body that can adapt and adequately consider Africa's realities, needs and priorities in terms of social, economic and cultural development. The mandate to establish a continental IP body is based on the Abuja Treaty establishing the African Economic Community, whose aim is to create an African common market of which IP organizations are building blocks.Footnote 33 The creation of a new organization responsible for IP would thus be in line with the AU's objective of establishing a common market.Footnote 34

The AU's goal to establish a common market is aimed at liberalizing trade, and IP has a role to play towards this goal. This is because there is a close relationship between trade and IP protection.Footnote 35 IP can be a barrier to or a catalyst for trade and investment.Footnote 36 IP rights may prevent the importation of goods from one member state to another because of the territoriality principle.Footnote 37 This is because IP rights are aimed at protecting the owner from competition arising from infringing copies made by a competitor. In so doing, IP can be an obstacle to the free movement of goods, which could lead to anti-competitive behaviour in the internal market. IP laws are, therefore, important for the realization of a common market that has no or few barriers.

The Tripartite Agreement and its relevance to the proposed PAIPO

The establishment of a free trade area comprising the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and the Southern African Development Community (SADC) is based on the hope that it will increase trade among the member countries.Footnote 38 The larger market that will be created will make it viable for manufacturers to do business in the Tripartite-Free Trade Area (T-FTA) as transaction costs will be reduced.Footnote 39 Manufacturers and other producers will also be able to capitalize on economies of scale. In addition, it will provide the bloc with an improved bargaining position in trade agreements and in attracting foreign investors. The general objectives of the T-FTA are to promote the social and economic development of the region, to create a large single market with free movement of goods and services and business persons, and finally to establish a customs union.Footnote 40 Market integration, industrialization and infrastructure are thus central to the T-FTA.Footnote 41

However, the agreement does not include all African countries, as it envisages a membership of the 26 countries that form the three trading blocs. The T-FTA will have a combined estimated population of 590 million and a combined gross domestic product of US $1 trillion.Footnote 42 Almost half the AU member states are not included in this free trade area.Footnote 43 While the inclusion of only three economic blocs may appear problematic, the establishment of the free trade area is a milestone towards the integration of sub-regional blocs. It is argued that it is not going to be feasible for the sub-regional economic blocs to form a consolidated market from the beginning. Therefore, a gradual transition and the establishment of a free trade area comprising only three regional economic blocs would be a reasonable and practical start in the circumstances. This is because the 26 member states that comprise the free trade area need to overcome their differences and, by virtue of each of these countries having its national interests and specific needs, the process should be gradual. The suggestion of using this T-FTA as a core building block for establishing an Africa-wide free trade area is remarkable because of its link to the AU programme on continental integration.Footnote 44

It should be noted that the T-FTA will have to solve the problem of overlapping membership among the three economic blocs, as the T-FTA will be a trading economic bloc on its own.Footnote 45 Accordingly, member states should belong only to the T-FTA so that the bloc is effective and to avoid a waste of resources.Footnote 46 As it now stands, the arrangement is that the existing regional economic blocs will continue to function and that only member states will be parties to the T-FTA.Footnote 47

Fundira argues that the establishment of a free trade area is an ambitious plan.Footnote 48 The three year time-frame that has been set to conclude the first round of negotiations covering trade in goods may not be a realistic goal considering the complexity of the negotiations. Simplifying and harmonizing the three sets of rules of origin (of SADC, COMESA and EAC) will also require time.Footnote 49 The time-frame could, however, be changed to allow sufficient time for the negotiations; a five year period appears realistic. The establishment of a T-FTA ought to be viewed as progress towards the establishment of a common market.

As stated earlier, PAIPO will serve as a building block for the envisaged common market. It may not, however, be refuted that the impact of the new organization lies in its ability to attract new members, such as South Africa and Nigeria, whose membership will enhance the framework of IP protection.Footnote 50 The organization should, therefore, adopt a continental vision towards IP protection in Africa. It should be able to provide a platform for all African countries to benefit from an IP system by promoting creativity, techno-industrial competitiveness, economic growth and sustainable development.Footnote 51

The following discussion is an analysis of PAIPO's objectives. The objectives are crucial because they indicate the organization's specific goals.Footnote 52

PAIPO'S OBJECTIVES

It is intended that PAIPO provide a broad-based platform for African countries to benefit from a co-ordinated stock of specialized IP knowledge and services. The objectives are to:

“

  1. (i) Ensure the effective use of the intellectual property system as a tool for economic, cultural, social and technological development of the continent;

  2. (ii) Contribute to the accelerated achievement of the objectives of the African Union as stated in the Constitutive Act of the AU;

  3. (iii) Promote the harmonization of intellectual property systems of its Member States, with particular regard to protection, exploitation, commercialization and enforcement of intellectual property rights;

  4. (iv) Provide common services to Member States and / or regional economic communities in the administration and management of intellectual property rights that maximizes and builds upon the solid achievements of ARIPO, OAPI and/or WIPO;

  5. (v) Provide a forum for policy discussions and formulation, addressing political issues and developing African common positions relating to Intellectual Property matters, particular regard being given to genetic resources, traditional knowledge, Geographic indicators, expressions of folklore, matters pertaining and arising from the Convention on Biological Diversity (CBD) and emerging topics in the field of intellectual property;

  6. (vi) Initiate activities that strengthen the human, financial and technical capacity of Member States to maximize the benefits of the intellectual property system to improve public health and eradicate the scourge of piracy and counterfeits on the continent; and

  7. (vii) To foster and undertake positive efforts designed to raise awareness on intellectual property in Africa and to encourage the creation of a knowledge-based and innovative society as well as the importance of creative industries including, in particular, cultural and artistic industries;

  8. (viii) To lead the African negotiation in the international IP issues and to ensure the African common position.Footnote 53

”

The objectives contained in (iii) and (iv) above conflict with the mandates of ARIPO and OAPI insofar as they are aimed at harmonising IP systems of the member states and providing common services to member states.Footnote 54 The conflict appears unavoidable, since IP matters cannot all be abruptly moved to PAIPO once it is formed; a smooth transition will be necessary. ARIPO and OAPI will obviously have to continue with their mandates until PAIPO is fully operational. The objectives are nonetheless of great importance as they include core issues such as the protection of traditional knowledge, creation of awareness on IP issues as well as the need for PAIPO to lead and co-ordinate African negotiations in international IP issues. To achieve these objectives PAIPO shall:

“

  1. (i) Set intellectual property standards that reflect the needs of both the African Union and its Member States and Regional Economic Communities of the Organization;

  2. (ii) To [sic] grant and register industrial property titles;

  3. (iii) Facilitate the realization and harmonization of national legislation and regional treaties and intellectual property standards in all the AU levels;

  4. (iv) Facilitate the use of intellectual property to promote creativity and innovativeness on the continent;

  5. (v) Assist its Member States in formulating policies and addressing current and emerging Intellectual Property issues in conformity with the Objectives of the Organization;

  6. (vi) Initiate strategies that will promote and develop the intellectual property system;

  7. (vii) Strengthen the existing regional organizations … as may be necessary;

  8. (viii) Strengthen the existing collective management organizations and facilitate their establishment in the Member States which have no collective management organization in the field of copyright and related rights;

  9. (ix) Take deliberate measures to promote the protection and exploitation of Intellectual Property rights within the Member States, including conclusion of bilateral and multilateral agreements;

  10. (x) Collect, process and disseminate relevant information on intellectual property to Member States and support the establishment of databases on genetic resources, traditional knowledge and traditional cultural expressions and folklore in order for Member States to derive regular and maximum benefit;

  11. (xi) To develop updated policy guide lines and training modules to support Member States to achieve a world-class IP systems [sic]; and

  12. (xii) Do such other things as may be necessary for the achievement of the Objectives of the Organization.Footnote 55

”

These functions, although viewed as very ambitious,Footnote 56 are crucial as they are aimed at IP standards that reflect the needs of African countries. Most of the IP laws are remnants of the colonial past and thus the formulation of new standards relevant to Africa is significant.Footnote 57 In other words, African countries should be able to formulate appropriate IP strategiesFootnote 58 and exploit IP for sustainable development.

