Peter Munyi discusses some of the shortcomings in the proposed East African Community (EAC) policy on anti-counterfeiting, anti-piracy and other property rights violations.
Piracy is not so new in East Africa: Its coast has in recent times earned global notoriety for being home to some of the world’s notorious buccaneers. While the world has been paying much attention to this form of piracy, with Kenya become the preferred destination for trying captured pirates, the East African Community (EAC) has quietly, been laying ground to fight another form of piracy, just as relevant for business as the Somali pirates: that of the intellectual property kind.
Timely Initiative
Courtesy of funding from the Investment Climate Facility for Africa (ICF), the EAC has been spearheading the process of formulating an EAC policy on anti-counterfeiting, anti-piracy and other intellectual property rights violations for the last two years. This process has been very timely for three reasons. First, the ‘borderless’ trade of goods, free of tariffs and duties within the EAC is due to commence in January 2010. Secondly, OECD countries are, amid shrouds of secrecy, busy negotiating the Anti-Counterfeiting Trade Agreement (ACTA), a treaty on anti-couterfeiting. The results of these negotiations will trickle down to non-OECD countries such as those in the EAC through some bilateral or plurilateral arrangements. Finally, within the EAC itself, Kenya and Uganda have developed, or are in the process of developing, legislations on the same issues ostensibly based on the inadequacy of current legislative frameworks to deal with the issues. The EAC draft policy, now headed to Arusha for more discussion before formal adoption, seeks to harmonize and tighten rules with a view to detect counterfeiters, pirates and other intellectual property (IP) violators. If adopted and implemented the policy it is said, will not only contribute to creation of jobs and increase of governments’ revenue but also reduce threats to security and unnecessary injuries and harm caused to consumers in the market.
Shortcomings in Definitions
However, the draft policy from the outset fails to address a number of crucial issues It does not, for example, define what ‘counterfeiting’ and ‘piracy’ are, something that would be necessary for the scope and nature of the policy. In their ordinary meaning, these two terms may be taken to mean the same thing, but not so in legal terms. In dealing with this specific issue, the best learning or reference platform for the EAC should be the World Trade Organization (WTO)’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Summarised briefly, in Article 53, this agreement defines counterfeiting as infringement of trademarks, and piracy as copyright infringement. ‘Other IP violations’ would then logically concern patents, geographical indications, designs, and plant varieties. The Kenya Anti-Counterfeit Act 2008 is already facing constitutional court challenges due to unclarity of definition of terms and scope.
Indiscriminate Approach?
Like buccaneering, IP infringements have, in fact, been rife since the Industrial Revolution. The territoriality principle of IP is as tightly safeguarded by nations as they look after their war arsenal. The WTO was seen as a watershed, firstly, in denoting minimum standards for protection of IP, and secondly, in entertaining the development context to be taken into account, hence the ‘flexibilities’. But it also marked a point at which market expansion has taken different dimensions, a period of intense FTAs activity by the US and expansion of the EU to the single largest common market outside China and India. That developing countries like Kenya and least developed countries (LDCs), the others in the EAC, have not taken full advantage of bilateral global trading arrangements such as AGOA and the new EU-ACP pact is something that ought to have been taken into account in the drafting process of the EAC policy. By adopting a harmonized policy, the LDCs within the EAC are robbed off the numerous special and differentiated treatment measures within the WTO Agreements. These measures or flexibilities, as they are popularly known, accord countries the right to take into account their developmental needs in instituting international trade rules.
At a supra national level, harmonization of policy takes well through instruments that have direct effect. This is the case in the EU where regulations and directives from Brussels have different implementation mechanisms at the member states. EU directives give countries some decision-making scope to implement them through national legislation, enabling them determine what is best suited for them. On the other hand, regulations have a direct effect and do not afford member states similar scope as the directives. Unfortunately, the same cannot be said of policies emanating from Arusha: With the case of the draft EAC policy in question, it is not clear what the intended effect is at the national level. Whatever the case, implementation of this or other policies calls for a strong, well-informed Arusha that takes into account numerous developmental needs of each of the five states. Policies such as the draft on anti-counterfeiting, anti-piracy and other forms of IP violations seems to assume that all EAC states are at the same stage of development, and share similar needs, goals and ideals. The opposite is true.
The Arusha- based bureaucrats should not just borrow a leaf, and beg for financial support from their more wealthy and mature supra national sisters. They should also take time and consider developmental needs for each of the EAC member states while crafting policies meant to enhance trade within the region and also with other states.
Peter Munyi is a lawyer based in Nairobi. He is Legal Counsel at icipe, an international organisation undertaking scientific research mainly in Africa, and also advises other organisations on intellectual property policy.
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