David Cochrane Christopher Mhangwane August 8 2022 IP considerations of AfCFTA Spoor & Fisher | Intellectual Property - Africa David Cochrane, Christopher Mhangwane Intellectual Property IntroductionBackgroundIP considerationsProposalsCommentIntroductionThe African Continental Free Trade Area (AfCFTA), which forms part of Agenda 2063, has the potential to integrate African countries, boost intra-African trade by eliminating tariffs and non-tariff barriers, and reduce poverty in Africa. The agreement covers:trade in goods and services;investment;IP rights;competition policy; ande-commence.This article examines the IP implications of the agreement.BackgroundIt was decided at the Assembly of Heads of State and Government in Addis Ababa held on 29-30 January 2012 to fast-track the establishment of the AfCFTA to boost intra-African trade. As of May 2022, 43 countries within the African union have ratified the agreement establishing AfCFTA, and are now state parties thereto. Only state parties have rights and obligations under the AfCFTA agreement.The success of AfCFTA is largely dependent on negotiations between and the cooperation of the member states of the African union, and subsequently state parties to the AfCFTA. The AfCFTA negotiations take place in phases – namely, phase I, II and III:Phase I covers protocols on trade in goods and services, and rules and procedures on the settlement of disputes. Regarding phase I, the AfCFTA has reached about 87.7% agreement on the rules of origin (RoO) on the protocol on goods. The outstanding RoO include some clothing and textile products, sugar and automotive products. This means that tariffs may be eliminated on 87.7% of goods so far.Phase II covers protocols on IP rights, investment and competition policy.Phase III covers protocols on e-commerce.IP considerationsAccording to Wamkele Mene, secretary-general of AfCFTA, the preliminary process has started for phase II negotiations on competition policy, investment protection and IP rights. The negotiations are ongoing, and there is a directive to conclude the negotiations on phase II, including the rules that are required for IP rights, by the end of 2022.Article 4(c) of the agreement provides: "State Parties shall cooperate on investment, intellectual property rights and competition policy." The aim behind the AfCFTA phase II Protocols appears to be limited to cooperation, rather than the replacement of, for example, IP laws in the different African countries. This is unsurprising, given that IP rights are generally territorial in nature.It will be interesting to see how the AfCFTA will deal with IP rights in this regard, and whether they will follow the African Regional Intellectual Property Organization (ARIPO) model, the African Organisation of Intellectual Property (OAPI) regional model or a hybrid IP model that would be flexible enough to allow the different African countries to manage their IP legislation and cooperate with other African countries in terms of non-binding IP recommendations. ARIPO provides for regional registration and administration of IP rights through a central office, while permitting member states to guard their national IP law and IP offices, which simplifies IP rights protection for applicants who wish to invest in the region.(1) Unlike in ARIPO, IP registration in OAPI automatically extends to all member states of OAPI, and there is a single law covering all member states. It is not possible to have IP protection in only some of the member states in OAPI.ProposalsIt has been suggested that the AfCFTA's IP protocol should:create a common and operational cooperation mechanism that would enable the countries to share experience, stimulate linkage, diffuse knowledge and collaborate on various matters such as the examination of patents and the enforcement of IP rights;provide for regional exhaustion of IP rights;oblige members to ensure the protection of geographical indications, either through a sui generis system or by certification and collective marks;draw up a position on plant variety protection by determining the minimum standards on plant variety protection or implementing a substantive law; anddevelop and implement regulations to enhance protection of traditional knowledge, cultural expressions and genetic resources.(2)Ideally, the chosen IP model should meet the objectives of the AfCFTA and the specific needs of each country.(3)CommentThe creation of the AfCFTA provides a unique opportunity. If the agreement is fully implemented by 2035, it is estimated that over 30 million people would be lifted from extreme poverty within the African continent.For further information on this topic please contact David Cochrane or Christopher Mhangwane at Spoor & Fisher by telephone (+27 12 676 1111) or email ([email protected] or [email protected]). The Spoor & Fisher website can be accessed at www.spoor.com.Endnotes(1) See "How the African Continental Free Trade Area could revolutionise IP in Africa".(2) Ibid.(3) Ibid.