Synopsis
In the global knowledge economy, intellectual property rights - and the innovations they are meant to spur - are important determinants of progress. But what does this mean for the nations of Africa? One view is that strong IP protection can facilitate innovation in African settings. Others say that existing IP systems are simply not suited to the realities of Africa. This book, based on case studies and evidence collected across nine countries in Africa sheds new light on the complex relationships between innovation and intellectual property. It covers findings across many sites of innovation and creativity, including music, leather goods, textiles, cocoal, coffee, auto parts, traditional medicine, book publishing, biofuels and university research, and presents a picture in which innovators share a common appreciation for collaboration and openness.
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About the Author
Chris Armstrong is a Visiting Researcher at the LINK Centre, University of the Witwatersrand, publishing and ciommunications consultant for the Open A.I.R. Project and former Research Manager of the African Copyright and Access to Knowledge Project.
Excerpt. © Reprinted by permission. All rights reserved.
Innovation & Intellectual Property
Collaborative Dynamics in Africa
By Jeremy de Beer, Chris Armstrong, Chidi Oguamanam, Tobias SchonwetterJuta and Company Ltd
Copyright © 2014 UCT and Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ)
All rights reserved.
ISBN: 978-1-919895-99-4All rights reserved.
Contents
Preface,
Acknowledgements,
About the Editors,
About the Contributors,
Acronyms and Abbreviations,
Chapter 1 Innovation, Intellectual Property and Development Narratives in Africa Jeremy de Beer, Chidi Oguamanam and Tobias Schonwetter,
Chapter 2 Frameworks for Analysing African Innovation: Entrepreneurship, the Informal Economy and Intellectual Property Jeremy de Beer, Izabella Sowa and Kristen Holman,
Chapter 3 Informal–Formal Sector Interactions in Automotive Engineering, Kampala Dick Kawooya,
Chapter 4 Geographical Indication (GI) Options for Ethiopian Coffee and Ghanaian Cocoa Chidi Oguamanam and Teshager Dagne,
Chapter 5 A Consideration of Communal Trademarks for Nigerian Leather and Textile Products Adebambo Adewopo, Helen Chuma-Okoro and Adejoke Oyewunmi,
Chapter 6 The Policy Context for a Commons-Based Approach to Traditional Knowledge in Kenya Marisella Ouma,
Chapter 7 Consideration of a Legal "Trust" Model for the Kukula Healers' TK Commons in South Africa Gino Cocchiaro, Johan Lorenzen, Bernard Maister and Britta Rutert,
Chapter 8 From De Facto Commons to Digital Commons? The Case of Egypt's Independent Music Industry Nagla Rizk,
Chapter 9 Reflections on Open Scholarship Modalities and the Copyright Environment in Kenya Ben Sihanya,
Chapter 10 African Patent Offices Not Fit for Purpose Ikechi Mgbeoji,
Chapter 11 The State of Biofuel Innovation in Mozambique Fernando dos Santos and Simão Pelembe,
Chapter 12 Reflections on the Lack of Biofuel Innovation in Egypt Bassem Awad and Perihan Abou Zeid,
Chapter 13 Effects of the South African IP Regime on Generating Value from Publicly Funded Research: An Exploratory Study of Two Universities Caroline Ncube, Lucienne Abrahams and Titilayo Akinsanmi,
Chapter 14 Towards University — Industry Innovation Linkages in Ethiopia Wondwossen Belete,
Chapter 15 Perspectives on Intellectual Property from Botswana's Publicly Funded Researchers Njoku Ola Ama,
Chapter 16 Current Realities of Collaborative Intellectual Property in Africa Jeremy de Beer, Chris Armstrong, Chidi Oguamanam and Tobias Schonwetter,
Index,
CHAPTER 1
Innovation, Intellectual Property and Development Narratives in Africa
Jeremy de Beer, Chidi Oguamanam and Tobias Schonwetter
1. Context
Human development, including not just economic growth but also the capability for longer, healthier and more fulfilling lives, depends on innovation and creativity. While various economic, technological, social and other factors influence innovative and creative activity, intellectual property (IP) rights – copyrights, patents, trademarks, trade secrets and other appropriation mechanisms – play an increasingly important role. How IP rights help or hinder innovation and creativity in different contexts in Africa is the subject of this book.
