The nitty-gritties of Intellectual Property Protection in African Continental Free Trade Area (AfCFTA)

In responding to the aspirations of Africa Agenda 2063, more than 54 member states of the African Union (AU) signed an agreement to create the African Continental Free Trade Area (AfCFTA). The agreement is underpinned by the AU’s vision to build an integrated, prosperous, and peaceful Africa that is a dynamic force in the international arena. Presently, Namibia is among the 28 African Union (AU) member states that deposited their instruments of ratification with the African Union. The AfCFTA is considered the world's largest free-trade zone since the establishment of the World Trade Organization in 1994 and the numbers of countries that participate in AfCFTA speak volumes. AfCFTA entered into force on 30 May 2019, and the trading under the agreement was due to commence on 1 July 2020, however, due to COVID-19 global pandemic, this date has since been postponed indefinitely.

 This article ponders on importance of intellectual property protection within the free trade zone (AFCFTA)

AfCFTA is welcomed by many because it will create a single market for goods and services, and boost the Intra-African trade. To a large extent, it requires members to remove tariffs from 90 percent of goods to allow free access to commodities, goods, and services across the continent. Along with, free trade zone provides tax advantages and other regulatory exemptions that will boost trade facilitation, business formation, and foreign investment. By facilitating the movement of goods and services among African countries, AfCFTA will create opportunities to accelerate intra-Africa trade, grow local businesses, create jobs, and increase infrastructure development in the continent. Thus, more enterprises and individuals are encouraged to take up opportunities created by this single market zone with an estimation of 1.2 billion people and with a consolidated GDP of more than US$3.4 trillion.

In essence, the free trade zone will create opportunities and benefits for all the nations in the continent, enable companies to expand their markets by exporting goods and services across the continent with less or at no cost. It will also contribute to the growth and diversification of our economy, therefore create jobs, as well as reduce inequality and unemployment. The agreement will also reduce tariffs and benefit entrepreneurs, including medium and small businesses. Furthermore, this will serve as an opportunity for entrepreneurs from African countries to start working together in a trade tariff-free environment. To take the opportunity of the magnitude market that is due to commence, entrepreneurs and organizations would wish to improve and stiffen their competitive gear (Intellectual property rights).

Intellectual Property Rights (IPRs) such as Trademark, enterprise design, copyright, patent, and trade secret offers competitive advantages to a business. This is to say, businesses and organizations preserve their relevance in a single competitive market by owning certain innovation, technology, and corporate goodwill on the goods and services. Nonetheless, with a free trade zone, it is no walk in the park because all these market advantages embedded in IP are just territorial, and can only be enjoyed and exploited in a country where the protection of IP is granted.

Given the scenery of the current market, intellectual property protection avails freedom to operate, promote franchising and it is a major facilitator of technology transfer across jurisdiction without risking returns to the intellectual property right owners or the business. However, pluralities of opportunities of a free trade zone are like Liverpool; they never walk alone, there are potential opposing forces as per newton laws of motion. With free movement of good and easy access to the international market, AfCFTA like other existing free trade zones may facilitate illegal and criminal activities such as trade in counterfeit and pirated products that will undermine the power of fair competition.    

In a reciprocal move, businesses, suppliers, and organizations that are considering to partake in free trade zone or to tender in supplying their goods or service in the market are encouraged to include intellectual property protection in various countries within the business strategy. Protection of IP keeps infringers afar and above all, an IPRs holder can seek remedies and compensation in court if his/her intellectual property rights are violated. 

Hence, just like in chess games, any move should be calculated to the protection of the King so as with business expansion with Intellectual Property components. Due to the cost that comes with IP protections, it is prudent for entities to identify jurisdictions that are of trade interest to them only; shield their IP portfolios, and only then a safe move into the AfCFTA zone and international market can be made.

