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Petitioning African Union (AMCOST V) and 1 other

A new course for The Pan African Intellectual Property Organization is urgently needed

A new course for The Pan African Intellectual Property Organization is urgently needed

Letter to
African Union (AMCOST V)
African Union (AMCOST V)
18th October 2012

A new course for The Pan African Intellectual Property Organization is urgently needed

The 5th African Union Ministerial Conference on Science & Technology (AMCOST V) meeting Nov 12 - 16 2012 in Congo (Brazzaville) is expected to adopt the ‘final’ draft statute of a new Pan African Intellectual Property Organization (PAIPO).

However, the draft statute as it currently stands raises many concerns both procedurally and substantively. The draft PAIPO statute is the result of a non- transparent process without open consultations with relevant stakeholders including civil society. No drafts of the statute have previously been issued let alone publicly discussed. More importantly, the draft statute reflects a narrow vision of intellectual property that runs contrary to the aspirations of Africans to devise more balanced intellectual property regimes that effectively promote innovation while also being supportive of public policy objectives in areas such as public health and access to knowledge. In this regard, the draft PAIPO statute undercuts efforts carried out by African countries to advance such aspirations at the World Trade Organization (WTO) and at the World Intellectual Property Organization (WIPO), and which have resulted in important milestones such as the Doha Declaration on TRIPS and Public Health (2001) and the WIPO Development Agenda (2007).

Through this petition, we call upon African countries and the African Union Secretariat to take urgent action in order to:

a) Defer the consideration of the draft statute that would lead to the creation of PAIPO.

b) Use the November meeting to start an open and inclusive consultative process on the nature, scope and objectives of this new body. Moreover, the consultations should be structured to enable various stakeholders, civil society in particular, to contribute to the discussions with a view towards revising the current draft statute and making any resultant IP organization in tune with Africa's development goals and the positions taken by the African countries at the multilateral level.

Below, we further elaborate on the reasons for the need to reconsider the current draft of the PAIPO statute and hold wider consultations on PAIPO.


Why is a new course for PAIPO is urgently needed?

(i) Many countries are increasingly seeking to harness innovation and creativity to foster economic growth and find solutions to pressing public policy challenges. In this context, intellectual property has acquired a growing importance in recent years. At the same time, it continues to be a deeply contentious topic particularly in relation to issues such as promoting creativity in the digital environment, food security, climate change, access to medicines and, more broadly, access to knowledge. African countries have been at the forefront of the global debates to achieve more balanced intellectual property regime that is cognizant of the aforementioned issues.

(ii) In this context, the means to strengthen African cooperation in the area of intellectual property require careful consideration and an active process of public deliberations where a diversity of views and interests is represented.

Lack of transparency and broad consultations result in a one-sided view:

(iii) Since the idea of PAIPO emerged in 2007, deliberations surrounding it have lacked transparency and have been confined to a small number of experts and consultants with little information made available to the wider public and relevant stakeholders. No broad multi-stakeholder consultations regarding the objectives and functions of the new entity have taken place. The lack of transparency and of open consultations has led to the one-sided view evident in the narrow focus of the current draft statute of PAIPO.

Innovation should be at the forefront:

(iv) Rather than focusing on the promotion of innovation, the draft statute focuses narrowly on intellectual property as an “end in itself” and on a “one-size fits all” approach. The word “innovation” is only mentioned once in the entire statute while it embodies the ultimate goal that African countries should be pursuing. The draft statute advocates the promotion of IP rights and the harmonization of IP laws across the continent without any consideration for differences in levels of development and in socio-economic circumstances in individual countries in Africa. Such an approach to intellectual property runs contrary to the spirit and letter of the WIPO Development Agenda initiative supported by African countries. Moreover, the value of greater collaboration, open-source research, and alternative reward systems for innovation which are being actively considered at the international level should figure in the PAIPO statute.

Public policy objectives should be addressed:

(v) The PAIPO statute should make reference to the need to achieve a balanced IP regime by incorporating the language of article 7 of the TRIPS Agreement. It also should mention the importance of African countries using limitations, exceptions and flexibilities to promote access to medicines and knowledge. It has been pointed out that the draft statute of PAIPO might not differ much, in this regard, from the statutes of OAPI and ARIPO. However, the statutes of these regional organizations were drafted decades ago at a time when intellectual property rights did not have the far reaching public policy implications they have today. A new African body dealing with IP should address the advantages as well as the limitations of IP and provide a flexible policy space for AU Members to calibrate IP protection according to their needs and different levels of development. Finally, the draft statute should reaffirm the existing rights of least-developed African Union Members to use and seek further extensions under TRIPS so as to promote the development of technological capacity and to ensure affordable access to essential commodities and public goods.

(vi) Finally, the draft statute should make reference to important milestones which crystallize the vision, principles and priorities of intellectual property defended or advanced by African countries at the global level such as the Doha Declaration on TRIPS and Public Health (2001), the WIPO Development Agenda Recommendations (2007) and the WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property (2008) as well as other reference documents such as the Millennium Development Goals (MDGs). In addition, African countries have advanced, in recent years, specific proposals at the WTO and WIPO on patents and public health, technology transfer, limitations and exceptions for libraries, archives, education and research as well as the protection of genetic resources, traditional knowledge and folklore that should be included.

An incremental bottom-up approach is needed:

(vii) PAIPO ambitions to grant unified IPRs throughout Africa is simply not feasible in any near future or medium term for many technical reasons. There is no evidence in the draft statute that PAIPO is not attempting to supplant ARIPO and OAPI let alone create another layer of bureaucracy. The logical step to start should be to build synergies between OAPI and ARIPO. Rather than a bottom-up approach, PAIPO promoters have taken, a top-down approach that will remain ink on paper for many years without practical implementation, a shortcoming that is often criticized in efforts towards African integration. This can be avoided by taking a more gradual or incremental and deliberative approach involving extensive consultations with various relevant stakeholders and organizations.

All stakeholders should be treated equally:

(viii) When mentioning the intergovernmental organizations with which PAIPO should cooperate such as ARIPO, OAPI and WIPO, the statute makes reference to the International Confederation of Authors and Composers Societies (CISAC) which is not an intergovernmental organization but an international non-governmental organization which promotes the rights of authors and creators through stronger copyright protection and enforcement. Such a reference is unheard of in the statute of any intergovernmental intellectual property organization but is a sign, among others, about the extent to which PAIPO’s draft statute is more tilted to the views and interests of right holders to the detriment of other stakeholders.

An evidence based approach to IP:

(ix) There is a growing consensus at the international level that work on IP, particularly in the area of norm setting and capacity building, should be based and informed by sound, neutral and objective empirical evidence. The draft statute of PAIPO could incorporate such an important consideration and thus become the first IP intergovernmental organization to do so.

An organization for the 21st century:

(x) In a nutshell, the proposed statute establishing PAIPO reads as if it could well have been written in the 1980s or the 1990s. The vision of IP it carries is outdated. It is imperative for AU to change course on PAIPO in order to establish an organization that truly embodies African aspirations for the 21st century in the areas of intellectual property, innovation, dissemination of knowledge, and development.

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