The chapters that follow canvass aspects of the current reality of IP in nine different countries from the four main regions of the African continent. The chapters contain contextual analyses as well as on-the-ground case studies based on empirical, qualitative and quantitative research – and cut across diverse socio-economic contexts and legal systems, and a spectrum of formal, informal and traditional sectors. Examined as a whole, the evidence in this book helps build understanding of the ways in which the dual goals of protecting IP and preserving access to knowledge can be balanced. The book also provides indications of the roles that are being, and can be, played by collaborative and openness-oriented dynamics in relation to innovation, creativity and IP. A better understanding of the nuances and dynamics of IP is essential to creating policy frameworks and management practices that balance IP protection and access in such a way that African regions, nations and communities can harness IP as a tool to facilitate collaborative networking within diverse systems of innovation and creativity.
The proliferation and polarisation of opinion
Influential actors – multinational companies, developed-country governments, international organisations, academics, civil society groups – promote opposing views on how IP protection interacts with innovation and creativity. One view is that IP protection is inevitably and necessarily an incentive for innovation and creativity. The opposing view is that IP protection is not required to facilitate innovation and creativity and, rather, is an impediment to the free and open exchanges of technology, culture and knowledge that form the core of innovative and creative modalities. These polarised views persist because, in fact, little is really known about how IP environments do or could influence innovation and creativity as a means to development. A recent, wide-ranging review (Hassan et al., 2010) of the growing but still "surprisingly scarce" literature on IP and developing countries uncovered little consensus and even less clear evidence on the key questions facing IP policy-makers (2010, p. xiv). It follows that policy-makers who seek to encourage creators and innovators tend to struggle to develop appropriate IP systems. Bottlenecks and systemic inefficiencies occur as law-makers and policy-makers make hazy efforts, based on insufficient information, to calibrate national IP environments in support of innovation and creativity.
Overzealous IP protection regimes may indeed raise the costs of future innovations and may, therefore, discourage potential innovators and creators who cannot afford high up-front investments. Also, over-protection of IP may result in innovators and creators being unable to organise collaborative relationships in strategically optimal ways. On the other hand, under-protection of outputs may indeed be an investment disincentive for a significant proportion of potential innovators and creators, and may therefore be a threat to development.
Despite the lack of consensus about the influence of IP on innovation and creativity for development, some new narratives seem to be emerging. For most of the 20th century, the orthodox assumption was that IP protection is good for development. The wisdom was that if some protection is good, more is even better. The origins and spread of such narratives are explained especially clearly in the literature on the history of the World Trade Organisation's (WTO's) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and in the leading work on the international political economy of IP more generally (e.g. Drahos and Braithwaite, 2002; May, 2010; May and Sell, 2005; Sell, 2003).
From the 1994 passage of TRIPS onwards, political and economic pressures to increase IP protection succeeded in raising both IP protection standards and awareness of IP in developing countries. But the protectionist pressures led to backlashes against IP systems that were seen as insensitive to local contexts. This was especially true where IP protection impacted other public policy priorities, especially on matters of health, education and cultural participation. The work of scholars such as Barbosa et al. (2007), Boyle (1997, 2003, 2004), Chon (2006), Okediji (1996, 2000) and others was influential in that context. Such scholarship contributed indirectly to reform initiatives undertaken by international organisations including the WTO, the World Health Organisation (WHO) and the World Intellectual Property Organisation (WIPO). A "development agenda", or indeed a suite of related agendas, emerged as a new paradigm focused on recalibrating international IP law and policy (De Beer, 2009; Deere, 2009; Gervais, 2007; May, 2007; Meléndez-Ortiz and Roffe, 2009; Netanel, 2008; Yu, 2009). Moreover, an ad hoc movement of civil society advocates and scholarly researchers came together under the framework of "A2K" (access to knowledge), a civil society coalescence which fundamentally reframed the terms of global IP debates (De Beer and Bannerman, 2013; Kapczynski, 2008; Kapczynski and Krikorian, 2010). An illustration (as this book was being finalised in mid-2013) of the continuing momentum of the A2K movement was the outcome of the WIPO Diplomatic Conference of June 2013 in Marrakesh, at which more than 50 countries signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty, 2013).