Training would be important in educating member states about the growing importance of IP in promoting economic growth, as countries with the strongest economic performance are knowledge based.Footnote 59 IP laws and policies play a crucial role in transforming information, an intangible asset, into economic, social and cultural wealth.Footnote 60 As a result, PAIPO should be able to encourage its member states to transform the information they possess into economic wealth.

The continental IP body also intends to collect and process relevant information on IP and disseminate it to member states.Footnote 61 The centralization, co-ordination and dissemination of IP information is necessary in that it makes the information readily available to member states. It means applicants from member states save time and money by not having to search for relevant information relating to their application. With the global developments that are taking place in IP, the objective of collecting, processing and disseminating relevant information is critical to member states as there is extensive information available that could pose difficulties, as IP is a technical field. It would, for example, be extremely costly for individual patent offices to manage huge databases and IP-related technical information.Footnote 62 Sharing information in the area of IP among member states would also be important, as it would be for their mutual benefit.

The other function is to develop updated policy guidelines and training modules to support member states in achieving world-class IP systems.Footnote 63 It is important to raise effective awareness of IP, relating to its use and how it can be exploited for Africa's benefit. There is no doubt that there is a need for building capacity in IP protection and utilization in Africa. This is because most African countries appear to lack essential knowledge relating to how IP can be utilized for the benefit of the country. Training programmes and human resource development would, therefore, be crucial in the area.

Realization and harmonization of both national and regional laws is one of PAIPO's explicit aims.Footnote 64 Its purpose is to integrate different legal systems within a single basic framework.Footnote 65 It is commendable that PAIPO aims to promote the harmonization of laws, and to ensure that the laws reflect Africa's vision and needs, particularly on genetic resources, folklore and traditional knowledge. It is, however, contended that facilitating the rationalization and harmonization of IP standards will not be sufficient to create an effective regional IP system. The harmonization of laws that apply to all the member states is also neither sufficient in creating an effective regional IP system nor in creating a common market in Africa. This is evidenced by the fact that the harmonization of standards in the EU was not enough to establish a common market. The EU had to introduce directives and regulations that member states were expected to ratify or adopt.Footnote 66 The directives were by and large the major tool used to build the European common market.Footnote 67 The European Commission and the European Court of Justice were further empowered to ensure compliance by all member states.Footnote 68 Apart from the need for PAIPO to rationalize and harmonize IP standards, there is a need for PAIPO to work together with the AU Commission and Court of Justice towards the goal to create an African common market.Footnote 69 The AU Court of Justice has jurisdiction over all disputes and applications referred to it that relate, inter alia, to the interpretation and application of the protocol governing the court, the interpretation, application or validity of AU treaties and all subsidiary legal instruments adopted within the framework of the AU.Footnote 70 The court may also interpret acts, decisions, regulations and directives of AU organs. Its role will be to ensure consistent and uniform interpretation of the harmonised IP laws within the envisaged African common market.

CRITICISMS AGAINST THE ESTABLISHMENT OF PAIPO

It is worth noting, however, that, as much as the proposal to establish PAIPO has received support, it has also attracted some criticism. Ncube contends that there has been little debate about the benefits of a continental IP body.Footnote 71 She further argues that the mandate of the IP body appears to duplicate the current objectives and activities of ARIPO and OAPI.Footnote 72 This is because PAIPO purports to register and grant IP titles, which is something ARIPO and OAPI already do, since the two organizations register IP for their respective member states.Footnote 73 The duplication may be problematic, particularly during the transition period, and there will be a need to allow ARIPO and OAPI to perform these functions until the end of the transition period. This is because it will be “premature for an organisation which is at the stage of learning the ABCs of the IP system” to take over that function from existing organisations that have gained experience in administering IP in Africa.Footnote 74 The question that remains unanswered relates to the added value which PAIPO will bring to the continent in IP matters at both regional and international level, apart from being a one stop shop. Again, the relationship between the proposed PAIPO and the two existing IP regional organisations is not clear.Footnote 75

The idea of having PAIPO under the umbrella of the AU has also been criticized, as this is likely to politicize IP matters.Footnote 76 While it is pertinent for PAIPO to attract member states that are not currently members of the existing IP regional organizations, the importance of continental IP protection could end up being eroded. The newly proposed organization may also lead to stronger IP protection or rather TRIPS-plus protection,Footnote 77 especially if the OAPI system is followed, since the OAPI law applies in all its member states.Footnote 78 A counter argument can, however, be made that the establishment of PAIPO under the AU is pertinent to the regional integration initiative. IP has the potential to undermine economic growth and development in the envisaged common market and thus there is a need for a close relationship between the AU and PAIPO.

It has been further argued that the objectives are not aligned with the needs and realities of the continent. While PAIPO mentions in part the need to ensure the effective use of an IP system as a tool for the continent's economic, social and technological development, there is no mention in the Final Draft of the challenges facing Africa with respect, inter alia, to access to medicines and learning materials, and its efforts to realize the MDGs.Footnote 79 Moreover, the document may also be viewed as being insufficiently detailed. Furthermore, it does not fully reflect the African vision of creating a forum for policy based discussions to enable the formulation of a common African position on IP matters.Footnote 80

These arguments are compelling and need to be addressed. The establishment of a continental IP body and regional integration should cease to be a matter solely for national governments and international organizations. It cannot be imposed from above; it must, therefore, be supported by the people.Footnote 81 It cannot be gainsaid that the AU ought to have started with more aggressive mobilization campaigns regarding the idea of a continental IP body and regional integration.Footnote 82 Key actors and stakeholdersFootnote 83 were supposed to have been involved with the idea from the outset, as their involvement is crucial to the success of regional integration.Footnote 84 In articles 3(g) and 4(c) of the AU's Constitutive Act, the AU acknowledges the role of civil society in achieving success.Footnote 85 This begs the question: to what extent did the AU involve civil societies in the region regarding the idea of a continental IP body? The need also to involve the two sub-regional organizations cannot be overemphasized.

