The African Continental Free Trade Area: What Role for Intellectual Property?

The African Continental Free Trade Area (AfCFTA) entered into force on January 1, 2021 and is the world’s largest trading area in number of participating countries since the formation of the World Trade Organization (WTO).

The objectives set out in Article 3 of the Treaty include the creation of a common market for products and services, a regional customs authority, the improvement of the competitiveness of the economies of the Member States in Africa and the world and the promotion of industrial development.

In view of these objectives, one wonders where the place of intellectual property lies in this agreement, which promises to be a powerful instrument for the economic development of the African continent.

Intellectual property objectives

Intellectual property rights feature prominently in the treaty establishing the AfCFTA. Firstly, in Article 4 of the Agreement, it is established that one of the specific objectives of the Agreement will be to make the Member States cooperate, inter alia, in the field of intellectual property.

Intellectual property appears seven more times in the text, underscoring the importance of establishing a clear, transparent, predictable and mutually beneficial set of intellectual property rules for member states.

The most relevant provision is Article 6: “This Agreement covers trade in goods, trade in services, investment, intellectual property rights and competition policy”. Article 7 further details this issue and obliges Member States to include intellectual property rights in Phase II of negotiations in order to implement the objectives of the Treaty.

In view of the above, I think it can be said that intellectual property occupies a central role in the agreement that underlies the AfCFTA.

“In view of these objectives, one wonders where the place of intellectual property lies in this agreement, which promises to be a powerful instrument for the economic development of the African continent”.

However, there remains some uncertainty as to how the integration of intellectual property rights will be achieved in practice. As we know, intellectual property rights, although omnipresent, intangible goods are, to a large extent, subject to the principle of territoriality. This means that it is up to States to decide whether or not to grant protection, which would not necessarily apply beyond the borders of the State in question.

However, we have already seen the development of regional agreements which supplement or supplant the power of States in these matters, granting intellectual property rights with legal effects on several territories.

In Africa, the two most relevant are the African Intellectual Property Organization and the African Regional Intellectual Property Organization, which have enabled a continental approach to intellectual property issues. It is legitimate to ask whether the AfCFTA will aim for the integration of national intellectual property systems or if this integration will take place at the political level. We think the latter is more likely and would be a welcome step.

Given our experience working on IP issues in Africa, we believe the AfCFTA should focus on the following issues:

(i) Harmonization of formal and material requirements for the protection of intellectual property rights; reduction of the bureaucracy required for the registration of patent, trademark or design applications;

(ii) The establishment of joint mechanisms to combat counterfeiting;

(iii) Promotion of intellectual assets from the African continent, where geographical indications and designations of origin, music and intellectual assets derived from traditional knowledge can be highlighted;

(iv) Adaptation of civil law mechanisms taking into account the nature of this type of rights; and

(v) The promotion of African research and design structures, producing knowledge that can be protected and exported around the world and allowing parties to the agreement to collect royalties for this transfer of technology.

Given the different national interests at stake, these issues are not expected to be resolved in a short period of time. However, the economic effects of the COVID-19 pandemic could encourage African countries to prioritize the integration of their intellectual property systems as part of a broader economic development agenda.

This is a co-edited article, originally published in the World Intellectual Property Review (WIPR).

About Mallory Brown

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