An overview of the differences between the ARIPO and the OAPI

Both the ARIPO and OAPI systems are aimed at providing cost-effective trade mark protection by making it possible for people to obtain protection in a number of countries by means of one application.²⁹² There are, however, differences between ARIPO and OAPI which are a legacy of colonial histories and are reflected in the legal systems of their Member States.²⁹³ Whilst ARIPO aims at creating similar IP laws for its members,²⁹⁴ OAPI on the other hand, has created a uniform system that Member States should comply with.²⁹⁵ ARIPO allows for the co-existence of national and ARIPO laws, whilst OAPI norms constitute the national laws of its Members.²⁹⁶ OAPI is, therefore, unique in that its Member States have revoked their own national IP laws in favour of adopting the OAPI Agreement (the ‘Bangui Agreement’) as their national IP law. ²⁹⁷

African leaders will have to decide which of the two systems is preferred, the OAPI or ARIPO, before establishing the proposed PAIPO. African leaders need to take into consideration various factors such as effectiveness of each system as well as the drawbacks.²⁹⁸ Issues of sovereignty, independence and territorial integrity which are the stated objectives of the AU ²⁹⁹ vis-a-vis an effective regional system, require due

292 Dean ‘A unified intellectual property law system for Southern Africa’ (1994) 2 Juta's Bus. L. 165, hereafter Dean (1994) 2 Juta's Bus. L.

293 Most of these laws are ‘remnants’ from the colonial past and are outdated in the sense that the laws have not been updated to reflect the new developments in the field of IP. There is therefore a need to enact

appropriate legislation that takes into account recent developments. See ARIPO ‘Recent intellectual property development in the African region and proposals for the harmonisation of ARIPO and OAPI systems’ from the Council of Ministers Thirteenth Session held in Accra, Republic of Ghana on 1 and 2 December 2011 (page 5). See also Phaswana and Tanziani ‘African intellectual property law and newly emerging African economies, with an emphasis on South Africa’ in Taplin & Nowak (eds) Intellectual property, innovation and management in emerging economies (2010) 42 and Kongolo African contributions 1.

294 Kongolo (2003) 3 Journal of World Intellectual Property 273.

295 The European Union’s Community Trade Mark (CTM) system allows for the co-existence of national law and the CTM.

296 Dean (1994) 2 Juta's Bus. L. 165.

297 See chapter 3 part 3.5.2.

298 See a detailed discussion on PAIPO chapter 3 part 3.7.

299 AU ‘African Union in a nutshell’ available at

http://www.africa-union.org/root/au/aboutau/au_in_a_nutshell_en.htm#birth (accessed 25 July 2011).

consideration and balancing. It is submitted that for regional integration to progress in Africa, the leaders must be willing to cede part of their sovereignty since sovereignty and territorial integrity are generally opposed to regional integration.³⁰⁰ It is only when African leaders can relinquish their power that they will be able to submit to a regional organisation.

The second difference lies in the official language of these organisations. Although ARIPO membership is open to all AU members, the use of English becomes a barrier to many non-Anglophone countries.³⁰¹ ARIPO has, nevertheless, one Portuguese-speaking member;

Mozambique. The Francophone OAPI has Equatorial Guinea and Guinea-Bissau, which are also Portuguese-speaking countries. The membership of countries that do not speak the main language of ARIPO and OAPI signify that in today’s world, countries are not necessarily restricted by the language barrier. Technological developments have resulted in most regional offices having translation devices that make it easier to communicate despite different languages.³⁰²

The third difference is that the OAPI legislative provisions cover both the substantive and procedural aspects of the law, while ARIPO provides only for the procedural aspect, leaving the substantive content of the rights largely to the laws of its Member States.³⁰³ These differences may be overcome by a new IP Organisation adopting either the ARIPO system or OAPI System as it is difficult to reconcile both systems.³⁰⁴

Over and above the difference noted above, both OAPI and ARIPO did not necessarily advance uniquely/specifically African values.³⁰⁵ This could explain why traditional knowledge could not find recognition and protection within the ARIPO framework for a very