The AU might not have involved the public and key actors such as civil societies before, but this can be remedied by holding seminars and conferences throughout the continent. Public awareness through dissemination of information at national level may encourage people to support regional initiatives and government programmes.Footnote 86 The private sector, just like civil society, is important as an engine for economic growth and sustainable development.Footnote 87 The AU and member state governments need to recognize the role played by the private sector and should, therefore, ensure their involvement. Co-operation among civil societies, the private sector and national governments is necessary in promoting economic development as well as in promoting regional integration.

Regarding PAIPO's objectives, the argument that the organization is not aligned to the needs and realities of the region seems unfounded. To attain its objectives, PAIPO intends to “set intellectual property standards that reflect the needs of both the African Union and its member states and Regional Economic Communities of the Organization”.Footnote 88 In contrast, the objectives of both OAPI and ARIPO did not necessarily advance African values such as the protection of traditional knowledge.Footnote 89 This could explain why traditional knowledge did not find recognition and protection within the existing framework for a very long time, let alone international protection.Footnote 90 The dominance of the western model in the area of IP protection could be the reason, since it is based on notions of individual property ownership rather than communal ownership.Footnote 91 Mukuka states that, with the western model, IP rights are granted to give the creator an exclusive right which prevents others from unauthorized use of the creator's property for a limited period of time.Footnote 92 Traditional knowledge does not, therefore, satisfy the requirements of western or mainstream IP rights protection.Footnote 93

It has been rightly argued that there is a need for what is supposed to be a “regional organization” to reflect the African vision regarding the protection of IP in general.Footnote 94 It has also been pointed out that ARIPO and OAPI were modelled after the western style of IP protection which unfortunately does not always correspond and fit in with African realities and environment.Footnote 95 Kongolo rightly argues that the “systems would be more effective if they would take into consideration African needs, priorities and realities”.Footnote 96 Traditional knowledge is the form of IP that is of relevance to African countries. It is a useful and important aspect of innovation to African countries.Footnote 97 Although the Final Draft makes reference to traditional knowledge in article 5(v), it cannot be deduced that the protection of traditional knowledge and folklore is central to PAIPO's mandate.Footnote 98 The need to emphasize public policy objectives in the areas of access to knowledge and public health cannot be overstated.Footnote 99 It should however, be noted that the existing IP organisations have since adopted legislation aimed at protecting traditional knowledge, folklore and traditional cultural expressions. For example, ARIPO adopted the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore.Footnote 100

ARIPO and OAPI have different IP systems, in that OAPI does not allow its member states to maintain their national laws in the same way that ARIPO does. There is without doubt a need to define and limit the boundaries of the proposed PAIPO in order to ensure that its objectives do not conflict with those of ARIPO and OAPI, especially during the transition period.Footnote 101 Kongolo's argument that the proposed PAIPO system must be clearly defined is valid.Footnote 102 A long transitional period is also important, since there is a need to ensure that the institution is equipped with relevant human resources and that there is smooth harmonisation with the existing regional IP organisations.Footnote 103 A period of at least ten years would be reasonable in the circumstances. The need for co-operation among ARIPO, OAPI and PAIPO during the transition period is not only necessary but of great importance as well. These criticisms do not detract from the importance of a continental IP organization because this accords with the establishment of the African common market. The establishment of a single body dealing with IP in Africa is a good initiative which can yield positive results for the continent in terms of economic development and the improvement of the welfare of the communities that commercialize their IP.

POSSIBLE OBSTACLES TO THE FORMATION OF PAIPO

One of the possible obstacles to the establishment of PAIPO may be lack of funding. It is proposed that the organization should initially be funded by AU member states until it is able to generate its own income through granting and registering IP rights and title.Footnote 104 The extent to which member states are going to be able to fund the activities is not clear. It seems axiomatic that some organizations in Africa depend on donor funding. PAIPO should not fall into this category for the reason that the “donor dependency” syndrome may erode the organization's independence. In a statement, the Senegalese President Abdoulaye Wade pointed out that “Africa is not ill, though many Africans are, because of AIDS, poverty, bad governance and unfair international trade regimes. It does not need to be healed nor saved. What Africans want is true equitable partnership.”Footnote 105

This statement points to the need for a paradigm shift regarding the expectation of being funded. African countries need to move away from being a “begging bowl” to equitable partnerships that mutually benefit both parties.

The other concern includes linguistic problems.Footnote 106 In comparison, the EU Office for Harmonization in the Internal Market managed to overcome the possibility of language becoming a barrier by allowing French, English, German and Spanish as official languagesFootnote 107 in which an application for a Community Trademark can be filed.Footnote 108 It is suggested that, since PAIPO falls under the AU, it should adopt the working languages of the AU. As a result PAIPO should have Arabic, English, French and Portuguese as official languages,Footnote 109 as these appear to be the main languages across the continent. By so doing, the problem of language becoming a barrier would be eliminated, at least to some extent.

In addition, the system that PAIPO is likely to adopt could be a possible challenge to its establishment. There are differences in the approach of administering IP under ARIPO and OAPI. The OAPI system is based on the principle of uniformity, as OAPI's aim is to have an effective and uniform system of protecting IP rights. The OAPI legislation stands as the law for all its member states.Footnote 110 The Bangui Agreement which regulates IP has the effect of national lawFootnote 111 in all the member states.Footnote 112 The OAPI headquarters serves as a national officeFootnote 113 for its member states and OAPI grants rights on behalf of its member states.Footnote 114 The Bangui Agreement contains both substantive and procedural provisions for different areas of IP, including trademarks.

Under the ARIPO system, the ARIPO Office receives and processes patents and trademark applications on behalf of the designated member states.Footnote 115 ARIPO may decide to grant a patent or register a trademark, but registration will only be valid when it is accepted by the designated member states.Footnote 116 ARIPO safeguards the sovereignty of member states by allowing them to make the final decision either to register or object to the registration of a trademark within 12 months.Footnote 117 A state which refuses to register must give reasons why it cannot register the proposed trademark under its laws.Footnote 118 Within one month, the ARIPO Office must then communicate the reasons to the applicant who is allowed to respond to the decision to refuse the application directly to the designated state concerned.Footnote 119 The requirement to furnish reasons is commendable because administrative organizations should ensure that there is transparency and accountability; this builds trust in the system. Without trust in the ARIPO system, people would not use it effectively and its role of developing IP would not be fulfilled. Therefore, transparency and accountability are an integral part of an efficient organization. Centralization under the ARIPO system is also important, in that it offers an opportunity for cost-efficiency, which can benefit both trademark owners and national offices, especially given that resources are usually limited.Footnote 120

The ARIPO system thus provides only for procedural matters and leaves the substantive content of the rights largely to the laws of its member states.Footnote 121 The OAPI legislative provisions cover both the substantive and procedural aspects of the law. The differences in the approach followed by ARIPO and OAPI could be an obstacle to the establishment of PAIPO. These differences may be overcome by the adoption of either the ARIPO system only, the OAPI system only or instead a totally different system since it may be difficult to reconcile the systems.

