Posted on Friday, 17 July 2015 13:36

African brands: Fight for your copyright

By Petina Gappah in Geneva

Illustration by Alex Green for The Africa ReportBootleg handbags and pirated films keep informal economies going so African governments turn a blind eye to counterfeiting. Could they do more though to protect the continent's traditional knowledge? Zimbabwean IP lawyer and novelist Petina Gappah looks beyond the labels.

On the picturesque bridges spanning the narrow waterways that spill into Venice's Grand Canal, young African men stand like sentinels. Before them, laid out on the steps of each bridge, are the wares that they cajole passers-by into buying.

Don't worry sister, we do not pirate our own. We only sell foreigners here

"This does not look real," I say to one in mock surprise that he is selling a Chanel handbag on the street. "This is a fake, right?"

"It is a real fake, my sister," the young man smiles. "A real fake, just give me €50 ($57) and it is yours."

In addition to the real fake Chanel bags thrust before me are fake Fendis, fake Guccis, fake Pradas and fake Louis Vuittons.

The counterfeit trade is well organised. The producers of real fakes manage to copy the latest collections within days of their launching.

The new African merchants of Venice are equally well prepared. They have just enough of the wares to show a representative sample, enough to make a good day's profit but not so many that they are unable to scoop them up when they spy the police.

Whenever they spot the sellers of fakes, the police half-heartedly give chase. Italian police uniforms favour elegance over utility; the officers are no match for their African quarries.

The youths disappear into the back alleys behind St Mark's Square, then someone gives the all clear and back they are again.

Like those traders in Venice, youths in almost every African capital are dabbling in the pirated goods business.

10 trademarked African brands

•AngloAmerican - Mining company (South Africa)

•Dangote Cement - Foundation of Aliko Dangote's corporate empire (Nigeria)

•Safaricom - Mobile telecoms and information technology (Kenya)

•Glo - Mobile telecoms and information technology (Nigeria)

•DSTV - Africa-wide entertainment provider (South Africa)

•Mo Ibrahim Foundation - Civic society group founded (Sudan)

•MTN - Telecoms company (South Africa)

•Econet - Mobile telecoms and information technology (Zimbabwe)

•Tusker Lager - Lager beer (Kenya)

•Star - Lager beer (Nigeria) 

In Europe, it's fake handbags. In Africa, it's counterfeit everything: electronics and software; shoes and perfumes; films and music; books, phones and watches. Only the Bible and the Koran are immune to piracy.

In Harare last year I chatted with a man cheerfully hawking pirated music.

"That's quite the business model you have," I teased him. "No rent, no electricity, no overheads of any kind. You don't even have to pay the artists who worked hard to make what you are selling."

He said: "Don't worry sister, we do not pirate our own. We only sell foreigners here." I am not sure that local musicians would agree.

Every year I teach international trade law students in Arusha, and I am amused to see them sport an array of fake products.

My explanations of the rules of the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) and the laws of their own countries on trademarks, patents and copyright have little practical effect.

The International Anti Counterfeiting Coalition estimates that the cross-border trade in counterfeit products will have a value of $1.8trn in 2015.

Africans are the end users and the middlemen in the trade. They are not – local music and DVDs aside – usually the creators.

African governments lack the political will to enforce intellectual property (IP) rights. Under WTO rules, member governments are obliged to prosecute counterfeiters and pirates.

But many African governments see street trading, despite periodic police crackdowns, as a way to absorb the rising numbers of unemployed youths in the continent's fast-growing cities.

Box-office blues

It also comes down to consumer power and the economics of supply and demand: IP rights are generally enforced only where there is an economic benefit from their enforcement.

In 2012, the Hollywood film The Avengers grossed more than $1bn worldwide. It made $6m on its first day in cinemas in Australia, which has a population of just more than 23 million.

In the cinemas of Nigeria, with more than 170 million people, the same film set a box office record of N100m ($500,000) for its entire run.

Many Africans watch pirated films in local bars and their homes. Relatively few of them go to cinemas.

Companies such as South Africa's Castle Brewery and Kenya's Safaricom mobile phone network defend their trademarks vigorously in African markets, but traders freely sell expensive-looking counterfeit Apple or Samsung phones.

Local trademarks enjoy protection because local companies use them to advance their market shares. Where that market advantage is eroded or threatened by copycats, companies can to take legal action to protect their IP rights.

European luxury brands such as Louis Vuitton have only a tiny market in Africa, so they leave the enforcement of copyright to African governments. And the latter are rarely challenged in the WTO on their failure to enforce the rules.

In 2011, the United States and the European Union challenged what they considered to be China's lax enforcement of IP rights. With a billion people and a burgeoning middle class, China's market is a critical target for Western manufacturers.

And China's failure to enforce IP rights stringently meant that lucrative corporate profits were being drained away. China lost the case and has had to implement a systematic overhaul of its enforcement.

To allow African economies to benefit from the current IP regime, governments have to work out how to make the best use of hard-won flexibilities to produce and sell cheaper versions of vital pharmaceuticals.

In 2001 at the Doha ministerial conference that launched the latest round of multi-lateral negotiations, WTO members agreed to review the enforcement of patent rights on medicines and other public goods in poor countries. They changed the rules to simplify the licensing of generic drugs for public health purposes.

They approved a special "parallel import licensing" scheme under which a country with little or no manufacturing capacity could import generics manufactured under a compulsory licence.

In 2007, Rwanda imported generic drugs from Canada under the scheme and it is now manufacturing its own. This system has not been used as frequently as its advocates had hoped.

Determined lobbying by pharmaceutical companies has combined with bureaucratic inertia in Africa to thwart progress on the wider distribution of generic drugs.

