Africa on a learning curve

• Continent lags rest of world in IP regulations, but there is progress being made, writes Lynette Dicey

Despite significant innovation taking place in Africa, the continent is behind in terms of registering its intellectual property (IP) rights which means missed opportunities for revenue generation and becoming an innovation-driven economy, says Kelly Thompson, a senior partner in the trademark litigation group and the current chairperson of Adams & Adams.

Most African countries, she reports, have at least basic IP laws and the ability to register IP rights in place, but enforcement in some jurisdictions can be challenging while others have underfunded and understaffed IP registries and poor infrastructure, often relying on paper-based records.

This, says Thompson, leads to lengthy waiting periods for applications to be examined, accepted and ultimately registered with accurate records.

While some countries are focusing on improving their IP legislation, others have outdated laws which are not in line with international treaties and lack legal precedents. While the right legislation is the foundation of a strong IP rights system and a good place to start, Thompson says that on its own it’s not enough and still requires political will to enforce and fund all aspects of the IP rights regime.

One of the biggest challenges is that some jurisdictions lack awareness of IP which means that inventors are not registering and protecting their IP. “The vast majority of patent applications are being filed by foreign applicants,” says Thompson.

She adds that it’s important not to fall into the trap of assuming all African countries are struggling with the same challenges. Certainly, progress is being made.

“There are still large quantities of counterfeit goods imported to the continent which has serious economic impacts, undermines legitimate trade and leads to domestic revenue loss. Encouragingly, governments are showing more interest in dealing with this. Many countries have made progress in recent years with legislative reform, digitising their registries and building capacity within their registries. As a result there is growing confidence in IP systems in Africa.”

She cautions, however, that the continent is still only at the start of learning how to protect its IP, in particular the wealth of traditional knowledge that has been passed down from generation to generation.

There is significant evidence to support the drive for IP law on the continent, with a correlation between strong IP protection and economic growth.

Says Thompson: “IP protection provides incentives to invent and create and also stimulates confidence among foreign investors. Other countries tend to follow developments in IP rights protection closely when considering trade partners.”

MOST COUNTRIES HAVE AT LEAST BASIC IP LAWS AND THE ABILITY TO REGISTER IP RIGHTS IN PLACE, BUT ENFORCEMENT CAN BE CHALLENGING