Challenges in protecting and enforcing Intellectual Property in the African continent

By Daniel Anti, Bird & Bird

In this article we consider some of the challenges brands and individuals face in the protection and enforcement of their Intellectual Property (IP) in Africa.

Here are some for consideration:

  • Convoluted network of legal frameworks and lack of harmonization in IP laws and practice

Currently there is no single uniform IP system or laws across the continent. There have been efforts to harmonise IP practices regionally through organisations such as the African Regional Intellectual Property Organization (ARIPO) and the African Intellectual Property Organization (OAPI). A number of countries are also signed up to international treaties, systems and agreements which provide for rules on IP rights such as the TRIPS Agreement or the Madrid Protocol allowing countries to be designated as part of a WIPO international trade mark registration.

However, there are concerns about these systems and agreements’ implementation on a local level, this, coupled with issues in varying standards of cross-border infringement enforcement and a web of interacting legal frameworks can make the protection of IP confusing.

  • Adoption and creation of inappropriate IP systems

As IP is crucial in the technological and economic advancement of developing countries, the question of how IP can help in this development therefore needs to be considered. A key issue has been the adoption and creation of “one size fits all” Euro-centric laws which do not necessarily appreciate the particular nuances and cultural differences in African communities.

As stated by Rob Davies, the former Trade Minister of South Africa, when he opened WIPO’s inaugural conference on IP and Development in 2016: “countries have taken different paths in pursuing economic development and they have used IP protection in different ways and at different times to support their development effort”.

Many African countries are working to ensure compliance with international IP laws and standards but do not necessarily have the capabilities or cultural appetite currently to effectively implement or enforce them.

There is a need for more flexible Afro-centric IP systems which focus on cultural expressions, traditional knowledge, geographic indications and standards of protection and enforcement which adapt as a country develops sufficient infrastructure, technology and public awareness, (particularly for inventions) in the same way as individuals and businesses need to adapt how they operate and make their brand relevant within different countries.

Establishing strict IP regimes in developing countries can have the effect of limiting the creation of new technology. IP systems should therefore be complimentary to an economy’s growth strategy and supportive of individuals and businesses in the creation and protection of IP in an appropriate way.

  • Infrastructural issues

Many of the continent’s Intellectual Property Offices have limited resources and funding, often operating with outdated technology systems and insufficient staffing and expertise. Some still operate with paper-based systems and/or have closed IP registers that require a formal search to access information.

This has led to delays in obtaining registrations of IP, increased costs, poor examination and enforcement standards and substantive paperwork for IP owners.

  • Trade Mark Squatting

There are a number of first-to-file trade mark systems on the continent where priority is given to the individual or entity who files their trade mark first regardless of whether they have a legitimate interest or prior use. Trade mark squatters are therefore taking advantage of these systems and hampering the efforts of individuals and businesses which are the genuine owners of the IP.

  • Awareness, funding and education concerning IP

There is generally a greater need for public and government awareness concerning the importance of IP and the economic and health risks associated with counterfeit products. In the West IP is very much seen as a currency in the knowledge economy which aids growth, and the infringement of these rights is for the most part shunned as not being in-line with cultural values. Whereas this is not necessarily the case in some African countries due to low budgets for research and development projects and the lack of general knowledge concerning IP and local laws.

By way of example, there are over 1,000 languages spoken on the African continent but (understandably) there are issues concerning the translation and accessibility of laws for local people, especially in rural areas.

There is also often a culture clash with the concept of an individual or business obtaining exclusive rights for the expression of an idea which is not the norm in some African communities where the way of life is about the open sharing of resources, wealth, knowledge and innovation.

  • Perception of Africa from outside the continent

So much news and media about Africa is often negative such that the perception of its countries is sadly skewed. When really there are many thriving economies with exciting talent, infrastructure plans, technology and game-changing solutions that are not prioritised as key markets by many outside of the continent due to a tainted understanding of Africa’s development.

  • Conclusion

Those entering and operating in the African market face a number of IP challenges. The continent’s nations are however making strides to remedy these issues through increased awareness and collaborative continent-wide unification initiatives such as the African Continental Free Trade Area. This is though very much a work in progress and there remains a need to facilitate more culturally appropriate and effect approaches to IP systems and strategies to aid development and provide assurances for brand owners that their IP will be sufficiently protected.