300 See chapter 2 part 2.5.6.1.

301 See chapter 3 part 3.4.2.

302 ARIPO has translation devices which attempt to accommodate non-English speaking Member States. The effectiveness of these devices has however, been questionable. Concepts that can easily and clearly be expressed in one language are sometimes difficult or even impossible to translate into another. Some of the useful information is also lost during the translation process. In worst cases some words are given a wrong meaning: Bushby ‘Communication gateways: Friend or foe? (1998) 40 Ashrae Journal 50 also available at http://www.bacnet.org/Bibliography/AJ-4-98/GATEWAY.htm (accessed 26 July 2012). Language translation devices are therefore not necessarily effective although they are an essential instrument where parties speak different languages. The language translation devices may require further technological development to avoid the unintended consequences or the difficulties cited above.

303 ARIPO is discussed comprehensively in chapter 3 part 3. 4.

304 See discussion on PAIPO in chapter 3 part 3.7.

305 It has also been argued that South Africa which is not a member of either ARIPO or OAPI does not also have intellectual property laws that adequately protect traditional knowledge: Mukuka Indigenous knowledge systems and intellectual property laws in South Africa: “Reap what you have not sown” (2010) 23, hereafter Mukuka Indigenous knowledge system.

long time,³⁰⁶ let alone international protection.³⁰⁷ The dominance of the western IP model may, however, be also one of the reasons that gave rise to the problems regarding the protection of traditional knowledge as it is based on notions of individual property ownership rather than communal ownership.³⁰⁸ Mukuka states that with the western model IP rights are consequently granted to give the creator (who is usually an individual or company) an exclusive right to prevent others from unauthorised use of their property for a limited period of time.³⁰⁹ Traditional knowledge does not thus satisfy the requirements of the western or mainstream IP rights protection since it is generally held by communities and is passed from one generation to the other.³¹⁰ It is argued that where IP protection could apply to such knowledge, the prohibitive costs of registering and defending a patent or other IP rights restricts effective protection.³¹¹ It should be noted that proposals have been made for the development of sui generis protection of IPRs.³¹² The territoriality of IP rights and their international alignment as well as the global trade practices indicates the need for an international solution regarding the protection of traditional knowledge.³¹³ The question that remains is whether WIPO’s sui generis system of protection will provide adequate protection or not. ³¹⁴

306 Indigenous knowledge is defined as the unique traditional knowledge existing within and developed around specific conditions of women and men indigenous to a particular geographical area. For the purpose of this study, indigenous knowledge is referred to as traditional knowledge as this is a more familiar term.

307 Arowolo ‘A continental approach to protecting traditional knowledge systems and related resources in Africa’ (2009) available on Social Science Research Network at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1313582 (accessed 20 July 2011).

308 It has been argued that this concept of individual property ownership is alien to Africa and it does not necessarily focus on a group’s or collective right to protect and benefit from its own cultural discoveries, creations and products. See Hansen & Van Fleet Traditional Knowledge and Intellectual property: A handbook on issues and options for traditional knowledge holders in protecting their intellectual property and maintaining biological diversity (2003) 4; Oguamanam International law and Indigenous Knowledge:

Intellectual property rights, plant biodiversity and traditional medicine (2006) 8 & 29.

309 Mukuka Indigenous knowledge systems 19.

310 WIPO Intellectual Property and traditional knowledge (Booklet no 2) 6 and Dutfield ‘Protecting traditional knowledge and folklore’ (2003) 22 available at http://ictsd.org/downloads/2008/06/cs_dutfield.pdf (accessed 14 May 2012).

311 Hansen & Van Fleet Traditional knowledge and intellectual Property: A handbook on issues and options for traditional knowledge holders in protecting their intellectual property and maintaining biological diversity (2003) 5.

312 WIPO legislative texts on the protection of Traditional Knowledge available at http://www.wipo.int/tk/en/laws/tk.html (accessed 14 May 2012).

