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’.
Judging from the chatter amongst the participants at the Africa IP forum (25 – 27 February 2013) the Pan African Intellectual Property Organisation (PAIPO) was on the minds of many. However, it was not officially on the agenda and the Minister of Trade and Industry, Dr Davies’ welcome address skirted the issue. Prof Esme du Plessis, who chaired the second plenary (Access to medicines and incentivizing local production of generic medicines in Africa) mentioned it in passing in her commentary on the session but there was no subsequent discussion of the issue.
PAIPO is the joint creation of the African Union (AU) and NEPAD (see timeline and document archive here) and I hoped that representatives of these organisations would be at the Africa IP Forum. The formal acknowledgements made at the beginning of the forum did not refer to any AU or NEPAD functionary or official so it is reasonable to conclude that none was in attendance. The participant list was not circulated so I was not able to confirm whether the AU or NEPAD were represented at the Forum.
It would have been beneficial to discuss PAIPO at the Forum particularly as concerns have been raised about whether enough stakeholder consultation had been undertaken in relation to PAIPO. As many stakeholders attended the Forum it could have been used as some form of stakeholder engagement on the issue. The Forum was also a perfect platform on which to provide complete and up to date information on the status of the organisation as well as the role being taken by African states in its creation/development. Linda Daniels of IP Watch spoke to the Deputy Director General in the Department of Trade and Industry and reports that there are some hints of South African support or even leadership of PAIPO (see Linda’s report here). Hopefully all will be revealed at the May AU Summit, scheduled for 19-27 May (see AU website here for details).
February 2013 has been a significant month for IP because in the last two weeks it has been prominent in three political speeches made in South Africa, namely the State of the Nation Address (SONA), the minister of Trade & Industry’s speech at the Africa IP Forum and the Minister of Finance’s Budget Speech. These speeches are important because they are indicative of the executive’s commitment and provide a road map for government departmental action in the rest of the year.
In the case of the President’s SONA delivered on 19 February (available in full here), IP was conspicuous by its absence. It was not expressly mentioned but its significance permeated the speech. The President spoke of the National Development Plan, which unfortunately does not consider or mention IP at all. This shows that the relevance of IP to achieving economic development has been overlooked at the macro-policy and planning level. When the president spoke about improving the quality of education, I could not help but sigh in exasperation as I thought of the significant role that the use of open educational resources (OERs) can play in this context. We already have the success stories of Siyavula and the Free High School Science Texts project. The reliance on OERs delivered over the ubiquitous mobile phone could have averted or minimized last year’s textbook delivery debacle. The crisis of youth unemployment was discussed at length by the President. The creation of an equitable IP system that enables creativity and innovation by youth will make a meaningful contribution to reducing the ranks of the unemployed when young people are not hindered by IP in their pursuit of innovative businesses and models. It has been reported that tech hubs are growing in Cape Town and other African cities. Isn’t it time to reconsider IP protection of computer programs, business methods and mobile apps to enable these tech hubs to flourish? Finally, when the fight against diseases such as HIV /AIDS and TB was mentioned, the relevance of IP, particularly patents, to access to medicines was brought to the fore. Especially in the context of the local manufacture of generics or the unhindered importation of generics. Also relevant is how South Africa’s equivalent of the Bayh-Dole Act may be hindering research into neglected diseases or negatively impacting the sharing of critical research domestically or internationally (see OpenAIR case study on this issue here). The SONA implicitly underscored the importance of IP in the above ways and places the onus the relevant ministries to provide the necessary detail and to take appropriate action.
Another equally important high level statement is the Budget Speech delivered by Minister Pravin Gordhan on 27 February (available in full here). It did not expressly mention IP. However, as with the SONA it was simmering under the surface. Specifically, the importance of the provision of quality education to reduce poverty and unemployment was mentioned several times. A total of ZAR 232.5 billion was allocated to sports, education and culture plus ZAR 23.9 billion for provincial education departments for infrastructure in the short term. In addition to the provision of funds, education quality has to be enhanced by a more balanced copyright regime with appropriate exceptions and limitations for educational use, the proper utilization of OERs and OA to educational materials. Of course, these measures are outside the ambit of the Ministry of Finance’s area of competence and should be attended to by the ministries responsible for IP.
The ministry primarily seized with IP matters in South Africa is the Department of Trade & Industry (DTI). Therefore it is to Minister Rob Davies to whom we look for the details pertaining to the IP issues that stood out from the SONA. So, I was very excited to attend the Africa IP Forum hosted by the DTI last week as I expected the Minister to speak to these issues in his Welcome Address on 26 February (for background on the Forum see my previous post here and commentary on afro-ip. For an overview of how the Forum unfolded see the series of posts on afro-ip here. ) As had been widely reported, the Treatment Action Campaign (TAC) staged a demonstration before the beginning of the Minister’s address calling several things including for movement on the IP Policy which has been in the works for an inordinate period of time and for concrete action on the negative impact patents are having on access to medication for people living with HIV. In response, the Minister assured the Forum that the IP policy will be released for public consultation and that he is available to meet with the TAC (For a report on this aspect see the TAC’s report here).
Minister Davies began his Welcome Address by stating that the forum would feed into South Africa’s IP policy. He then made a number of remarks on the policy’s underpinnings including the key point that IP policy ought to be calibrated to suit the country’s current socio-economic status and future goals. He also stressed that in formulating the policy, South Africa would be wary of calls for harmonisation and enforcement and only provide for an appropriately balanced IP system. He rightly stated that the relevant stakeholder interests that have to be balanced to be creators of scientific and cultural works and the users of such works. He then emphasised that the key current issues that need immediate attention are access to medicine and the protection of traditional knowledge. These remarks show that the DTI has considered all the critical elements and issues that must inform the policy. It remains to be seen how it has dealt with them in the policy. It is not yet clear when the policy will be released for public comment. (For a historical overview of the development of the policy and the initial plan for Cabinet approval see my post here).
2013 has begun with a clear indication of the primacy of a sound IP Policy to inform South Africa’s IP system and I hope that we will soon see real movement on the policy which is characterised by a truly open and receptive consultative process.