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LegalDecember 04, 2019

Spurring Much-Needed Innovation: A Look At IP in Africa

Africa’s intellectual property (IP) regimes are as varied and haphazard as the continent is vast. For the most part, Africa’s IP lags behind the world in both legislation and enforcement thereof, not to mention the sheer bureaucracy thereof. In this article, Lisbon-based IP lawyer Vitor Palmela Fidalgo provides fascinating insight into the challenges he and his firm, Inventa International, face doing IP work in many African countries. But changes are afoot and IP is improving across many countries. This can only foster greater investment and innovation in the continent. The African people deserve no less.
In most of Africa, IP is undermined by a lack of resources, both financial and logistical, as well as a lack of political will.
Vitor Palmela Fidalgo, IP lawyer
Business-wise, Africa is on the move. Today, Africa is economically the fastest-growing continent of all. The World Economic Forum (WEF) pointed out in August 2019 that six of the ten fastest-growing economies in the world are all in Africa. The continent’s average annual GDP growth is projected to remain at a robust average of 6% until 2023. The world’s youngest region should continue to fuel impressive consumer growth and confidence.

Unfortunately, the intellectual property (IP) regimes of most African countries continue to lag behind the rest of the world – and badly so. Some improvements are occurring and there is hope looking forward, but a lack of comprehensive IP protections in African countries will remain a stumbling block to further investment and innovation in them.

To discuss these issues regarding IP in Africa, we interviewed Vítor Palmela Fidalgo, the affable and highly knowledgeable Legal Director at Inventa International, a law firm based in Lisbon, Portugal, that primarily specializes in IP in Africa. The firm’s commitment to IP is enshrined in its slogan: “Protecting Intelligence”. Vítor provided fascinating insight into the current state of IP in Africa.

Vítor Fidalgo – A Man Made For IP

Vítor certainly has an impressive CV, which includes a Master’s Degree in Law, part of which was done in Bonn, Germany, as well as a Post-Graduate Degree in Copyright and Information Society and Arbitration Law. He is currently taking a PhD in Intellectual Property Law at Lisbon’s University Law School.

In 2015, Vítor was the winner of the Professor Doutor José de Oliveira Ascensão Prize awarded by the Portuguese Association Intellectual Property Law (APDI) for his Master’s thesis on compulsory licenses. He is also Assistant Professor at the University of Lisbon’s Faculty of Law, as well as an Arbitrator at the Portuguese Center for Arbitration of Industrial Property, Domain Names, Firms and Denominations, called Arbitrare.

Vítor commenced with Inventa in 2013. Currently, he coordinates the firm’s Trademark and Patent Attorney team and works on matters such as contracts regarding the transfer and licensing of IP rights, and also specializes in internationalization strategies of these rights. He also writes articles based on African IP for Wolters Kluwer.

When asked why he ventured into IP law, Vítor puts it down to his three biggest passions in life, namely “law, movies and travelling”. He points out that IP is a nifty combination of the first two of those passions (i.e. law and movies) that has also allowed him some of the third (i.e. more opportunity to travel)!

A Firm Made For Africa

Inventa was founded in 1971 and by 1972 had opened its first office in Africa, namely in Luanda, Angola. Today, Inventa has three main offices in Africa, being those in Angola, Mozambique and Nigeria, as well as representation in Cape Verde, São Tomé and Principe and local representatives for other African jurisdictions. Besides the former Portuguese colonies, Nigeria was chosen given the sheer size of its economy and its prime location at the heart of West Africa. Inventa also has a presence in Asia, with representation in Macau and Timor-Leste.

Not only does it make sense for a Portuguese IP firm to have a strong presence in Lusophone countries in Africa, but Vítor also believes that Portugal is an exciting place for the IP profession. He actually credits the country’s 2008 financial crisis as having paradoxically fermented IP in Portugal. He believes the country’s crise forced people to become more inventive so as to have an edge in a tough market and generate income.

As such, IP has changed quite dramatically and matured immensely in Portugal, to the extent that the country has hosted the international Web Summit for three years now. He sees the country’s IP field as exciting and competitive and it’s on that basis that Inventa imparts its expertise in Africa.

Inventa does much to foster African IP at the local level. One way they do this is to award talented students from selected African countries with internships at Inventa’s head office in Lisbon. Each intern gets hands-on learning on IP issues and laws, with their length of stay dependent on their ability and level of legal acumen, and which can range up to four or even six months. Vítor believes these internships are invaluable for the firm in that they are, “A good way to have competent and trusted people”.

