DEVELOPMENT OF INTELLECTUAL PROPERTY RIGHTS IN …



DEVELOPMENTS IN INTELLECTUAL PROPERTY IN AFRICA

Adebambo Adewopo(

INTRODUCTION

Current developments in the global economy have brought about the ascendancy of intellectual property (IP). The brick-and-mortar economy is being replaced with that of ideas in which intellectual property (IP) has become one of the major currencies. In the new global economy, wealth is generated through creating and harnessing the value of knowledge[1]. This is the concept of creative enterprise crystallised in the ‘harvesting of ideas and innovation.’ Throughout the history of human civilisation, both material and intangible assets have always formed the constituent of wealth. Today, however, knowledge forms the greater part of the new wealth[2]. Consequently, intellectual property rights, the results of the industry of innovation have continued to play a leading role in the wealth of nations. Intellectual property (IP) rights have continued to play a leading role in the development of most countries and regions of the world. Europe and North America have fully apprehended the dynamics of intellectual property and inexorably driving developments in the global and international arena. Other regions like South America and Asia are responding in measured steps that underscores the role of intellectual property in the current pursuit of national, regional and international initiatives. Consequently, different nations have standards of protection of intellectual property. The recent trend of globalisation strengthened by several multilateral and regional treaties further creates some international minimum standard for intellectual property protection. In Africa, intellectual property issues are assuming central stage in discussions on development of the continent.

However, before the advent of modern intellectual property the recognition of proprietary rights in intangibles in many African communities is not entirely new[3]. In Nigeria for example, earlier proprietary rights in intangibles vest exclusively in groups such as families, clans, age or sex group, cults, professional guilds, or individuals such as particular elders, chiefs or kings. The enforcement of these rights was based on magical or religious beliefs, or punishments administered by the groups[4]. In the present day Africa, one of the policies of development adopted by African Union under the New Partnership for Africa’s Development[5] was the establishment and strengthening of a common market for Africa. If the common market is about the removal of barriers to the free movement of goods and services, then intellectual property laws play a key role.

The existing platforms for IP administration in the African region are two major regional bodies the African Intellectual Property Organisation (AIPO) and the African Regional Industrial Property Organisation (ARIPO). This paper will review the operation of these bodies; examine their contribution to the development of IP in Africa and areas of possible improvement and reform for a more effective IP administration in Africa.

AFRICAN REGIONAL INTELLECTUAL PROPERTY ORGANISATION (ARIPO)

ARIPO was established following the request of English speaking African Countries for assistance in pooling resources together toward creating a regional body responsible for industrial property. The process started from 1973 when the United Nations Economic Commission for Africa (UNECA) and World Intellectual Property Organisation (WIPO) held meetings at UNECA headquarters in Addis Ababa and in Geneva leading to a draft agreement on the creation of the Industrial Property Organisation for English-speaking Africa Countries (ESARIPO). This document known as the Lusaka Agreement was adopted at a Diplomatic Conference in Lusaka, Zambia on December 9, 1976.In December 1985, the Lusaka Agreement was amended in order to open up the membership of the organisation to all African countries who are members of the United Nations Economic Commission for Africa or members of the then Organisation of African Unity (OAU) now African Union (AU). The name was also changed to African Regional Industrial Property Organisation (ARIPO) to reflect the new African outlook. ARIPO presently has a membership of sixteen nations including Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe with its headquarters in Harare, Zimbabwe.

OBJECTIVES OF ARIPO

ARIPO was initially created mainly to pool the resources of its member countries in industrial property matters together in order to avoid duplication of financial and human resources. The objectives have however continued to expand with the review to the protocols since its inception[6]. Its objectives however include

1. To promote the harmonisation and development of the intellectual property laws, and matters related thereto, appropriate to the needs of its members and of the region as a whole.

2. To foster the establishment of a close relationship between its members in matters relating to intellectual property.

3. To establish such common services or organs as may be necessary or desirable for the co-ordination, harmonisation and development of the intellectual property activities affecting its members.

