Intellectual Property, Traditional Knowledge,
Access Benefit Sharing Policy Environmentin Eight Countries in Eastern and Southern
Africa: Swaziland, Kenya, Lesotho,
Mozambique, Malawi, Tanzania,
Uganda and Ethiopia
African Technology Policy Studies Network

RESEARCH PAPER | No. 19
Joseph M. Wekundah

Intellectual Property, Traditional Knowledge,
Access Benefit Sharing Policy Environment inEight Countries in Eastern and Southern Africa:
Swaziland, Kenya, Lesotho, Mozambique,
Malawi, Tanzania, Uganda and Ethiopia

Joseph M. Wekundah
Biotechnology Trust Africa

The African Technology Policy Studies Network (ATPS) is a multidisciplinary network of researchers, private sector actors andpolicy makers promoting the generation, dissemination, use andmastery of science, technology and innovation (ST&I) for African
development, environmental sustainability and global inclusion.
ATPS intends to achieve its mandate through research, capacity
building and training, science communication/dissemination andsensitization, participatory multi-stakeholder dialogue,knowledge brokerage, and policy advocacy.
Published by the African Technology Policy Studies Network
P O Box 10081, 00100 GPO Nairobi Kenya
2012

Published by the African Technology Policy Studies Network

ISBN: 978-9966-030-39-9

Table of Contents
Acknowledgement

4

List of Acronyms

5

Abstract

7

1.

Introduction

92.

Literature Review

15

3.

Methodology

21

4.

Results & Findings

22

5.

Conclusions & Recommendations

73

References

76

Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 3

Acknowledgement
This paper was produced as part of the implementation of the ATPS phase VI
Strategic Plan, 2008-2012 funded by ATPS Donors including the Ministerie van
Buitenlandse Zaken (DGIS) the Netherlands, Rockefeller Foundation, OpenSociety Foundation, UNESCO, European Union, African Union, amongst others.
The authors hereby thank the ATPS for the financial and technical support during
the implementation of the Intellectual Property Program. The authors particularly
thank the Executive Director of the ATPS Prof. Kevin Urama for his visionary
leadership and all members of his team at the ATPS. We are also grateful to theProgramme Coordinators including Mr. Joseph Wekundah of the Biotechnology
Trust Africa, Dr. Maurice Bolo (ATPS), Dr. Nicholas Ozor (ATPS), Prof. Moni
Wekesa (Mount Kenya University) for their technical supports to the Programme.

4 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

List of Acronyms
ABS
ACE
AG
ARIPO
BRELA
CITES
COMESACOSOMACOSOTA
CBD
CNRs
DUS
FAO
IGC
ILO
IP
IPR
ITM
IT-PGRFAKARI
KEPHIS
KEMRI
KIPO
KIPI
KNF
MIP
NCST
NEMA
NMK
NSC
PBR
PCT
PGRFA

Access and Benefit Sharing
Advisory Committee on Enforcement
Attorney General
African Regional Industrial Property Organization
Business Registrations and Licensing Agency
Convention on International Trade on Endangered Species
Common Market for East and Southern Africa
Copyright Society of Malawi
Copyright Society of Tanzania
Convention on Biological Diversity
Copyright and Neighboring Rights
Distinct Uniform and Stable
Food and Agricultural Organization
Inter-governmental Committee
International Labour Organization
Intellectual Property
Intellectual Property Rights
Institute of Traditional Medicine
International Treaty on Plant Genetic Resources for Food andAgriculture
Kenya Agricultural Research InstituteKenya Plant Health Inspectorate Service
Kenya Medical Research InstituteKenya Intellectual Property Organization
Kenya Industrial Property InstituteKenya Neem Foundation
Master of Intellectual Property
National Council for Science and Technology
National Environmental Management Authority
National Museums of Kenya
National Steering Committee
Plant Breeders Rights
Patent Cooperation Treaty
Plant Genetic Resources for Food and AgricultureIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 5

PVP
SCP
SCCR
TK
TMMP
TRIPS
OAU
SCCR
UN
UPOV
WIPO
WSSD
WTO

Plant Variety Protection
Standing Committee on Patents
Standing Committee on Copyright and Related Rights
Traditional Knowledge
Traditional Medicine and Medicinal Plants
Trade-Related Aspects of Intellectual Property
Organization of African Union
Standing Committee on Copyright and Related Rights
United Nations
Union for the Protection of New Varieties of Plants
World Intellectual Property Organization
World Summit on Sustainable Development
World Trade Organization

6 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

Abstract
Intellectual Property Rights (IPR) refers to protection of inventions in all fields ofhuman endeavor: Scientific discoveries, industrial designs, trademarks, service
marks, literary, artistic scientific works, performances, sound recordings
broadcast etc. It is protection against unfair competition and it is intangible. It
rewards innovative activity and helps to re-coup the costs of creating theinvention and make profit. It also helps to acquire exclusive rights over thecommercial exploitation of the creation.
IPR regimes are based on western paradigm of property ownership and are
therefore alien and impractical in the cultural, historical and institutional context ofmost developing countries – more particularly to the traditional and indigenous
communities within the developing countries. For generation, communities havenurtured the available genetic resources and have selected certain plants andanimals for domestication which have formed the basis for modern agriculture
and provided the selected genetic material needed for the improvement of crops
and livestock. All this effort is not recognized in the classic IPRs.
On the basis of the above situation, there is need for the African states to develop
appropriate policies and legal frameworks to enable the local communities tobenefit through Access and Benefit Sharing of their resources nurtured for a longtime.
The purpose of the study was to build a body of knowledge on the current statusof existing IP systems and examine International treaties, conventions andagreements in terms of opportunities for recognition and protection of Traditional
Knowledge, Traditional and cultural expressions and Access and Benefit
systems.The research was conducted through desk studies by Biotechnology
Trust Africa and it aimed at establishing the current status of legal frameworks andpolicies on IPR; Traditional Knowledge; and Access and Benefit Sharing; andcome up with recommendations for strengthening existing ones or develop newones that are not in place. This was done through existing documentation andinternet. It also aimed at establishing existing gaps in policy and legal frameworks
on IP, Traditional Knowledge and Access and Benefit Sharing.

Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 7

The status of intellectual/industrial property was that: only three countries
Lesotho, Tanzania and Kenya are TRIPS compliant; other countries rely on
ARIPO for examination of patents except for Kenya, Tanzania and Ethiopia;
Swaziland and Uganda still use colonial laws, but have Bills under process;Ethiopia has patents, trademarks and copyrights under one office; Others havethem in different ministries. Its only Kenya that has a draft IP Policy, others have
only initiated development of policies. Most patents granted are foreign except
for limited cases in Kenya, Tanzania, Ethiopia and Uganda; Trademarks arefunctional in all 8 countries and copyright laws are functional in all the 8 countries.
Only two countries Kenya and Tanzania have Plant Breeders Rights under UPOV
1978 others are not. Secondly no country had a comprehensive seed policy.
All target countries have no policies or legal frameworks for Traditional
Knowledge. Kenya is finalizing the policy on Traditional Knowledge. Tanzania has
a legal framework for Traditional Medicine under the Ministry of Health. Kenya isdeveloping one in the Ministry of Health. Foreign Pharmaceuticals are pressuring
Kenya, Uganda, Malawi and Uganda to establish their laws and policies.
Access and Benefit Sharing is administered under the Environmental
Management offices. Some have regulations but are weak, and needs
strengthening.

8 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

1. Introduction
1.1
Background
Intellectual Property (IP) protection has presented a big challenge to many policy
makers, and other stakeholders in Africa. Classical IP systems threaten toundermine efforts to capture opportunities if not properly articulated in the local
context. Previous developments in this field have been influenced and shaped
more by factors and events at the global level rather than at the local scene.
Hence, legal policy and institutional development are not necessarily at accord
with the desires, needs and ability of the African society and could seemingly
marginalize the local and indigenous communities. The fundamental role played
by local and indigenous communities in securing the future especially for foodsecurity, health and biotechnology through biodiversity conservation, indeveloping countries has not been adequately considered. This neglect andmarginalization is perfectly exemplified by the appropriation of the traditional
knowledge (TK) and genetic resources under existing classical Intellectual
Property Rights (IPR) system.
Access to genetic resources and Benefit-Sharing (ABS) is one of the pillars of theConvention on Biological Diversity (CBD), which calls for “the fair and equitable
sharing of the benefits arising out of the use of genetic resources and associatedtraditional knowledge.”
The links between the genetic resources and indigenous knowledge have beenrecognized and form the basis for community based conservation initiatives. Thishas been acknowledged as a fundamental aspect of sustainable conservation,
and as such has been mainstreamed into such global instruments as the Global
Strategy for Conservation, which recognizes the role of local communities inIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa| 9

conservation of significant plant species. It is important, therefore, to develop
mechanisms, which are country-driven to ensure sustainable conservation of
biological resources, especially in regard to positive protection of communities'
rights. Often, there exist disparate segments of legislation, which are seldom
enforced, usually because of lack of coordination and inter-sectoral information
sharing.
Genetic resources (plant, animal, fungal or microbial origin) are essential to many
areas of scientific, academic and industrial research and development. They areused in the production of pharmaceuticals, medicines, biotechnologies,
foodstuffs, agricultural and horticultural products, flavors, fragrances andpersonal care items. Many genetic resources are of strategic importance for foodsecurity and commerce in their countries of origin. Part of the basis for the ABS
negotiation by Parties to the Convention was in response to unregulated bioprospecting activities occurring with the aim of developing innovative
commercial technologies based on resources, which were under the regulationof national law.
As an emerging policy area, ABS serves to address the need to harness thebenefits of modern science and technology and create a balance between thepotential for economic growth on one hand and the conservation of biologicaldiversity on the other.
The CBD recognizes the states' sovereign right over the genetic resources foundon their national jurisdiction. In addition to this international recognition, theConvention requires states to take measures to regulate both the access togenetic resources, and the fair and equitable sharing of the benefits resulting
from the commercialization of products, based on such resources andassociated traditional knowledge.
The World Summit on Sustainable Development (WSSD) launched a process tonegotiate an international regime on ABS to better define the standards forregulating access and benefits-sharing. Since WSSD, ABS-related issues havecome up in an array of international forums including: the World Intellectual
Property Organization (WIPO), the Food and Agriculture Organization (FAO), theCouncil of Trade-Related Aspects of Intellectual Property, the UN Indigenous
Forum, the Antarctic Treaty, the UN Council for the Law of the Sea and bilateral
10 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

