AfCFTA:
Ethiopia, Nigeria and the New Multilateralism
The Africa
Continental Free Trade Area Agreement (AfCFTA) opens up multiplier fronts for
African economies. AfCFTA could amplify Ethiopian IP rights because of the unique and rich un-monetized
geographical indication resources within its boundaries, which could become an
international and regional identifier. AfCFTA could create opportunities to increase regional trade relationships
in intellectual property (IP) driven
products,
while diversifying its national economy.[i][ii]
It could foster national unity and douse cultural tensions.[iii] Therefore, Ethiopia should engage the rest
of the Treaty member-nations from the earliest stages in negotiating Phase II
of AfCFTA, which includes the leveraging of IP right of members for national economic
growth.
AfCFTA and TRIPS
AfCFTA and member nations
of the Treaty need to learn from the problems that the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), a similar trade and IP protection agreement created
and raised.[iv]
One of the concerns about TRIPS is the unequal playing field that developing
economies are subjected to by the technologically Western advanced member
nations of the treaty.[v]
Most legal commentators have claimed that developed economies deploy the
provisions of TRIPS to expand their dominant international trade objective.[vi] This occurs through ‘dumping’ and
importing their IP driven goods into Africa and other less developed and
developing economies. However, TRIPS from its neutral objectives developed into
a tool for demand by strong and developed economies to developing and less
developing economies to enhance their IP regimes as conditions to enter into
bilateral trade agreement with these developing economies. Several scholars have justified this
strategy as recognized by the TRIPS-Plus provisions in the Treaty.[vii] This
article regards the reverse-multilateralism
practices as a backdoor strategy by developed economies to maintain their
competitive and productive advantages over their less-developed partners.
AfCFTA and African Cultural Forces
In Africa, most countries
are at different stages of economy development. There are
fewer larger and
developed African economies comparatively within the continent. In negotiating
the Phase II and IP protocol of AfCFTA, the member nations and their non-African
partners should be conscious of the cultural, traditional and political stages
of development of the Treaty members. For instance how would AfCFTA recognize
the protection of folklore, genetic resources, traditional fashion, indigenous
food products, and plants and other traditional cultural goods/expressions? Against the background
that the global and some African IP communities have not fully agreed on the
scope of proprietary rights for communal ownership of most indigenous communities.[viii]
In negotiating AfCFTA
IP protocol, member nations should not allow AfCFTA to encourage the
undermining of its goals and objective of real Pan-African inter-nations trade
and economic relations
across the continent, which would impel and open centers of industrial
innovation in member-nation states.
Ethiopian Digitalized Cultural Proprietary Rights
For Ethiopia, this is a
great moment to engage the global IP community starting with the AfCFTA IP
negotiating to stimulate the innovative and creative resources that is deep in
this East African nation.[ix]
Ethiopia has not recognized nor signed major intellectual
property Treaties.[x] Apart from
human rights Treaties
like the African Human Right Treaty, Ethiopia remains non-receptacle to IP
rights multilateralism.[xi]
Ethiopian
coffee, honey, [xii]Teff-Injera,
Rose, and Cotton are few of the unique products peculiar to the region and
naturally in abundance.[xiii] Ethiopia should take advantage of these rich
natural food resources with an effective appellation and legal regime within
its negotiating objective under AfCFTA.[xiv]
Ethiopia and other African economies could scale up its productive capacity and
diversify its revenue intake, while protecting the rights of its people through
a combination of indigenous and contemporary laws under AfCFTA.[xv]
The Role of African Law Schools
& AfCFTA
African
law schools have an important role to play during the Phase II IP protocol
negotiating and implementation of the outcomes or final documents. The effectiveness
of the final documents would depend on African subject matter experts’ advisory
services, which the African Law Schools are better position to render to their
various nation-states.[xvi] The
African Union (AU) and other partners negotiating the IP protocol should engage