4. To establish schemes for the training of staff in the administration of intellectual property laws.

5. To organise conferences, seminars and other meetings on intellectual property matters.

6. To promote the exchange of ideas and experience, research and studies relating to intellectual property matters.

7. To promote and evolve the common view and approach of its members on intellectual property matters.

8. To assist its members as appropriate in the acquisition and development of technology relating to intellectual property matters.

9. To promote in its members the development of copyright and related rights and ensure that copyright and related rights contribute to the economic, social and cultural development of members and of the region as a whole.

ORGANS OF ARIPO

Some of the important organs of the organisation include:

a. The Council of Ministers who are in charge of the governance of the organisation. They are composed of ministers of the Government of member states of the organisation who are responsible for the administration of industrial property. The council is the supreme organ of the organisation and is responsible for policy issues and solving problems, which because of their nature cannot be resolved by the administrative council.

b. The Administrative Council that is surbodinate to the council of Ministers is responsible for the formulation and execution of the organisation’s policy, the approval of the programs of activities and budget as well as the appointment of its Director General. The council is composed of heads of intellectual property offices of member states.

c. The Secretariat headed by the Director General who is the Principal Executive Officer of the Organisation. They are responsible for implementation of the programs of the Organisation.

d. The Board of Appeal established by the administrative council to hear appeal against administrative decisions of the organisation under both the Harare and Banjul protocol as well as any other protocol that may be adopted by the organisation.

e. The Finance Committee also established by the Administrative Council assists the secretariat in preparing of budget of the organisation for consideration of the Administrative council.

HARARE PROTOCOLS

On 10th December 1982, the Administrative Council of ARIPO adopted the protocol on Patents and Industrial Design otherwise called the Harare Protocol. The Protocol empowered ARIPO to grant patents and to register utility models and industrial designs and to administer such patents, utility models and industrial designs on behalf of Contracting States[7]. Application for the grant of patent or the registration of utility models and industrial designs shall be filed with the ARIPO Office (otherwise called the Office) or where the law of the contracting State so permit, in the industrial property Office of a Contracting State[8]. An application filed with the Industrial Property Office of a Contracting State shall have same effect as if it had been filed on the same date at the Office[9]. Where the application is filed with the industrial property office of a Contracting State, such State shall within one month of receiving the application, transmit that application to the office[10]. Upon receipt of application the office shall examine whether the formal requirements of applications have been complied with and if it has been complied with shall accord the appropriate filing date to the application[11]. The office shall notify each designated State of the fact that a patent application has been filed which complies with the prescribed form[12] and undertake or arrange for the substantive examination of the application[13]. If the application is refused, the applicant may request the office to reconsider the matter within a given period[14] and if the office still refuses to register thereafter, the applicant may lodge an appeal against the decision of the Office to the Board of Appeal. Before, the expiration of six months from the date of notification, each designated State may inform ARIPO in writing that a patent granted by it shall have no effect in its territory because it considers the invention not patentable in accordance with the provisions of the protocol or because of the nature of the invention, a patent cannot be registered or granted or has no effect under the national law of that state[15]. A patent is granted and published after the expiration of six-month from the notification of a successful substantive examination and it shall have effect in those designated States, which have not declared that the patent shall not apply in their territory. Where the Office refuses to register a patent notwithstanding the applicants request for reconsideration, the applicant may within three months of being notified of such refusal, request that his application be treated in any designated State as an application according to the national law of that State.

The Protocol further provided that where there is an international application affecting a Contracting State which is also bound by Patent Cooperation Treaty (PCT) and designated for the purpose of obtaining patent under the provision of this protocol, such application shall be considered an application under this protocol. The provision of the Patent Cooperation Treaty shall have effect to the application in addition to the provision to the Protocol but in case of conflict of regulations between the two, provisions of the Patent Cooperation Treaty will prevail. The Office will serve as a receiving Office under article 2(xv) of the PCT in relation to international application filed by applicants resident or national of a Contracting State. It will also serve as designated or elected office of the PCT in relation to an international application.

