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What is the relationship between regional integration and promotion of intellectual property rights? What intellectual property conflicts, if any, arise when regional economic bodies come together to form a single trade area? How do regional economic bodies establish appropriate policies to cater for competing national & regional interests while enhancing regional and continental integration? Speaking at the Strathmore University auditorium on 4th October 2016, CIPIT’s second distinguished speaker, Dr. Henry Kibet Mutai, revealed his profound interest in regional integration and intellectual property and sought to answer these questions with a view to giving proposals for an intellectual property protocol under the TFTA.

The Agreement establishing the TFTA was signed on 10th June 2015 bringing together member states of the East African Community (EAC), the Southern African Development Community (SADC) and the Common Market for Eastern and Southern Africa (COMESA) to create a single market and promote trade amongst the states. The topic of the day couldn’t have come at a more appropriate time as intellectual property rights will be a key area in phase 2 of the negotiations for the establishment of the TFTA.

According to Dr. Mutai, intellectual property issues are likely to be controversial during the investigations for reasons including: the territorial nature of intellectual property law which allows states to design laws tailored to meet their development needs; the more frequent arguments by developing countries that they are unable to put in place stringent a IP framework, and the more recent sensitive issues concerning IP and access to medicines, climate change and green technology, traditional knowledge, genetic resources and cultural expressions, and the need to strike a balance between exclusive rights and exceptions.

He further noted that the negotiations could prove more complex due to the ‘gaps of coverage within the main IP treaties’ leading to a lack of harmony in the obligations of different states. For example, there are different obligations imposed by virtue of membership in international organizations such as the WTO and WIPO, different obligations imposed by treaties ratified by different states, obligations imposed by the agreements establishing the various regional economic bodies and more recently obligations imposed by the European Union Economic Partnership Agreements (EPA). The 26 states negotiating the TFTA thus already have vested interests which they will seek to protect as they negotiate an IP protocol.

To demonstrate the likely conflict, we examine two of many examples outlined by Dr. Mutai. Firstly, of the 26 countries involved in the negotiations, 21 have ratified the Berne Convention for the Protection of Literary and Artistic Works and all states with the exception of Eritrea and Ethiopia have ratified the Paris Convention for the Protection of Industrial Property. Secondly, only 13 out of the 26 states are members of ARIPO. It is thus possible that due to these conflicts, nationals of some states cannot obtain IP protection in other states and further that ARIPO cannot offer a unified framework and platform for registration of IP among all member states of the TFTA.

In his proposals for an IP protocol, Dr, Mutai suggests 3 approaches that could be used in developing an appropriate protocol for members of the TFTA. Firstly, a decision on what the objectives of the protocol will be needs to be made- will it focus on enhancing the protection and enforcement of IP rights? Will it have a trade/investment focus considering IP to be an asset? He recommends that if the objective is to have an investment focus, the protocol should be based on TRIPS provisions that encompass protection of all IP rights as assets.

Secondly, the question of what scope of cooperation the protocol will demand needs to be decided. Will the protocol impose minimum obligations? Will the protocol be binding/non-binding? He recommends that the protocol imposes minimum obligations by requiring key international treaties such as the Paris and Berne conventions be ratified and observed.

Lastly, member states need to consider whether an institutional framework will be set up in addition to ARIPO or whether all member states will be required to join ARIPO. The latter is recommended as it would lead to the strengthening of ARIPO, a body that already has the mandate to administer IP rights.

Amidst all these, there are fears that the negotiations may take a turn for the worse if debates are marred by developing country interests versus developed countries interests- something all too familiar on the international front. Questions here relate to whether least developing countries will be asking for more flexibility and whether developed/developing countries will insist on more protection of IP rights.

Dr. Henry Kibet Mutai is a regional IP and international trade law consultant at Afrilex Consulting. He has also previously served as the Managing Director of the Kenya Industrial Property Institute (KIPI) and law lecturer at Moi University School of Law in Eldoret, Kenya. We invite you to watch the presentation here and read his article on the same subject here.