WHAT ARE THE INTELLECTUAL PROPERTY CONSIDERATIONS OF THE AFRICAN CONTINENTAL FREE TRADE AREA?

IIt was decided at the Assembly of Heads of State and Government in Addis Ababa in January 2012 to fast-track the establishment of an African Continental Free Trade Area (AfCFTA) to boost intraAfrican Trade. As of May 2022, 43 countries within the African Union have ratified the agreement establishing AfCFTA and are now State Parties of AfCFTA. Only State Parties have rights and obligations under the AfCFTA agreement.

The success of AfCFTA is largely dependent on negotiations and the cooperation of member states of the African Union and subsequently State Parties of AfCFTA. The AfCFTA negotiations take place in three phases.

Phase I covers protocols on trade in goods and services, and rules and procedures on settlement of disputes. Regarding PhaseI, AfCFTA has reached about 87.7% agreement on the rules of origin (RoO) on the protocol on goods. The outstanding RoO include some clothing and textile products, sugar and automotive products. This means that tariffs may be eliminated on 87.7% of goods so far.

Phase II covers protocol on intellectual property rights, investment and competition policy. Phase III covers ecommerce.

According to Wamkele Mene, Secretary-General of AfCFTA, the preliminary process has started for Phase II negotiations on competition policy, investment protection and intellectual property rights.

The negotiations are ongoing and there is a directive to conclude the negotiations on Phase II, including the rules that are required for intellectual property rights, by the end of 2022.

Article 4(c) of the Agreement provides that “State Parties shall cooperate on investment, intellectual property rights and competition policy.”

The aim behind AfCFTA Phase II Protocols appears to be limited to cooperation, rather than the replacement of, for example, intellectual property laws in the different African countries. This is not surprising given that Intellectual Property (IP) rights are generally territorial in nature.

It will be interesting to see how AfCFTA will deal with IP rights in this regard and whether they will follow the African Regional Intellectual Property Organization (ARIPO), Organisation Africaine de la Propriété Intellectuelle (OAPI) regional model, or a hybrid-IP model that would be flexible enough to allow the different African countries to manage their IP legislation and cooperate with other African countries in terms of non-binding IP recommendations.

ARIPO provides for regional registration and administration of IP rights through a central office while permitting member states to guard their national IP law and IP offices, which simplifies IP rights protection for applicants who wish to invest in the region.

Unlike in ARIPO, IP registration in OAPI automatically extends to all member states of OAPI and there is a single law covering all members states. It is not possible to have IP protection in only some of the member states but not others in OAPI. It is suggested that AfCFTA’s IP Protocol should include the following:

• create a common coordination and an operational cooperation mechanism that would enable the countries to share experience, stimulate linkage, diffuse knowledge, and collaborate in various matters such as the examination of patents and the enforcement of IP rights

• provide for regional exhaustion of IP rights

• oblige members to ensure the protection of geographical indications (GIs), either through a sui generis system or by certification and collective marks

• draw up a position on plant-variety protection (PVP) by determining the minimum standards on plant-variety protection or implementing a substantive law

• develop and implement regulations to enhance protection of traditional knowledge, cultural expressions and genetic resources.

Ideally, the chosen IP model should meet the objectives of AfCFTA and the specific needs of each country.

The creation of AfCFTA provides a unique opportunity to integrate African countries, boost intra-African trade by eliminating tariffs and non-tariff barriers and to reduce poverty in Africa. If the agreement is fully implemented by 2035, it is estimated that over 30-million Africans would be lifted from extreme poverty

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