313 Kiene The legal protection of traditional knowledge in the pharmaceutical field: An intercultural problem on the international agenda (2011) 58.

314 It should, however, be noted that both Organisations have come up with measures or instruments aimed at the protection of folklore and traditional knowledge. The ARIPO Member States held a Diplomatic

Conference on August 9, 2010 in Namibia and adopted a Protocol on the protection of traditional knowledge and expressions of folklore, known as the Swakopmund Protocol on the Protection of Traditional

Knowledge and Expressions of Folklore. The WIPO Director-General has described this as a ‘historic step…and a significant milestone in the evolution of intellectual property’. The Protocol was to enter into

Cullet and Kameri-Mbote rightly argue that one of the shortcomings of the existing regional bodies is their focus on technical administration of IP rights.³¹⁵ Their focus appears to be largely on central filing, search and examination, reduction of costs for filing, and not on substantive areas of policy making ‘to ensure that an African agenda on IP is developed’. The African common agenda should entail mainly the coverage of traditional knowledge, folklore and genetic resources at international level as this form of IP is central to African countries.³¹⁶ The African Group was instrumental in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) negotiations³¹⁷ and the Group emphasised the need for a establishment of ‘a mandatory international sui generis system towards the protection of traditional knowledge using existing national experiences to identify the subject matter of the sui generis protection, the type of protection desired and the rights to be granted’.³¹⁸

In summary, the differences between ARIPO and OAPI in terms of their functions and backgrounds have generated the need for a merger or a new Organisation that can facilitate standardisation as well as the integration of laws.

force when six (6) Member States of the Organisation either deposit instruments of ratification or instruments of accession: ARIPO ‘ARIPO and its Member States Adopt a New Protocol on Traditional Knowledge’ available at

http://www.aripo.org/index.php?option=com_content&view=article&id=108:diplomaticconference&catid=1 :latest-news&Itemid=18 (accessed 17 June 2011) and WIPO Intergovernmental Committee on IP and genetic resources, traditional knowledge and folklore, Ninth Session held in Geneva April 24-28 2006 ‘The protection of traditional cultural expressions/expressions of folklore: Updated draft outline of policy options and legal mechanisms’ available at www.wipo.int/edocs/mdocs/tk/en/.../wipo_grtkf_ic_9_inf_4.doc (accessed 6 June 2012).

315 Cullet & Kameri-Mbote ‘International property protection and sustainable development-Towards a common African institutional framework and strategy’ (2005) International Environmental Law Centre available at http://www.nepadst.org/doclibrary/pdfs/doc23_022005.pdf (accessed 25 October 2011) 17.

316 Essy ‘Traditional African Concepts of Access’ in Nnadozie, Lettington, Bass, Bruch & King (eds) African Perspectives on Genetic Resources: A Handbook on Law, Policies and Institutions Governing Access and Benefit Sharing (2003) 1 & 50.

317 The Committee was formed in terms of the Convention on Biological Diversity (CBD) which entered into force on 29 December 1993. The Convention seeks to conserve biological diversity, promote sustainable development, and encourages the equitable sharing of the benefits arising from the utilisation of knowledge, innovations and practices belonging to a particular group of people or community: see Art 8 of the

Convention on Biological Diversity available at http://www.cbd.int/doc/legal/cbd-en.pdf (accessed 8 June 2012).

318 WIPO Intergovernmental Committee on intellectual property and genetic resources, traditional knowledge and folklore, Ninth Session held in Geneva April 24-28 2006 ‘The protection of traditional cultural

expressions/expressions of folklore: Updated draft outline of policy options and legal mechanisms’ available at www.wipo.int/edocs/mdocs/tk/en/.../wipo_grtkf_ic_9_inf_4.doc (accessed 6 June 2012).

I now discuss the proposal to harmonise the ARIPO and OAPI systems. This is an important discussion because of the gaps in the current systems and the fact that some African countries are not members of either ARIPO or OAPI.³¹⁹