and regional trade agreements. They have also been mentioned in regard tosuch regulatory bodies as the World Trade Organization (WTO) and theConvention on International Trade on Endangered Species of Flora and Fauna(CITES).
TK, which is held by members of a certain culture or family, is dynamic in natureand changes in character with the needs of the local people. It is transmitted fromgeneration to generation. Under the Paris Convention, innovations of theindigenous and local people can be protected under trademarks, utility models,
copyrights and related rights, industrial designs, and service marks andindications of some or appellations of 2 origins. Collective service marks on TK
and genetic resources and expressions of folklore can also be registered asprovided for by article 7 of the Paris convention. Under Trade Related Aspects ofIntellectual Property Rights (TRIPS), TK cannot be protected safely under thepatent system defined by article 29(1) of TRIPS as this would make TK to be easy
to copy by commercial entities. However, TRIPS provides for the sui-generis
system, which can be used to protect TK by individual nations.
On the international scene, the protection of TK is currently being debated in
FAO, WTO, WIPO, Convention on Biological Diversity (CBD), and theInternational Labor Organization (ILO). The developing countries insist that their
TK and genetic resources are being used by industrialized countries without
benefiting their societies and in most fora, developing countries have been
insisting for a patent system, which names the source of origin of the genetic
material used (Nagoya protocol has actualized this). African countries havefurther requested for enlargement of the scope of protection in addition to the suigeneris to include copyright and geographical indications. The African Regional
Industrial Property Organization (ARIPO) and OAPI legal instrument on theprotection of TK and expression of folklore was drafted with the support of WIPO
and it is the first comprehensive instrument on the protection of TK andexpression of folklore. It is now an ARIPO protocol.
1.2
Problem analysis/statement
A major persuasion against classical Intellectual Property Rights (IPR) regimes isthat they are based on Western paradigm of property ownership and are,therefore, alien and impractical in the cultural, historical and institutional context
of most developing countries - more particularly to the traditional and indigenousIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 11

communities within the developing countries. The concerns of developing
countries undoubtedly will be important in shaping the way to fulfill their
obligations under TRIPS, for example, in crucial technological fields, such as
biotechnology for biodiversity conservation and utilization. Most developing
countries are willing to take the road that leads to an effective sui-generis systemwith intent to integrate protection of their traditional knowledge and associatedinnovations in agriculture, environment and health (J. Kabare et al); and further,address outstanding equity issues relating to access, utilization and sharing of
benefits arising from exploitation of traditional knowledge and local genetic
resources.
The overriding concern of CBD was the conservation of biological diversity.
Nevertheless, it was considered an exercise in vain if the attendant issues ofaccess to and utilization of biological resources and international equity were notaddressed. The differing perspective and varying priorities made CBD
negotiations a challenging task. The developed countries pushed for biodiversity
to be viewed as a common heritage of humankind to be accessed freely,
exploited and conserved for the benefit of all, and, therefore, without any need toshare any resultant benefits with developing countries, which provided thebiodiversity concerned. But the developing countries demanded that a share of
the benefits accruing from the exploitation of genetic resources, including
biotechnology developed from exploitation of their genetic resources, be given tothem free of charge. The varied perspectives and differing national priorities
polarized the negotiations into two camps: The diversity rich countries
comprising mainly of developing countries and diversity poorer countries
comprising mainly of developed countries. In the interest of progress, common
grounds and understanding had to be found. This required re-conceptualization
and a lot of give and take.
There are many international IPR agreements, such as TRIPS, WIPO, CBD,Intergovernmental Committee on Intellectual Property and Genetic Resources(IGC), International Treaty on Plant Genetic Resources for Food and Agriculture(IT-PGRFA), and others. However, there is lack of policy coherence in translating
the agreements at national levels. The agreements are not legally inconsistent,
but the challenge is matching them to local national issues, such as food security,
poverty alleviation, economic development, biodiversity and health. It is evenmore challenging in balancing national aspirations with community and private
12 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

rights. The key elements, which countries have to decide upon include: how tomerge concepts of TK and IPRs; how to balance TK and Intellectual Property
Rights (IPRs) with national sovereignty; how to balance breeders' rights andfarmers' rights, patents, trademarks, copyrights and geographical indications
with developments; how to balance breeders' rights and farmers' rights and how
to define access and benefit sharing according to the Plant Genetic Resources for
Food and Agriculture (PGRFA). The current IPR regimes do not recognize TK and
the collective ownership by communities and this is a short coming, among
others. There is unavailability of TK documentation for patent examiners, cost of
acquisition and enforcement of IPR is prohibitive, there is complexity in theexisting regimes and there is inadequate awareness, on the value of TK, Accessand Benefit Sharing.
1.3
Objectives of the study
The purpose of the study is to build a body of knowledge on the current status ofexisting IP systems, TK and Access and Benefit Sharing in the target countries of
Swaziland, Kenya, Ethiopia, Tanzania, Uganda, Malawi, Lesotho andMozambique and examine international treaties, conventions and agreementsfor opportunities, in terms, developing policies and legal frameworks forprotection of Traditional Knowledge, Traditional cultural expressions and Accessand Benefit Sharing. The specific objectives of the study are:
> To analyze international treaties, conventions and agreements foropportunities and contradictions on the protection of IPR, TK and ABS.
> To establish the current status and analysis of policies and legal frameworksof IPR, TK and Access and Benefit Sharing in the 8 target countries> To analyze and compare the IPR regimes, TK and Access and Benefit Sharing
at regional level and provide recommendation for the way forward.
1.4
Justification
Previous developments of IPR have been influenced and shaped more by factors
and events at the global level rather than at the local scene. Hence, policy, legal
frameworks and institutional development are not necessarily at accord with thedesires, needs and ability of the African society and could seemingly marginalize
the local and indigenous communities. The regimes do not recognize TK andcollective ownership by communities. The IPR regime is complex and there is no
documentation to enable patent examiners to be involved. The cost of acquisitionand enforcement of IPR is prohibitive.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 13

The fundamental role played by local indigenous communities in securing thefuture especially for food security, health and environment through biodiversity
has not been adequately addressed. There is lack of awareness both at policy
and community level on the importance of TK and Access and benefit sharing.
There is also lack of policy coherence in translating the international Agreements
at national level.
The study will build clear knowledge to create the necessary awareness on theimportance of TK and ABS to all stakeholders and influence the strengthening ordevelopment of appropriate policies and legal frameworks for the benefit of local
communities.
1.5
Structure of the Paper
This paper covers the introduction comprising of the background, problem
statement, objectives and justification of the study in chapter 1. Chapter 2 has theliterature review on IPRs providing arguments for both its usefulness andweaknesses for developing countries. Methodology is covered in chapter 3 andresults and findings are in chapter 4. Conclusions and Recommendations are inchapter 5.

14 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

2. Literature Review
Intellectual Property Rights (IPR) refers to protection of inventions in all fields ofhuman endeavor – scientific discoveries, industrial designs, Trade Marks, Service
Marks, Literary, Artistic, Scientific Works, Performances, Sound recordings
broadcasts etc. It is protection against unfair competition and it is intangible. It
rewards innovative activity and helps to re-coup the costs of creating the invention
and make profit. It also helps to acquire exclusive rights over the commercial
exploitation of the creation (J. Mbeva 2008).
Using Webster's New International Dictionary, a patent is defined as an official
document issued by a sovereign power conferring a right or privilege on an
individual or party with security to an invention for a period of years providing
him/her the exclusive right to make, use and vend his/her invention. While
expanding on the definition, Irving Keyton (1989) at George Mason University
Foundation wrote: “patents are intensely practical, real life legal instruments withwhich an inventor or corporation can protect the investment in time, money, effort
and other resources expended in order to create a new contribution totechnology”. He emphasized patent law as a specialized field of endeavor and asa special form of the law that protects property without which the doctrine of“survival for the fittest” would reign. It is a legal system designed to provide
government sanctioned remedies and means to protect the inventors' rights in his
or her new contribution to society and is peculiarly effective in any society where
private property is recognized. Legal patents have attributes of personal property
in that its owner has exclusive rights over the rest of the world which is safe forsovereign for its exploitation and dominion (E. M. Misati 2002).
Patent rights enforcement is territorial while patent granting procedures, althoughterritorial has universal effect. A patent once granted to an applicant cannot beIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 15

granted to another applicant in neither same nor different territory since it will lacknovelty that is determined worldwide and also the inventive step. A territory canreflect national, regional or international jurisdiction. Each territory has got its
own procedures for granting, exploiting and litigating patent rights, although
there are efforts to harmonize them. These procedures are governed by patentlaws and highly depend on qualified personnel all of which differ from one
territory to another. This means that there exist some risks e.g. one territory may
grant and another may reject to grant the same patent because of non-uniformityof these procedures and capacities. For the same reasons, exploitation andlitigation are subjects of the risk and thus constitute unfairness in patent
protection. This has been and will continue to be, the case until a system is inplace for obtaining, exploiting and litigating patent rights – the so called global
patent system, until then there continues to be an erosion of the real essence ofgranting patents rights which in turn is a challenge to the importance of patent law(E. M. Misati 2002).
Given that patent law is vital in a society for the enhancement of social,technological and economic development, it demands fair practice. However, inpractice, various factors effectively contribute to unfairness in the granting,
exploitation and litigation of patent rights. Among them is the requirement forpatentability and exclusions thereof and relativity of doctrines like public order,
morality and public health. Patentability poses challenges to fair patent practicefor its validity mainly because of two of its three requirements; the novelty andinventive steps – their analysis is difficulty because they are subjective (E. M.
Misati 2002).
Patent laws provide for three conditions of patentability: novelty or newness,inventive step and industrial applicability. In substantiating the inventive step,
patent laws provide that an inventive step is conceived to involve an incentive
step if it is not obvious to a person skilled in the art. The inventive step as arequirement of patentability has remained a challenge to beneficiaries of thepatent system and thus highly contributed to unfair patent protection (E. M. Misati2002).
An invention is new if it is not anticipated by prior art, and prior art is everything
made available to the public anywhere in the world by means of written
disclosure in drawings or other illustration or by oral disclosure, use, exhibition or
16 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

other non-written means. A disclosure of the invention shall not be taken into
consideration if it occurs not earlier than six months before the filing of theapplication.
An invention shall be taken to be capable of industrial application if according to
its nature, it can be made or used in the technological sense in any kind ofindustry, including agriculture, fishery, medicine or services.
The right to a patent shall belong to an inventor and if two or more persons havejointly made an invention, the right to the patent shall belong to them jointly.
Secondly, if two or more persons have made the same invention independent ofeach other, the earliest claimed priority date will be granted the patent and he or
she shall have the right to the patent. The right to a patent for an invention made in
execution of a commission or from an employment contract shall belong to theperson having commissioned the work or to the employer. When an employment
contract does not require the employee to exercise any inventive activity but theemployee has made the invention by using data or means available to him
through employment the right goes to the employer. Lastly, where the employee
has made the invention by using data or means available to him through his
employment has the right to equitable remuneration taking into account theimportance of the invention.
Currently, there are three classic Intellectual Property Regimes. These include:industrial Property regime; Copyrights regime and Plant Breeders' Rights
regimes. Industrial Property regime includes patents for inventions, utility models(petty patents), industrial designs, trade marks for identification of goods etc.,
trade secrets, service marks for identification of services and topographies ofintegrated circuits. Copyrights includes protection of cultural, artistic and literary
written works such as poems, books, articles, music works, paintings,
cinematography works, photography, sculpture and computer programming.
Plant Breeders' Rights mainly cover the protection of new plant varieties (J.
Mbeva 2008).
Allocation of IPRs to the creator, balances the private interests thereby ensuringthat he/she still has an incentive to create against those of the society at large inhaving the information available for use. Even though the information does notdiminish once it is shared, the role of IPRs is to ensure that information providers
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 17