BANJUL PROTOCOL

The Administrative Council on November 19, 1993 adopted a protocol on Marks at Banjul, The Gambia, called the Banjul Protocol. The Protocol established a filing system similar to the Harare Protocol. Under the Banjul Protocol, an applicant may file a single application either at one of the Contracting States or directly with the Office and designate states in the application where he wishes his mark to be protected[16]. The Contracting State or the Office shall examine whether the formal requirement has been complied with. If the Office considers that the application complies with formal requirement, it shall so inform the designated States which, shall then proceed to examine the application in accordance with their national Laws. Before the expiration of twelve months from the period of notification of the success of the formal examination, each of the designated States may declare that the registration shall have no effect on its territory because it does not comply with the procedural and substantive requirement of its laws. After the expiration of the twelve-month period, the ARIPO Office shall register the mark[17]. Every registered mark shall be protected in each designated State as if the mark had been filed with and registered in each such State[18]. Where a mark has been registered or is pending registration in a Contracting State, the applicant shall have the right to designate any other States, which becomes a party to the Protocol, subsequent to the registration or the application for registration[19].

OTHER ACTIVITIES OF ARIPO

Further to administering its Protocols, ARIPO offers other services towards advancement of intellectual property in Africa. In order to improve registration and granting procedure it initiated the Polite Projects. This is a software product funded by the European Patent Office (EPO) intended to automate the ARIPO Office procedure for administration and management of patent, trademark, industrial design and utility models. It is expected that in due course the project will network all ARIPO National Offices.

ARIPO also has in custody worldwide patent documents. Using its documentation and information retrieval system, it offers the following services

a. Novelty Searches: to determine patentability of inventions and registration of utility models and industrial designs.

b. State of art searches: to investigate existing technology in a given field of technology. These are mainly used for licensing and other negotiations.

c. Selection and dissemination of information (SDI): this is a periodic technological information delivery services offered/extended to select affirms, enterprise and institutions.

d. Validity Searches: search for validity of patent, utility models, industrial designs and trademark..

e. Similarity searches: for marks and industrial designs.

ARIPO activities have gone beyond administering mainly industrial property. In the Eight Session of her Council of Ministers held in Mangochi Malawi in August 2002, the council extended the mandate of ARIPO to include Copyright and Related Rights, Traditional Knowledge, Genetic Resources and Folklore. According to the Director General G H Sibanda, ARIPO is working on a strategic plan, which will include programmes to facilitate the compatibility of copyright management systems of her Member States with international standards and systems such as accession to WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). It is also working on access to international databases and data distribution networks such as the proposed WIPO Africa Copyright Common Network (ACCN), AFRINET and development of anti-piracy and anti-counterfeit programmes. Furthermore, it is working towards the establishment of database on public domain on traditional knowledge, development of model legislation for the protection of genetic resources, traditional knowledge and folklore, training and awareness creation especially among traditional knowledge-holders of their rights and obligations, creating an enabling environment to facilitate the promotion, development and exploitation of traditional knowledge assets and the promotion of cultural industries and recognition of their contribution to economic development at national and regional levels.

ORGANISATION AFRICAINE DE LA PROPRIETE (OAPI)

Up till 1962, French Laws governed patent rights in majority of the francophone Member States of OAPI. The French National Patent Rights Institute (INPI) was the National Authority of each of these States. On becoming independent most of these States felt the need for a common body for their territory with regard to conventions on patent rights[20]. French speaking African countries in collaboration with INPI consequently established the African and Malagasy Office of Industrial Property under the 1962 Libreville Agreement[21]. At a revision conference in Bangui, Central African Republic on March 2, 1977 the present OAPI was created in what is now known as the Bangul Agreement. This agreement was further amended in February 1999 with the headquarters of OAPI in Yaounde, Cameroon[22]. These Laws were modelled after the French Laws of 1844, 1857 and 1909.

OBJECTIVES OF OAPI

The Bangui agreement gave the following responsibilities to OAPI

1. To implement and apply common administrative procedure deriving from a uniform system for the protection of industrial property as well as the provision of international agreements in this field to which the Member States of the organisation have acceded and providing services related to industrial property.

