The impact of the African Continental Free Trade Area on Intellectual Property rights

The African Continental Free Trade Area (AfCFTA) is a trade pact between African nations to form the world’s largest free trade area by creating a single market for goods and services across Africa. [1]The AfCFTA is destined to be the largest free trade area since the formation of the World Trade Organisation. One of its main aims is to reduce tariffs among members in trade facilitation and services sectors, as well as implement regulatory measures such as sanitary standards and technical trade barriers. The benefits that are expected to come from the AfCFTA will be:

1. Increased trade and business among African countries including in-country trade within Zimbabwe;
2. To stimulate production and development through the development of regional value chains, to ensure that manufacturing, agro-processing, and other activities across the continent are stimulated to supply the market;
3. To strengthen the capacities of companies in Africa and in Zimbabwe to access and supply world markets; and
4. To strengthen African’s economic and commercial diplomacy. 

The AfCFTA Agreement is divided into 3 parts being:

1. It serves as the Framework Agreement for the development of intra-trade within Africa;
2. It consists of Protocols on:
3. Trade in Goods;
4. Trades in Services;
5. Rules and Procedures on the Settlement of disputes;
6. Investment;
7. Competition Policy; and
8. Intellectual Property Rights (IPR’s).
9. It consists of Annexes, Guidelines, and Schedules to the Protocols mentioned above.[2]

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce. [3]IP is protected in law by, for example, patents, copyright, and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. The inclusion of Intellectual Property Rights promotion and protection in the AfCFTA framework is encouraged as poorly crafted Intellectual property rights and anti-competitive practices can undermine the benefits of trade liberalization. The AfCFTA’s Intellectual Property Rights Protocol offers the AfCFTA members including Zimbabwe an opportunity to develop an IP framework that addresses the specific developmental needs of Africa. Intellectual property rights play a critical role in Africa more so in Zimbabwe, by promoting innovation and fostering economic development in an increasingly knowledge-driven global economy. However, in many developing countries in Africa, Intellectual property still remains an area that is significantly fragmented and unexplored.

The AfCFTA Agreement promotes Intellectual property through technology transfer between the African states. Article 4 of the AfCFTA Agreement stipulates that the state parties shall cooperate on investment, IPRs, and competition policy.[4] This would be achieved by having the state parties harmonize their various IP policies and legislations to suit the single continental market envisaged under the AfCFTA. A standardized and unified IP policy for the AfCFTA is important to achieve trade in the single market by providing a framework compatible with prior international IP treaties. [5]

On the 19^th of February 2023, the AU Assembly of Heads of State and Government adopted the Protocol on Intellectual Property Rights (IPR). The Protocol was adopted under the provision of Article 7(1) (a) of the Agreement Establishing the African Continental Free Trade Area, which requires State Parties to the Agreement Establishing the African Continental Free Trade Area to enter into negotiations on intellectual property rights. [6] The Protocol aims to support the realization of the objectives of the AfCFTA by establishing harmonized rules and principles on the promotion, protection, and enforcement of IPR. The Protocol also aims to promote economic growth and development within the African continent, to ensure that, measures to protect and enforce intellectual property rights do not constitute barriers to trade. [7] It covers a comprehensive array of IPRs including plant variety protection, geographical indications, marks, patents, utility models, industrial designs, undisclosed information, layout designs of integrated circuits, copyrights, and related rights, traditional knowledge, traditional cultural expressions and folklores, as well as genetic resources.

The AfCFTA’s IP policies and legislation has been tailored to the African market for which it is introduced, as opposed to strictly utilizing various adaptions (wholly or partly) of International IP regulations. [8] This will in turn foster the design and delivery of IP systems suited to the contexts, conditions, and collective interests of Africa. The Protocol has enormous potential to stimulate innovation, fostering technology collaboration among firms and individuals along continental value chains, and unleashing a sustained wave of intra-African investment to support expanded and sophisticated trade under the AfCFTA.

Article 25 of the Protocol, provides that all State Parties shall ensure that intellectual property rights holders have the legal mechanism to take the initiative in the enforcement of their intellectual property rights, the importance of procedures for enforcement of intellectual property rights in striking the balance between the interest of right holders and consumers, the procedures for enforcement of intellectual property rights take into account the administrative, technological and financial capacity. [9]It is also important to note that, the protocol requires the State Parties to put in place laws allowing judicial authorities to grant injunctions in cases of disputes concerning the infringement of intellectual property rights including the conditions for the grant of injunctions.

Notwithstanding, while the Protocol on IP rights has been applauded as a right step in the direction of achieving economic development through intra-African trade, more robust and effective mechanisms have to be put in place to protect inventors/ IP owners market by affording IP owners more knowledge and training on their IP rights and how to effectively protect their inventions, creations of mind and brands.

Conclusion

In conclusion, the AfCFTA Protocol on Intellectual Property Rights is a welcomed and great initiative aimed at achieving economic growth and development through innovation and technology transfer within African states. The AfCFTA seeks to achieve intra-trade within Africa and liberalised trade which will in turn contribute towards the development of Intellectual property rights and a centralised and uniform Intellectual property framework and system.

This article is provided for informational purposes only. Please seek legal advice from our Intellectual Property team.

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[1] https://african.business/2022/05/trade-investment/what-you-need-to-know-about-the-african-continental-free-trade-area

[2] Article 8 of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) accessed at https://au.int/sites/default/files/treaties/36437-treaty-consolidated_text_on_cfta

[3] World Intellectual Property Office ‘What is Intellectual property’ accessed at https://www.wipo.int/about-ip/en/  

[4] Article 4 of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) accessed at https://au.int/sites/default/files/treaties/36437-treaty-consolidated_text_on_cfta

[5] https://uneca.org/stories/deepening-the-afcfta-celebrating-the-adoption-of-new-protocols-on-investment

[6] Article 7(1)(a) of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) accessed at https://au.int/sites/default/files/treaties/36437-treaty-consolidated_text_on_cfta

[7] https://uneca.org/stories/deepening-the-afcfta-celebrating-the-adoption-of-new-protocols-on-investment

[8] AfCFTA’s Protocol on Intellectual Property Rights and its potential effects on Africa’s Economic Growth accessed at https://centurionlg.com/2022/01/19/afcftas-protocol-on-intellectual-property-rights-and-its-potential-effects-on-africas-economic-growth/

[9] Article 25 of The Protocol on Intellectual Property Rights to the Agreement Establishing the African Continental Free Trade Area (AfCFTA).