do not lose their rights to the information by disclosing it. One of the philosophic
underpinnings of IPRs is to ensure disclosure of the information, the assumption
being that lack of such right would discourage information holders from sharing
their information for fear of losing it. The fear of losing exclusive rights to theinformation once shared is real because another person can use the same idea
without having re-coursed to the originator of the idea.
2.1
Evolution of IPR Laws
Historically, IPRs, particularly patents, were considered as tools that foster
economic development, by promoting innovation and inventiveness (Dr. P.K.
Mbote 2002). However, the national views on the merits and demerits of IPRs
were breaking down along the lines of who is developing new technologies andwho needs them (Dr. P.K. Mbote 2002). In fact, existing conventions for IPRs favor
those with needy access to economic and legal resources and this works unfairly
against those who do not have such access (Dr. P.K. Mbote 2002). Hence, thepatent regimes were intended to foster the technological and industrial progressof the state granting the patent. The rights of local inventors were only thecorollary of the monopoly conditions deemed appropriate for such exploitation,
while the rights of foreign inventors were disregarded. The law thus did notprotect the property rights of the original inventor, but permitted the importer ofthe invention to exercise rights similar to those of the original inventor. Under
these conditions, the patent law's objective was not to protect the inventor per se,
but to promote the economic and industrial performance of the state (Dr. P.K.
Mbote 2002).
One of the objectives of the developing countries is to achieve rapid economic
development at minimal cost and the objective of the developed countries (which
focus on the international aspects of the patent regime) is to establish markets on
a global scale (Dr. P.K. Mbote 2002). These positions have become a source oftension and debate in overall evaluation of the international patent system. The
positions have created divergent views on whether a classic intellectual property
regime fosters or hampers economic development (Dr. P.K. Mbote 2002).
2.2
Arguments for the grant of IPRs
IPR provides incentives for innovation and it also improves and maintains a highrate of inventiveness which accelerates the rate of technological change. It also
encourages information disclosure which allows persons to make use of the
18 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

invention that would otherwise remain secret and unavailable to the public (Dr.
P.K. Mbote 2002). It promotes transfer of technology, from those with thetechnology to those without and finally IPR has increased the role of the private
sector in research and development. Without IPR, the private sector which is
profit driven would not invest in research.
2.3
Arguments against the Grant of IPRs
Knowledge and information are good for the public; therefore, there is no need forprotection. In theory, IPRs hamper or restrict economic development due to thecosts involved. Empirical data reveals that countries that do not produce
patentable inventions or publish literary or artistic works make foreign companies
the main beneficiaries of IPR protection. It encourages monopoly and is a barrier
to trade (Dr. P.K. Mbote 2002).
2.4
International Patent Systems
Questions have arisen as to the desirability of the shift in the international patent
system from a relative to an absolute novelty standard which ensures that patent
protection is not granted at national levels for imitation products (Dr. P.K. Mbote
2002). The standards thus confirms to the objectives of patentees in developed
countries who in most cases are multi-nationals with global trading interests.
From the view point of the developing countries an absolute novelty (attained
when an invention is new worldwide and is not anticipated by the state of the art) is
inappropriate to the extent that it stifles the creation of local inventive capacity (Dr.
P.K. Mbote 2002).
Secondly, internationalization of the patent system through WTO's agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPS) leads to unificationand harmonization of the national patent laws. This has the effect of legallyplacing all nations on formal equality without regard to their different
technological and economic levels of development. Their international patent
system favors the developed countries which have advanced levels oftechnological capacity (Dr. P.K. Mbote 2002).
IPR is an area of development and has been instigated by factors anddevelopments from developed countries. The protagonists and movers ofinternational processes from developed countries are driven by the need tofurther national interests beyond their boundaries. The results of these processes
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 19

have been the development of systems that lack the necessary culturalembedment in African societies which leads to failure in realization of the full
benefits envisaged under such systems. The role played by the African societies
in securing the future especially for food security, health and environment
through biodiversity conservation and Traditional Knowledge has not beenadequately considered. This is exemplified by the appropriation of the TK andgenetic resources under the existing classic Intellectual Property rights system.
Convention on biological diversity which calls for the fair and equitable sharing of
the benefits arising out of the use of genetic resources and associated traditional
knowledge is the only international instrument that provides clear opportunities
for African societies or developing countries. The links between the genetic
resources and Traditional and or indigenous knowledge have been recognized
and form the basis for community based conservation initiatives. For developing
countries to benefit, international or regional systems have to be developed torecognize and protect traditional knowledge with emphasis to Access and Benefit
Sharing. This will balance between the classical IPR protecting innovations andan instrument that will provide opportunities for development in developing
countries through protection of Traditional Knowledge and enforcement on
Access and Benefit Sharing.

20 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

3. Methodolody
A desk study was conducted using past papers on the subject matter in theregion and on the internet to get the latest information on the status of IPR, TK and
ABS both for International agreements and the target countries.
One key constraint was the fact that most target countries had very little
information on the internet. The past papers however had a lot of information,
both on international agreements and the target countries.

Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 21

4. Results & Findings
4.1

The analysis of International Treaties, Conventions,
Agreements for the opportunities, Contradictions on theprotection of IPR, TK and ABS
Intellectual Property Rights is an area of development as indicated in (2.0) above
and has been instigated and heavily influenced by factors and developmentsfrom developed countries. In most cases, international agreements,
conventions, multilateral treaties, protocols and other processes have been
instrumental in triggering national legislative and policy responses. The
protagonists and movers of these international processes have mainly been thegovernments from developed countries driven by the need to further national
interests beyond their boundaries.
The results of these have been development of systems that lack the necessary
cultural embedment in African Societies which leads to failure in realization of thefull benefits envisaged under such systems. This leads to unsynchronizeddevelopment of the relevant human and institutional capacities, the legal andpolicy frameworks which are uncoordinated. Therefore, meeting national
obligations under such conventions and agreements remain problematic.
However opportunities and provisions exist in some of the conventions, treaties
and agreements.
4.1.1 World Intellectual Property Organization (WIPO)
WIPO is one of the 16 specialized agencies of the United Nations. It was createdin 1967 to encourage creative activity to promote the protection of IP throughout
the world. Currently, WIPO has 184 member states and administers 24
international treaties. Almost all UN members as well as the Holy Sea are
22 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

members of WIPO. Non-members are the states of Kiribati, Marshall Islands,
Micronesia, Nauru, Palau, Solomon Islands, Timor-Leste, Tuvalu, Vanuatu,
Palestinian Authority, Sahrawi Republic and Taiwan.
WIPO was formally created by a convention which entered into force on April 26,
1970. Under article 3 of the convention, WIPO promotes the protection of IP
throughout the world. WIPO became a specialized agency of the UN in 1974.
Unlike other branches of the UN, WIPO has significant financial resources
independent of the contributions from its member states. In 2006, over 90% of its
income was generated from the collection of fees by the International Bureau
under the IP applications and registration systems which it administers.
As with all UN multi-government forums, WIPO is not an elected body. It usuallyattempts to reach decisions by consensus, but in any vote, each member state is
entitled to vote regardless of population or contribution to the funding. This factor
has led to significant consequences over certain issues, due to the North-South
divide in the politics of IP. During the 1960s and 1970s, developing nations wereable to block expansions to IP treaties such as universal pharmaceutical patents
which might have occurred through WIPO. In the 1980s, this led to the UnitedStates and other developed countries shifting IP standard setting out of WIPO
and into general Agreement on tariffs and trade, which later evolved into theWorld Trade Organization (WTO) where the North has greater control of theagenda. This paid dividends to the North with the enactment of the Agreement on
Trade Related Aspects of IPR (TRIPS).
Most of the important work at WIPO is done through committees, including theStanding Committee on Patents (SCP), the Standing Committee on Copyrightand Related Rights (SCCR), the Advisory Committee on Enforcement (ACE) andthe Intergovernmental Committee (IGC) on Access to Genetic Resources,
Traditional Knowledge and Folklore, and the working group on reform of the
Patent Cooperation Treaty (PCT).
Based on the fact that all member states are treated the same by WIPO, and the
Geneva Declaration on the future of WIPO, Argentina and Brazil prepared a
proposal for the establishment of a Development Agenda for WIPO. In October
2004, WIPO agreed to adopt the proposal and it was also well supported bydeveloping countries. On this basis, a number of civil society bodies have beenIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 23

working on a draft on Access to knowledge treaty which they would like to see
introduced.
WIPO has established WIPOnet, a global information network. This project has
linked WIPO to over 300 IP offices in all WIPO member states. It also provides ameans to secure communication among all connected parties. WIPOnet is thefoundation for WIPO IP services, and has made patent search easy for various
member countries including the developing countries.
Although WIPO administers IPR it is a neutral organization, which has been
involved in discussing a regime for protection of Traditional Knowledge andFolklore. So far ARIPO protocol was supported by WIPO from the beginning andit is currently the only instrument that is put in place for the protection of
Traditional Knowledge and folklore. Furthermore, the Intergovernmental
Committee on Access to genetic resources, Traditional Knowledge and folklore
is still pursuing for an international instrument for protection of Traditional
Knowledge and folklore.
4.1.2

World Trade Organization (WTO) and its Agreement on TradeRelated Aspects of Intellectual Property (TRIPS)The TRIPS agreement was the result of an initiative by developed countries tointroduce more stringent IPR rules in trade to extend the security offered to theprivate sector through IPRs on an International level. It came into force on 1st
January, 1995. Article 27.1 of the TRIPS agreement stipulates that “Patents shallbe available for any inventions whether products or processes in all fields oftechnology” and the patents shall be available and patent rights enjoyable
without discrimination as to the field of technology. Further, Article 27.3 stipulates
that members shall provide for the protection of plant varieties either by patents
or by an effective Sui-generis system (such as those of UPOV) or by a
combination thereof. Article 27.3(b) explicitly indicates that nations or states
could use an alternative system – Sui–generis to protect the plant varieties. Somecountries combine the protection of plant varieties with measures to protect
farmers' rights over genetic resources (including Traditional Knowledge) (WTO –Agreement on Trade related Aspects of Intellectual Property Rights). This
provision further consolidates the position with regard to granting of IPRs in thefield of biotechnology particularly as it relates to plant varieties. However, as
countries may exempt plants and animals from patentability, it should be noted
24 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

that the subject matter of protection is to some extent left to the discretion ofnational states and thus the scope of protection for products and processes, of
new technologies is uncertain.
Secondly, different countries exclude different subject matter from patentability
and thus unification and harmonization of patent laws, over the world, is a remotegoal. But the absence of criteria for patentability is favorable because eachcountry with distinctive public interests shaped by its level of development is able
to develop its national patent laws to correspond to its development goals. This
enables developing countries to use infant industry arguments to protect certain
sectors from competition or limit the application of the general patent system incertain fields such as pharmaceutical or food industries. It is however remarkablethat even with the provision of Sui-generis system most African countries have notdevised Sui-generis regimes and some have quickly adopted UPOV provisions
like Kenya, Tanzania and South Africa; in Eastern and Southern Africa, and yet amajor conceptual argument against IPR regimes is that they are based onWestern concepts of property rights and are therefore alien and impractical in thecultural, historical and institutional context of most developing countries.
4.1.3