2. To contribute to the promotion of the protection of literary and artistic property as an expression of cultural and social values.

3. To encourage the creation of associations of national authors in those Member States where such bodies does not exit.

4. To centralise, coordinate and disseminate information of all kinds relating to the protection of literary and artistic property and communicating that information to any state party to the agreement that request for it.

5. To promote the economic development of Member States notably by means of effective protection of Intellectual Property and related rights

6. To provide intellectual property training.

7. To undertake any other assignment connected with its objective that might be entrusted to it by the Member States.

ORGANS OF OAPI

They have three principal organs namely:

The Administrative Council: consisting of representative of OAPI Member States. There functions include drawing up regulation for the implementation of the agreement, establishing the financial regulations and the fees to be paid, supervising the implementation of the regulation and creating ad hoc committees on specific issues. They are also to draw up appropriate regulations for the implementation of six international treaties and agreements, which all the Member States has agreed to enter under the Agreements[23].

The High Commission of Appeal: composed of three members selected by drawing lots from a list of representatives designated by Member States. There functions include to rule on appeal from rejections of applications for titles of industrial property protection, rejections of request for the maintenance or extension of terms of protection, rejection of requests for reinstatement and decisions on opposition

The Directorate General: shall be placed under the authority of the Director General and responsible for the executive work of the organisation. It is responsible for the daily activities of the organisation and implements the decisions of the Administrative Council and other tasks arising from provisions of the agreement.

FUNCTIONS OF THE OAPI

Bangui Agreement made substantive and procedural provisions for different areas of intellectual property and have ten annexes in the following order namely patent, utility models, trademarks and service marks, industrial designs, trade names, geographical indications, literary and artistic property, protection against unfair competition, layout-designs (topographies) of integrated circuits and plant variety protection. However, rights provided for in the agreement are independent national rights subject to the legislation of each of the Member States in which they have effect[24]. The organisation serves as both the national industrial property office for member states under the Paris Convention and as the central patent documentation and information body[25]. It also serves as the ‘national office’, ‘designated office’ and ‘elected office’ for Members States under the Patent Cooperation Treaty and under the Trademark Registration Treaty. Application for registration of patent, utility model, trademark, service mark, industrial design, trade name, geographical indication, layout-design (topographies) of integrated circuit and application for plant variety certificate shall be filed with the organisation. Any Member State may demand that it be filed with it but a record of it including the filing date etc will be sent to the organisation within five working dates of such filing[26]. Any filing made at the administrative office of one Member State in accordance with the provision of the agreement or with the organisation is deemed to be equivalent to a national filing in each Member State[27]. The organisation does the necessary examination, publication and registration as the case may be. The organisation maintains a special register for all Member States of all class of registrations and any person may consult the registers and obtain extracts therefrom. Any African State who is a party to WIPO, the Paris Convention, the Berne Convention, the Universal Copyright Convention, and the Patent Cooperation Treaty may accede to the Agreement.[28]

As stated earlier, the agreement has detailed provision on specific aspects of intellectual property in annexes. These provisions are in conformity with international standards since Member States are signatories to most international treaties on intellectual property. It is important to observe that Annex VII on literary and artistic properties made important provisions on cultural heritage, traditional knowledge and folklore. It defines cultural heritage to comprise all those material or immaterial human productions that are characteristic of a nation over time and space relating to folklore, sites, monuments and ensembles[29]. Folklore is defined as the literary, artistic, religious, scientific, technological and other traditions and productions as a whole created by communities and handed down from generation to generation[30]. In the discharge of its responsibility, the States shall carry out an inventory and determine, classify, place in security and illustrate the elements that make up the cultural heritage[31]. It is prohibited to destroy, denature, exploit, sell, dispose or transfer illegally any or part of the property that make up the cultural heritage. The competent national authority can issue an authorisation to allow publication, reproduction, distribution of copies, recitation, public performance, transmission, by wire or wireless means, or any other form of communication to the public of any cultural property[32]. Owners, holders and occupiers of national heritage property would be informed about their property status, and would be required to notify relevant government agency of any plan to alter or sell the property. At its own expense, the State may chose to restore any national heritage property[33]. The list of national heritage property that OAPI requires each state to create could potentially improve the protection of folklore if the states include in their list all relevant items of folklore. It is doubtful however, that any OAPI State has compiled such a comprehensive list[34].

