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AfCFTA Guide
Intellectual Property Rights
The World Trade Organisation defines Intellectual Property Rights (IPRs) as “the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.” IPRs play a critical role in promoting innovation and fostering economic development. The AfCFTA Protocol on IPRs was adopted in February 2023 and aims to establish harmonised rules and principles for the promotion, protection, cooperation, and enforcement of IPRs across the African continent.
The Protocol applies to a wide range of IPRs including plant variety protection, geographical indications, marks, patents, utility models, industrial designs, undisclosed information including trade secrets, layout designs (topographies) of integrated circuits, copyright and related rights, traditional knowledge, traditional cultural expressions, and genetic resources, and emerging technologies and other emerging issues on intellectual property rights, subject to Article 3 of the Protocol.
Most Favoured Nation: Article 5 of the Protocol on Most-Favoured Nation Treatment (MFN) requires that each AfCFTA Member State accord any advantage, favour, privilege or immunity granted to another Member State or Third Party with respect to IPRs to all AfCFTA Member States. The MFN treatment provision is subject to certain exceptions, such as those provided for in international treaties applicable to the Member States.
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Suppose that a patent filed in Mauritius is recognised in South Africa with the only requirement being the need to send a copy of the approved patent to the competent authority in South Africa. South Africa needs to provide the same privilege to other AfCFTA Member States.
National Treatment: Article 6 on National Treatment requires that every AfCFTA Member State accord to nationals of other Member States the same treatment as it accords to its nationals with respect to the protection of IPRs, subject to exceptions provided under international treaties applicable to the AfCFTA Member State.
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If Ghana grants a 10-year term for copyright protection of domestic authors, it cannot grant a shorter protection term to foreign authors. Additionally, the fees charged to foreign authors for such protection cannot be higher than those imposed on domestic authors.
Exhaustion of IPR: Article 7 on Exhaustion on IPRs adopts the principle of regional exhaustion of IPRs, which means that the rights conferred by an IPR are exhausted when a product is put on the market in any AfCFTA Member State. The principle of regional exhaustion intends to promote free trade and competition in the AfCFTA market.
Suppose that a pharmaceutical company sells a patented drug in Rwanda. The pharmaceutical company cannot prevent the drug from being resold or distributed in any other AfCFTA Member State, such as Mauritius or Uganda.
Cooperation on IPR: Articles 22, 23 and 24 focus on Cooperation on IPRs to support intra-African trade, regional value chain, industrialisation and economic growth. Areas of cooperation include information sharing on national and regional IP policies, laws and institutions; identification of IP issues that require a common rule or harmonisation at the continental level; creating mechanisms for collaboration among relevant stakeholders; promoting public awareness of IPR issues and; facilitating registration of IPRs under the Protocol among others. Cooperation in the administration of IPRs includes automation and streamlining of intra-agency communications through the use of information and communication technologies, exchange of experience and examination of registrable IPRs, capacity building and human resources development.
Enforcement of IPR: With regard to the enforcement of IPRs, Article 25 stipulates that all AfCFTA Member States should have laws and procedures in place to allow IPR holders to take legal action against those who infringe on their rights. This Article also recognises that countries have different administrative, technological, and financial capacities to enforce IPRs and thus provides for the tailoring of enforcement procedures to specific circumstances. Article 27 also requires that Member States put in place laws that allow judicial authorities to grant injunctions in cases of disputes concerning the infringement of IPRs.
An AfCFTA Member State with weak IPR protection works with the World Intellectual Property Organisation to develop and implement an IPR strategy that strengthens the enforcement system and establishes specialised IPR tribunals to allow IPR holders to take legal action in case of infringement in accordance with Article 25 of the Protocol.
Institutional Arrangements: Article 31 of the Protocol also provides for the Establishment of the AfCFTA Intellectual Property Office. The governance and administrative structures, and functions of this office as well as the rules and procedures for the administration and operation of this office are yet to be determined.