A number of important recent works demonstrate the integration of development principles and A2K perspectives into mainstream analyses of IP (e.g. Wong and Dutfield, 2011). Several scholars emphasise the complex, dynamic and multi-level nature not just of IP rules, but also of the broader governance of knowledge (e.g. Burlamaqui et al., 2012; Chon, 2011; Oguamanam, 2011). The complexity of the scholarly endeavour has led to contrasting disciplinary perspectives and subtly different framings of IP issues. For example, some works characterise the basic problem as protecting "poor people's knowledge" (Finger and Schuler, 2004); others promote the recognition of "indigenous people's innovation" (Drahos and Frankel, 2012). A particularly important theme is the human impact of IP policy, i.e. the impact on individual fulfillment and well-being (Sunder, 2012).
Despite this rapidly growing global body of work, there is still little research examining systemic IP governance or knowledge governance in Africa. More than two decades ago, Juma and Ojwang (1989) urged African countries to examine their IP policies and "introduce laws that reflect the imperatives of national sovereignty" (1989, p. 3). Since then, there have been valuable in-depth examinations of particular issues, such as textiles and traditional knowledge (Boateng, 2011), or access to learning materials (Armstrong et al., 2010; De Beer, 2013). In addition, some researchers have conducted regional analyses of A2K – in North Africa, for example (Shaver and Rizk, 2010) – and sub-Saharan African perspectives on IP and economic development have been put forward (e.g. Blackeney and Megistie, 2011), along with analyses of topics such as neo-colonialism and IP (e.g. Rahmatian, 2009) and African IP organisations (Kongolo, 2000). Africanbased researchers Pistorius, Harms and Visser have done strong work on the intersections among development and aspects of IP such as copyright (Pistorius, 2007) and international legal and political IP paradigms (Harms, 2012; Visser, 2007). But many gaps in our understanding of IP and development, especially development in African settings, remain.
Particular blind spots relate to the dynamic and contextual roles of IP in different kinds of African innovation and creation modalities, particularly collaborative and openness-oriented modalities. The researchers who contributed to this book responded to an open public call to investigate matters that would help answer the following question: How can existing or potential IP systems be harnessed to appropriately value and facilitate innovation and creativity for open development in Africa? This framing provoked a range of connected questions. Practically, how do African innovators or creators exploit, adapt to, or work around, IP environments? Conceptually, are exclusive IP rights compatible with collaborative, openness-oriented innovation and creativity in Africa, and with inclusive development more generally? What are the on-the-ground interplays between openness and protection in relation to IP in African innovative and creative settings? At a more systemic level, to what extent, and how, have policy-makers in Africa attempted to calibrate IP frameworks in such a way that they can maximise innovative and creative potential? Current research addressing these important questions, as presented in the available literature and translated into practice, remains scarce and often appears to reflect rhetorical polarisation more than objective investigation. This volume seeks to begin to fill that research gap, by presenting findings from studies which explored the role of IP in innovation and creativity within collaboration- and openness-based conceptions of development in the African context. In other words, the book is not about innovation systems or creative industries in general; it is about the roles that IP rights do, and could, play within such systems and industries, specifically in Africa, specifically in relation to collaborative, openness-oriented dynamics.
Emphasising Africa
Questions about IP law, policy and practice may appear to be most suitably addressed globally, not least because several multilateral instruments, such as TRIPS, strive to introduce uniform minimum standards of IP protection around the world. This book, however, takes the view that examination of the global setting is insufficient, because regional, national and sub-national characteristics and perspectives must be taken into account and examined. As the research presented in this book reveals, examination of IP environments at African regional, national and local settings has much to offer.