COOPERATION BETWEEN ARIPO AND OAPI

Recognising the important role that intellectual property plays in the development of her Member States, and appreciating the need to strengthen cooperation between the two bodies in order to facilitate economic integration and exchange of technical information for economic development, the two bodies entered into a cooperation agreement in Harare on November 18, 1996. The agreement commits the two bodies to cooperate in the area of intellectual property as well as other area dealing with the development of Africa[35]. They are to exchange experts and information in areas of common interest and carryout joint projects as the need arises. They are also to undertake joint awareness training programmes and informs the public of their Member States of opportunities offered by the other agencies.

This cooperation falls short of expectations as it was hoped that the two bodies would have explored possibilities of merging or integrating its activities. It appears that a major hindrance to greater cooperation between the two bodies is more of political and cultural than legal. The history of the two organisations, which is traceable along imperial lines, attests to this fact. However, the dynamic of multilateral trade demands more cohesive African representation, which a strong intellectual property body will provide the platform. Such greater cooperation will also be of use in future multilateral negotiations because it will enable the continent to form a lobby block on issues that affect them most, such as the present demand for benefit sharing for the use of traditional knowledge and genetic resources.

IMPORTANCE OF ARIPO AND OAPI TO IP DEVELOPMENT IN AFRICA

Undoubtedly, these two regional bodies have helped in the development of intellectual property in Africa. They provided the much-needed administrative and technical expertise to most countries within the agreements. It will be recalled that at the time that these agreements were signed, most of the countries had newly gained political independence and would not have experienced human resources to administer the different arms of intellectual property. These bodies also relieved the member states of the financial burden of establishing all the necessary offices in other to meet international standards of intellectual property administration. These were also the period of several international treaties and nations were expected to meet standard set at the international level.

OAPI however made more extensive and detailed provision than ARIPO. It established more substantive and procedural mechanism of right protection and thereby avail its members of most international treaties. Most especially the review to the Bangui agreement of February 1999 introduced a lot of provisions that will make Members States to comply with TRIPS agreement. Member States of OAPI are required to be signatory of most treaties on intellectual property including Paris Convention, Berne Convention, Rome Convention, PCT, WIPO Agreement, and TRIPS Agreement. All these are not required of members of ARIPO. Even though the filing procedures in both organisations are similar, under ARIPO a member state may give notice that an application properly filed with the regional body will not apply to her. This is unlike the provision in OAPI, which only subject application of the regional laws to the laws of any given Member State. Furthermore, OAPI agreement provided for every aspect of intellectual property including copyright, traditional knowledge, genetic resources, folklore and cultural heritage. These were not provided for in the ARIPO agreement. However by a recent mandate, ARIPO is extending activities to copyright, traditional knowledge, genetic resources and folklore. Generally the new Bangul Agreement complied with TRIPS Agreement and to some extent granted more extended rights.

On the other hand, the OAPI system does not allow nations to choose which of the treaties they would adopt or opt out from. It created a regional body that practically does all forms of registration and acts as the national office for the member states. Though this will save cost and ensure high level of expertise, it denies the nations the independence to decide on what should apply to it. These could be accepted for most of the member States of OAPI who were colonised by France and had adopted the culture of assimilation introduced during colonial rule but it may be difficult for other States in Africa. For example a number of the treaties that were adopted by the Bangui Agreement sparked off opposition amongst many African States including parties to the agreement. This includes the International Convention for the Protection of New Plant Varieties. The technology required to appreciate some of these treaties are not well known by the industry in some of the nations acceding to these treaties and are only carried out by the regional bodies administering them. These number of treaties adopted by the Bangui Agreement may also be a major hindrance to cooperation between the two organisations. It is doubtful whether Member States of ARIPO will be ready to accede those treaties at least for now. The process of filing could also be another hindrance, as not many countries in ARIPO will accept the organisations office to be deemed as a national office of the nation.