African subject matter experts in IP and international trade of various
University Law Schools. Apart from getting an African jurisprudential
perspective from these legal scholars and institutions, the African Law Schools
would be at the frontline of training, educating and creating specialized
curriculum for existing and upcoming legal professionals as efficient and
effective partners in African Trade development. For Nigeria
AfCFTA, Nigeria -Most Favored Nation, National Treatment,
In Africa, most countries are at different stages of economy
development. There are fewer larger and developed African economies
comparatively within the continent. In negotiating the Phase II and IP protocol
of AfCFTA, Nigeria should be conscious of the cultural, traditional and political
stages of development of the Treaty members. In Negotiating the Phase II the
objectives of encouraging inter-regional trade should encourage Nigeria to negotiate
a robust Most Favored Nation (MFN) and National Treatment (NT) clauses so that
Nigerians and Nigeria can trade in products protected by IP in territories of
other member states of AFCFTA without being unfairly and inequitably treated.[i]
The principle of National Treatment generally
means that Nigeria should treat intellectual property protected traded products
or creations of AfCFTA member states as it would treat that of its citizens or
nationals.[ii]
This NT obligation should be based on reciprocity. Nigerian should insist on
the inclusion of these clauses and a practical system to annually assess member
states’ implementation.[iii]
AfCFTA and Nigerian Cultural
Creative Forces
Nigeria should leverage this moment in history to engage AfCFTA
to recognize the protection of its film
(Nollywood), folklore, geographical indications, genetic resources, traditional
fashion, indigenous food products, and plants and other traditional cultural goods/expressions
as trade related intellectual property rights interest. With the background
that the global and some African IP communities have not fully agreed on the
scope of proprietary rights for communal ownership of most indigenous
communities.[viii] In
negotiating AfCFTA IP protocol, Nigeria should push for the attainment of the goals
and objective of real Pan-African inter-nations trade and economic relations
across the continent. The large continent market of Africa could set the pace
for proprietary protection of indigenous food, innovative products. However,
the NOTN should join other IP stakeholder to lobby or promote the total
overhaul and reform of Nigerian IP laws. For example, laws for Geographical indications,
Trade secret, and electronic contracts do not exist in Nigeria. The traditional
IP laws in the books: Trademark, Patent, Copyright and Industrial Designs
suffer legal lag and needs amendment urgently.[iv]
It is when Nigeria has good laws at home that she can stand a better chance of
protecting her trade interest within Africa and globally.[v]
The Digital International Trade and Intellectual Property Approach
Digital era economies are powered by innovative
technologies. In international trade, current legal regimes have adapted its
forms to suit the contemporary means of production. For effective international
and regional trade Nigerians would depend on the power of cyberspace and the
Internet. Imports and exports of food and products largely now depend on
digital means and its regulations. Therefore, Nigeria in negotiating the IP
Phase II protocol of AfCFTA should be conscious that its laws must comply with
the digital spaces. Nigeria should encourage other member states of AFCFTA to
recognize global trade and IP Treaties, which should be incorporated into
AFCFTA regulations and protocol as it suits the African interest and
objectives. This is a great moment to engage the global IP community starting
with the AfCFTA IP Phase II negotiations.
[i]†Samuel Samiai
Andrews, SJD is a Professor of Intellectual Property Law and USA Ambassador’s
Distinguished Scholar, Ethiopia (ADSP) at the University of Gondar, School of
Law, Ethiopia. © 2021, He has recently joined the Faculty of the College
of Law, Prince Mohammad Bin Fahd. Al Khobar-Dammam. Kingdom of Saudi Arabia.
Samuel Samiai Andrews. All Rights Reserved. This article is solely the
personal opinion of the author and does not represent that of any public or
private institutions associated with the author. It is an adaptation from an earlier
published paper with similar theme.
[ii] Brent Sadler,
Intellectual Property Protection through International Trade, 14 Houston
j. Int’l L. 393 (1992).