The administration of IP in those states which are not affiliated to the two sub-regional organizations also reveals differences in approaches to IP protection. Countries such as Egypt and South Africa for example grant a patent that fulfils formal requirements, while countries such as Ethiopia and Mauritius require substantive examination. Furthermore, countries such as Eritrea do not have patent and trademark legislation.Footnote 122

The substantive law may also be an obstacle to the establishment of PAIPO. The preamble to the Final Draft “does not go far enough in affirming the perspectives on IP and development” and the need to advance common causes at WIPO, which coalitions such as the African Group and the Development have been advocating over recent years.Footnote 123 Article 5(VI) of the Final Draft refers to the need to strengthen the capacity of PAIPO member states to “maximize the benefits of the IP system to improve public health”.Footnote 124 This provision has been regarded as vague at best, as it fails to indicate how this will achieved.Footnote 125 The fact that provisions dealing with substantive IP law in the Final Draft need to be clear and comprehensive cannot be overstated. Ncube and Laltaika correctly argue that PAIPO should not regard IP as an end itself, but rather as a means to serve larger public goals.Footnote 126 The need to ensure that IP contributes to development by facilitating access to medicines, learning materials and food security in Africa should be spelt out clearly in the statute. The rationale is that IP should complement each state's effort at development by becoming an effective tool for economic growth.Footnote 127 This view negates the universal applicability of “one size fits all IP protection models”.Footnote 128 As it stands, some AU members may find it difficult to cede part of their sovereignty to a continental IP organization if they perceive IP to be something that can undermine development and economic growth.

It is also a cause of concern that OAPI's regional legal framework does not provide differential treatment for any of its members, especially the least developed countries. If PAIPO adopts the OAPI model, which has unified laws and is based on the principle of uniformity, it means the same laws will apply to member states.Footnote 129 The problem posed by the OAPI system arises from the basis that there has to be uniformity in administrative procedures, laws and IP practices in all the countries.Footnote 130 The problem is worsened by the fact that unification of laws is a radical technique that does not allow for a gradual elimination of divergence in the laws in the same way that harmonization does.Footnote 131

It is argued that the harmonization of laws should be the starting point for PAIPO since it involves reconciling various systems, thereby reducing differences to a minimum and ensuring that they are less pronounced.Footnote 132 Harmonization is an option that respects the particularities of the various national legal systems, whereas unification aims at eliminating the differences between national provisions by replacing them with a unique and identical text for all states involved.Footnote 133

Blakeney and Mengistie rightly argue that the problems that could be faced in the establishment of PAIPO could be resolved by the adoption of a phased approach.Footnote 134 They propose that PAIPO may initially be granted an IP policy formulation, co-ordination, and advocacy role, setting norms, and designing and streamlining regional positions on issues of concern at the international level.Footnote 135 It may also be given the responsibility of building IP policy capacity in member states and related activities. Its responsibilities could then evolve to include IP administration at a later stage.Footnote 136 By so doing, the gradual approach should help PAIPO to discharge its duties effectively and efficiently.

COMMENTARY ON THE ESTABLISHMENT OF PAIPO

The proposed business plan that PAIPO is going to adopt in carrying out its activities is structured into various phases and runs for 25 years.Footnote 137 During these 25 years it is proposed that ARIPO and OAPI should co-exist with PAIPO, after which the three may become one harmonized system under the AU.Footnote 138 The 25 years undoubtedly appear to be reasonable in the sense that this provides sufficient time to shift gradually towards a single IP organization. ARIPO has rightly argued that the work already done by the existing institutions should be used for the benefit of the continent, since African countries have been investing in the existing IP systems.Footnote 139 It is, however, important that the roles of ARIPO and OAPI should be clearly demarcated.Footnote 140 Close co-operation and a united approach between the existing sub-regional IP organizations and PAIPO will lead to a positive impact.Footnote 141 The establishment of PAIPO might require the adoption of a phased approach;Footnote 142 a programme of action that sets out the stages of operationalizing it will be beneficial to all stakeholders.

Caution should be taken, however, to ensure that PAIPO does not become a replica of the former IP organizations, albeit with a new name. PAIPO should rather thrive by remaining independent of the two organizations to circumvent the problem of duplicating the ARIPO and OAPI systems. The rationale behind the establishment of PAIPO is to have a continental body that will manage the IP affairs of all member statesFootnote 143 within the common market.

It is clear that PAIPO will not merge OAPI and ARIPO. Its formation also does not mean “dismemberment of the existing regional Organizations”.Footnote 144 It is argued that PAIPO may work towards identifying and sustaining some aspects of OAPI and ARIPO, whether in terms of policy or administration, that could be useful to its functions. There is no need for PAIPO to reinvent the wheel, as it would be pointless to come up with completely new methods of registering and granting IP rights when the ones created by ARIPO or OAPI are effective. PAIPO should, therefore, rather build on the work that has already been done by ARIPO and OAPI towards the development of IP. The new organization can adopt certain aspects of each of the sub-regional IP organizations to the extent to which they can be an aid to the realization of an effective regional system across the entire continent.

Finally, PAIPO requires an adequate legal and policy framework and a supportive infrastructure that includes trained personnel and office resources necessary for the implementation of policies and laws.Footnote 145 PAIPO should assist its member states to cope with the problems brought about by globalisation for health, education and development, by encouraging members to make effective use of flexibilities under TRIPS, as well as exceptions to copyright and related rights.Footnote 146

CONCLUSION

The efficiency and effectiveness of a single IP system depends largely on ensuring that all states which are not members of ARIPO and OAPI join the new organization. It is also dependent upon the harmonization of the administration of IP, laws as well as standards. In addition, a clear vision for providing continental IP protection is important for a single IP system to be effective. It is argued that Africa's development goals are dependent on a balanced and calibrated use of IP. A strong and stable IP infrastructure should promote social, economic and cultural development in Africa. An efficient regional IP system therefore has a significant role to play in the success of the AU's objectives, especially in utilizing IP as an instrument for economic growth.

PAIPO will be a building block that is essential to the establishment of a common market in Africa. The establishment of PAIPO could further assist the continent in forging regional negotiating positions upon which African countries could rely in both bilateral and multilateral negotiations to ensure that the continent obtains favourable concessions. The promotion and protection of genetic resources, traditional knowledge and folklore at international level should remain one of its key functions. The fact that PAIPO falls under the auspices of the AU is important on the basis that its activities may easily be aligned to regional integration. A continental approach to IP protection is therefore a crucial step towards the AU's regional integration initiative. It is remarkable that the AU is rising to the challenge for a continental IP body.

Footnotes

1 OAPI member states include Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d'Ivoire, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal and Togo. See: <http://www.oapi.int/index.php/en/aipo/etats-membres> (last accessed 17 November 2014).

2 The ARIPO member states include Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Rwanda, Sierra Leone, Somalia, Sudan, Swaziland, United Republic of Tanzania, Uganda, Zambia and Zimbabwe: ARIPO “Member states”, available at: <http://www.aripo.org/index.php/about-aripo/membership-memberstate> (last accessed 17 November 2014).

3 There are currently 54 independent countries in Africa following the independence of the Republic of South Sudan on 9 July 2011. See T Tekle “African Union accepts South Sudan as a new member state”, available at: <http://www.sudantribune.com/spip.php?article39670> (last accessed 2 December 2014). See also African Union “Member states”, available at: <http://au.int/en/member_states/countryprofiles> (last accessed 2 December 2014).

