By Olasupo Owoeye, PhD, Senior Lecturer in Law, RMIT University, Melbourne, Australia

Intellectual property rights are generally protected by states to promote creative works and commercial brands while incentivising research and development with a view to fostering innovation. As the protection conferred comes at a cost to consumers in the form of the intellectual property driven market power that often results in higher pricing, intellectual property laws must be designed to strike a balance between incentivising innovation or creativity and the cost of market monopoly. A well designed intellectual property system can be a powerful vehicle for economic growth and human development. The accretion of knowledge with its exploitation is indisputably a major driver of socio economic development in the 21st century and the role of intellectual property in the knowledge economy cannot be overemphasised. This explains why governments all over the world are constantly developing intellectual property systems that are responsive to the needs of industries generating knowledge and their national and developmental objectives.

The entry into force of the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) engendered a significant degree of concern on the implications of intellectual property for development especially in low income and least developed countries. This is particularly so in relation to the patents and public health debate that started with the action against the South African Government by the Pharmaceutical Manufacturers Association of South Africa in 1999. A development that made TRIPS and Public Health a major topic in the WTO Doha Development negotiations. This also led to a major amendment to the TRIPS Agreement in the form of the Protocol Amending the TRIPS Agreement which entered into force on 23 January 2017.

It is however worthy of note that the TRIPS Agreement has the enhancement of economic development as one of its underlying objectives. The preamble to the TRIPS Agreement not only recognises the relevance of intellectual property to the pursuit of developmental and technological objectives, Article 7 of the TRIPS agreement specifically provides that intellectual property ‘should contribute to the promotion of technological innovation and to the transfer and dissemination of technology…in a manner conducive to social and economic welfare, and to a balance of rights and obligations’.

Article 8 of the TRIPS Agreement goes further to provide that WTO member states may in formulating their IP laws adopt measures necessary to protect public health, public nutrition and public interest. A question that arises from Articles 7 and 8 is whether the provisions are merely hortatory or mandatory. It appears the language of Article 7 was designed to be hortatory and the provision may be taken to reflect more of a policy objective. However, a recent decision of the WTO Panel, which was adopted in August 2018, in DS467: Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (hereinafter referred to as Australian Tobacco Case), seems to suggest that the provisions of Articles 7 and 8 of the TRIPS Agreement may be more than merely hortatory. The WTO Panel in the Australian Tobacco case had to interpret Article 2.2 of the WTO Agreement on Technical Barriers to Trade (TBT) in relation to the plain packaging legislation adopted by Australia to protect public health. The Australian legislation prohibits, amongst other things, the use of trademarks on tobacco products and it was argued that this ran afoul of Article 20 of the TRIPS Agreement. Article 20 of the TRIPS Agreement provides that there shall be no unjustifiable encumbrances against the use of trademarks. Australia in its defence, relied on Article 2.2 of the TBT which provides thus:

Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment.

The WTO Panel took the view that there was no conflict between Article 2.2 of the TBT and Article 20 of the TRIPS Agreement. In relation to the legality of the measure taken by Australia under WTO law, the Panel thus opined:

It is undisputed, in these proceedings, that tobacco use and exposure to tobacco smoke cause death and disease, and that the protection of human health from such risks is thus a legitimate public health objective within the meaning of Article 2.2 of the TBT Agreement.

It is pertinent to note that the language of Article 2.2 of the TBT is largely in tandem with Article 8 of the TRIPS Agreement which empowers WTO member states to adopt measures necessary to protect public health and public interest in sectors of vital importance to their economic and technological development. The WTO decision in the Australian Tobacco case thus lends credence to the view that the principles and objectives of the TRIPS Agreement are valid and legitimate considerations in the formulation of intellectual property rules.

While much of the intellectual property and development debate has focussed on the NorthSouth divide in relation to patents and access to patented technologies in low income and least developed countries, the role of copyright in  promoting economic growth in developing countries has not received the same level of attention. This is particularly true with respect to African countries. As succinctly put by Schultz and Gelder:

African creativity remains an underappreciated and underexploited resource: rarely do creative sectors contribute more than 1 percent of the relatively low gross domestic products of any African country. Africa’s share of trade in cultural goods constitutes less than 1 percent of the global total.

It is important to note that intellectual property is not just a system that offers benefits for developed countries with developing countries having to pay higher prices; it is a framework that can be used to enhance the expansion of creative industries and economic growth even in low income countries.

It is indisputable that Africa as a continent is very rich in culture, arts and music. While virtually all African countries have local legislations regulating copyright law, the protection of copyright remains a major challenge in Africa and this continues to have grave implications for creative industries in the continent. This is largely due to a range of factors. Schultz and Gelder highlighted the following as major obstacles impeding the growth of creative
ndustries in African countries:

  • Lack of reliable enforcement against piracy;
  • Lack of royalty payments;
  • Lack of licensing fees;
  • Irrational, burdensome taxation.

While these factors all contribute to the underdevelopment of creative industries in Africa, lack of knowledge of intellectual property rights, especially copyright and image rights, also contribute to the continuing impoverishment of the African artiste. There is equally the cultural propensity to favour the common use of works without licensing or compensation based on the traditional belief that the general use, even when unaccompanied by royalty or licensing payments, is a mark of recognition and respect. Although Africa is blessed with many talented artistes, many of the artistes that could have made great contributions to the growth of creative industries and the economic development of the continent through their creativity have been hampered by the factors highlighted above. The benefits of copyright and the potentials of creative industries in the continent have been greatly undermined by the several challenges that weaken intellectual property frameworks in the continent. It is therefore important to exigently explore options for making copyright work for creative industries in Africa and the economic development of the continent.

To maximise the benefits of intellectual property, especially copyright and image rights, in Africa, African artistes must be supported to appreciate and understand the breadth and scope of their rights under intellectual property law and the need to protect these not only for their career growth but also the economic development of their nations. It is also imperative for African governments to develop copyright and image rights laws that are specially formulated to promote innovation, creativity and their national economic objectives in line with Articles 7 and 8 of the TRIPS Agreement. More importantly, African governments must be committed to making intellectual property work in the continent by putting in place administrative and judicial structures that foster the enforcement of intellectual property rights in their territories.