International union for the protection of new varieties of plants(UPOV)The legal systems for the protection of plant varieties that were enacted in Europe
from 1940 onward were harmonized through the convention for the protection of
new varieties of plants (Paris 1961) (N.P. Louwaars et. al) which also established
UPOV to support and expand new system. The UPOV system provides protocols
for assessing and describing the unique characteristics of a new variety ensuringthat it is distinct, uniform and stable (DUS).
The UPOV system was revised three times: 1972, 1978 and 1991, graduallystrengthening the rights of the breeder (N.P. Louwaars et al.). In 2004, about 55
countries had ratified the UPOV convention out of which 28 followed the 1991
convention and 25 the 1978 convention which Kenya, Tanzania and South Africa
are part of. An expansion of rights under the UPOV system took place in the early
1990s, in the wake of the TRIPS agreement. Plant Variety Protection (PVP)
provides a protection System that is rooted in the agricultural sector and hassome key differences with the patent system. Nevertheless, UPOV provides
important harmonization functions. UPOV member countries may have quite
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 25

different laws, based on different conventions (1978 or 1991) and interpretations,but almost all members use the same technical guidelines for DUS testing. Bothconventions recognize the rights of individual plant breeders who havedeveloped or discovered plant varieties which are new, distinct, uniform andstable. The convention (1978 and 1991) seeks to protect new varieties of plants
both in the interest of agricultural development and of plant breeders. The rights
granted to each member state are effective only within that territory and notinternationally.
Both conventions, 1978 and 1991, have breeders' exemption which is referred toas the cornerstone of plant breeders' rights. This means that every breeder isallowed to freely use any protected varieties for further breeding. The 1978
convention emphasizes the right of farmers to save seed from their harvests toplant the following season. In some countries like Kenya, farmers are allowed tore-use or save and re-plant their own seeds while others like it was in USA,farmers were allowed to not only save but also to sell seeds of protected varieties
to their neighbors as long as the sales accounted for less than half of total farmincome (N.P. Louwaars et al.) while the Act of 1991 only allows countries tospecify crops for which seed can be saved and used. Hence, there were some
restrictions; the process of farmers' privilege is seen as a way to reduce therevenues for seed companies. Hence it's the most contentious aspects of PVP.
4.1.4

International Treaty for Plant Genetic Resources for Food andAgriculture (IT-PGRFA)The FAO conference adopted the international undertaking on plant genetic
resources in 1983. The main objective was to ensure that PGRS are explored,
preserved, evaluated and made available for plant breeding and scientificpurposes. This relates to Plant Genetic Resources of all species of economic
and/or social interest particularly for agriculture and refers particularly to foodcrops. IT-PGRFA accepted the principle that PGRS are a heritage of human kindwhich should be made available without restriction (Dr. P.K. Mbote 2002).
The emphasis on the free availability of PGRs spelt out in the “International
Undertaking on PGRFA” of 1983 proved to be unacceptable in light of theConvention on Biological Diversity in 1992. The reason for this was that the Treaty
included within the ambit of free availability not only for traditional cultivars andwild species but also varieties developed by scientists in the North. Broader
26 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

acceptance of the treaty was only achieved after interpretative resolutions werepassed by the conference of the FAO in 1989 and 1991. These resolutions
affirmed the sovereign rights of countries over their PGRs and qualified theprinciple of free availability by recognizing plant breeders' rights (PVP) andfarmers' rights. The recognition of the sovereign rights implies the right tocompensation for access to PGRs and associated products. Further revision of
the Undertaking has been prompted by the growing importance of PGRs at theinternational level and the coming into force of the Convention of Biological
Diversity (CBD) which raised the need to harmonize relevant provisions of the two
regimes. The treaty was concluded in 2001 and became law in June 2004. It
includes among other things a multilateral system for access and benefit sharing
and it spells out Farmers' Rights (Dr. P.K. Mbote 2002).
4.1.5 Convention of Biological Diversity (CBD)
CBD was ratified and effected in December 1993 and it requires parties to ensurethat their IPR regimes are supportive of it and do not conflict with its own
objectives. It also stresses the need to recognize and protect IPRs. It indicates thatstates have sovereign rights over their natural resources. This implies that statesshould develop legislative frameworks to regulate access to genetic resources,
based on prior Informed Consent and Mutually Agreed Terms, and makeprovisions for the protection of rights of indigenous and local communities withregard to biological diversity and associated knowledge (Dr. P.K. Mbote 2002).
The discussions leading to the conclusion of the convention were characterizedby major ideological differences between the developing and developed
countries. Indeed, the question of IPRs almost threatened the outcome of thenegotiations. The main issues of concern pertained to ownership of biologicalresources both within national boundaries and in gene banks andbiotechnological innovations ensuring from those resources. Broadly, CBD seeks
to promote the conservation of biodiversity, the sustainable use of its components
and the fair and equitable sharing of benefits arising from the use of resources,
including appropriate access to genetic resources and transfer of relevant
technologies (Dr. P. K. Mbote 2002).
Therefore it is concerned with the development of biotechnology – regulated in its“Cartagena Protocol', access to both biodiversity and biotechnology andinternational equity.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 27

Article 8(j) of CBD explicitly recognizes indigenous and local communities'
contribution to biodiversity conservation, and calls for respect and support for
their knowledge, innovations and practices, and confirms indigenous people's
rights over the knowledge they hold. The article also calls for equitable benefit
sharing.
But the convention also recognizes the sovereign rights of states to the biologicalresources found within their territories. Article 15 of the convention provides thatthe state concerned should exploit its resources and promote their sustainableutilization. The convention also seeks to ensure both the availability of biologicalresources for the scientific community and the enjoyment of the benefits accruing
there from to the state providing the resources (CBD 1992 and Dr. P.K. Mbote
2002).
Article 16 regulates the access to technology and technology transfer including
biotechnology; it provides for the transfer of technology at concessional andpreferential terms to developing countries, where mutually agreed. It also makes
provision for cooperation between the developed and developing countries in
the area of access to biodiversity and biotechnology innovations. Another issue
relating to biotechnology and IPRs which the convention deals with is theknowledge of indigenous people regarding traditional uses of fauna and flora.
The use of traditional knowledge leads in the search for cures to diseases and areviewed, by developing countries, as entitling them to a share of the proceeds that
accrue to pharmaceutical companies from the sale of the drugs (CBD 1992 and
Dr. P.K. Mbote 2002).
Finally, it recognizes the role of indigenous knowledge in biodiversity
conservation but does not specifically provide for modalities of sharing benefits
arising from such knowledge or the kind of property rights that holders of suchknowledge can get.
4.1.6 African Regional Industrial Property Organization (ARIPO)
ARIPO was created through an agreement known as the Lusaka Agreement in1976 for the English Speaking African countries. In December 1985, the Lusaka
Agreement was amended in order to open up membership of the organization to
all African States, members of the Economic Commission of Africa and theAfrican Union (J. Maina 2002).
28 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

ARIPO was created to pull together the resources of member countries inindustrial property matters in order to avoid duplication of financial and humanresources and to facilitate effective and continuous exchange of information,
harmonization and coordination of member countries laws and activities inindustrial property matters.
The specific functions relating to industrial property performed on behalf ofmember countries by ARIPO are mandated under two legal instruments: theHarare protocol and the Banjui protocol. The Harare protocol of 1994 empowers
ARIPO to grant patents and register utility models and industrial designs onbehalf of member states. The Harare protocol was linked to the Patent
Cooperation Treaty (PCT) application which may designate ARIPO. The Banjui
protocol on trade marks was adopted in 1993 and it empowers ARIPO to registertrade marks on behalf of member states (J. Maina 2002).
Members of ARIPO in patents and PCT include seven of our target countries:
Lesotho, Swaziland, Mozambique, Malawi, Kenya, Tanzania, and Uganda. On
trade marks, members are Lesotho, Malawi, Swaziland, Tanzania and Uganda.
Ethiopia is an observer state in patenting, other countries are: Botswana,
Gambia, Ghana, Sierra Leone, Somalia, Sudan, Zambia and Zimbabwe.
Ethiopia, Liberia, Mauritius, Namibia and Nigeria are on observer status that is by
2002 (J. Maina 2002).
ARIPO has together with OAPI developed a legal instrument for Traditional
Knowledge and Traditional expressions and folklore. Currently, it's the only
instrument available for protection of Traditional Knowledge. The instrument has
been formalized into a protocol and it is called the Swakopmund protocol onprotection of Traditional Knowledge and Expression of Folklore. It will act as atemplate for member countries and will enable ARIPO and OAPI offices to register
Traditional Knowledge and expression of Folklore, that are transboundary andmulticultural in nature. It will also empower custodians and holders of Traditional
Knowledge and expression of Folklore to utilize the knowledge for socioeconomic development. It is likely to reduce the misappropriation, bio-piracy andprevent illicit claims of traditional knowledge.

Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 29

4.1.7 Organization of African Union (OAU) model law
It is the only regional instrument defining a regime concerning biologicalresources and community rights on access to biological resources developed in
the context of the OAU. It is mainly concerned with access to biological resources
and not with the establishment of a property rights system. It provides a few
pointers for the development of property rights over plant varieties andrecognizes the need to protect the rights of local communities over biologicalresources and their knowledge innovations and practices. This implies, at aminimum recognition in perpetuity, the fact that local communities are creators'
users and custodians of their biological resources and knowledge. It accepts theprinciple that the traditional ways of use or exchange of biological resources andknowledge between local communities will not be affected by the law in place andalso recognizes the right of local communities to restrict access to their resources
and knowledge. It further affirms local communities' inalienable right to keep, use,exchange and share their biological resources that sustain their livelihoods (Dr.
P.K. Mbote and African Mode Legislation).
4.1.8 Analysis of some treaties, conventions, protocols etc.
The introduction of patents in agriculture may have the potential to foster thedevelopment of high yielding varieties but this may be achieved at significant
environmental and financial costs. For generations, communities have nurtured
the available genetic resources and in the process selected certain plants andanimals for domestication which have formed the basis for modern agriculture
and have continued to provide the genetic material needed for the improvementof crops and livestock. All this effort is not recognized by the classic IPRs. Even
UPOV 1978, provides for farmers exemption to use their own seed, but it does notallow for sale or exchange with others. However, the OAU model law affirms that
local communities have the right to keep, use, exchange or share their biologicalresources that sustain their livelihood systems. Both CBD and IT PGRFA
recognize farmers' rights and they have indicated that the responsibility forrealizing farmers' rights rests with national states. This means that African Statesneed analysis of the treaties so that they could develop appropriate policies andlegal frameworks to benefit the communities and the states themselves throughbenefit sharing.
While IT-PGRFA emphasizes national sovereignty, it introduces some common
heritage principles, UPOV and TRIPS have taken a more proprietary stance
30 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

favoring private investors and reflect the position of northern countries. CBD on
the other hand has attempted a compromise in this regard. However, it debunks
the concept of common heritage, introducing a notion of common concern,
which implies the recognition of the global importance of conserving biologicaldiversity but not the diminishment of a state's permanent sovereignty over thenatural resources. It seeks to facilitate and promote global cooperation forcing
any state to participate. The central idea is for access to a resource to be sharedequally, but it does not state how it can be used.
As with human rights, reference to common concern is an acknowledgement thatthe state's management of its environment and resources is a matter of common
understanding. It however recognizes potentially conflicting rights, for instance,
the need to ensure equitable allocation of ownership rights and IPRs overbiotechnology. But it does not say which rights should prevail in the event of aconflict, and does not address the rights of communities apart from a cursory
mention of indigenous and local communities in article 15. The issue of farmers'
rights is also left out standing.
Countries have not been able to look at these treaties critically which would
enable national governments to seize the opportunities provided to enact policies
and legislation that can be for the benefit of local people. The programme should
initiate documenting of indigenous knowledge and useful mechanisms not only
for ensuring sustainable use but also ensure conservation of the existing genetic
resources. Developing countries in the region stand to benefit if they are able toseize the opportunity to streamline their local policies and legislation throughnegotiations as a block by sensitizing both Governments and Civil Society in theregion through its strong existing network, and interactions with COMESA, E.A.
Community and SADC.
4.2