By:

Onesmus K Joseph - MBA, ACIS, BAP, CFIP, PPL

MPHIL Candidate - KNUST (Kumasi; Ghana) 

Governance Professional

josephonesmus@yahoo.com

Reconciliation of Patent rights in Commissioned work

You may have observed in newspapers and court proceedings that disputes related to intellectual property rights are increasing at an alarming rate. The status quo is not shocking is for the obvious reason; Intellectual Property (IP) has become a tradable commodity and made up 70 percent of total assets on Statement of Financial Position (SFP) of big enterprises. Certainly, such disputes are propelled by rights and benefits issues. With a general acceptance that modern invention is performed by inventors in their garages, few would differ with me that today most patentable inventive activities occur in corporate organization, and university settings, however most individuals who would be labeled inventors are employees of these institutions. With IP gaining momentum and best practices coming to light following the promulgation of IP laws, tug of war within the IP arena both in Namibia and around the world are probable. 

In this article, I will discourse the issue of commissioned work in the field of patent.

IP refers to creations of the mind: inventions; literary and artistic works; and symbols, names, and images used in commerce. The same may be protected as patent, utility model, copyright, industrial design, trademark, and confidential know-how. A patent specifically is an exclusive right granted to an inventor for a new invention. It can either be rights to a product or a process that generally provides a new way of doing something, or offers a new technical solution to a problem. Above all, for a patent to be granted technical information about the invention, must be disclosed to the public in a patent application because the primary aim of IP is to encourage innovation and subsequently ensures a knowledge-based economy.

Typically, for a patent to be granted in any country, the invention must be new and not registered anywhere in the world. By extension, patent protection is territorial; meaning the exclusive rights conferred are only applicable in the country or region in which a patent has been filed and granted. Interestingly, the patent system is not a one size fit all, thus patentability requirements may vary from one jurisdiction to another. One may file for a patent in as many as 153 member countries through a single international application filed through the Patent Cooperation Treaty (PCT) and Namibia is a signatory. PCT is an international treaty administered by the World Intellectual Property Organization (WIPO). 

Inventors are required to seek protection in other countries within 30 months from the filing date of the first application. It is rational for an inventor to protect the innovation in potential countries of commercialization because patent rights can only be enforced in a country where the patent is granted; there is nothing like universal protection. It is a sad truth that an invention can be exploited, commonly referred to as freeriding, without recourse in any jurisdiction where it is not protected. Patents can be protected for a period, not more than 20 years from the filing date of the application as per the Paris Convention where Namibia is a member.

Patent rights can be very challenging especially where two or more persons are involved. Masses regularly confuse patent Inventorship with ownership or assume that they are the same thing but they are distinct concepts; the owner of a patent enjoys all rights and benefits granted by the patent, whereas the inventor is initially the creator. The inventor is not always the owner of the patent, therefore he or she does not always enjoy the patent rights, this practice is common in commissioned work or works for hire.

Commissioned work lightly referred to a situation whereby companies or individuals hire a consultant or employees to develop new products, improve processes, research on new technologies and develop new markets. Research institutions and Universities are mostly hired to research or develop an invention where the person who commissioned the work provides funds subject to whatever agreement. In the latter case, questions like; who will own the IP created and who may benefit from access to the IP are inevitable. To this end; The Namibian Industrial Property Act (Act 1/2012) provides that, if an invention is made in the execution of a commission contract or a course of employment contract, the right to the patent belongs to the person who commissioned the work unless there is a written contractual provision to the contrary.

To avoid disputes concerning patent ownership with independent contractors, research institutions, or employees, businesses and universities should always reduce their intentions to writing and include a provision in a written agreement that contains a clause stating that the work created by the independent contractor is considered a work made for hire. This is rational in resolving future disputes. 

This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The content is intended for general informational purposes only.

By:

Onesmus K Joseph - MBA, ACIS, BAP, CFIP, PPL

MPHIL Candidate - KNUST (Kumasi; Ghana) 

Governance Professional

josephonesmus@yahoo.com