Unfortunately, many countries in Africa are not members of any of the regional organisation. While ARIPO currently has sixteen members, OAPI has fifteen. There are fifty-one countries in the continent. Most importantly some of the countries with the strongest economy in the continent like Nigeria, South Africa, and some North African Countries such as Egypt are not members of either organisation. There not joining any of these organisation may not be unconnected to the diverse position to most international treaties on intellectual property issues by different countries in Africa. There is still feeling in many quarters that even though intellectual property is vital to economic development, Africa have not built the necessary infrastructure and technical know how to be able to take advantage of these treaties. These explain why developmental issues have continued to be presented by Africa in any multilateral negotiations on intellectual property.

CONCLUSION

It has become clear that for any country, region, or continent to be actively involved in the global economy, it must be competitive. Competition flows from intellectual capital, which is protected by intellectual property laws. Africa should therefore strive to develop its copyright-based industries in the production & distribution of entertainment products, the development of global brands, pharmaceutical, bio technical products and other forms of intellectual properties, which are the commanding heights of the global economy. It should be able to build a strong regional block that will enable it come together not only to develop a strong intellectual property system that will energise economic development but also to effectively negotiate issues that will enhance its competitiveness and comparative advantage in multilateral treaties negotiations. To achieve this, there will be the need to establish a regional organisation in the spirit of African Union to harmonise administration of intellectual property in Africa which will ensure foreign investment through the process of effective administration and in the same vein protect African products including traditional knowledge, genetic resources, folklore, brands and values[36].

It has been severally suggested that a single intellectual property system is desirable for Africa. This will be in accordance with the aim of African Union to establish a common market. It was suggested that African Union use its mechanism for merger to fuse the two regional bodies since a single intellectual property organisation would be attractive to the region, as it will serve as one-stop access to fifty-one African countries[37]. While agreeing that a single organisation would be desirable or preferable for Africa, it is more fundamental that the two organisations does not represent up to fifty percent of African States including the economic giants of the region. There also appear to be a prevalent pessimism towards harmonisation of the two organs. It is proposed that the current co-operation agreement between ARIPO and OAPI should integrate the two systems and extend protection afforded member countries under their respective treaty to each other38. It is further proposed that the African Union set a committee of experts to find out the reasons for refusal of most African countries to accede to any of these treaties. The committee will have the mandate to advise on how to establish a regional organisation under the auspices of the African Union that will take into consideration the differences between African States and proffer appropriate harmonisation39.

Interestingly there is a current renewed effort at strengthening intellectual property administration in Africa and particularly to encourage South Africa and Nigeria to accede to ARIPO. It is however hoped that these efforts be coordinated under the broad agenda of the New Partnership for African Development (NEPAD) which is the main economic agenda of the African Union for the development of Africa. This will properly situate the efforts to build a strong intellectual property system as an economic imperative like it is all over the world. It may also help to remove cultural and political differences hindering harmonisation of intellectual property administration. This way the continent could have a common organisation in intellectual property that protects the rights and diverse cultural heritage peculiar to the African continent.

END OF DOCUMENT

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( LL.M (Lagos), LL.M-IP (Piercelaw USA), Barrister-At-Law (Nigeria), Senior Lecturer, Faculty of Law,

Lagos State University. Currently The Director General, Nigerian Copyright Commission.

[1] See generally William Cornish, Intellectual Property Omnipresent Distracting Irrelevant? Clarenton Law

Lectures, Oxford University Press London; 2004 at page 45 where the learned author refers to IP as now a

‘convenient genus’

[2] Dr. Kamil Idris ‘Intellectual Property A Power Tool For Economic Growth’ WIPO publication No 888 at page

55

[3] This has been suggested by Richard, WA in ‘The importation of firearm into West Africa in the eighteenth century’, Journal of African History XXI (1980) p.43

[4] Bankole Sodipo ‘Intelectual Property and Development’ being a paper delivered at the conference marking the African Day for technology and Intellectual Property on Wednesday September 13, 2000 in Abuja Nigeria p3, Unpublished.

