After progressing through several drafts ( e.g. 2012 and 2013), the AU adopted the final PAIPO statute on 31 January 2016. There has already been a lot of commentary on PAIPO and its draft statutes.* This post merely seeks to highlight the differences between the 2012 and 2013 drafts and the 2016 final statute in tabular format (see below).The most striking changes are to the tenor of the preamble, the characterisation of PAIPO as a specialised AU agency, its organs, the move from prohibiting to permitting reservations and the new provisions added to the final statute (arts 18, 21, 22, 23, 27 and 30). The Preamble now expressly refers to ‘the cultural and socio-economic development of Africa’; recognises ‘international human rights laws and international agreements on sustainable development and the protection of indigenous knowledge’ and refers to the WIPO Development Agenda, Sustainable Development Goals and the AU’s Agenda 2063. This hopefully signals a more development friendly orientation.
* for example see C Ncube Intellectual Property Policy, Law and Administration in Africa: Exploring Continental and Sub-regional Co-operation (2015) 126 – 139;Y Mupangavanhu ‘African Union Rising to the Need for Continental IP Protection? The Establishment of the Pan-African Intellectual Property Organization’ (2015) 59 Journal of African Law 1–24;C Ncube & E Laltaika E. ‘A new intellectual property organization for Africa?’ (2013) 8(2) Journal of Intellectual Property Law and Practice 114-117; Karjiker, S., 2012. ‘Sizing up the ‘ill-conceived PAIPO Draft Statute‘ 6 November 2012. IP Watch Insider Views’.
An insightful post on litigation involving the copyright regulator, right holders and collecting societies in Kenya by Victor Nzomo.
For the past year I have been writing a manuscript entitled Intellectual Property Policy, Law and Administration in Africa: Exploring Continental and Sub-regional Co-operation for publication by Routledge in the third quarter of 2015. This has been a labour of love – hard but enjoyable work writing about things that matter to me – Africa, IP, law, policy and equity. The research that went into this book has been shared on this blog and the Afro-IP blog via my series on IP policies in Africa. Chapter 2 of the book summarises my findings on the state of IP policies in Africa and their import. So in a sense, readers of the blog have walked part of my writing journey with me. Those who haven’t read this series yet can do so here. Once the book is in print, I’ll run a series on this blog discussing its main ideas and arguments.
Over the last year I have been blogging on Afro-IP, where I am writing a series on IP policies in Africa. My last post is on Morocco – read the full post here.
Links to previous posts in this series are available here.
The long awaited draft policy was gazetted on 4 September 2014 (Government Gazette 36816 Notice 918). Comments on the draft have been invited and will be accepted over the next 30 days.
The 21st Ordinary Session of the African Union (AU) held from 19 – 27 May has just ended. The long-awaited PAIPO stakeholders’ meeting did not form part of the Summit (see the agenda documents here and here). IP does not seem to have been expressly addressed although it is implicit in a few agenda items. For example, the press release issued at the close of the summit notes the following:
‘SUPPORTING FILM PRODUCTION FOR INCREASED CONTRIBUTION TO AFRICA’s DEVELOPMENT
The Assembly urged Member States to join forces for a more dynamic pursuit of public policies for the African film industry, focusing on priority and innovative actions that could, most expeditiously, allow for the production, dissemination and distribution of African film and audio-visual products; to establish a credit fund in each Member State as a way to step up film production; to implement the legal instruments and tools provided for in national cultural policies; and to ensure progressive and sustainable systematization of co-production with all TV networks; the African Union and the Regional Economic Communities to support African film production, promote free circulation of African film industry products and activate movie production tools and instruments.’
As films are primarily protected by copyright, the policies and legal instruments referred to in the press release will include copyright policies and legislation. There has already been some interesting research on copyright and the film industry in Africa. For example, the Program on Information Justice and Intellectual Property (PIJIP) at the American University Washington College of Law conducted a study on the experiences of South African filmmakers focusing on “(1) the problems that current interpretations of South African Copyright law may be posing to the development of the documentary film industry, and (2) opportunities to address those problems through changes in law or the practice of filmmakers” ( see Overview of PIJIP’s Work on Copyright and International Documentary Film) . The study report concluded that some reform of copyright law was necessary to address these problems such as ‘as expanding the incidental use exception for “artistic works” to include audio and broadcast video sources’ (Sean Flynn and Peter Jaszi Untold Stories in South Africa: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers, 2009, p.28). The copyright issues which confront fictional or creative films are also well documented, albeit with a focus on Nollywood. Examples of relevant discussions include Arewa’s article on “The Rise of Nollywood: Creators, Entrepreneurs, and Pirates” and Tiller’s blog post on “Nollywood and the copyright conundrum“. On the one hand, copyright in Nollywood films is infringed on a massive scale, whilst on the other hand, Nollywood film makers have been accused of copyright infringement. Any copyright solution will thus have to be carefully balanced to serve both creator and user rights as African film-makers clearly fall into both camps. The solution also needs to take the interests of society generally as films are often an integral part of culture. The AU Assembly’s call for the AU to support African film-making has (perhaps unintentionally) raised important copyright issues. It will be interesting to see how the AU approaches this task.
I’m marking world IP day by participating in several initiatives, events and research projects over the next year. View a poster which summarizes these here. For info on this day visit WIPO’s webpage here.
“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness …it was the spring of hope… we had [two bills] before us…” (apologies to Charles Dickens, A tale of two cities)
South Africa’s efforts at creating an appropriate legal framework continue, with a second Bill (draft Protection of Traditional Knowledge Bill) having been recently published for public comment. The course of the first bill (IP Laws Amendment Bill No. 8B of 2010 (IPLAB)) through parliament is outlined here by Cobus Jooste. The co-existence of the two Bills presents the opportunity to compare them with each other, which I have done in relation to some aspects of the bills in a submission to parliament.
Both bills ought to be viewed in the light of recent developments nationally, regionally and globally. Nationally, the Department of Science & Technology (DST) is considering the merits of sui generis legislation according to its briefing to a parliamentary committee in July 2012. It hosted a workshop on 17-20 April 2013 that considered this issue further (see p3 of the programme). If the DST’s investigations merit it, there may very well be a third bill in the offing soon (be still my fluttering heart!) Regionally ARIPO’s Swapkomund Protocol is very important as South Africa shares borders with ARIPO member states and some traditional communities extend across national borders. Globally WIPO ‘s IGC continues to wrestle with this issue and its 24th session is currently underway (22-26 April 2013, see meeting documents).
I hope that the comments and debates that are spurred by the publication of the second Bill will take these developments into account and will be such that, in the future, we can look back to 2013 and say ‘it was the best of times, we had two bills before us which we considered wisely and used to craft a good law for the protection of TK in South Africa‘