Intellectual property and the African continental free trade area: lessons and recommendations for the IP protocol

• DOI: https://doi.org/10.1108/JITLP-09-2021-0051
• Published date: 04 March 2022
• Date: 04 March 2022
• Pages: 105-121
• Subject Matter: Strategy,International business,International business law,Economics,International economics,International trade
• Author: Caroline B. Ncube

Intellectual property and the

African continental free trade area:

lessons and recommendations for

the IP protocol

Caroline B. Ncube

Department of Commercial Law, University of Cape Town,

Cape Town, South Africa

Abstract

Purpose –This paper aims to explore the contours of the future intellectual property (IP) protocol of the

African ContinentalFree Trade Area (AfCFTA) Agreement.

Design/methodology/approach –This paper frames the IP protocol within the architecture of the

AfCFTA Agreement, meaning that it will follow the structure of other protocols and willbe guided by the

Agreement’s foundational principles and objectives. With the place, shape and form of the protocol so

established, the paper considers the substantive aspects that ought to be addressed. It also considers

provisionson technical assistance, capacity building and cooperation.

Findings –The paper f‌inds that the Tripartite FreeTrade Phase 2 IP agenda is a credible starting place,

which must be broadened to better meet gendered challenges and the continent’s developmental priorities.

This will entail includingprovisions on specif‌ic aspects enumerated in the paper, which must be aligned with

provisions on technical assistance, capacity building and cooperation to enhance implementation. The best

outcomes in the negotiation,adoption and implementation of the IP protocol will be achieved by an inclusive

approach incorporating all national, sub-regional and regional institutions guided by coherent policy and

coordinatedto ensure eff‌iciency in resources and capacity mobilisation.

Originality/value –To the best of the author’s knowledge, thisis the f‌irst paper to formally consider both

the architectureand substantive provisions of the future AfCFTA IP protocol with specif‌ic focus on gendered

dimensions.

Keywords Intellectual property, Gender, African Continental Free Trade Area (AfCFTA)

Paper type Research paper

© Caroline B. Ncube. Published by Emerald Publishing Limited. This article is published under the

Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and

create derivative works of this article (for both commercial and non-commercial purposes), subject to

full attribution to the original publication and authors. The full terms of this licence may be seen at

http://creativecommons.org/licences/by/4.0/legalcode

This work was carried out under the auspices of the SARChI Chair: Intellectual Property,

Innovation and Development, University of Cape Town. This work is based on research supported in

part by the National Research Foundation (NRF) of South Africa (Grant number: 115716). Any

opinion, f‌inding and conclusion or recommendation expressed in this material is that of the author

and the NRF does not accept any liability in this regard.

This work also constitutes part of the Open African Innovation Research (OpenAIR) partnership’s

thematic research. OpenAIR work is carried out with f‌inancial support from the International

Development Research Centre, Canada, the Social Sciencesand Humanities Research Council of

Canada, and Queen Elizabeth Scholarships –Advanced Scholars (QES-AS) through Community

Foundations of Canada (CFC). The views expressed herein do not necessarily represent those of Open

AIR’s funders.

Intellectual

property

105

Received21 September 2021

Revised20 November 2021

Accepted17 December 2021

Journalof International Trade

Lawand Policy

Vol.21 No. 2, 2022

pp. 105-121

EmeraldPublishing Limited

1477-0024

DOI 10.1108/JITLP-09-2021-0051

The current issue and full text archive of this journal is available on Emerald Insight at:

https://www.emerald.com/insight/1477-0024.htm

1. Introduction

Intellectual property(IP) is currently high on the African Union (AU)’s agenda because of its

prominence in the African Continental Free Trade Area (AfCFTA) as the focus of current

negotiations, which will result in the adoption of a protocol. The AfCFTA is a signif‌icant

milestone towards the realisation of the African regionaltrade agenda, which has a history

dating back to 1963 (Desta and Gérout, 2018, p. 113). A detailed overview historical

developments will not be repeated here. Suff‌ice it to say that the vision and goal of

integration seeded at the very foundations of the AU’s predecessor, the Organisation of

African Unity (OAU) is coming to fruition. Signif‌icant milestones include the Agreement

establishing the AfCFTA (AfCFTA Agreement)’s entry into force on 30 May 2019 [1] and

the start of trading under the agreement on 1 January 2021 (AU, 2020a). Article 7 of the

AfCFTA Agreement provides for the conclusionof Phase 2 negotiations on IP rights (IPRs)

and investment competition policy.Since the conclusion of the AfCFTA Agreement, the AU

resolved to add e-commerce to anotherround of negotiations, which together with the Phase

2 negotiations should be completed by 31 December 2021 (AU, 2020b). Indeed, because the

agreement is member-driven, one may envisage the conclusion of further instruments as

determined by AU member states in the future. There are already strong indicationsthat a

Protocol on Women, Youth and SMEs will be negotiated next (Erasmus, 2021). Article 8

states that the further negotiation legal texts, once concluded, will augment the Agreement

by “upon adoption, form[ing] an integral part”ofthe Agreement and becoming “part of the

single undertaking, subject to entry into force”.The formula for entry into force is set out in

Article 23 as follows:

“The Protocols on Investment, Intellectual Property Rights, Competition Policy and

any other Instrument within the scope of this Agreement deemed necessary, shall

enter into force thirty (30) days after the deposit of the twenty second (22nd)

instrument of ratif‌ication”(para 2).

“For Member States acceding to the Protocols on Investment, Intellectual Property

Rights, Competition Policy, and any other Instrument within the scope of this

Agreement deemed necessary, shall enter into force on the date of the deposit of its

instrument of accession”(para 4).

Beyond the above, the AfCFTA Agreement contains minimal provisions on IP. Article 4(c)

states that the state parties “shallcooperate”on IPRs. Clearly, the protocol on IPRs (hereafter

IP protocol) will provide the requisitedetails on the nature of that co-operation and will have

a signif‌icant impact on the regulationof IPRs on the African continent within the contextof

intra-Africa trade.Therefore, it is worthy of scholarly commentary.

This paper will proceed by discussing the form and general nature of AfCFTA Agreement

Protocols to give insight into what shape the IP protocol may take in Section 2. Section 3 will

focus on the possible provisions of the IP protocol. It will include subsections on the various

parts to be included in the protocol and such discussion will include some commentary on the

process to be followed in the negotiation. In this respect, it will refer to experiences gleaned

from the negotiation of other trade agreements to ascertain which lessons can be drawn for the

AfCFTA IP protocol. It is important to stress the importance of mainstreaming gender

considerations into the discussion of the AfCFTA Agreement and its protocols, which are an

integral part of it. The rationale for paying special attention to women, along with youth and

small and medium sized enterprises (SMEs) is that they form the core of the continent’s

economically active population and are the drivers of trade, both within national borders and

across borders. Oft-quoted statistics are that women account for “70% of informal cross border

traders”and SMEs constitute “80% of the region’s businesses”(Luke, 2019,p.9).Africaisa

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