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Journal of African Business Issue 5

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Welcome to The Journal of African Business - a unique guide to business and investment in Africa. Every edition carries editorial copy covering the following general topics, with a wide range of subjects within each broader economic sector: energy; mining and exploration; trade; finance; technology and tourism. In addition to this, special features on topical matters will be published periodically, along with country profiles. In this edition, the in-depth interview with Aggreko Head of Sales, Southern East Africa, Max Schiff, makes clear how important captive power is for the future viability of a wide variety of projects in Africa. As Schiff points out, the extractives industry has long been a leader in the application of captive power, given the remote location of many mining operations, but the flexibility and ESG advantages that captive power using renewables offers is making it an ever-more attractive option for many different sectors.

WHAT ARE THE

WHAT ARE THE INTELLECTUAL PROPERTY CONSIDERATIONS OF THE AFRICAN CONTINENTAL FREE TRADE AREA? The African Continental Free Trade Area (AfCFTA), which forms part of Agenda 2063, has the potential to integrate African countries, boost intra-African trade by eliminating tariffs and non-tariff barriers and reduce poverty in Africa. The agreement covers trade in goods and services, investment, intellectual property (IP) rights, competition policy and ecommerce. Chris Mhangwane, associate, and David Cochrane, partner, at law firm Spoor & Fisher, look at the intellectual property implications of the agreement. Credit: Romain Dancre on Unsplash It was decided at the Assembly of Heads of State and Government in Addis Ababa in January 2012 to fast-track the establishment of an African Continental Free Trade Area (AfCFTA) to boost intra- African Trade. As of May 2022, 43 countries within the African Union have ratified the agreement establishing AfCFTA and are now State Parties of AfCFTA. Only State Parties have rights and obligations under the AfCFTA agreement. The success of AfCFTA is largely dependent on negotiations and the cooperation of member states of the African Union and subsequently State Parties of AfCFTA. The AfCFTA negotiations take place in three phases. Phase I covers protocols on trade in goods and services, and rules and procedures on settlement of disputes. Regarding PhaseI, AfCFTA has reached about 87.7% agreement on the rules 22

COPYRIGHT The aim behind AfCFTA Phase II Protocols appears to be limited to cooperation, rather than the replacement of, for example, intellectual property laws in the different African countries. of origin (RoO) on the protocol on goods. The outstanding RoO include some clothing and textile products, sugar and automotive products. This means that tariffs may be eliminated on 87.7% of goods so far. Phase II covers protocol on intellectual property rights, investment and competition policy. Phase III covers ecommerce. According to Wamkele Mene, Secretary-General of AfCFTA, the preliminary process has started for Phase II negotiations on competition policy, investment protection and intellectual property rights. The negotiations are ongoing and there is a directive to conclude the negotiations on Phase II, including the rules that are required for intellectual property rights, by the end of 2022. Article 4(c) of the Agreement provides that “State Parties shall cooperate on investment, intellectual property rights and competition policy.” The aim behind AfCFTA Phase II Protocols appears to be limited to cooperation, rather than the replacement of, for example, intellectual property laws in the different African countries. This is not surprising given that Intellectual Property (IP) rights are generally territorial in nature.. WILL PRECEDENT BE FOLLOWED? It will be interesting to see how AfCFTA will deal with IP rights in this regard and whether they will follow the African Regional Intellectual Property Organization (ARIPO), Organisation Africaine de la Propriété Intellectuelle (OAPI) regional model, or a hybrid-IP model that would be flexible enough to allow the different African countries to manage their IP legislation and cooperate with other African countries in terms of non-binding IP recommendations.. ARIPO provides for regional registration and administration of IP rights through a central office while permitting member states to guard their national IP law and IP offices, which simplifies IP rights protection for applicants who wish to invest in the region. Unlike in ARIPO, IP registration in OAPI automatically extends to all member states of OAPI and there is a single law covering all members states. It is not possible to have IP protection in only some of the member states but not others in OAPI. It is suggested that AfCFTA’s IP Protocol should include the following:. • create a common coordination and an operational cooperation mechanism that would enable the countries to share experience, stimulate linkage, diffuse knowledge, and collaborate in various matters such as the examination of patents and the enforcement of IP rights • provide for regional exhaustion of IP rights • oblige members to ensure the protection of geographical indications (GIs), either through a sui generis system or by certification and collective marks • draw up a position on plant-variety protection (PVP) by determining the minimum standards on plant-variety protection or implementing a substantive law • develop and implement regulations to enhance protection of traditional knowledge, cultural expressions and genetic resources. Ideally, the chosen IP model should meet the objectives of AfCFTA and the specific needs of each country. The creation of AfCFTA provides a unique opportunity to integrate African countries, boost intra-African trade by eliminating tariffs and non-tariff barriers and to reduce poverty in Africa. If the agreement is fully implemented by 2035, it is estimated that over 30-million Africans would be lifted from extreme poverty. 43 countries within the African Union have ratified the Agreement establishing AfCFTA and are now State Parties of AfCFTA. It is not possible to have IP protection in only some of the member states but not others in OAPI 23 Credit: Dominika Roseclay/Pexels About Spoor & Fisher Spoor & Fisher is Africa’s largest specialised intellectual property law firm, with African roots and global reach. The firm specialises in all aspects of IP law, including trademarks, copyright, patents, registered designs, anti-counterfeiting, commercial/ transactional work involving IP, and litigation in these fields. Spoor & Fisher is ranked in the top band in the latest editions of leading legal directories, both local and international, and has a reputation for pioneering thought leadership and contributions to IP law and academia. Clients have trusted the firm to protect, manage and enforce their IP across Africa and the Caribbean for over 100 years. For more information: www.spoor.com

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