4 Algeria, Angola, Burundi, Egypt, Eritrea, Ethiopia, Libya, Mauritius, Nigeria, Seychelles, South Africa and Tunisia have observer status in the main organs of ARIPO. This is in line with art IV of the Lusaka Agreement on the Creation of the African Regional Intellectual Property Organization of 1976, available at: <http://www.aripo.org/index.php/resources/laws-and-protocols/finish/13-laws-protocols/50-the-lusaka-agreement-on-the-creation-of-the-organization> (last accessed 17 November 2014) (Lusaka Agreement).

5 Mupangavanhu The Regional Integration, above at note * at 117.

6 Ncube, C and Laltaika, E “A new intellectual property organization for Africa” (2013) 8/2Journal of Intellectual Property Law and Policy 114 at 115.

7 Nwauche, ES “An evaluation of the African regional intellectual property right systems” (2003) 6/1The Journal of World Intellectual Property 101 at 136. See also Adewopo, A “Trademark systems in Africa: A proposal for the harmonization of the ARIPO and the OAPI agreements on marks” (2003) 6/3The Journal of World Intellectual Property 473 at 483; and Joreiman, SF “Inherited legal systems and effective rule of law: Africa and the colonial legacy” (2001) 39/4Journal of African Studies 571 at 576.

8 Some member states of both organizations (such as Mozambique) are, however, neither English nor French speaking.

9 AU “Establishing a Pan-African Intellectual Property Organization (PAIPO): A concept paper”: AU doc Ext/ AU/EXP/ST/ 8 (II).

10 Id at para 6. See also Ncube and Laltaika “A new intellectual property organization”, above at note 6; and Blakeney, M and Mengistie, G “Intellectual property policy formulation in LDCs in sub-Saharan Africa” (2011) 19 African Journal of International & Comparative Law 66 at 71.

11 Blakeney, M and Mengistie, G “Geographical indications and economic development” in Mazzanti, IM and Monti, A (eds) Geographical Indications: Case Studies of Agricultural Products in Africa (2012, Earthscan Publications) 86 at 92.

12 Art 2 of the Final Draft Statute of the Pan-African Intellectual Property Organization, available at: <http://www.au.int/fr/sites/default/files/PAIPO%20Statute%20English.pdf> (last accessed 2 December 2014). See also ARIPO “Recent intellectual property development in the African region and proposals for the harmonization of ARIPO and OAPI systems” (Council of Ministers 13th session held in Accra, Republic of Ghana, 1–2 December 2011) at 2, available at: <http://www.aripo.org/index.php/component/jdownloads/finish/1-council-of-ministers-13th-session/8-aripo-cm-xiii-13-recent-intellectual-property-developments-in-africa?Itemid=273> (last accessed 2 December 2014).

13 Deere, CThe Implementation Game: The RIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries (2009, Oxford Publication) at 268.

14 Art 3(c) of the Constitutive Act of the African Union of 2000 (Constitutive Act) provides that one of the AU's objectives is to accelerate the political and socio-economic integration of the continent. The Constitutive Act is available at: <http://www.au.int/en/sites/default/files/ConstitutiveAct_EN.pdf> (last accessed 2 December 2014).

15 Gibb, R “Regional integration and Africa's development trajectory” (2009) 30/4Third World Quarterly 701 at 703. See also Mukamanana, R and Moeti, K “Challenges of regional integration in Africa: Policy and administrative implications” (2005) Journal of Public Administration 90 at 91; and S Schifferes “Globalisation shakes the world” (21 January 2007), available at: <http://news.bbc.co.uk/2/hi/business/6279679.stm> (last accessed 2 December 2014).

16 Regional integration is more of a self-reliance mechanism for African countries and an answer to the economic problems that the continent continues to experience. See Erasmus, G and Hartzenberg, T “The tripartite free trade area: Towards a new African integration paradigm” in Trade Law Centre for Southern Africa (Tralac) The Tripartite Free Trade Area: Towards a New African Integration Paradigm? (2012, Tralac Publication) 1 at 9.

17 Robson, PEconomic Integration in Africa (2011, Routledge) at 12. See also Erasmus and Hartzenberg “The tripartite free trade area”, id at 9.

18 Economy of scale refers to the conditions when the average cost of production falls as the quantity of goods produced rises; this is the cost advantage that an enterprise obtains due to expansion. An increase in inputs must bring about more than a “doubling of output”: Baumol, WJ and Blinder, ASMicroeconomics: Principles and Policy (12th ed, 2011, Cengage Learning Publication) at 143. See also Knoop, TARecessions and Depressions: Understanding Business Cycles (2010, Praeger Publication) at 29.

19 Ncube and Laltaika “A new intellectual property organization”, above at note 6 at 115.

20 Blackhurst, R, Lyakurwa, B and Oyejide, A “Options for improving Africa's participation in the WTO” (2002) 23/4World Economy 491 at 497.

21 Kessie, E and Apea, Y “The participation of African countries in the multilateral trading system” in Yusuf, AA (ed) African Yearbook of International Law (2004, Martinus Nijhoff Publication) 9 at 11.

22 SF Musungu “International intellectual property standard setting: A review of the role of Africa in shaping the rules for the regulation of the knowledge economy” in Yusuf id, 169 at 185–86.

23 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994) is argued to be far from responding to the needs and objectives of developing countries. See: Kongolo, T “The WTO settlement mechanism: TRIPS ruling and the developing countries” (2005) 4/2The Journal of World Intellectual Property 257 at 268.

24 Tussies, D “Regionalism: Providing a substance to multilateralism?” in Shaw, TM and Soderbaum, F (eds) Theories of New Regionalism (2003, Palgrave Macmillan) 99 at 115.

25 Stiglitz, JGlobalisation and its Discontents (2002, The Penguin Press) at ix.

26 Footnote Ibid.

27 The idea that PAIPO should be able to create a platform that enhances policy discussion and the formulation of a common negotiating position is reflected in the preamble to the Final Draft.

28 Nwauche “An evaluation”, above at note 7 at 138.

29 The Final Draft, art 3.

30 AU “Assembly of the African Union eighth ordinary session” (doc: Assembly/AU/Dec.138(VIII)), available at: <http://www.au.int/en/sites/default/files/ASSEMBLY_EN_29_30_JANUARY_2007_AUC_THE_AFRICAN_UNION_EIGHTH_ORDINARY_SESSION.pdf> (last accessed 17 December 2014).

31 Preamble to the Final Draft.

32 Kongolo, T “The African Intellectual Property Organization: The necessity of adopting one uniform system for all Africa” (2000) 3/2Journal of World Intellectual Property 265 at 282.

33 Art 4(2)(h) of the Abuja Treaty Establishing the African Economic Community (1991), available at: <http://www.wipo.int/wipolex/en/regeco_treaties/text.jsp?file_id=173333> (last accessed 2 December 2014).

34 A common market has no or few barriers between the member states and also implements a common trade policy towards non-member countries: Venter, D and Neuland, ERegional Integration: Economic Partnership Agreements for Eastern and Southern Africa (2007, Richard Havenga & Associates) at 36. The AU Commission is mandated to foresee regional integration and is also responsible for the harmonization and rationalization of regional economic communities: “The AU Commission”, available at: <http://www.au.int/en/commission> (last accessed 2 December 2014).