[5] The 37th Summit of the Organisation of African Unity (OAU) held in July 2001 in Lusaka, Zambia adopted the Strategic Policy Framework and a new vision for the revival and development of Africa through its declaration o the New African Initiative called the New Partnership for Africa’s Development (NEPAD)

[6] The objectives of the organisation are provided in Article 3 of the Harare Agreement. These objectives expanded with the amendments to the Harare Protocol of 1987, 1994, 1997, 1998 1999, and 2001; the amendment to Banjul Protocols in 1997, 1998 and 1999; and the expansion to the mandate of the organisation during the eight session of her Council of Ministers held in Mangochi Malawi from 20-29 August 2002 to include Copyright, Traditional Knowledge, Genetic Resources and Folklore.

[7] Section 1 of Harare Protocol

[8] Ibid Section 2

[9] Ibid Section 2(2)

[10] Ibid Section 2(3)

[11] Ibid Section 3(2)

[12] Ibid Section 3(2)©

[13] Ibid Section 3(3)

[14] Ibid Section 3(4)

[15] Ibid Section 3(6)

[16] Section 2 of the Banjul Protocol

[17] Ibid Section 6

[18] Ibid Section 8 (1)

[19] Ibid Section 9 (1). Such later designation shall be deemed an application for registration of ark in that State and be subject to examination under the national laws of that State. The filing date in that State shall be the date on which the application for later designation is received.

[20] Or The African Intellectual Property Organisation

[21] This was signed between twelve African countries including Camerron,Central African Republic, Republic of Congo, Cote d’Ivoire, Benin, Burkina Faso, Gabon, Mauritania, Senegal, Chad, Malagasy and Niger.

[22] This treaty was signed by fifteen countries consisting all the countries in the Libreville agreement except Malagasy and including Republic of Guinea, Togo, Guinea-Bissau and Mali

[23] The treaties are the Patent Co-Operation treaty; the Trademark Registration Treaty; the Hague Agreement Concerning the International Deposit of Industrial Designs; the Lisbon Agreement for the Protection of Appellations of Origin and their International registration; the International Convention for the Protection of New Varieties of Plant; and the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the purpose of Patent Procedures

[24] Bangui Agreement Art 3

[25]Ibid Art 2 (2)

[26] Ibid Art. 6

[27] Ibid Art 7

[28] Ibid Art. 22

[29] Annex VII, Title 11 Art. 67

[30] Ibid Art. 68

[31] Ibid Art. 72

[32] Ibid Art. 73

[33] Ibid Art 83

[34] Paul Kuruk, ‘Protecting folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tension between Individual and Communal Rights in Africa and United States’ American University Law Review Vol. 48 April 1999 at 812.

[35] Art. 1 of Cooperation Agreement between OAPI and ARIPO

[36] It has earlier been observed that the non-existence of a common intellectual property system in the continent emanate from a prevalent pessimism towards harmonisation. For a discussion on this, see Adebambo Adewopo, ‘Trademark in Africa; A proposal for the Harmonisation of the ARIPO and OAPI Agreements on Marks’ Journal of World Intellectual Property Vol. 6 No 3 of May 2003, 473-484.

[37] See Enyinna Nwauche “ An Evaluation of the African Regional Intellectual Property Rights Systems” The Journal of Intellectual Property, Vol. 6, January 2003 at 137-138

38 Adewopo, op. cit at P. 482/483

39 However, the full development of intellectual property in Africa and many developing countries depends on two factors, internal and external. The external factor depends largely on the direction of the North/South equation as envisioned within the current international intellectual property protection regime. The internal factor refers essentially to the response of policy and law enforcement initiative including administrative and enforcement of rights in these countries. This is fully discussed in Adebambo Adewopo, “ The Global Intellectual Property System and Sub-Saharan Africa: A Prognostic Reflection” The University of Toledo Law Review Vol. 33 Number 4 of September 2002.

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