[iv] Thomas H. Koenig
& Michael L. Rustad, Global Information Technologies : Ethics And The Law
21-36 (St. Paul, Minnesota: West Publishing, 2018) (describing legal lag as
when legal institutions fail to keep up with the changing social and cultural
conditions of society and quoting Justice Benjamin Cardozo posit that law must
continually evolve to deal with the emergent social realities); See also, Benjamin
Cardozo, The Growth Of The Law 19-20 (New Haven, Connecticut: Yale University
Press, 1973) (emphasizing that “the inn that provides shelter for the night is
not the journey’s end. The law, like the traveler must be ready for the morrow.
It must have a principle of growth”).
[i]†Samuel Samiai
Andrews, SJD is a Professor of Intellectual Property Law and USA Ambassador’s
Distinguished Scholar, Ethiopia (ADSP) at the University of Gondar, School of
Law, Ethiopia. © 2020, Samuel Samiai
Andrews. All Rights Reserved. This article is solely the personal opinion
of the author and does not represent that of any public or private institutions
the author is affiliated to.
[iii] Ruth Okediji, Legal Innovation in International
Intellectual Property Relations: Revisiting Twenty-One Years of the TRIPS
Agreement, 36 U. Penn Int’l L. 101 (2014) (http://ssrn.com/abstract=2591531)
[iv] Ruth Okediji, The Limits of International Copyright
Exceptions for Developing Countries, 21 Vanderbilt J. Entertainment &
Technology L. (2019).
[vi] Okediji, supra note iii
[vii] Samuel Samiai
Andrews, Reconceptualizing International
Copyright Law to Protect African Creative Industries, 1OAU L.J. 217 (2018).
[ix] Justin Hughes,
The Limited Promise of Geographical Indications for Farmers in Developing
Countries in Geographical Indications At The Crossroads Of Trade, Development,
And Culture-Focus On Asia-Pacific 66-86 (Irene Calboli & Wee Loon Ng-Loy,
Eds., Cambridge University Press, 2017); see
Paul Schemm, How Ethiopia Got Its Grain
Back, The Washington Post (February 7, 2019), https://www.washingtonpost.com/world/2019/02/07/how-ethiopia-got-its-grain-back/;
Michael Blakeney & Getachew Mengistie, Geographical Indications in Africa:
Opportunities, Experiences and Challenges, The University of Western Australia
Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093
[x] Takele Soboka
Bulto, The Monist-Dualist Divide and the Supremacy Clause: Revisiting the
Status of Human Rights Treaties in Ethiopia, 23 J. Ethiopian L. 132 (2015),
https://ssrn.com/abstract=1408842
[xi] Antointee
Ladaroia, Ethiopia’s Admission into the League of Nations: An Assessment of
Motives, 8 Int’l J. Afr. Hist. Stud.
601-622 (1975).
[xii] Ethiopian has a
deep reserve honey especially White honey
[xiv] Irene Calboli, Time to Say Local Cheese and Smile at
Geographical Indications of Origin? International Trade and Local Development
in the United States, 53 Hous. L.
Rev. 373 (2015); see also Ruth L. Okediji, Back to Bilateralism? Pendulum Swings in International Intellectual
Property Protection, I. U. Ottawa L.
& Tech. J. 125 (2004); Keith F. Maskus, Intellectual Property Rights in the
Global Economy 239 (2016); see
also Dev Gangjee, Relocating the Law
of geographical Indications (2015); see
e.g., Research Handbook on
Intellectual Property and Geographical Indication (Dev S. Gangjee, ed., 2016); Teshager Dagne, The Identity of Geographical Indications and
their relations to Traditional Knowledge in Intellectual Property Law,54 Idea 255 (2014); Michael Blakeney
& Getachew Mengistie, Geographical
Indications in Africa: Opportunities, Experiences and Challenges, The
University of Western Australia Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093;
Michael Blakeney & Getachew Mengistie, Geographical
Indications in Africa: Opportunities, Experiences and Challenges, The
University of Western Australia Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093;
Kirti Singh, Geographical Indication as a
Tool for Protection of Traditional Knowledge with Special Reference to
Protection of ‘Cashmere’ in Kashmir, http://ssrn.com/abstract=2115257.
