Towards a Tripartite Free Trade Area Protocol on Intellectual Property

On 10 June 2015, the Agreement establishing a Tripartite Free Trade Area (TFTA) was signed in Egypt bringing together 26 African countries from three major regional blocs namely the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and the Southern African Development Community (SADC). Following the signing, the current phase of the TFTA negotiations is meant to cover ‘the built-in agenda’ in five areas namely: trade in services, cooperation in trade and development, competition policy, intellectual property (IP) rights and cross border investment. The fourth of those five areas was the subject of the second Open AIR East Africa Distinguished Speaker Series (DSS) talk by Dr. Henry Mutai at Strathmore University.

In his talk, Dr. Mutai, who is the former Managing Director of the Kenya Industrial Property Institute, noted that IP has to date received little attention in the regional integration agendas of tripartite states in spite of the fact that the world is often said to be moving from an industrial to a knowledge-based economy of which IP is a critical component. According to Mutai, the area of IP in the context of TFTA negotiations is going to be a sensitive and complex issue.
His talk highlighted several factors that may hinder efforts to harmonise IP laws including the perception that strong IP laws can provide an unfair competitive advantage to certain more advanced countries who themselves used weak IP laws to develop economically. Similarly, the territorial nature of IP means that every State has a right to fashion a legal framework appropriate to its level of development. In addition, the issue of the scope of IP rights has been debated in the context of exceptions to rights under copyright law to cater for special situations such as access for visually impaired persons, educational and research institutions, and libraries and archives. Finally, with advances in technology, issues have arisen with regard to the relationship between IP and access to medicines, IP, climate change and green technology, and IP and development.
Given the differing capacities of the member states and their diverse legal frameworks, one may ask whether the IP provisions of the TFTA should focus primarily on cooperation with regard to procedural matters or whether parties should be more ambitious and aim to include more substantive, binding provisions. In response, Mutai proposes two options that the member states negotiating the TFTA may wish to consider so far as the development of provisions on IP is concerned. One approach that may be adopted would be to require parties to sign up to particular international intellectual property treaties. If this option is chosen, it will be necessary to determine which treaties should be chosen as the lowest common denominators. Another option would be to simply agree to put in place legal frameworks that protect and promote IP without specifying what needs to be included in the legal frameworks.
Ultimately, Mutai recommended that a TFTA protocol on IP should at a minimum come out with a shared understanding regarding the role of IP in the regional body and identify key international instruments that parties should accede to or ratify. However, according to Mutai, it is unlikely that parties will agree to binding obligations with regard to protection and enforcement for reasons of lack of human and financial capacity.

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