35 This linkage is evidenced by TRIPS and regional trade agreements which incorporate IP provisions. See Wong, T “Intellectual property through the lens of human development” in Wong, T and Dutfield, G (eds) Intellectual Property and Human Development: Current Trends and Future Scenarios (2010, Cambridge University Press) 1 at 46; Drahos, P “Developing countries and international intellectual property standard-setting” (2005) 5/5The Journal of World Intellectual Property 765 at 776; and Sikoyo, GM, Nyukuri, E and Wakhungu, JWIntellectual Property Protection in Africa: Status of Laws, Research and Policy, Analysis in Ghana, Kenya, South Africa and Uganda (Ecopolicy no 16, 2006, Acts Press) at 3.

36 Nwauche “An evaluation”, above at note 7 at 103. See also Colston, C and Galloway, JModern Intellectual Property Law (3rd ed, 2010, Routledge) at 13; JA Lewis “Intellectual property protection: Promoting innovation in a global information economy” (a report of the Centre for Strategic and International Studies Technology and Public Policy Program, 2008) at 7; and Blakeney and Mengistie “Intellectual property policy”, above at note 10 at 68.

37 Trademark rights are acquired at national level, meaning that a right is only effective in the country in which it was registered: Colston and Galloway, id at 13; and Dinwoodie, G “Trademarks and territory: Detaching trademark law from the nation-state” (2004) 14/3Houston Law Review 886 at 901.

38 Erasmus and Hartzenberg “The tripartite free trade area”, above at note 16 at 1.

39 Id at 3.

40 G Erasmus “Legal and institutional aspects of the tripartite free trade area: The need for effective implementation” in Tralac The Tripartite Free Trade Area, above at note 16, 8 at 12; and Erasmus and Hartzenberg “The tripartite free trade area”, above at note 16 at 3.

41 Erasmus “Legal and institutional aspects”, id at 8.

42 Footnote Ibid.

43 Africa has 54 countries in total as stated earlier.

44 The establishment of the T-FTA is therefore not proposed as an ad hoc plan but as a core building bloc in the new paradigm of African integration: Erasmus “Legal and institutional aspects”, above at note 40 at 12. See also the preamble to the Draft Agreement Establishing COMESA, EAC and SADC Tripartite Free Trade Area, available at: <http://www.tralac.org/wp-content/blogs.dir/12/files/2011/uploads/Draft_Tripartite_FTA_Agreement_Revised_Dec_2010.pdf> (last accessed 2 December 2014); this provides that member states are committed to “championing and expediting the continental integration process under the Treaty establishing the African Economic Community and the Constitutive Act of the African Union through regional initiatives”.

45 Erasmus ibid.

46 The challenges that arise as a result of overlapping membership include duplication of efforts and resources, and conflict of interests; furthermore the overlap tends to run counter to regional goals and leads to counter-productive or unhealthy competition among countries and institutions. See Geda, A and Kebre, H “Regional economic integration in Africa: A review of problems and prospects with a case study of COMESA” (2008) 17/3Journal of African Economies 357 at 361; Dlagnekova, P “The need to harmonise trade-related laws within countries of the African Union: An introduction to the problems posed by legal divergence” (2009) 15/1Fundamina 1 at 14; and A Ndomo “Regional economic communities in Africa: A progress overview” (a study commissioned by GTZ, 2009) at 10.

47 Erasmus “Legal and institutional aspects”, above at note 40 at 11.

48 Africa is viewed as having created a culture of overly ambitious time frames, as demonstrated by free trade areas and customs unions that have not always been fully implemented and deadlines having been frequently missed: T Fundira “Prospects for attaining a continental free trade area: Amidst a culture of missed deadlines in Africa” (2012, Tralac), available at: <http://www.tralac.org/discussions/article/5297-prospects-for-attaining-a-continental-free-trade-area-amidst-a-culture-of-missed-deadlines-in-africa.html> (last accessed 2 December 2014).

49 The critical issues regarding the rules of origin include the need to make them predictable and open to uniform interpretation. As a result, the T-FTA should harmonize the rules so that they become one: Erasmus “Legal and institutional aspects”, above at note 40 at 14.

50 Adewopo “Trademark systems in Africa”, above at note 7 at 476. Ncube and Laltaika “A new intellectual property organization”, above at note 6 at 115.

51 AL Arowolo “A continental approach to protecting traditional knowledge systems and related resources in Africa” (2009), available at: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1313582&download=yes> (last accessed 2 December 2014).

52 Generally, an organization's objectives should be specific, measurable, achievable and realistic (SMART criteria): Gross, JDimensions of Organization Development (2009, Ocean Publishing) at 41; and Hillson, D “Enterprise risk management: Managing uncertainty and minimising surprise” in Bourne, L (ed) Advising Upwards: A Framework for Understanding and Engaging Senior Management Stakeholders (2011, Gower Publication) 57 at 66.

53 The Final Draft, art 5.

54 Kongolo, TAfrican Contributions in Shaping the Worldwide Intellectual Property System (2013, Ashgate) at 129.

55 The Final Draft, art 6.

56 Kongolo African Contributions, above at note 54 at 129.

57 Id “The African Intellectual Property Organization”, above at note 32 at 265. It should be noted that WIPO currently gives assistance to African countries in relation to IP standards under its technical and capacity building programmes at the request of member states. Its focus is to assist African member states in their effort to build national capacities to enable them to take full advantage of their IP systems. The object is to ensure that each country has in place a strong, inclusive and comprehensive national IP system that benefits citizens by allowing them to create, protect, promote and commercialize IP assets. PAIPO's goal to set IP standards that reflect the need of member states will, as a result, reinforce WIPO's programmes. One would, therefore, expect that the collaborated efforts in assisting African countries should result in the benefits of IP being realized on the continent: WIPO “Support to NEPAD” (period report, July 2008 – June 2009), available at: <http://www.un.org/africa/osaa/2009_un_system/WIPO.pdf> (last accessed 2 December 2014).

58 An IP strategy entails formulating an IP policy at the national level that sets out how the IP system can be utilized for development benefits or economic growth.

59 OAPI director general, PE Edou “Raising awareness in West Africa” (February 2011) WIPO Magazine, available at: <http://www.wipo.int/wipo_magazine/en/2011/01/article_0007.html> (last accessed 2 December 2014).

60 Yu, PKIntellectual Property and Information Wealth: Issues and Practices in the Digital Age (2007, Greenwood Publishing Group) at ix; and Lewis “Intellectual property protection”, above at note 36 at 1.

61 The Final Draft, art 6(x).

62 A very considerable amount of time and resources is taken up with the administration of infrastructure, which includes training IP personnel: Blakeney and Mengistie “Intellectual property policy”, above at note 10 at 68.

63 The Final Draft, art 6(xi). Similarly, one of ARIPO's objectives is to promote the exchange of ideas and experience, research and studies relating to IP, and to assist its members in the acquisition and development of technology; see the Lusaka Agreement, art III.