At the outset, it must be emphasised that Africa is an enormous and diverse continent, not a single country. Therefore this book's exploration of the role of IP in systems of innovation and creativity in African settings seeks to avoid perpetuation of stereotypes of African homogeneity. This book also emerges from an awareness that, in the context of humanity's continual strivings for innovation and creativity, African nations and communities have typically been assigned least-performing status. Africa's contributions have tended to be positioned as confined to the ancient world or the prehistoric era, sometimes via dubiously benevolent attempts to acknowledge the continent's role as the starting place (the "cradle", no less) of humankind. Africa has also tended to be subjected to depictions as a "dark" continent, a disease and affliction hotspot dominated by poverty. Juxtaposing the concept of "modern" innovation with the word "African" has, for much of the past few centuries, been positioned (particularly in the "developed" world) as a contradiction in terms. African knowledge has typically been cast as "traditional", which, as Dutfield (2002, p. 22) points out, implies the opposite of innovative or creative. While there is some very recent evidence of less pejorative media narratives emerging in relation to African innovation (see The Economist, 2013), most countries on the continent are still seen as having a long way to go if they wish to become hotbeds of 21st-century innovation.
There are various interrelated, IP-connected reasons that might explain the power of narratives suggesting that creativity and innovation in most parts of Africa appear to fall short of innovative and creative activity in other regions, particularly developed-world regions. This book investigates two possible reasons in particular: first, that African creativity and innovation are not properly valued by prevalent IP systems and assumptions; and second, that African creativity and innovation are being constrained by sub-optimal IP-related policies and practices. Using a range of research methods, the chapters in this book investigate both possibilities: that prevalent IP modalities might be (1) undervaluing African innovation and creativity, and/or (2) undermining African innovation and creativity. It must be made clear in this introductory chapter, however, that in exploring the possibilities just mentioned, the research outlined in this book was premised on certain assumptions, chiefly that current IP modalities can and do contribute to facilitation of innovation and creativity in some African settings, but that at the same time, the facilitative role of IP modalities in African settings can be improved.
Undervaluing African innovation and creativity?
It would appear that IP-related measurement tools for contributions to innovation do not sufficiently consider how innovation and creativity actually happen on the ground in African settings. It cannot be doubted that, amongst the rank of African and African diaspora intelligentsia, dating back millennia and certainly from precolonial times, there is no lack of epochal innovative and creative accomplishments in virtually all categories of human endeavour. And Africa remains a continent whose diverse natural and human resources are clearly integral to humanity's collective quest for innovative solutions to pressing problems. The issue is, therefore, not whether there is African innovation, but rather whether Africa's real and potential contributions to innovation are properly identified or valued by IP.
It seems likely that certain formal, or informal, or mixed formal–informal, modes of innovation and creativity in Africa cannot be fully or properly accounted for through the Western-oriented prism of patents, copyrights, trademarks and other formal IP outputs. Many measurements used in developed countries, and exported to developing countries, betray apparent misunderstandings of the nuances of IP law, policy and practice, e.g. through blind citation of statistics regarding "patenting by population" or "share of world patents" or "cross-border trade-marks" (e.g. Conference Board of Canada, 2010). Such measurements inevitably influence decision-makers, often through mainstream media coverage. For example, a 2010 media headline proclaimed "Southern Africa: Region Failing to Innovate, Says Study", and cited a study by the UN Educational, Scientific and Cultural Organisation (UNESCO) that concluded as follows: "Countries in southern Africa are producing so few scientific publications and patents that the region's social and economic progress is threatened" (Campbell, 2010, citing UNESCO, 2010). That Africa needs more patents is currently a key message being conveyed to African national policy-makers, who are, in turn, naturally tempted to seek to bolster their nations' statistical ranking via patent-centric policies, laws and regulations – even if the effects of such policy-making may well be counterproductive in the long term.
(Continues...)
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