The current status and analysis of policies and legal
frameworks of IPR, TK and Access and Benefit Sharing in
the 8 target countries
The background information provided by fourteen countries in Eastern andSouthern Africa countries in 2002 provides a baseline on which the current
information can be gauged. The information will clearly indicate whether there
were changes made by the target countries since 2002. It will also provide thecurrent focal points for IPR as compared to 2002.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 31

4.2.1

Current IPR Background Information for the Kingdom of Swaziland(a) Patent and Designs Laws in Swaziland
The Intellectual Property laws in Swaziland were administered by the office of theRegistrar General under the Ministry of Justice and Constitutional Affairs in 2002.
Currently, it is administered under the Ministry of Commerce, Industry and Tradein the office of the Registrar General – Intellectual Property office; this occurredsince 2008, the plant varieties protection fall under the Ministry of Agriculture.
The IPR laws still rely on pieces of legislation in respect of Patents, Industrial
Designs including Copy Rights. An Industrial Property law, in respect of patents
and designs is governed by the Patents and Designs Act 72/1936 as amended in1947 and 1955. However, in respect of Trade Marks, it is governed by Act 6/1981
which came into operation on 1st July, 1994.
(i) Patents
The 1936 legislation states that all patents granted in the United Kingdom or theRepublic of South Africa are automatically protected in Swaziland as long as they
have effect in the United Kingdom and the Republic of South Africa. The
registered proprietor of a patent granted in the Republic of South Africa or theUnited Kingdom on application to the Registrar in Swaziland and on proof of theregistration in South Africa or the United Kingdom and payment of the prescribedfee, can obtain a certificate of registration which subject to the requirement of
renewal confers the same rights in Swaziland as the patent in South Africa or theUnited Kngdom.
(ii) Designs
The Act provides for automatic protection in Swaziland of designs registered in
the United Kingdom and for registration of designs registered in South Africa. The
system is the same as for patents above.
(iii) Analysis of the Patents and Designs Laws in Swaziland
The present patent system in Swaziland therefore depends on the industrial
property laws or systems of two different countries – United Kingdom andRepublic of South Africa. There is no possibility of obtaining protection without
prior protection in one of these two countries. This means that Swaziland
enterprises which wish to protect their inventions or designs in Swaziland first32 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

have to obtain protection in one of those countries which involves among otherthings additional expenditure. This means that Swaziland enterprises are at a
disadvantage compared to enterprises in the United Kingdom or the Republic ofSouth Africa. The dependency on the systems of the two countries means that inorder to ascertain the position of owners of patents and designs, it is necessary torefer back to the law in one of these countries. Thus, the legal system is more
complicated than it would be, if the protection were exclusively governed by thelaw in Swaziland.
In view of the disadvantages, the Swaziland Government strongly feels that there
should be an independent legislation regarding patents and industrial designs.
With assistance from World Intellectual Property organization and ARIPO, thecountry is in the process to finalize the patents, utility models and Industrial
Designs Bill. The Patent office is at an infancy stage hence it will only be able toconduct formal examinations only with regards to patents and industrial designs
applications. However, with substantive examinations, the country might rely on
ARIPO or International arrangements which provide such assistance, once the billis enacted.
(b) Service and Trademarks
As indicated above the trademarks legislation came into operation on 1st July
1994, from the review of the 1981 Act. Under this, all applications are lodged direct
with the trade marks office. The applications are examined and if they get
accepted without any objections, they are advertised in the trademarks gazettefor a period of three months for opposition purposes. The Act also provides that in
the oppositions, thus, if one of the parties is not satisfied with the decisions of theregistrar in a hearing, the aggrieved party can always appeal to the high court.
However, in cases where there are no oppositions, the applicant can always apply
to the registrar with the prescribed fee for a certificate of registration. Again all the
new registrations, renewals, assignments, registered users and transmissions
are published in the Trade Marks Gazette. The Gazette is published once every
month. With implementation of the Trade Marks Act, the registration fees has
increased income tremendously. The term of a trade mark is 10 years subject to arenewal period of another 10 years.
Although the Trade Marks Act does not provide for criminal procedures andpenalties for willful Trademarks counterfeiting as per TRIPS section 5 Article 61.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 33

Section 3 of the merchandise legislation provides that it is an offence to forge a
trade mark or falsely apply to goods any Trade Mark or any mark so nearby
resembling a Trade Mark as to be calculated to deceive.
(c) Copyrights and Neighboring Rights Legislation
The copyrights and neighboring works are protected by the Act of 1912.
Copyrights in Swaziland has literary, dramatic and artistic works, performancesand sound recording first published in any part of the British commonwealth.
Nevertheless the copyright bill of 2009 has been drafted and it provides forcriminal prosecution/sanctions for deliberate infringement for commercial gain. It
also provides for the formation of a voluntary collective society for theadministration of proposed copyright and neighboring rights. It also addresses
the issues of audio visual works, expressions of folklore and computer
programmes. At present there is a copyright steering committee which isprimarily responsible for coordinating copyright issues among the stakeholders.
It is also responsible for the public awareness campaigns in issues of proposed
copyright and neighboring rights. This committee coordinates activities with the
copyright office in government.
When the draft copyright bill of 2009 becomes law, Swaziland shall have a
copyright society which shall be responsible for the promotion and protection of
the interests of authors, artists and performers. There are already four main
author societies; however, they require government financial support forexistence. Copyright Bill 2009 has provisions on the “Expressions of Folklore”.
Piracy in this area of copyrights and neighboring rights is high; however, thecopyright steering committees together with the police conduct occasional raids
for pirated materials. The situation will improve if the proposed bill of 2009 isenacted and a full-fledged copyright office is established.
(d) Plant Breeders' Rights (PBR)
There is no legal framework or policy on Plant Breeders Rights in Swaziland. Thismeans that even the farmers' rights are not considered in the day to day
management of seed. However, there is a Plant Control Act 8 of 1981 which is themain phytosanitary instrument in the country. It controls the importation andexportation of plants by requiring that all plant movement into and out of thecountry be given permits by the Ministry of Agriculture and Cooperatives whichadministers the Act. There is also the seed and plant variety Act 7 of 2000 under
34 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

the same Ministry. It provides for the control of sale, importation and exportationof seeds by requiring inter alia registration of new varieties of seeds.
(e) Protection of Genetic Resources and Traditional Knowledge
The kingdom of Swaziland does not have a legal framework on the protection ofgenetic resources and Traditional Knowledge. This is likely to render serious
losses on genetic resources and Traditional Knowledge to foreigners. In view ofthis, the country is considering to develop a sui generis type of legislation in
respect to genetic resources including traditional knowledge. This legislation will
go a long way in protecting the country's long history of the traditional values, as
most of the time it is stolen and modified abroad and can only come back when it
is too expensive for the local people. A case in point is the Amarula tree and its
products which are now being sold abroad.
The Act that is used in the protection of flora is the Flora Protection Act of 2001
under the Ministry of Agriculture. The Act governs the protection of indigenous
flora listed in the schedules of the Act. It makes it criminal offence to cause
damage to any of the species listed in the schedules. It covers the conservation ofindigenous species by stating a requirement for the environmental impact
assessment for projects that would impact on indigenous species. It provides
permits to pluck, cut or uproot indigenous plants as well as export for such
resources. This helps in the case where proper legal framework and policies do
not exist.
(f) Swaziland international obligations and membership to international
treaties and conventions linked to IPR
Swaziland is a member of the following conventions and Treaties:> World Intellectual Property Organization (WIPO) and its related conventions
such as: Paris convention for the protection of Industrial Property Rights;
Patent Cooperation Treaty (PCT), Berne Convention for Protection of Literally
and Artistic Works; and Madrid Union.
> World Trade Organization (WTO)> African Regional Industrial Property Organization (ARIPO).
> Trade-Related Aspects of Intellectual Property Rights (TRIPS).
> Convention of Biological Diversity (CBD)Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 35

Conclusions
Intellectual Property Rights System is weak and dependant on the systems of theUnited Kingdom or the Republic of South Africa. The situation was the same
during the needs assessment by BTA in 2002. The only difference noted is thedraft bill 2009 for the industrial property regimes. The IPR focal point has changed
from the Ministry of Justice and Constitutional Affairs to the Ministry of Commerce
Industry and Trade under the Registrar General – Intellectual Property office.
This situation provides for clear opportunities for the IP project through the
National Steering Committee in the Chapter to play a key role in influencing thechanges required in the IPR and protection of the genetic resources andTraditional Knowledge in Swaziland. Creation of awareness through roundtableworkshops/meetings with policy makers, training sessions with otherstakeholders especially at the grassroot levels will assist in influencing change inSwaziland. This should also provide opportunities to write proposals forassistance from public and donor resources.
For the National Steering Committee to effectively come up with the required
influence working with or incorporating key Government representatives from key
Ministries like the Agriculture and Cooperatives for Plant Breeders Rights, theMinistry of Tourism, Environment and Communications for protection of genetic
resources and Traditional Knowledge and the Ministry of Commerce, Industry
and Trade for Industrial Property and Copyright and Neighboring Rights, would
help. This will also enable the NSC to work closely with the Government
departments. It could also be useful if other stakeholders like NGOs or the Private
sector could be involved from the beginning, particularly to participate in creationof awareness.
4.2.2

Current IPR Background Information for Kenya(a) Industrial Property
The Kenya patent law was administered by the Kenya Industrial Property Institute(KIPI) under the auspices of the Ministry of Trade and Industry in 2002 until 2008
when it moved to the Ministry of Industry. It is implemented under Industrial
Property Act 2001.
Trade Marks are still administered by KIPI but implemented under Trade Marks
36| Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

Act Cap 506. Trade Marks can be protected in Kenya but not official variety
names. KIPI is also responsible for Geographical indications and trade secrets
however they are still being developed into acts of parliament.
KIPI was established in 2001 after the Industrial Property Act 2001. Prior to thatdate it was known as Kenya Industrial Property Organization which wasestablished in 1989 upon enactment of the Industrial Property Act Cap 509 of theLaws of Kenya. Before this enactment, Kenya was dependent on the British
Patent System whereby once a patent was granted in United Kingdom, it was
automatically applicable and registered in Kenya.
In 2004, KIPI had about 20 Patent Examiners out of the 83 staff with technical andlegal staff holding at least a degree. The staff is highly trained in IP and information
technology with some holders of Master of Intellectual Property (MIP). It is thebest staffed IP office in Africa. Based on the staff strength, KIPI examines
applications for and grants industrial property rights including patents forinventions and certificates for trademarks for identification of goods, service
marks for identification of services, utility models technovations and industrial
designs. Furthermore, KIPI screens technology transfer agreements andlicenses to facilitate appropriate technology transfer. The other mandate of KIPI isto provide patent information to the public for creation of awareness in IPRs. In
addition, KIPI promotes inventiveness in Kenya so as to encourage creativity tofacilitate technological, industrial and socio economic growth of the country.
Finally KIPI was organized into three departments in 2002: administration, legal(trademarks and service marks) and technical (patents etc.). KIPI has anestablished patent information and documentation centre with over 14 million
patent documents (by 2004) that are available to the public at a fee. It is wellequipped to handle matters of Industrial Property using the strong IT section.
By 2004, KIPI had received 401 national applications of which 100 were granted.
There were additional 243 applications through PCT of which 69 were granted.
There were also 2033 ARIPO patent applications designating Kenya out of which1103 were granted in Kenya. There were also 56 national utility model
applications out of which 19 were registered. On industrial designs there were
556 national applications out of which 216 were registered. There were also 86
industrial designs applications through ARIPO and 64 were registered.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 37