64 The Final Draft, art 6(3) provides that PAIPO shall: “Facilitate the realisation and harmonization of national legislation and regional treaties and intellectual property standards in all the AU levels”.

65 Harmonization is thus a process where diverse elements adapt to form a coherent whole while retaining their individuality: Boodman, M “The myth of harmonization of laws” (1991) 39/4The American Journal of Comparative Law 699 at 702; Wandrag, R “Unification of Southern African contract law” (2011) 13 European Journal of Law Reform (African Conference on International Commercial Law issue) 451 at 455; and Ferreira-Snyman, MP and Ferreira, G “The harmonization of laws within the African Union and the viability of legal pluralism as an alternative” (2010) 73 Journal of Contemporary Roman-Dutch Law 608 at 614.

66 Art 288 of the Treaty on the Functioning of the European Union provides that: “To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states. A directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force.” Treaty available at: <http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN> (last accessed 2 December 2014).

67 Duina, FGHarmonising Europe: Nation-States Within the Common Market (1999, State University of New York Press) at 5.

68 Footnote Ibid.

69 The Constitutive Act, arts 18 and 20. See Makinda, SM and Okumu, FWThe African Union: Challenges of Globalisation, Security and Governance (2008, Routledge) at 132.

70 Protocol of the Court of Justice of the African Union, art 19, available at: <http://www.au.int/en/sites/default/files/PROTOCOL_COURT_OF_JUSTICE_OF_THE_AFRICAN_UNION.pdf> (last accessed 16 December 2014).

71 C Ncube “Piping up on PAIPO”, available at: <http://afro-ip.blogspot.com/2012/10/piping-up-on-paipo.html> (last accessed 2 December 2014).

72 Footnote Ibid.

73 The Final Draft, art 6(2).

74 Kongolo African Contributions, above at note 54 at 130.

75 Id at 131.

76 Footnote Ibid.

77 Footnote Ibid.

78 Art 2 of the Agreement Revising the Bangui Agreement of 2 March 1977 on the Creation of an African Intellectual Property Organisation (Bangui Agreement), available at: <http://www.wipo.int/wipolex/en/other_treaties/text.jsp?file_id=181151> (last accessed 2 December 2014); Dean, O “A unified intellectual property law system for Southern Africa” (1994) 2 Juta's Business Law 165 at 165.

79 Ncube “Piping up on PAIPO”, above at note 71. See also D Kawooya “A new course for the Pan African Intellectual Property Organization is urgently needed” (2012) available at: <https://www.change.org/p/a-new-course-for-the-pan-african-intellectual-property-organization-is-urgently-needed> (last accessed 3 December 2014).

80 Kongolo African Contributions, above at note 54 at 128.

81 Oluwu, D “Regional integration, development and the African Union agenda: Challenges, gaps and opportunities” (2003) 13 Transnational Law & Contemporary Problems 211 at 250.

82 Comparatively, the EU commenced with a mass awareness campaign that had trailed the idea of integrating the EU since the 1930s, especially after the Cold War. In contrast, African integration had no focus on educating the population about regional integration. Regional integration may well have been moving forward slowly due to the citizenry's lack of knowledge about the agenda: UN Economic Commission for Africa (UNECA) Assessing Regional Integration in Africa II: Rationalising Regional Economic Communities (2006, UNECA) at 130, available at: <http://www.uneca.org/sites/default/files/publications/aria2_eng.pdf> (last accessed 2 December 2014).

83 This includes trades unions, employers' organizations, private entrepreneurs and non-governmental organizations. Oluwu correctly explains that strong non-governmental participation is a key factor in achieving the goals of regional integration: Oluwu “Regional integration”, above at note 81 at 250.

84 In the EU, successful regional integration schemes were the result of combined efforts, not only the work of governments. The EU example is instructive for the AU's objective of integrating the region.

85 Art 3(g) of the Constitutive Act sets out as one of the AU's objectives to promote democratic principles and institutions, popular participation and good governance. Art 4 acknowledges “participation of the African peoples in the activities of the Union” as one of the principles upon which the AU functions.

86 UNECA Assessing Regional Integration, above at note 82 at 130.

87 The private sector brings economic development through job creation, investment and the production of goods: UNECA Assessing Regional Integration IV: Enhancing Intra-African Trade (2010, UNECA) at 32, available at: <http://www.uneca.org/sites/default/files/publications/aria4full.pdf> (last accessed 2 December 2014). See also Oluwu “Regional integration”, above at note 81 at 251.

88 The Final Draft, art 6(i).

89 It has also been argued that South Africa (which is not a member of ARIPO or OAPI) does not have IP laws that adequately protect traditional knowledge. See Mukuka, GIndigenous Knowledge Systems and Intellectual Property Laws in South Africa: ‘Reap What You Have Not Sown’ (2010, Pretoria University Law Press Publication) at 23.

90 Arowolo “A continental approach”, above at note 51.

91 This concept of individual property ownership is alien and does not necessarily focus on a group's or collective right to protect and benefit from its own cultural discoveries, creations and products. See Hansen, SA and Van Fleet, JWTraditional Knowledge and Intellectual Property: A Handbook on Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property and Maintaining Biological Diversity (2003, American Association for the Advancement of Science) at 4; Oguamanam, CInternational Law and Indigenous Knowledge: Intellectual Property Rights, Plant Biodiversity and Traditional Medicine (2006, University of Toronto Press Incorporated Publication) at 8 and 29.

92 Mukuka Indigenous Knowledge Systems, above at note 89 at 19.

93 It should be noted that proposals have been made for the development of the sui generis [by class] protection of IP rights. The territoriality of IP rights and their international alignment, as well as global trade practices, indicate the need for an international solution regarding the protection of traditional knowledge. The question that lingers is whether WIPO's sui generis system of protection will provide adequate protection. See G Dutfield “Protecting traditional knowledge and folklore: A review of proposals in diplomacy and policy formulation” (2003, UN Conference on Trade and Development, and International Centre for Trade and Sustainable Development Publication) at 22, available at: <http://www.ictsd.org/downloads/2008/06/cs_dutfield.pdf> (last accessed 2 December 2014). See also WIPO “Traditional knowledge and intellectual property: Background brief”, available at: <http://www.wipo.int/pressroom/en/briefs/tk_ip.html> (last accessed 2 December 2014); and Kiene, TThe Legal Protection of Traditional Knowledge in the Pharmaceutical Field: An Intercultural Problem on the International Agenda (2011, Waxmann Publication) at 58.

94 Kongolo “The African Intellectual Property Organization”, above at note 32 at 268.

95 Phaswana, N and Tanziani, D “African intellectual property law and newly emerging African economies, with an emphasis on South Africa” in Taplin, R and Nowak, AZ (eds) Intellectual property, Innovation and Management in Emerging Economies (2010, Routledge Publication) 42 at 42.

96 Kongolo “The African Intellectual Property Organization”, above at note 32 at 265.

97 Dinwoodie, GB and Dreyfuss, RC “Enhancing global innovation policy: The role of WIPO and its conventions in interpreting the TRIPS Agreement” in Correa, CM (ed) Research Handbook on the Protection of Intellectual Property Under WTO rules: Intellectual property in the WTO vol 1 (1st ed, 2010, Edward Elgar Publication) 110 at 111; and Sikoyo et al Intellectual Property Protection, above at note 35 at 4.

