WTO Public Forum 2014: Formal IP System Does Not Fit Africa, LDCs Need Technological Capacity, Speakers Say

(by Catherine Saez, first published in IP Watch (Geneva))

TobiasWTOOn the last day of the World Trade Organization Public Forum, a panel discussed the relationship between intellectual property and innovation in Africa, in particular in the informal sector. The formal IP system does not seems to fit, and least-developed countries need a sound technological base to be able to use the IP system. Separately, a European Patent Office study shows that Africa has a vast yet untapped potential in renewable energy. The annual WTO Public Forum took place from 1-3 October with the theme “Why trade matters to everyone.” The panel was organised by the African Innovation Research and Training project (Open AIR), the International Centre for Trade and Sustainable Development (ICTSD), and the European Patent Office (EPO).

‘We Just Create Differently’

According to Tobias Schönwetter, director of the Intellectual Property Unit, Faculty of Law at University of Cape Town (South Africa), and co-principal investigator at Open AIR project, more and more people realise that IP rights by definition are monopolies, and inherently anti-competitive. There is increasing scepticism to the “one size-fits-all approach,” which was promoted by IP regimes, and through international treaties, he said. It is important to take into account the differences of the African context as compared to other regions, he said. In particular, he said the Open Air project took into account the extreme diversity of the African continent. Africa has unique innovation and entrepreneurial dynamics. “We just create differently, we just innovate differently,” he said, and that might not be well covered by the current IP instruments. The project, which covered 19 case studies, created a wide network of IP innovation and entrepreneurial specialists in Africa, he said. A further foresight scenario exercise was undertaken, taking the results of the research and translating that into what it means for Africa in the next 30 years, to be presented to policymakers, he explained. The overarching conclusions of the project, he said, is that the African context seems to be predisposed to innovation of necessity or accidental innovation, not so much focused on frontier or high technology innovation. Orthodox categories of IP often remain ill-equipped to deal with innovation originating from Africa. “They just don’t fit,” he said, and the infrastructure for research and IP management is often poor. A recommendation to policymakers would be to “avoid policy mistakes” and consider that while there is really no IP policy in Africa yet, although it is starting, sometimes no IP policy is better than having the wrong IP policy to foster innovation, he said. Another recommendation would be that sui generis forms of IP protection, such as trade secrets may be better suited for facilitating innovation in Africa than other forms of intellectual property such as patents or copyright, he concluded. Dick Kawooya, Uganda team member and principal investigator for the Open AIR project, concurred to say that western IP tools were for the most part irrelevant for innovation in the African context.Three scenarios came out of the foresight exercise, he said, one of which focused on the informal sector and for which a broader concept of knowledge governance was used, including IP tools, but going beyond those. Based on the case studies, he said, improvisation is very important for the informal sector, he said. “Someone operating in the informal sector has to constantly innovate,” he said. Improvisation is very important to the informal sector, so is apprenticeship. A lot of what happens in the informal sector is open, he said “so what puts you on the edge … is really producing more complex products or processes.” These knowledge appropriation mechanisms are important in Africa, he said. 

Vast, Untapped Potential in Africa for Renewable Energy

Alessia Volpe, deputy coordinator for public policy issues at the European Patent Office (EPO), said the EPO includes 38 member states and hosts 4,000 patent examiners. Patents play a key role for innovation to mitigate climate change, she said. Sustainable technologies in general are still a relatively immature market, she said, with a high risk of investment, which is reduced by patents. At the United Nations Framework Convention on Climate Change (UNFCCC) negotiations, patents are sometimes described as a barrier for technology transfer into developing countries by some and as an incentive to innovate by others, in a very polarised discussion, she said. Following those discussions, the EPO used its patent database to look at patents in developing countries, she said. Three landscapes were produced, one was a global landscape, the second one focuses on Africa and the third one on Latin America and the Caribbean. Key results are that patent protection of climate change technologies in developing countries is very low, she said. The research was conducted using the EPO Patent Statistical Database (PATSTAT), including 88 million documents, and 67 million patent applications covering 100 countries, she explained. Citing the 2013 EPO report, “Patents and clean energy technologies in Africa,” she said Africa has a “huge potential in all renewable energy,” but it is “vastly untapped.” This represents a great opportunity to invest in renewable energy projects, she said. Between 1980 and 2009, 0.3 percent of all mitigation technologies were coming from Africa, she said. However, the average growth rate of inventive activity in mitigation technologies in Africa is faster than worldwide, with an average rate of 59 percent compared to 5 percent worldwide. The major inventive country is South Africa (over 80 percent), followed by Egypt, Algeria, Morocco, and Kenya, she said. Schönwetter remarked that patent statistics do not capture the entire spectrum of what is happening in Africa.

LDCs Need Sound Technological Base

Pedro Roffe, senior associate, Innovation, Technology and Intellectual Property at ICTSD, said in least developed countries (LDCs), IP will work only if these countries have a sound and viable technological base. A number of provisions in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) encourage the establishment of such a technological base and commitment of developed countries to provide incentive to institution, firms to promote transfer of technology to LDCs. However, the discussions on LDCs in general and their conformity with TRIPS has several gaps, one of which is the lack of information on the practical situation on the ground, as well as the precise legal status of countries concerning TRIPS. A number of developing countries are having a positive experience with the use of IP in some areas, he said, such as trademarks and geographical indications, he said. But there is further need to understand and articulate why and under which circumstances LDCs can make better use of the different instruments of the TRIPS. Not all LDCs are equal with respect to IP, he said. Some of them still have antiquated IP regimes, inherited from the colonial period, others are members of regional IP institutions, and a number of them have made “interesting progress in trying to establish new institutions and formal regimes that are in a number of ways formally compatible with the TRIPS Agreement”.“A partial, gradual and consensual convergence based on countries’ level of technological development could be a fair means of dealing with the issue of LDCs and their relation to TRIPS,” he concluded.