The Kenyan law allows protection of both processes and product patents inbiotechnology but excludes patents on plant varieties. Regulations for industrial
property were ready by 2004.
(b) Trademarks
In Kenya, the Trademarks are administered in KIPI through the Trademarks Cap
506 of the laws of Kenya. A Trademark is a distinctive sign which distinguishes the
goods or services produced or provided by one enterprise from those of another(KIPI). A mark includes any distinctive word, letter, slogan, device, band name,heading label, ticket signature etc.
The function of a Trademark is to enable consumers to identify a product of aparticular company so as to distinguish it from other identical or similar products
provided for use again in the future. By enabling companies to differentiatethemselves and their products from those of the competitors, Trademarks play animportant role in the advertising and marketing strategies of companies
contributing to define the image goodwill and reputation of the companies'
products in the eyes of consumers. The image and reputation of a company built
on the basis of the performance of its products in terms of meeting the needs ofthe consumers, creates trust.
Such trust is the basis for establishing a loyal clientele. Consumers often have an
emotional attachment to certain trademarks as they are associated with a set ofdesired qualities of features embodied in the products bearing such trademarks.
Although businesses realize the importance of trademarks, they do not realize
how important it is to protect them through registration. Protection gives
exclusive right to prevent others from marketing identical or similar products
under the same or confusingly similar mark. A registered trademark may belicensed to other companies thus providing an additional income which may also
lead to franchise agreements.
In Kenya, the Trademarks are registered by filing the appropriate application form
with KIPI which will require the following: the name of the company, or individual;
the signature of the applicant; an invented word or words; a word or words having
no direct reference to the character or quality of goods and any other distinctive
mark. The registrar will reject it on application for a mark that is identical or which
resembles a mark belonging to another proprietor and is already registered or
38 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

pending registration. It may also be rejected due to having generic terms,
descriptive terms, descriptive trademarks, marks considered to be contrary to
public order or morality, etc.
The legal rights arising out of a trademark registration are limited to the territory
within which registrations are normally done.
Protection of marks is very important to the business community. Like our own
unique fingerprints that identify who we are, a company's trade mark identifies its
products or services in the market place. Consumers know what products toreach for on the shelf or pass over the ones that do not meet their needs or
expectation because they recognize their marks.
(c) Copyright and Neighboring Rights (CNRs)
This is administered by the office of the Registrar General under the Attorney
General Chambers through the Copyright Act Cap 130 which was reviewed to
Copyright Act 2001. The copyright and Neighboring Rights constitute literary(books, poems, etc.) and artistic (paintings, music etc.) works as well as
cinematographic works, performers rights, broadcasting rights, rights ofproducers of phonograms, architectural designs, movies, sound records,
graphics etc.
Copyrights law is to the benefit of authors and artists and provides rationale forgiving incentives. Major incentives include the right to make copies and sell them.
It also includes derivate work like translation, play, music, movie and others and it
involves seeking permission from original author.
There is a right to sell, import and distribute works to have financial benefits out of
the Copyrights. There is also the right to perform the work e.g. play music, device
etc. The right to broadcast the work of the author or artist by oneself or allowing
others to do it or create IP thus can transfer by license to operate and royalty.
A Copyright establishes revenue stream, royalty from books, music, andperformances in public - offer opportunity for people to come together. A
Copyright may not reside in one person to sing, compose, produce, sell, there arecopyrights for lyrics and sound recordings.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 39

The law is fairly new and it is based on international standards. It is evolving fastwith various institutions and boards being set up. It has a copyright board and themusic Copyright Society of Kenya. There is an inspection, prosecution andinfringement remedy. However, the law is weak because penalties allow for wide
discretion by the judicial officers. There is also a lack of public awareness andfinally whether money reaches the authors or artists or remains with the businessis yet to be clearly understood. This means the system is very weak. But the
copyright laws offer opportunities to create wealth, and help to create the cultureof entertainment and publishing.
(d) Plant Breeders' Rights (PBRs)
In Kenya, PBRs cover new plant varieties and is administered by the Kenya Plant
Health Inspectorate Service (KEPHIS) under the Ministry of Agriculture though
the seeds and plant varieties Act Cap 326 of the Laws of Kenya and it wasamended to the seed and Plant Varieties Bill 2007 of UPOV 1978. Plant Variety
Protection (PVP) is one of the services and regulatory duties performed by
KEPHIS which employs about 4 examiners and 10 technicians (in 3 locations) toadminister PVP applications. KEPHIS also carries out DUS tests on most of the
agricultural crops that apply for PVP. More than 100 public varieties of 26
agricultural crops were submitted for testing and the majority varieties were
submitted in 2001 when the amnesty was announced by the Minister ofAgriculture. Applications for ornamentals and horticultural crops came mostly
from foreign entities and the DUS testing is usually done abroad and it isaccepted by KEPHIS. KEPHIS has been renovating its infrastructure such as
glasshouses and other facilities to assume more responsibility for the testing of
ornamental and horticultural crops. A significant proportion of the applications
for agricultural crops come from the Kenyan public sector and researchers are
expected to provide their own descriptors as part of the application process.
KEPHIS then confirms these descriptors in two years of testing in at least twosites (Note that DUS testing is also part of the variety release process in Kenya).
There are a number of instances where breeders and KEPHIS dispute the natureor quality of the data provided and this undoubtedly slows the registration
process in some cases. The majority of foreign applications are handled by local
agents, either law firms or members of local flower growers. KEPHIS proposed tomake the use of local agents for foreign applications mandatory since theexercise is demanding in terms of human resource and infrastructure.

40 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

Between 1997 and 2007, Kenya received over 600 applications for PVP. More thanhalf of these were for ornamentals, with roses accounting for 41% of the total.
Among field crops, maize had the highest number of applications accounting for
9% of the total, all of them being applications for hybrids. By end of 2009, 1015
PVP applications were received and 261 were granted and they were mainly for
ornamentals, sugarcane, pyrethrum and Bailey. In the first four years, nearly
three-quarters of the applications for Kenyan PVP were from foreign entities, but inthe three most recent years about two thirds of the applications are from Kenyan
public research and domestic firms. The rise in domestic applications are partly
due to the amnesty granted to previously released public varieties that wereallowed to apply for a full term of application. The fact that this amnesty is being
contested and has yet to be gazetted is one of the explanations for the relative law
number of PVP grants issued. One of the concerns was the ownership of thereleased varieties between Kenya Agricultural Research Institute and the Kenya
Seed Company. By mid-2004 only 108 certificates had been granted.
The decision in Kenya to grant amnesty to released public varieties was
responsible for a flood of applications from Kenya Agricultural Research Institutefor protection of its crop varieties. The protection period for the varieties is 15
years. KARI has a separate agreement with Kenya Seed Company providing
royalties for the use of its varieties; however it is free to advertise the varieties forother companies to bid and use the varieties on royalty basis. Finally, the fact that
KEPHIS is purchasing DUS reports on very old flower varieties in the Netherlands
may imply that the amnesty is also available for varieties where protection has
expired in Europe.
In Kenya, there have not been major cases involving violation of the PVP law.
However, there is a major example where there was a dispute between a small
seed company and KEPHIS regarding the company's rights to market seed of an
old KARI maize hybrid. The demand for PVP is determined by the level of fees. It all
depends on whether companies and public institutes will be willing to pay
application fees and yearly maintenance. This will depend on their experience inthe market. Secondly, the fees are uniform regardless of the type of crop or seedmarket. This has made some seed companies shy away from PVP. Finally, thecondition that KEPHIS keeps and maintain lines of the protected varieties havemade seed companies similarly shy away from protecting their varieties. Instead,some of them have opted to use Trade secrets and Trademarks. KEPHIS is underIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 41

the 1978 convention although it has a feeling that the convention is weak onprotection of local varieties that may be slightly changed leading to loss ofownership. KEPHIS would like to advance to the 1991 convention but it isrestrictive to Farmers' Rights.
(e) Analysis of IP in Kenya
Although the country is the most advanced, it has come up with laws that are
based on international conventions, treaties, protocols etc. Hence, the laws
available consider the global environment rather than the local environment(communities, etc.). The laws were also made due to external pressure. The
Industrial Property laws were developed due to pressure from patents between
Oxford and Nairobi University on the development of a HIV-vaccine. Secondly,
PVP was put in place due to the flower industry with pressure from breeders in
Netherlands, etc. Hence it may appear that Kenya is advanced but the benefits
from the IP could be minimal.
The second problem experienced here is that Kenya was pressured to come up
with laws but not policies. It is now that the policy on IP is being discussed. Thismeans that the laws developed were not linked to policies guiding thedevelopment of the country.
(f) Traditional Knowledge and Genetic Resources
There is no law or policy for protecting Traditional Medicine. However, thegovernment formed a Task force under the office of the Attorney Generalcomprising of relevant lead agencies such as Kenya Industrial Property Institute(KIPI), National Museums of Kenya (NMK), National Environmental Management
Authority (NEMA), National Council for Science and Technology (NCST), Kenya
Medical Research Institute (KEMRI) and Kenya Plant Health Inspectorate Service(KEPHIS), to look into providing a suitable system that will protect traditional
knowledge genetic resources and folklore in the country. So far, a policy on
Traditional Knowledge Genetic Resources and Traditional Cultural Expressions
was produced and submitted to the AG awaiting procedures for it to beformalized into a national document.
Secondly, the government has formulated a draft policy on Traditional Medicine
and Medicinal Plants (TMMP) under the Ministry of Health to address issues
related to regulation of herbal medicine and associated knowledge in the
42 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

country. However, based on the global recognition of the herbal medicine, several
health groups have initiated production of various plants e.g. the Kenya NeemFoundation (KNF) for neem products and others related to health foods fromvarious indigenous plants in Kenya. These have not in any way been properly
regulated or supervised.
(g) Access and Benefit Sharing
This is administered by the National Environmental Management Authority(NEMA) through the Environmental, Management and Coordination Act(conservation of biological diversity and resources, access to genetic resources
and Benefit Sharing) Regulation 2006.
It receives applications for accessing or exporting genetic resources. Fees arepaid for access (importation) and (exportation) of the genetic resources.
This law is in place but NEMA indicates that it is difficult to coordinate ABS
regulation with stakeholders. Some stakeholders doubted whether the law will
ensure that local researchers based abroad do not carry the genetic resources
with them and furthermore it was felt that the preparation of the Bill was rushed
and not all stakeholders participated fully hence, the coordination problems wereexperienced. It is now being reviewed to ensure that access and Benefit Sharing isensured.
(h) International obligation and membership of Kenya
Kenya is party to the following Regional/International treaties, agreements,
conventions and protocols.
> World Industrial Property Organization (WIPO) and its related conventions
protocols on Industrial Property (1967).
> Paris Convention (1965), Nairobi Treaty (1982), Madrid Agreement (1998),
Patent Cooperation Treaty (PCT) (1994), Bangui Protocol, Berne Convention(1984), Rome Convention, Geneva Convention (1976), Brussels Convention,
WIPO Copyright Treaty (1996), WIPO Performance and Phonograms Treaty(1996), Budapest Treaty, Washington Treaty, Vienna Agreement and Nice
Agreement.
> World Trade Organization (WTO);> Trade-Related aspects of Intellectual Property Rights (TRIPS);> African Region of Industrial Property Office (ARIPO);> Lusaka Agreement (1982)
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 43

>
>
>
>

Harare Protocol (1984)
Convention of Biological Diversity (CBD);International Union for Protection of new varieties of plants (UPOV) (1998);
International Treaty for Plant Genetic Resources for Food and Agriculture (ITPGRFA) (2004).