98 Africa's form of IP (traditional knowledge and folklore) does not fall within “conventional” IP regimes and cannot be protected as it does not fit into the criteria. This is because traditional knowledge is generally held by communities and is passed from one generation to another. The novelty and inventive step criterion appears to pose problems regarding the protection of traditional knowledge, since most of the knowledge would have been used for long periods of time and thus be well known within the community. Traditional knowledge by its nature cannot therefore meet the novelty requirement, since the knowledge may be regarded as already in the public domain. This implies that neither the indigenous people themselves nor third parties may patent this knowledge under existing IP frameworks. There is a need to ensure the protection of traditional knowledge and folklore because of its relevance to Africa. The Final Draft needs to put greater emphasis on these forms of IP. See WIPO “Intellectual property and traditional knowledge” (booklet no 2, WIPO publication no 920 (E)) at 6; and Kiene The Legal Protection of Traditional Knowledge, above at note 93 at 52.

99 The Final Draft, art 6.

100 Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore Within the Framework of ARIPO, available at: <http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=201022> (last accessed 3 December 2014).

101 Kongolo African Contributions, above at note 54 at 131–32.

102 Footnote Ibid.

103 Footnote Ibid.

104 The Final Draft, arts 14 and 16.

105 D Kohnert “EU-African economic relations: Continuing dominance, traded for aid?” (Institute of African Affairs at German Institute of Global and Area Studies working paper, 3 July 2008) at 9, available at: <http://mpra.ub.uni-muenchen.de/9434/1/MPRA_paper_9434.pdf> (last accessed 2 December 2014).

106 It is argued that the existence of French, English and Portuguese speaking countries in Africa poses a challenge to the newly proposed organization in what should become its official languages.

107 Morcom, C, Roughton, A and Graham, JThe Modern Law of Trademarks (1999, Butterworth) at 23.5.

108 Council Regulation No 40/94 of 1993, art 115.

109 Constitutive Act, art 25. See Makinda and Okumu The African Union, above at note 69 at 133.

110 The preamble to the Agreement Revising the Bangui Agreement, above at note 78, states that member states “desire to promote the effective contribution of intellectual property to the development of their States on the one hand, and [are] concerned on the other hand to protect intellectual property rights on their territories in as effective and uniform a manner as possible”.

111 The aim of the agreement was to create a body responsible for the application of joint administrative procedures resulting from a uniform regime of IP protection.

112 The Bangui Agreement also provides extensive protection for existing IP: Kongolo, T “The new OAPI Agreement as revised in February 1999: Complying with TRIPS” (2005) 3/5The Journal of World Intellectual Property 717 at 735.

113 OAPI serves as a national office under the Patent Cooperation Treaty of 1970 (which was modified in 2001) and under the Trade mark Registration Treaty of 1973 (which has since been amended).

114 Kongolo “The African Intellectual Property Organization”, above at note 32 at 273.

115 The ARIPO Central Office is responsible for the administration of trademark applications: Banjul Protocol on Marks Within the Framework of the ARIPO, sec 1, available at: <http://www.wipo.int/wipolex/en/other_treaties/text.jsp?file_id=345095> (last accessed 2 December 2014).

116 Id, secs 5 and 6. See also Blakeney and Mengistie “Geographical indications”, above at note 11 at 91.

117 Id, sec 6(2).

118 Footnote Ibid.

119 Footnote Ibid.

120 International Trademark Association “Adherence to the ARIPO Banjul Protocol” (May 2000), available at: <http://www.inta.org/Advocacy/Pages/AdherencetotheARIPOBanjulProtocol.aspx> (last accessed 2 December 2014).

121 Nwauche “An evaluation”, above at note 7 at 134.

122 Blakeney and Mengistie “Geographical indications”, above at note 11 at 91.

123 Ncube and Laltaika “A new intellectual property organization”, above at note 6 at 116.

124 It reads: “Initiate activities that strengthen the human, financial and technical capacity of Member States to maximize the benefits of the intellectual property system to improve public health and eradicate the scourge of piracy and counterfeits on the continent … ”: the Final Draft, art 5(vi).

125 Ncube and Laltaika “A new intellectual property organization”, above at note 6 at 116.

126 Footnote Ibid.

127 WIPO “Inter-sessional intergovernmental meeting on a development agenda for WIPO, third session, Geneva, July 20 to 22, 2005”: WIPO doc IIM/3/2 rev (31 July 2005).

128 WIPO “Development Agenda Group (DAG), DAG guiding principles paper”: WIPO doc CDIP/5/9 rev (26 April 2010), para 1.

129 Nwauche “An evaluation”, above at note 7 at 135; and TIS Gerhandsen “Concern arises over proposed pan-African IP organization” (30 August 2007) Intellectual Property Watch, available at: <http://www.ip-watch.org/2007/08/30/concern-arises-over-proposed-pan-african-ip-organisation/> (last accessed 2 December 2014).

130 See Art 2(1) of the Agreement Revising the Bangui Agreement, above at note 78.

131 See David, R “The methods of unification” (1968) 16/1American Journal of Comparative Law 13 at 15; Boele-Woelki, KUnifying and Harmonising Substantive Law and the Role of Conflict of Laws (2010, Martinus Nijhoff Publishers) at 32–36; Mancusso, S “Trends on the harmonization of contract law in Africa” (2007) 13/1Annual Survey of International & Comparative Law 157 at 159; and Fagbayibo, B “Towards the harmonization of laws in Africa: Is OHADA the way to go?” (2009) 42/3Comparative and International Law Journal of Southern Africa 309 at 311.

132 The different instruments that are used to achieve the harmonization of laws include model laws, restatements, principles and rules. Court decisions and legislative measures may also result in the approximation of laws of different jurisdictions: Boele-Woelki, id at 35. See also Glenn, HP “Conflicting laws in a common market? The NAFTA experiment” (2001) 76 Chicago-Kent Law Review 1789 at 1794.

133 Mancusso “Trends on the harmonization”, above at note 131 at 159.

134 Blakeney and Mengistie “Geographical indications”, above at note 11 at 91.

135 Footnote Ibid.

136 Footnote Ibid.

137 ARIPO “Recent intellectual property development”, above at note 12 at 2. See also Kongolo African Contributions, above at note 54 at 127.

138 Kongolo, ibid.

139 ARIPO “Recent intellectual property development”, above at note 12, paras 4 and 5.

140 Ncube and Laltaika “A new intellectual property organization”, above at note 6 at 117.

141 Footnote Ibid.

142 Blakeney and Mengistie “Intellectual property policy”, above at note 10 at 72.

143 AU “Establishing a Pan-African Intellectual Property Organization”, above at note 9.

144 Arowolo “A continental approach”, above at note 51.

145 Issues on IP are technical and require highly skilled and knowledgeable people: Sikoyo et al Intellectual Property Protection, above at note 35 at 24–25.

146 See WIPO “Flexibilities in the context of the development agenda”, available at: <http://www.wipo.int/ip-development/en/agenda/flexibilities/flex_dev_agenda.html> (last accessed 3 December 2014).

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