IP Challenges in Africa

Vítor explained how Inventa makes every effort to maintain European / Portuguese IP standards in Africa, which can only be done with a physical presence in each country. This is mostly because all African countries do not have online IP filings and records. IP offices in most African countries need to be visited almost daily, with paperwork delivered by hand, all filing and searching done manually, and so forth. A notable exception to this rule is South Africa, which has by far the most sophisticated IP regime in Africa.

In most of Africa, IP is undermined by a lack of resources, both financial and logistical, as well as a lack of political will. It’s what Vítor refers to as “a systemic backlog”. Lack of enforceability is clearly also another aspect of Africa’s IP malaise.

It also takes so long for an IP right to be registered in Africa. Vítor discussed how a trademark could be registered in Portugal within 6 months, whereas in some African countries the same application could take anywhere from 2 to 3 years.

Outdated legislation is also a significant factor. Some African countries still practice outdated laws, for example, countries like Angola and Ethiopia only recognize patents for 15 years, whereas the post-TRIPS norm internationally is 20 years. And Tanzania only recognizes patents for 10 years, although not including Zanzibar which has its own patent regime!

This immature IP legal culture is reflected by a lack of expertise on IP in the courts, which contributes to the ongoing lack of case law and precedent. This is further compounded by other factors, such as the fact that there are currently no specialized IP courts in the majority countries in Africa.

What all of this means is less innovation at the local level in most African countries – at least of the type that gets filed and protected. Vítor spoke of an IP conference that he attended in Angola in 2018, at which the local IP office stated that between 1992, which was when the country’s bloody civil war ended, and 2018 there had been only 5 patent applications made by locals! This is replicated all over the continent.

Counterfeiting – Africa’s IP Bogeyman

Counterfeiting is undoubtedly an enormous issue, with Lagos, Nigeria, Nairobi, Kenya, and Porto Novo, Benin, being the three main ports of entry for counterfeit goods into Africa. But it’s not all just about fake designer handbags and brand-name sneakers. Particularly worrying is the issue of fake pharmaceuticals being passed off as ‘safe generics’ or even the actual pharmaceutical products. Vítor mentioned that the WHO estimated that 70% of drugs in Nigeria are so-called “second-generation goods”.

Compulsory licensing, by which countries license selected generic products even if the patent holder does not agree to it, should have its place in poor African countries. Some much-needed drugs are simply far too expensive for many Africans and their governments to afford. However, fake drugs don’t bear thinking in terms of the serious health implications thereof.

There is also a lack of political will to ‘rock the boat’ with large foreign companies, usually from China, India or Pakistan, offering so-called ‘generics’. In turn, big brands, including pharmaceuticals, often simply give up trying to assert their IP rights due to the crushing bureaucracy and lack of proper, timely IP enforcement in most African countries.

Efforts are being made by certain African countries to address the scourge of counterfeiting and there have been some successes in combating counterfeiting crime. However, corruption continues to be a huge issue on the continent which only exacerbates the problem of counterfeiting.

Glimmers of Hope

Fortunately, there are improvements in some countries regarding IP, even if there continues to be a backlog. New businesses proliferate everywhere at an exciting rate, and so IP is being taken more seriously. There are laws being updated across Africa, an example of which is a bill in the Angolan parliament that will thoroughly update and transform IP legislation in that country.

Vítor also cited the Mozambique IP office, which in his experience works well and is more efficient than other African countries, including being quite responsive to IP queries and requests.

There are also two new IP-related entities which encompass 35 countries on the continent. ARIPO covers mostly English-speaking African countries whereby trademarks can be registered at either a national level or concurrently across all ARIPO members, a regime in a way similar to that in the EU.

On the other hand, OAPI, which covers mostly Africa’s Francophone countries, does not allow for single-country applications. One applies directly to the organization after which the IP right might be granted automatically across all OAPI member states. Both entities are doing much to improve the visibility and harmonization of IP law in Africa.

The ‘Big A’ Needs Proper IP

In economic terms, Africa is finally emerging as the potential powerhouse its population and size warrant. However, the continent desperately needs a more mature and enforced IP regime that can match – and help build – its dynamic growth. Improved IP will help it to innovate from within. Africa and its people deserve no less. Vítor Fidalgo would no doubt agree with that.
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