Innovation and Intellectual Property Systems in Africa
The United Nations projected that by 2050, Africa’s population would more than double and increase from 1 billion in 2019 to 2.4 billion in 20501. This will be a young population as half of it will be under 25 years of age1. Concerns have been raised about the capacity of the African economy to absorb this young population into its job market1.
Over 60% of the unemployed people in Africa are youth1. This is also reflected in the South African unemployment statistics wherein 63% of youth aged 15 to 24 years is unemployed2. It is clear that Africa requires innovative solutions to deal with the impending influx of youth in the job market. The World Intellectual Property Organisation (WIPO) states that the more developed an economy is, the more it innovates, the inverse is also true3. However, it is not all doom and gloom for Africa, since some economies break this pattern and perform better than anticipated.
Sub-Saharan Africa is one of the economies performing above expectation for the level of development3. Looking at knowledge and technology outputs as a measure, South Africa’s position has been fluctuating. One of the things looked at in measuring knowledge and technology outputs is patent filings including Patent Corporation Treaty (PCT) applications, scientific articles and intellectual property receipts4. During 2019 South Africa dropped from number 55 to number 57 from the previous year and this is also reflected in the significant decrease of patent filings in the country. Kenya maintained a steady increase in its patent filings and moved from number 78 to number 72 in terms of knowledge and technology outputs rankings.
Source: These statistics were obtained from https://www.globalinnovationindex.org/
Looking at the whole of Africa and reaction to the COVID-19 pandemic, a study of 1000 new or modified technologies have been developed worldwide. Africa developed 12.8% of these innovations3. Looking specifically at the fields of the technologies, 57.8% were in ICT, 25% were based on 3D printing and 10.9% were in robotics. The countries with the most innovations were South Africa (13%), Kenya (10%), Nigeria (8%), and Rwanda (6%).3 The World Health Organisation (WHO) has recommended more investment into ICT infrastructure, robotics, artificial intelligence, drones and mechatronics.3 This will encourage innovation amongst the youth and create opportunities that do not exist now. With more innovation, incentives are required to encourage the sharing of ideas and even more innovation. What systems does Africa have to protect people’s intellectual property?
It is well known that SMEs play a vital role in a country’s economy and that we now live in a knowledge era wherein businesses compete in this knowledge economy5. Intellectual Property rights are essential for SMEs and should not just be considered a must have for big companies. Intellectual property must be recognised by SMEs as a necessary asset for economic and future growth5.
Intellectual property rights are territorial rights. This means that for every country you seek protection in, you have to file individual applications to get protection. In Africa, we have two regional patent offices namely the African Regional Intellectual Property Organization (ARIPO) and Organization Africaine de la Propriété Intellectuelle (OAPI). These regional patent offices represent 65% of the countries on the African continent6. South Africa is neither a member of ARIPO nor OAPI, as a result, all applications for IP protection must be filed individually for South Africa or designated via a Patent Corporation Treaty filing. The ARIPO member states include Botswana, The Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, São Tomé & Príncipe, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe. The legislation for ARIPO is the Harare protocol which enables ARIPO to provide protection for patent rights, industrial designs as well as utility models. The Banjul protocol empowers ARIPO to protect Trade Marks, whilst the Swakopmund Protocol enables ARIPO to protect traditional knowledge and expressions of folklore6. The Arusha protocol protects new plant varieties6.
OAPI member states include Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritania, Niger, Senegal, Togo, and Union of the Comoros. OAPI is not a designation based system, it is centralised and member states do not have national IP offices, only national liaison structures. The uniform legislation for the OAPI filing system is the Bangui Protocol and it protects: patents, trademarks, industrial designs, trade names, geographical indications, plant breeders’ rights and literary and artistic works.
There are two fundamental differences between ARIPO and OAPI. The first being that ARIPO is a designation based system wherein you must designate the ARIPO states in which you seek protection in. The fees you pay will depend on the number of countries you wish to designate, also, you will not have IP protection in the states you have not designated. On the other hand, OAPI does not have a designation system. The second difference is that ARIPO conducts substantive examination where the validity of your IP is tested. There is no substantive examination for OAPI applications.
Other ways that innovators can protect their ideas is filing in the individual countries where they seek protection (not OAPI member states as they do not have individual patent offices). For more international coverage of IP rights, one can file a PCT application and designate OAPI and ARIPO regional offices as well as individual countries that are not part of these regional filing systems.
Written by: Tumelo Mashabela, Managing Director and Registered Patent Attorney
For all your IP, commercial and corporate law services, please contact us on 012 942 8710 / info@tm-attorneys.africa. You can also find us on social media platforms with the handle @TshayaMashabelaAttorneys (@TshayaMashabela on Twitter).
References:
- http://documents1.worldbank.org/curated/en/860711510585220714/pdf/WPS8241.pdf
- http://www.statssa.gov.za/?p=14415
- https://www.afro.who.int/news/covid-19-spurs-health-innovation-africa
- https://www.globalinnovationindex.org/
- https://techpoint.africa/2021/04/26/intellectual-property-and-medium-sized-enterprises-taking-your-ideas-to-the-market/
- https://www.wipo.int/patents/en/topics/worksharing/regional-patentoffices.html
