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The New Times – Rwanda
How Africa reclaimed its IP rights
By: Gitura Mwaura
The right to Intellectual Property (IP) in Africa was not always a given. It had to be earned.
Intellectual property rights refer to one’s ownership and exclusive rights to benefit or use in any way creations of his mind such as inventions, literary and artistic works, designs and such like.
The struggle to reclaim these rights is the familiar colonial and neo-colonial story in Africa to free ourselves from the unconscionable exploitation by the West.
The story begins during the scramble for Africa when European powers agreed among themselves to carve up the continent of Africa at the Berlin Conference of 1884-85. (See, The Intellectual Property Treaty Landscape in Africa, 1885 to 2015)
One of their aims was to create and regulate African markets under the then IP treaties – the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property.
These are the earliest international IP treaties. And their administration was under the United International Bureaux for the Protection of Intellectual Property (BIRPI). Established in 1893, BIRPI would be the first global IP organisation.
In 1885, after dividing a continent among themselves, Britain, Belgium, France, Germany, Italy and Spain applied their prerogatives under BIRPI, unilaterally declaring that treaty obligations extended to their new colonies. This amounted to owning the peoples land and minds.
German legislation, for example, expressly prevented “Eingeborne” (natives) from holding rights to intellectual property.
The colonisers’ was a two-prong strategy to their domination. While tangible property rights were the primary legal mechanism used to maintain foreign control during colonialism, IP rights maintained control and economic penetration.
The Africans had no chance. However, by 1935 only three countries (Morocco, South Africa, and Tunisia) had been able to ratify the international IP treaties. And, it was not until the early 1960s, when most African countries achieved independence, that more of them ratified the treaties.
Even then, the countries didn’t own their rights. Treaty membership imposed the same legal obligations of colonial control the countries had been subjected, guaranteeing the foreign ownership rights to their colonisers.
At the same time, the newly formed countries were prevented or persuaded from developing IP policy to address local needs, including providing access to knowledge for education or protecting indigenous knowledge.
As the 1960s entered the 1970s, and as more African and other developing countries ratified the treaties, they gained in strength and started making demands during international IP negotiations. They also faced further limitations from their detractors in the West.
It, however, was an indication that times had changed when the World Intellectual Property Organisation (WIPO) took over from the pre-colonial BIRPI in 1974. WIPO had been established seven years earlier, in 1967.
WIPO’s structure gave the African and developing countries a greater voice that was becoming more adamant, making it harder for Western countries to implement their limiting IP agenda
As a result, the Western nations changed tack; they brought IP into the realm of international trade, where their value of trade gave them greater influence.
This led to the negotiation of the World Trade Organization (WTO) and the TRIPS Agreement that would replace the General Agreement on Tariffs and Trade (GATT) in 1995.
Negotiated during the establishment of the WTO, the TRIPS Agreement is the most comprehensive and important IP treaty to date. It includes and extends the previous IP regime under the Paris and Berne Conventions. Most countries in Africa are now covered by TRIPS.
Despite the new developments, the World Intellectual Property Organization (WIPO) continues its work "to encourage creative activity, to promote the protection of intellectual property throughout the world".
How has Africa fared after all the struggle? Apparently not too well.
It lags behind the world, mainly due to two IP obstacles. The first is a lack of legal enforcement of IP rights. Hence, the high online piracy rates, for instance. This not only demotivates but may become a disincentive to pursue creative activities that have been crucial in offering employment opportunities for youth.
The Second obstacle is low awareness and inadequate support, which has resulted in a few people in the continent registering their IP.
The obstacles are the same in East Africa, though governance and administration of IP rights are enshrined in the EAC Common Market Protocol.
The protocol binds the partner states to legislate, promote and protect creativity and innovation for economic, technological, social and cultural development within the EAC.
The promotion efforts could be better in the region, but they have been shown to be working. Available statistics show that in Rwanda, for instance, registration of patents rose in 2016 with over 41 per cent filing more than half of their patent applications overseas.
This was an improvement from 34 per cent the previous year.