By Kei Tagawa
The COVID-19 pandemic has highlighted the importance of effective intellectual property (IP) systems for sustainable development in Africa. Despite various efforts made by African countries over the years to develop effective IP ecosystems, most countries still face a number of challenges which undermine the effectiveness of IP in promoting various aspects of socioeconomic development, including public health, agriculture and industrialization. Many IP systems in Africa, including creation, protection, maintenance, commercialization and enforcement of IP, are still weak, with limited institutional and human resources capacities and not adequately financed. The pandemic also revealed challenges of IP systems at the international level, such as WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS), including their rigidity that makes it difficult for developing countries to rapidly and effectively address their public health emergencies, in particular, pandemics.
As Africa prepares to recover better together from the COVID-19 pandemic, it is an opportune moment for its policymakers to reexamine where each country stands regarding IP ecosystems and how to improve them. This will help African countries to enhance their economies to be competitive in a global economy that has rapidly been transformed into a knowledge-based economy with the fast advancement of the Fourth Industrial Revolution. For instance, in advanced countries, an efficient system of intellectual property rights (IPRs) ranks among the most crucial policymaking issue to consider, given IP’s capacity to encourage creativity and innovation throughout the economy. How about in Africa? Is establishing efficient IP ecosystems a priority of African countries in promoting sustainable development?
COVID-19 has underlined the importance of IPR
The COVID-19 pandemic has underlined the importance of adequate IPR ecosystems, which provide significant incentives to pharmaceutical companies to invest hundreds of millions of dollars in developing COVID-19 vaccines quickly. Since the discovery and publication of the coronavirus’s genome in January 2020, scientists have raced to develop relevant health products to prevent, diagnose and treat COVID-19, including vaccines, on an unprecedented timescale. To date, there are 12 vaccines approved for full use, and more than 120 clinical trials are underway, setting the stage for some of the fastest vaccine development in recent history. It was also reported that two of the most successful COVID-19 vaccines, namely Pfizer, BioNTech and Moderna, are making combined profits of $65,000 every minute.
On the other hand, the pandemic also revealed the adverse effects of rigid and complex IPR systems in promoting public health in developing countries, including Africa. IPs, notably patents, are often accused of hindering the generic production of vaccines since patent protections allow pharmaceutical companies robust control over the drugs/vaccines they develop. This is evident by lengthy and heated global discussions on an IP waiver for health products, especially COVID-19 vaccines, at WTO. The debates finally resulted in an agreement of WTO member states to a limited relaxing of patent protections on the COVID-19 vaccines. IPRs are also widely deliberated on the continent since the negotiation is taking place under the phase II of African Continental Free Trade Areas (AfCFTA) on investment, IPRs and competition. This AfCFTA negotiation provides a prospect for African policymakers to promote the coherence of IP instruments at the regional level, where multiple IP policy frameworks and systems exist in parallel.
IP ecosystems in Africa
Generally speaking, IP ecosystems in Africa have not been optimal in leveraging IP to effectively advance socioeconomic development toward achieving the SDGs. For instance, one indicator of innovation is the number of patent registrations filed in countries, and Africa is lagging far behind. In 2020, Africa accounted for only 0.5% of the world’s patent applications, compared to 66.6% for Asia, 19.3% for North America and 10.9% for Europe. Furthermore, the number of applications from residents constituted only 20.7 %. This demonstrates that most of the applications were submitted by nonresidents indicating that Africa’s local innovations were either limited or not fully protected by the patent systems.
Several factors may contribute to the reasons for African residents' low level of patent protection. These factors include, among others, relatively weak science and technology capacity, inadequate research facilities and funding, inadequate intellectual property awareness, the high cost of processing patent applications and the complexity of maintenance of patents, the cost of enforcement of rights in case of infringement and subsequent patent litigations.
Research has also shown various other shortcomings of IP ecosystems: many African patent offices are not fit for purpose due to limited resources. They have limited safeguards and quality control mechanisms, as many African patent offices do not conduct substantive examinations. Many African countries also have limited infrastructure to ensure that the information in patent applications is collated and made electronically available to the public, including researchers and technology-oriented industries. Furthermore, the gap also exists in relevant national IP legislation. For instance, the Covid-19 pandemic revealed that WTO’s existing Trade-Related Aspects of Intellectual Property Rights (TRIPS) safeguards on public health, which intends to benefit the Least Development Countries – many of them are in Africa – have not been fully implemented or used in most African countries.
No "One Size Fits All"
Lessons learned from fighting the COVID-19 pandemic and negotiating IPRs under AfCFTA provide a golden opportunity for policymakers and legislators to reexamine IP systems in Africa to make them “fit for purpose.” All in all, IPRs are private rights, and territorial in nature – meaning national laws regulate the conditions for IPRs acquisition, maintenance and enforcement along with international engagements.
Are administrative procedures and costs to acquire protections of IP adequate? Do court systems facilitate enforcement of IPRs in case of infringement? Is the private sector, including small and medium enterprises, researchers and entrepreneurs, fully aware of national IP systems? Are IPRs legislations adequate and up to date? Does the national IP office have sufficient capacity to process IP applications and publish necessary information on inventions to the public? These questions will help policymakers and legislators to revisit their IP ecosystems and identify an entry point to improve them if needed.
It is essential to underline how IP laws, policies and practices are designed and used in different countries to determine the effectiveness of the IP system for development purposes. Therefore, taking into account each country’s context and uniqueness is essential. In other words, there is no “One Size Fits All.” The uniqueness includes existing national IP frameworks and international engagements, industrial composition and national strategic industries, market sizes, R&D environment and advancement of industrialization, among others.
This national review exercise will undoubtedly help negotiate IPRs under the phase II of AfCFTA, which will, in turn, promote coherent regional IP ecosystems that advance the establishment of regional value chains to accelerate sustainable development. The time has come for Africa to advance with IP.