[xv]
See Tekeba
Nega & Yeshitela Eshete, Review of
Ethiopia’s Global Position in Honey and Other Bee Product Production and
Marketing: Analysis of Sectoral
Opportunities and Limitations, 10
Biomedical J. Scientific Tech. Rch. 1-5 (2018), https://www.researchgate.net/publication/331037935_Review_of_Ethiopia's_Global_Position_in_Honey_and_Other_Bee_Products_Production_and_Marketing_Analysisof_Sectoral_Opportunities_and_Limitations;
see also Lisbon Agreement for the Protection of
Appellations of Origin and Their International Registration, October 31,
1958, as revised, July 14, 1967,
923 U.N.T.S. 205 [hereinafter Lisbon Agreement], www.wipo.int/treaties/en/text.jsp?file_id=285856/; World Intellectual
Prop. Org. [WIPO], Geneva Act of the Lisbon Agreement on Appellations of Origin
and Geographical Indications and Regulations under the Geneva Act of the Lisbon
Agreement on Appellations of Origin and Geographical Indications, WIPO Document
LI/DC/19 (May 20, 2015), [hereinafter Geneva Act], www.wipo.int/meetings/en/details.jsp?meeting_id=35202. ; see also TRIPS Agreement, art. 22. 2
& art. 23.1; Lisbon Agreement, art. 5 (1), Oct. 31, 1958, 923 U.N.T.S. 205
as revised at Stockholm July 1, 1967 and as amended on Sept. 28, 1979; see further Daniel Gervais, A Look at the Geneva Act of Lisbon
Agreement: A Missed Opportunity? in geographical
indications at the crossroads of trade, development, and culture-focus on
Asia-pacific 122-144 (irene calboli & wee loon ng-loy, eds., Cambridge
university press, 2017).
[1] Samuel Samiai
Andrews, Reconceptualizing International Copyright Laws to Protect African
Creative Industries, Vol. 1 Obafemi Awolowo University Law Journal page 217-242
(2018); Samuel Samiai Andrews, Reforming Copyright Law for a Developing Africa,
Vol. 66 Page 1. Journal of the Copyright Society of the USA; Vera Songwe, A
Continental Strategy for Economic Diversification through the AfCFTA and
Intellectual Property Rights, Brookings (January 8, 2020), https://www.brookings.edu/research/a-continental-strategy-for-economic-diversification-through-the-afcfta-and-intellectual-property-rights/;
Brookings, Foresight Africa: Top Priority for the Continent 2020-2030,
Brookings Institute (January 8, 2020), https://www.brookings.edu/multi-chapter-report/foresight-africa-top-priorities-for-the-continent-in-2020/
[1] Jacques
Berthelof, Most favored nation (MFN) clause, the Africa’s continental
Free-Trade and the interim Economic Partnership Agreement of Ivory coast and
Ghana, https://www.bilaterals.org/?most-favoured-nation-mfn-clause.
Retrieved 30 April 2021
[1] Brent Sadler,
Intellectual Property Protection through International Trade, 14 Houston
j. Int’l L. 393 (1992).
[1] Zhen Kun and Wang
and L. Alan Winter, Africa’s Role in Multilateral Trade Negotiations, https://ssrn.com/abstact=620570,
Retrieved 30 April 2021
[1] Thomas H. Koenig
& Michael L. Rustad, Global Information Technologies : Ethics And The Law
21-36 (St. Paul, Minnesota: West Publishing, 2018) (describing legal lag as
when legal institutions fail to keep up with the changing social and cultural
conditions of society and quoting Justice Benjamin Cardozo posit that law must
continually evolve to deal with the emergent social realities); See also, Benjamin
Cardozo, The Growth Of The Law 19-20 (New Haven, Connecticut: Yale University
Press, 1973) (emphasizing that “the inn that provides shelter for the night is
not the journey’s end. The law, like the traveler must be ready for the morrow.
It must have a principle of growth”).
[1] Samuel Samiai Andrews, Why it pays to link
products to places - and how African countries can do It, https://theconversation.com/why-it-pays-to-link-products-to-places-and-how-african-countries-can-do-it-151511
Retrieved 30 April 2021
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