Conclusions
Just like other countries, Kenya has not made a lot of advances since 2002. The
areas that have been improved include: policy development for IP, Traditional
Knowledge and Folklore, and Traditional Medicine and Medicinal Plants.
Secondly, the ABS law was developed however it's contested.
The area of coordination is slightly improved due to the taskforces for the policy
development. However, it should be institutionalized to ensure that coordinationof IP in the country is effective.
4.2.3

Current IPR Background Information for Ethiopia(a) Industrial Property
There was no specific legislation that dealt with patents, utility models andindustrial designs in the country until May 1995. The first industrial Property Law
was the proclamation concerning inventions; minor inventions and industrial
designs and implementing regulations were issued on 10th May 1995
(proclamation) and 1997 for regulations. The objectives of the proclamation wereto create favorable conditions in order to encourage local inventions and related
activities thereby building up national technological capability and encourage
the transfer and adaptation of foreign technology by creating a conducive
environment to assist the national development efforts of the country. Ethiopia
recognized the fact that IPR provides for and reflects the need and importance inpromoting technological progress and the overall socio-economic developmentof the country.
(i) Patents
Three modes of protection exist in Ethiopia: Patent, Patent of Introduction Utility
Model Certificates and Certificates for Industrial Design. For an invention to bepatented, for instance, it must be new, must have an inventive step and must be
industrially applicable as stated in article 3 of the proclamation. These44 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

requirements are commonly known as the criteria of patentability. Meeting theserequirements is not enough to grant a patent. The invention should also not fall in
the category of excluded subject matters listed in article 4 of the proclamation.
One of the areas that is excluded from patent protection is the invention related toplants or animals or essential biological processes for the production of plants oranimals. Such exclusions are common in patent laws of different countries.
The Ethiopian law does not exclude all inventions involving life forms from being
patented. Micro-organisms are not excluded but a biological product invention in
the form of plants or animals are excluded. However, other biotechnologicalinventions such as vaccines and pharmaceutical products are protected.
Similarly, biotechnological processes as inventions can be patented. Specifically,
the proclamation excludes: inventions contrary to public order or morality; plantor animal varieties; schemes, rules or methods for playing games or performing
commercial and industrial activities and computer programmes; discoveries,
scientific theories and mathematical methods; and methods for treatment of thehuman or animal body by surgery or therapy as well as diagnostic methods
practiced on the human or animal body.
The rights of a patentee include: making using and exploiting the patented
invention. Any person who wants to use the patented invention has to get theauthorization of the owner. The patentee does not have import monopoly rightover the products of the patented invention in Ethiopia.
There is however certain limitations of rights of the patentee included in the
proclamation. These are: acts done for non-commercial purposes; the use ofpatented articles on aircraft, land vehicles or vessels of other countries which
temporarily or accidentally enter into the airspace territory or waters of Ethiopia;
Acts in respect of patented articles which have been put on the market in Ethiopia
by the owner of the patent or with his consent; the use of the patented inventions
for national security, nutrition, health or for the development of vital sectors of theeconomy subject to payment of an equitable remuneration to the patentee.
The duration of the patents is 15 years which may be extended for a further periodof five years if proof is furnished that the invention has properly worked in
Ethiopia.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 45

(ii) Patents of Introduction
These are granted to inventions which have been patented abroad, and have not
expired but not patented in Ethiopia; if protection is given it will be for 10 years.
(iii) Utility Model Protection
This is given to inventions which are new in Ethiopia and industrially applicable:
The inclusion of utility model protection in the law is because most of theinventions in Ethiopia involve small adaptations of existing technologies which
do not qualify for patent protection and these inventions could have a positive
impact on the growth of productivity.
(iv) Industrial Designs
The criteria used for industrial designs are: originality; industrial applicability; andindustrial designs which are contrary to public order and morality are excluded
from protection.
The protection period for an industrial design lasts for a period of five years which
may be renewed for two extensions of five years each. Most of the industrial
designs in Ethiopia are for shoes and furniture.
(b) Trade Marks
A trademark is any visible sign capable of distinguishing goods and services of aperson from those of other persons. It may include words, designs, letters,
numerals, colors or the shape of goods or their packaging. The law for
Trademarks in Ethiopia is referred to as directive and it was issued in 1986.
The objectives for the law were: to centrally deposit trademarks which are usedby local and foreign enterprises to distinguish their goods and services; todistinguish their goods or services; of one enterprise from other enterprises andprevent consumers from being victims of unfair trade practices; to provide
information on trademarks ownership and right of use when disputes arise
between parties and to provide required information or trademarks togovernment and individuals. Protection of trademark is only granted after
publication of cautionary notice.
Ethiopia has an experience with its coffee. It filed trade mark applications in 36
importing countries and secured protection in 30 of them. It has negotiated46 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

agreements on this basis with 96 foreign coffee companies and 50 local
companies and this has improved income to coffee farmers.
(c) Copyright
Copyrights such as literary and artistic works were recognized in Ethiopia since1960. The 1960 civil code provides for the protection of literary and artistic
creations but the provisions were not comprehensive. It was reviewed and now
copyright is protected on the basis of the copyright and related rights
proclamation which was issued in 2004.
The proclamation gives protection to literary, artistic and scientific works andthese include: books, pamphlets, articles, computer programmes and otherwritings; speeches, lectures, addresses, sermons and other oral works;
dramatic-musical works, pantomimes, choreographic works, and other works
created for stage production; musical works with or without accompanying
words; audio visual works and sound recordings; works of architecture; works ofdrawing painting sculpture, engraving, lithography, tapestry and other works offine arts; photographic and cinematographic works; illustrations, maps, plans,
sketches, and three dimensional works related to geography to topography,architecture or science; derivative works; and collection of works, collection ofmere data whether readable by machine or other form.
The proclamation further gives protection to: works of authors who are nationals
of or have their habitual residence in Ethiopia. Works first published in Ethiopia orworks first published in another country and published within thirty days in
Ethiopia; audio-visual works whose producer has his headquarter or habitualresidence in Ethiopia; and works of architecture erected in Ethiopia and otherartistic works incorporated in a building or other structure located in Ethiopia.
The author of the work shall be entitled to protection for his work upon creation if it
is: original, written down, recorded, fixed or otherwise reduced to any material
form; copyright is protected for the life of the author plus fifty years and it is fifty
years for the rights of performers and producers of sound recordings and finallyits 20 years for the rights of broadcasting organizations.

Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 47

(d) Administration of Intellectual Property
The Ethiopian office was originally under the Ethiopian Commission for Scienceand Technology in 2002. However, the Government has now established anautonomous office since 2003. The office was established: to facilitate theprovision of adequate legal protection for and exploitation of Intellectual Property
in the country; to collect, organize and disseminate technological information
contained in patent documents and encourage its utilization to study, analyze andrecommend policies and legislation on IP to the government; and to promoteknowledge and understanding of intellectual property among the general public.
The office has six organizational units; Patent Directorate, Trademarks
Directorate, Copyright Directorate, Information and Documentation Directorate,
Law, Policy and Plan Directorate and Administration and Finance.
(e) Plant Breeders' Rights (Plant Variety protection)
There is no law that protects new plant varieties in Ethiopia. However, the 1992
national seed industry policy provides for the government to prepare andpromulgate a national seed act to regulate seed trade, control seed quality
standards and protect users, plant breeders' and farmers' rights. This policy
envisages the establishment of a plant protection scheme in the country. To thisend, a national committee comprising of experts drawn from relevant
Government bodies, higher learning and research institutions, was set up under
the national seed agency to draft a plant variety protection law in 1999. Since thenthe committee has been working to develop the draft legislation.
However, there has been heated legal and policy debate both at national andinternational levels. The major issues of the debate are; as to who should have theright over the invention in a situation where a different person than the one who
has come up with the invention nurtured the raw material used in the invention;and how benefits arising from the inventions can be equitably shared. Ethiopia
aims at getting a law that can address the issues.
(f) Community intellectual property rights protection
The need for protection of the achievement of communities is recognized andefforts are undergoing to come up with a proper scheme. The environment policyof Ethiopia, which was adopted in April 1997, acknowledges ' community
intellectual property rights'. The policy states the need to create a system for theprotection of community intellectual property rights'. The concept of community
48 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africaintellectual property rights is a new concept. It is very difficult to define the subject
matter of protection; and who the holders of such a right are? How the right will be
exercised and enforced? Moreover, the concept of 'property' may be difficult toapply to community achievements that are not considered as commodity and arefreely exchangeable. It may be due to this problem that the African model
legislation for the recognition and protection of local communities, farmers andbreeders deal with community rights and community intellectual rights
alternatively without referring to property.
Moreover, the concept is different from the existing IPRs, which are private rights.
The current IP regimes are basically designed to protect readily identifiable andnew contributions to existing knowledge while community knowledge is
gradually built over decades or centuries and often lack novelty in the sense of
the requirement of the existing IPR regimes.
The community intellectual property rights envisaged in the environmental policy
anticipate the development of a sui generis system that defines and safeguards
such rights. In line with this, a committee consisting of experts from relevant
institutions has been established for the purpose of drafting laws on access togenetic resources and farmers'/community rights.
The committee is expected to elaborate and develop the concept in the course of
its work as well as study the implications and possible policy options with respect
to plant variety protection.
The ongoing effort to develop a new scheme for protection and recognition ofcommunity achievements is in line with the CBD and ILO convention 169 as wellas the draft declaration on the protection of indigenous people's rights, viz., theownership, control and protection of cultural and intellectual property ofindigenous peoples.
Ethiopia has played an active role in the formulation of a draft convention onaccess to biological resources and a model law for the recognition and protectionof community achievements, knowledge and practice.
The draft proposals were submitted to the council of Ministers meeting of the
OAU held in Ouagadougou in 1998. The council in its resolution recommends
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 49

that the governments of member states "initiate a process of negotiation among
African countries to formulate and adopt an African convention on biologicaldiversity with emphasis on conditions for access to biological resources andprotection of community rights".
(g) International obligation and membership to Regional/ International
conventions, treaties, protocols etc.
In 2002, Ethiopia was not party to any of the international conventions or treaties
on IPR except for the 1981 Nairobi treaty on the protection of Olympic symbols
and the convention that established WIPO. It joined Nairobi Treaty in 1982 andWIPO in 1997.
Since then it has now joined WTO, International Treaty on Plant Genetic
Resources for Food and Agriculture (IT-PGRFA). Ethiopia has been an active
participant in the negotiation of the newly adopted International Treaty on Plant
Genetic Resources for Food and Agriculture. Ethiopia is also a party to theconvention on Biological Diversity (CBD). It has been a very active participant in
the negotiations and implementation of the convention.
Conclusions
Ethiopia is endowed with enormous diversity of biological resources; studies
show that the country is a center of origin and diversity of various flora and fauna.
This presents a great potential for development. However, the existing system of
IPR is still far from complete. It has various deficiencies in policy and legislation
since it has not been a member of WTO and TRIPS. Therefore, there is need toamend existing IP legislation to be in line with TRIPS agreement and to come up
with new areas of protection especially the areas of Traditional Knowledge andAccess and Benefit Sharing.
On the basis of the earlier report of 2002, the level of awareness and knowledgeof IP among the users is low and there is lack of institution IP policies and finally
weak institutional capacity in IP.
Based on the previous studies, Ethiopia has not advanced very much apart fromestablishing an IPR office in 2003 and joining WTO and TRIPS. However,coordination of the Industrial Property is not an issue since the different IP
regimes are under the same office.
50 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

