Nigeria’s Lag in Treaty Implementation

 https://www.thecable.ng/nigeria-and-its-lag-in-international-trade-development-and-treaty-polices

March 20, 2019

TheCable Nigeria 

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

-Samuel Samiai Andrews

Around the world, people commonly associate certain foods and products with particular geographical areas. These products are known for characteristics like aroma, flavour, and the traditional knowledge systems used to make them. Legal and agricultural scholars speak of these characteristics as terroir.

For example, coffee from Ethiopia’s Yirgacheffe, Sidamo and Harrar regions is famous for its quality. The Ijebu people of western Nigeria call their processed cassava Ijebu garri. Roquefort cheese and Darjeeling tea are also products associated with certain places.

These kinds of products, which have characteristics unique to their source, can be identified and protected by a type of intellectual property right called Geographical Indications (GI). This right gives economic and financial advantages to the place of origin. The products can be registered with a global treaty registry like the World Intellectual Property Organization. This helps to counter fake products in the international market.

Developed economies, especially in Europe, have benefited from GI protection and promotion since 1994, when they adopted the Agreement on Trade-Related Aspects of Intellectual Property Rights. And as early as 1883, the geographical origin of products was recognised as as aspect of industrial property in the Paris Convention for the Protection of Industrial Property. It accords them protection due to their value in national economic growth.

Ethiopian women drying coffee beans at a farm in Oromia, Shishinda. Eric Lafforgue/Art in All of Us/Corbis/Getty Images

According to a 2020 European Commission study, Europe’s economy gained about 75 billion euros in the 2017 sales value of GI products. This means GI products accounted for 7% of the total sales value of Europe’s food and drink sector. The study also shows that the sales value of GI products doubled on average, when compared with similar products without GI certification. People attach value to buying authentic products from their sources.

As a predominantly agrarian region, Africa could adopt this strategy to boost the economies of rural communities. The second phase of the African Continental Free Trade Agreement (AfCFTA) focuses on intellectual property rights and trade. It’s an opportunity to take steps towards recognizing the economic value of GI.

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Treaties

There are two main treaties currently regulating Geographical Indications. They include the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration (Lisbon Agreement), and the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (the Geneva Act). Together, they are called The Lisbon System.

Most African countries have not signed these GI treaties. Accession to these treaties carries political and economic benefits. Not even Ethiopia and Nigeria – countries with great agricultural potential – have done so. GI status attracts higher revenue streams because of the customary assumption of quality that accrues to these products.

Joining the Lisbon Agreement and the Geneva Act would aid African countries in extending their products beyond their shores. Member countries have treaty obligations to protect GI products from misappropriation and abuse.

For example, Oku white honey from Cameroon, South African Rooibos tea and South African lamb are certified GI products. They enjoy protection outside the continent, leading to enormous financial benefits to their places of origin.

The local producers of GI products and services have inadequate knowledge of intellectual property and economics. Identifying GI products and including them in a formal database requires learning and experience. Therefore, private and public institutions should intervene in guiding producers and farmers. They can do this through the formation of cooperatives and educating members about GI. Producers and farmers should form GI management organisations to help members manoeuvre through the legal landscape. These include registration of products and collection of royalties and licensing revenues.

Farmworkers in the Rooibos tea Skimmelberg farm grade and treat Rooibos tea leaves in South Africa. Mujahid Safodien/AFP/Getty Images

African nations should also streamline their regional intellectual property bodies. Two major African IP regional bodies – the African Intellectual Property Organisation and the African Regional Intellectual Property Organisation – could be merged into a single organisation for efficiency. The Anglophone and Francophone dichotomy in African intellectual property rights management shouldn’t exist. With the AfCTA encouraging a single trade market, a divided IP regional management structure may not be effective.

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Nigeria and Ethiopia, like most African countries, do not have a single governmental institution that deals with GI. Although Nigeria’s trademark laws regulate registration, they do not cover GI registry. Ethiopia does not have any law for geographical indications nor a registry.

A specialised governmental office should regulate GI in each African country. For example, Zimbabwe has its Geographical Indication Act. South Africa has its Geographical Indications Regulation of 2019. It sets up its GI registry and guidelines to protect GI agricultural products.

African countries could position GI to help global IP rights enforcement for developing economies. Registration and export of GI products will improve the economy of rural African communities.

#NIGERIA : Aghanistanized Nigeria... The unraveling road to Golgotha

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Nollywood: Locating A Cultural Creative Industry in Cyberspace

Netflix Naija-Creative freedom In Nigeria's Emerging Digital Space

 

https://theconversation.com/netflix-naija-creative-freedom-in-nigerias-emerging-digital-space-133252 

AfCFTA : Ethiopia, Africa & the New Multilateralism

AfCFTA: Ethiopia, Nigeria and the New Multilateralism

by Samuel Samiai Andrews†1

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.

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[i] 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

[ii] Brent Sadler, Intellectual Property Protection through International Trade, 14   Houston j. Int’l  L. 393 (1992).

 

[iii] Zhen Kun and Wang and L. Alan Winter, Africa’s Role in Multilateral Trade Negotiations, https://ssrn.com/abstact=620570, Retrieved 30 April 2021

 

[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”).

 

[v]  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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^[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.

 See 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/

^[ii] World Intellectual Property Organization, Indigenous Community Goes Digital with High Tech Support From WIPO, (August 5, 2009), http://www.wipo.int/pressroom/en/articles/2009/article_0030.html

[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).

[v] Id.

[vi] Okediji, supra note iii

[vii] Samuel Samiai Andrews, Reconceptualizing International Copyright Law to Protect African Creative Industries, 1OAU L.J. 217 (2018).

^[viii] World Intellectual Property Organization, The Coffee War: Ethiopia and the Starbucks Story,    https://www.wipo.int/ipadvantage/en/articles/article_0082.html; see Wendy Wendland & Jessyca V. Weelde, Digitizing Traditional Culture, WIPO Magazine (June 3, 2008); http://www.wipo.int/wipo_magazine/en/2008/03/article_0009.html

^[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

^[xiii] 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/

^[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).

^[xvi] Id.

[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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