Emmanuel Katongole, the chief executive of Uganda's Cipla Quality Chemical Industries, says his company is seeking to develop medicines from traditional African plants.

Katongole tells The Africa Report that more must be done: "It's high time Africa woke up. It's high time we realised that every country has its own priorities. It's up to us Africans to build up that industrial capacity, and the public sector has a very big role to play.

"Of course, there is that big issue, saying 'Oh, protectionism should be fought', but every country protects its indigenous facilities. Africa should give preferential treatment to its industries."

The protection conundrum

There are big questions about how Africa protects its own IP. At the top of the negotiating agenda at both WIPO and the WTO are demands for the protection of Africa's traditional knowledge. This question carries with it a history of exploitation and injustice.

In the general sense, explain WIPO officials, traditional knowledge embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with traditional knowledge.

In the narrow sense, traditional knowledge refers to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context and includes know-how, practices, skills and innovations in agricultural, scientific, technical, ecological and medicinal knowledge as well as biodiversity-related knowledge.

So traditional knowledge covers areas as diverse as traditional songs and legends, the patterns on the kente cloth of the Akans in Ghana and Ivory Coast as well as the means of producing kente, the use of local medicines in China, Inuit ways of harvesting fish from under the ice in Greenland and the use of neem and turmeric in India.

Of perhaps massive commercial potential, given the global sales of Viagra, is the use of the vhuka vhuka root to treat male impotence in Zimbabwe. Vhuka vhuka is an exhortation to 'wake up, wake up'.

It is hard to protect traditional knowledge through the usual IP systems. Traditional knowledge, a community public good, is inherently different from the kind of individualist scientific and artistic work that is the conventional subject of IP protection.

Nigerian author Chinua Achebe and Malian singer Salif Keita enjoy copyright protection for their original works, but such a system of copyright protection would be difficult to apply to the creation myths that are part of the Yoruba cultural heritage or the traditional songs of the Zulu.

Shared knowledge

Similarly, a patent system that requires novelty, inventiveness and industrial application may not be the best means of protecting traditional knowledge that, by definition, can be called neither new nor inventive.

And, crucially, traditional knowledge – the kente cloth patterns of the Ashanti and the hunting and tracking methods of the San of Botswana – belongs to no single individual. That means that traditional knowledge in itself is not IP in the classic sense.

It can, however be protected as IP. How best to do this is the subject of debate and negotiations at the Geneva-based WTO and WIPO. Innovations based on traditional knowledge may benefit from patent protection.

So medicines like vhuka vhuka could be patented by a Swiss company, while some practices could be protected as trade secrets or confidential information.

WIPO officials talk about the defensive and positive protection approaches: defensive protection means that third parties cannot gain illegitimate or unfounded rights over traditional knowledge. It includes reforms to simplify the patent system for the benefit of communities wanting to protect the value of their traditional knowledge.

Positive protection means preventing the unauthorised use of traditional knowledge. But the most far-reaching proposals would be to incorporate traditional knowledge into some form of community protection.

It is possible to develop a communal idea of ownership that enjoys IP protection. For example, European producers have introduced geographical indications (GIs) into the WTO rules: this means protecting products produced in a specific geographical area. It started off with the lucrative wine and spirits industry.

Like appellations of source or origin, geographical indications are a new category of IP that the WTO recognises as signifying a product's quality.

Swiss watches, Manchego cheese and, most famously, Champagne are protected as geographical indications. Thus, the wine makers of the Champagne region can all use the protected geographical indication Champagne as part of their trademarks.

Indeed, the European Union's (EU) highly successful negotiation strategy means that there are two tiers of protection: GIs for wine and spirits enjoy what is called a "higher level of protection". This means a producer from elsewhere cannot even use the term 'champagne-style sparkling wine' or 'imitation champagne' or 'champagne-like'.

The most famous African product to enjoy the protection of GIs is Ethiopian coffee. The Ethiopian Intellectual Property Office has registered the Sidamo, Harar and Yirgacheffe varieties as GIs in Ethiopia and in other territories.

The Addis government had the help of US- based non-governmental organisation Light Years IP, which is working with representatives of the Maasai people in East Africa to develop trademarking and certification opportunities.

Rooibos robbery

Ultimately, these kinds of measures bring the debate back to where it started, with the question of enforcement. For a GI to be defended outside its country of origin, it must be protected first at home.

An ultimately unsuccessful 2013 French attempt to trademark rooibos, a plant traditionally grown and used for tea in South Africa, could have succeeded because rooibos does not enjoy a patent, trademark or GI in South Africa.

The conflict was resolved in 2014 when South Africa won recognition for the rooibos trademark through a deal with the EU.

The GI approach is one from which African countries can learn. It shows that the system of IP rights protection can adapt to the demands of its member governments.

But to make this work, African governments must vigorously enforce agreed IP rights and take full advantage of negotiated flexibilities in the emerging global rules on IP.

As African economies grow, failure to take reform and enforcement of IP rules seriously could cost the continent tens of billions of dollars. ●

Ten African products needing protection

•Maasai Cloth and jewellery (Kenya)
•Bati, Cabretta and Selallie leather (Ethiopia)
•Korhogo Cloth (Côte d'Ivoire)
•Kente Cloth from Bonwire and Ntonso (Ghana)
•Marula Oil (Namibia)
•Barakat Cotton (Sudan)
•Bogolan Mudcloth (Mali)
•Mpingo and Grenadilla Blackwood (Tanzania)
•Shea Butter (Burkina Faso)
•Zambique Cashew Nuts (Mozambique) 

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