CHINHOYI UNIVERSITY OF TECHNOLOGY

SCHOOL OF AGRICULTURAL SCIENCES

NAME: NOKUTHABA MITCHELLE SIYAFA

REG NUMBER: C18134182X

PROGRAMME: BSBIO

COURSE CODE &TITLE: IPR and Biotechnology (CUBT 215.)

LEVEL : 2.2

Question

Discuss the factors leading to less adoption or participation of African countries in IPR. (25

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Date 04/06/2020
Intellectual Property Rights (IPR) are rights in something intangible and protect innovations and
reward activity. Most African countries however have less participation in IPR due to a number of
reasons as stated below.

Balance between protection and access

Article 15(1) of the International Covenant for Economic Social and Cultural rights (ICESCR)
recognizes the need to reward innovative activity on one hand and on the other hand it ensures that
society has access to the fruits of innovation. This indicates that there is a balance to intellectual
property but the issue is the nature of the balance. Intellectual property clashes with human rights.
There is a balance between protection and access of which access is supported by right to freedom
of expression and right to information. Had this balance been framed in such a way that the reward
for innovation be dominant, then most innovators would have publicised their work and capitalized
it but unfortunately, social access is more privileged and at the end, innovators don’t get paid that
much for their hard work and as a result, most African innovators participate less in IPR due to lack
of encouragement and payment for their hard work. The TRIPS Agreement for example grants a
patent owner exclusive property rights to exclude others from making/using offering for sale, it
enables patent owner to determine conditions of access to the product which include price but if we
take for example, someone inventing a vaccine or cure for the currently deadly COVID-19, all those
rights would be stripped away from the innovator as it’s a matter of public health. The inventor
would hardly get his IP rights as details of the innovative would be made public immediately.

Fairness.

The law set in the Intellectual Property organisations like ARIPO and TRIPS among other African
organisations state that if an employee comes up with an innovative design or invention, the
employer instead of the employee is granted IP ownership rights. This creates unfairness in the legal
structure as the law is favouriable to the employer. Ownership is granted to the employer on the
grounds that the employee used company resources and capital to bring to life their invention but in
all honesty, innovation requires the employee to contribute substantial investment in the design.
Allowing businesses to exploit their employees by assuming rights over their inventions is morally
and ethically wrong and as a result, this could discourage the employees from making the design
public or capitalize on the idea. This unfairness in the legal structure is one of the reasons why most
Africans participate less in IPR.

Resource challenge.

The registration and protection of IP is an investment that requires resources (African Union-
European Union workshop, 2011; Blakeley, 2009).

In the case of protection, adequate resources in the form of finance in different jurisdictions are a
precondition for the effective management of the system (Blakeley and Couplet, 2011). However, a
majority of African countries are low-income countries hence an IP development system can put
pressure on the already meagre government revenue. Zimbabwe, particularly, the cost of
developing an adequate system for handling mere counterfeit cases is substantial, let alone
complicated patents disputes. There will be need for significant finances to develop examination and
registration offices as well as equipment , drafting and administrative and training examiners, judges
and customs authorities ( McCalman, 2001). African countries therefore are struggling to raise
funding for IP development and protection. Due to lack of funds, the capacity to monitor
infringement and enforcement of IP rights is poorly developed (Petit and IIbert, 2015; Musunga, et
Al, 2008; Mengiste, et Al, 2012). Due to the failures of the legal system to protect innovation work
and prevent piracy, innovators no longer trust in the IP system thus they participate less in IPR.

Privatisation.

Engagement in IPR would sabotage Africa's privatisation of innovative practices and biological
resources and reorganize it’s market for the benefit of foreign cooperations. African farmers and
their knowledge and plant diversity they have nurtured are bound to be trampled over in the
process, threatening the already fragile African food security, especially in developing countries like
Zimbabwe.

Zimbabwe again, as a developing country participating in global intellectual property systems as a

second comer in a world that was already shaped by the first comers, would face difficulties in
consistent participation, bringing more disadvantages than advantages.

In conclusion, with all being said and stated, most Africans, Zimbabweans in particular lack the
knowledge of IPR. Most artists and inventors are not aware of this branch of law or its importance.
References