by Thapelo Segodi

Discussions were lively at the five-day ASK Justice mid-project workshop held in Durban, South Africa, from 17 to 21 July 2016, as scholars of intellectual property and human rights from Botswana, Kenya, South Africa and Uganda debated the interface between human rights laws and intellectual property laws. Talks revolved around the draft case studies from the four study countries, as well as the planning and synchronisation of the project’s research activities with its teaching and outreach, or public voice, components. The meeting coincided with the 21st International AIDS 2016 Conference, in which network members actively participated.

The central research question is, “to what extent and in what ways have human rights influenced intellectual property policy processes in the countries involved in the project, with a particular focus to A2K (access to knowledge) and A2M (access to medicine)?”

Front Row: Gabi de Luca (OSF), Rose Nakayi, Naomi Njuguna, Caroline Ncube, Mbulelo Ncolosi, Zahara Nampewo, Phyllis Webb. Back Row: Lillian Makanga, Andrew Rens, Ronald Kakungulu-Mayambala, Tobias Schönwetter, Thapelo Segodi, Nan Warner

Dr Tobias Schönwetter, Director of the Intellectual Property Unit at the University of Cape Town and one of the two principal investigators, highlighted the project’s importance, pointing out that many AIDS activists these days consider academic research findings when strategising. He said it was important to take the project to completion to inform activists’ future strategies.

“Now, more than ever before, it is important to integrate IP dimensions into human rights teaching (and vice versa), and use our public voice theme to disseminate information about the project and its findings,” he said.

Andrew Rens, Senior Lecturer at Duke University and the research theme leader outlined the project background in detail, touching on issues such as the choice of the case study methodology and anticipated research outcomes. He stressed the notion that A2K and A2M go hand in hand, pointing out that one needs access to academic journals to conduct research to develop appropriate medicines.

Hard at work: Tobias Schönwetter explains the importance of viewing IP matters through a human rights lens

Many of the experts reported challenges such as restricted access to information from government departments or officials when researching their case studies. Prof Caroline Ncube, Head of the Commercial Law department at the University of Cape Town and team leader of the ASK Justice Botswana case study, highlighted that in Botswana, for instance, government permission is needed before government officials can be interviewed. Applying and waiting for such permissions can be a long time coming.

This said, Rens reminded participants that Botswana is often considered an AIDS success story. A UNAIDS report claims that Botswana provides coverage to 93 percent of those in need of ARV treatment across the country. Talking about how South Africa measures up, he added that the country’s legal frameworks already provided great human rights language, but that government has struggled to create policies in line with them.

Dr Ronald Kakungulu Mayambala, Lecturer at Makerere University and ASK Justice research leader in Uganda, shared best practices from his research activities and said no major obstacles existed in obtaining government information in that country. To a certain extent, intellectual property law and policy in Uganda already consider human rights as well as legal flexibilities to improve access. However, challenges exist in implementing laws, and this renders them futile.

Workshop participants agreed that most countries appeared to have some awareness of the link between IP and human rights. What was missing, however, was the political will to conform intellectual property law to human rights imperatives. Moreover, some participants suggested that the case studies should dig deeper and take into account the pressure developed countries—through foreign trade agreements—exert on developing countries not to adopt a pro-public policy perspective on intellectual property matters.

Caroline Ncube shows off the new ASK Justice banner

Dr Rose Nakayi, Lecturer in the Faculty of Law at Makerere University and ASK Justice’s public voice theme leader, reminded participants that, while it was important to disseminate information to create general awareness about human rights, intellectual property and the link between these, any efforts in this direction relied heavily on the project’s research findings. “We can only share our findings once they have been developed,” she said. Participants decided that the finalised research findings, once available, should be disseminated through various mediums, including but not limited to academic journals, conferences, social media, and mainstream media such radio and television.

Naomi Nyawira Njuguna, Lecturer in the School of Law at the University of Nairobi and lead for the ASK Justice teaching theme, discussed plans and strategies such as developing a model curriculum, along with by a curriculum review toolkit, two primers to integrate human rights elements into existing IP courses (and vice versa), and drafting an academic publication.

Several delegates also attended a panel discussion on the UN High Level Panel Report on Access to Medicines, co-hosted by the Treatment Action Campaign (TAC), Stop AIDS, and the Open Society Foundations, and hosted by Oxfam.

During the ASK Justice Steering Committee meeting, Lloyd Lotz from the University of Zululand presented a poster entitled, “Changing the intellectual property narrative: Patients before patents”, co-authored with Prof Yousuf Vawda of the University of Kwa-Zulu Natal. Throughout the conference and various meetings, ASK Justice representatives networked, disseminating information about the project and meeting with civil society groups to discuss ways of integrating project activities carried with work done by organisations such as MSF and TAC. Schönwetter and Vawda also participated in a strategy session with civil society groups on a response to the SA Department of Trade and Industry’s IP Consultative Framework, which had been released for comment a few days earlier.

Rens and Schönwetter both thanked the Open Society Foundations (OSF) for their ongoing support.

Thapelo Segodi is a Student Research Assistant in the Intellectual Property Unit at the University of Cape Town

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