Human rights are integral to IP policy, lending it a dimension all its own—one that African policymakers fail to take into account adequately when drafting IP policies.
A paper published in the December 2015 edition of the African Journal of Information and Communications Thematic Review of Human Rights and IP outlines the neglect of human rights in IP policymaking in Africa and the need to end this neglect. It also looks at steps that can be taken towards this goal. The paper serves as an introduction to Human Rights and IP policymaking in Africa. It explains the work ASK Justice is doing and fits within the overall theme of this edition of the journal, which is the development of access to knowledge (A2K) in Africa. ASK Justice project leader Dr Tobias Schönwetter acted as a specialist editor for the issue.
In their paper, ‘Neglect of the Human Rights Dimension in African IP Policymaking’, ASK Justice researchers Andrew Rens and Jimcall Pfumorodze say policymakers do not pay the human rights angle enough attention when considering and drafting IP policy. This neglect should end, particularly in Africa, and the authors suggest some steps that can be taken to make sure it happens. Rens and Pfumorodze argue that the issue of human rights isn’t simply an additional factor in IP policymaking, but rather an entire dimension. South African IP expert Rens is based at Duke University in the United States and the leader for ASK Justice’s TeachingResearch theme. Pfumorodze is a member of the ASK Justice research team at the University of Botswana.
“IP is too often viewed as a single dimension, an axis along which a balance is struck between, on one side, the power of those who hold rights, and, on the other side, what is often termed the ‘public interest’ (concerned with the ends IP is intended to serve, such as education, research, innovation, news reporting and the like, often accommodated by exceptions and limitations),” the paper reads.
But before even considering human rights, another important dimension must be taken into account, they point out—especially when drafting IP policy for developing countries—namely that of development.
“The demands of development add a wide range of issues unknown to the traditional proprietary versus public interest dimension of IP doctrine. The development dimension may result in arguments unknown to Western IP; arguments, for example, for exclusive rights over traditional knowledge (TK), or for limits on patenting of genetic resources. The third necessary dimension is human rights, which introduces issues such as compulsory licensing for essential medicines.”
It is no secret that the agenda of those who hold, and benefit financially, from intellectual property rights in many industries, whether in a global or national context, has been the primary influence on IP policy. For decades this was considered appropriate. Many involved still believe it should be the primary shaper of policy. As a result, Considering the frequent attempts to steer IP policy is too frequently steered away from development and human rights. to be shaped to the financial benefit of those who hold rights in many industries, whether in a global or national context, it is apparent that the agenda of the rights holders is self-serving.
In South Africa, for example, the consultants to a group of multinational pharmaceutical companies did not like the fact that the 2013 draft South African Intellectual Property Policy proposed that the country’s registration system be replaced with an examination system. Currently, the country’s patents need only be registered, not examined for compliance with patent requirements. This would make it harder to obtain patents on pharmaceuticals, as hard as it is in the United States, Switzerland and other countries where the multinationals are based. These consultants said at the time that South Africa was now “ground zero for the debate on the value of strong IP protection. If the battle is lost here, the effects will resonate.”
What happens in South Africa may have far-reaching consequences, indeed. Rens and Pfumorodze say that this “demonstrates the grave importance of infusing African IP policy with the human rights dimension. At stake is whether to ensure or deny access to medicines and educational materials for millions of the world’s poorest people. And when African IP policymaking processes are regarded as ‘ground zero’ by global business alliances, African policy decisions can clearly have global repercussions.”