4.2.4IPR Background Information for Tanzania(a) Intellectual Property Rights
The Intellectual Property Laws in Tanzania are administered by the Business
Registrations and Licensing Agency (BRELA) under the Ministry of Industry andTrade. The patent law (Registration) Act Cap 217 RE 2002 was revised from the
Patent Act No. 1 of 1987. This was done to inter alia make the Act TRIPS
compliant.
The functions of BRELA under the Act include: Granting of patents; promotion of
inventiveness among nationals of the United Republic of Tanzania; establish andoperate a patent documentation center for the purpose of dissemination of
information on patents; collaborate with other bodies whether local orinternational whose functions related to patent matters; provide information on
patented technologies so as to facilitate transfer, and acquisition of technology by
the United Republic of Tanzania; and perform such other functions as arenecessary for the furtherance of the objects of the Act.
The patents registrar: maintains a register in which he/she records all mattersrequired to be registered under the act; provide patents register on request andmay take extracts from it on payment of a fee; and the details of the register are
clearly prescribed by regulations.
An invention is patentable if it is new involves an inventive step and is industriallyapplicable. The United Republic of Tanzania does not regard as inventions thefollowing: discoveries, scientific and mathematic theories; plant or animal
varieties; schemes, rules or methods for doing business, performing purely
mental acts or playing games; methods for the treatment of the human or animal
body by surgery or therapy as well as diagnostic methods; and mere
presentation of information.
(b) Trade and Service Marks
The trade and service marks are administered by BRELA under the Ministry ofIndustry and Trade through Trade and Service Mark Act Cap 326 RE 2002. It wasrevised from Trade and Service Marks Act 1986 to comply with the TRIPS
agreement.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 51

The Deputy Registrar in BRELA has all the powers and privileges and has
examiners and other officers to help in the administration of the Trade and Service
Marks. The registrar has a zeal for the registration and maintains a register for all
trade and service marks granted. He/she will provide the register on request andmay take extracts from it at a fee. All fees including registration are collected andaccounted for with the approval of the Minister for Finance.
The exclusive right to the use of a Trade and Service Mark shall be acquired byregistration. The Trade and Service Mark is not considered valid until theapplication has fulfilled the conditions for registration as contained in the act. The
application for registration could be rejected based on the following: Trade andService Marks; the use of which would be contrary to law or morality; if the Tradeand Service Marks consists solely of the shape, configuration or color of thegoods or the container; Trade or Service Marks which are identical with or initiate
the bearings of flags and other emblems; and trade or service marks whichconstitute reproductions in whole or part limitations, translations or transcriptions
liable to create confusion of trade or services with business or company names.
The application for registration shall be made in writing to the registrar and theinformation will include: the name and address of the applicant; the trade orbusiness description; a reproduction of the trade or service mark; particular
goods for which the trade or service mark is applied for; applicants address within
Tanzania and a declaration that the applicant uses the trade and service marks in
Tanzania.
Finally, the registration of a Trade or Service Mark is for a period of seven years
from the date of registration, and may be renewed from time to time.
(c) Copyrights and Neighboring Rights
The copyrights and neighboring rights are administered under Copyright Society
through the Copyright and Neighboring Rights Act Cap 218 RE 2002. This wasreviewed from Act 7 of 1999 which was still quite modern and TRIPS compliant. It
includes protection of Folklore, literary, artistic, etc. The Copyrights' management
society was formed to oversee the Management of Copyrights and Neighboring
Rights, under the Act.

52 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

(d) Protection of New Plant Varieties (Plant Breeders' Rights) Act 2002
The Plant Breeders' Rights are administered through a Registry in the Ministry ofAgriculture. The Registrar of Plant Breeders' Rights is the overall in theadministration of the Act. The functions of the Registrar will be as follows: grantPlant Breeders' Rights; establish a documentation center for the purposes ofdissemination of information on Plant Breeders' Rights; maintain a register andprovide information on Plant Breeders' Rights issued in Tanzania; facilitatetransfer and licensing of Plant Breeders' Rights; collaborate with local andinternational bodies whose functions relate to plant breeders matters; andperform other functions as are necessary for the furtherance of the objects.
The register kept and maintained has the following: species and denominationsof varieties; the full name and address of the original breeders, any other holder ofPlant Breeders' Rights and each person to whom such right has been transferredor assigned; the date of inception of the Plant Breeders' Rights; and all othermatters which are required and validity of the ownership of the Plant Breeders'
Rights.
The Plant Breeders' Advisory committee is established comprising of arepresentative from the Ministry of Agriculture– Chair; one representative fromPlant Breeders' Association; one representative from the seed growers; one
representative of farmers; one representative from Institution of Higher Learning
dealing with plant breeding; one representative from BRELA and one legallyqualified person representing the AG and the Registrar who is the Secretary. The
functions of the committee are to: advise the Minister on the efficient
enforcement; receive reports of PBR applications from the Registrar; makeexpert consideration on Plant Breeders' Rights reports and on the registrars' tests
results; and to advise the registrar on Plant Breeders' Rights.
Plant Breeders' Rights may be granted with respect to any variety which is new;
distinct; uniform and stable.
A variety is distinct if it is clearly distinguishable from any other variety whose
existence is common knowledge at the time of filing of the application for the
granting of PBR. A variety will be deemed uniform if variations within the variety
are describable, predictable and commercially acceptable and a variety isIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 53

deemed to be stable if it is able to retain its descriptive characteristics with areasonable degree of reliability after repeated propagation. The DUS test thatwas mentioned is conducted before the PBRs are given.
The applications for a Plant Breeders' Rights relating to a variety have thefollowing: the name and address of the applicant; the name and address of thebreeder of the new variety; the origin and denomination along with the descriptorof the variety; samples of propagation materials. A list of all countries in whichapplication for PBR has been made; a list of other countries in which the variety islisted; a location at which plants of the new varieties will be available forinspection and any other information that will be needed by the registrar.
Together with PBR, there is a Seed Act which is administered at the Ministry ofAgriculture through the Seeds Act, 2003 and its main function is to ensure seed
quality importation, exportation and sales of seeds. It is managed by National
Seeds Committee.
(e) Genetic Resources and Traditional Knowledge protection
Tanzania has no law enacted to protect Traditional Knowledge. However, theTraditional Medicine has a law enacted in 2002 – through the Traditional Medicine
and alternative Medicine Control Act No. 23 of 2003. The national office wasestablished as the Traditional Medicine section of the Department of Curative
Services at the Ministry of Health and Social Welfare. Currently, there is a registrarof Traditional Healers at the Ministry. There is also an Institute of Traditional
Medicine (ITM) which was founded in 1974 at the current Muhimbili University of
Health and Allied Sciences.
Article 27.3(b) of TRIPS agreement has a provision for member states to consider
protection of genetic resources and Traditional Knowledge using sui generis
system of protection. These provisions are available but member states may
require proper ways to enable them develop the alternative sui-generis system.
This is where the IP Programme has the biggest opportunity.
(f) Analysis of IPR in Tanzania
Generally IPRs are tools for monopoly as they confer to inventors' or creators'
exclusive rights in return for disclosure of what is claimed to be created. On theother hand, the public during the lifetime of the protection is precluded from54 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

commercial exploitation of the created or protected works. Even after the lifetimeof the invention, Tanzania has not endeavored to exploit the opportunity.
To improve on this, the IP Institution in Tanzania requires the designing andsetting up of an IP framework for the purpose of articulating and implementing IP
objectives within the context of the broader social, economic and culturaldevelopment strategies of the nation. This calls for a strong policy on IP and
related protection in Tanzania.
Based on the current developments in IP arena, IP is a multi-sectoral activity andas such it does not belong to any one Ministry or Institution. However, forpurposes of coordination it is under the Ministry of Trade and Industry, the PBR isunder the Ministry of Agriculture while Copyrights and Neighboring Rights areunder COSOTA. There is need therefore for coming up with a clear institutional
set up that can enable central coordination. To come up with such, the IP
stakeholders should be effectively involved in the actual setting up of theinstitution.
The Registrar General of BRELA strongly suggests that a national IP policy beformulated to guide the formation of a national intellectual property commission,
which will encompass all the elements of IP including the protection of TK andgenetic resources in future.
(g) International obligation and membership to International and Regional
Conventions, Agreements, Protocols etc.
Tanzania is a member of the following International and Regional Conventions
Agreements and protocols.
> WIPO convention since 1983 with its other related conventions – Paris
Convention (1963), Berne Convention (1994), PCT (1999), Nice Agreement(1999) etc.
> ARIPO in (1986) with Lusaka Agreement which established ARIPO, Harare
Protocol on Patents (1999) and Banjui Protocol on Trade Marks (1999).
> WTO> TRIPS Agreement> UPOV (1978)> CBDIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 55

Conclusions
In comparison with 2002 baseline, Tanzania has improved by reviewing theIndustrial Patent Acts of 1987, Trade and Service Mark of 1986 and Copyright of1999 to comply with TRIPS Agreement and they were all reviewed in 2002.
Secondly, the Seed Act and PBR Acts were also completed in 2003 and 2002
respectively. In 2002, Tanzania was not a member of UPOV but it is now, after
establishing PBR.
The area that is still lagging behind is the protection of TK and genetic resources.
Tanzania is virtually waiting for the international community to assist, however,various opportunities exist including sui generis in TRIPS Article 27.3(b).
In conclusion, Tanzania has made clear advances unlike other African countries.
4.2.5 Current IPR Background information for Malawi(a) Industrial Property
The IP Laws in Malawi are administered by the Registrar General under the
Ministry of Justice. There has been no change of office since 2002. The industrial
property includes Patents, Trademarks and Industrial designs.
(i) Patents
In Malawi, Patents are administered through the Patents Act 1958 (Cap 58.02).
This was legislation for a nationally independent system of patent protection. The
legislation has since been reviewed to patents Act (Cap 49.02). Under the Act, aninvention will be patented if it is new, has an inventive step and it must be
industrially applicable. However, the Registrar is empowered to refuse an
invention where: it is frivolous on the ground that it claims as an invention
anything obviously contrary to well-established natural laws; the invention in
respect to which application is made would be contrary to law or morality; itclaims as an invention on a substance capable of being used as food or medicine
which is a mixture of known ingredients possessing only the aggregate of known
properties of the ingredients; and it claims as an invention a process producing
such a substance by mere admixture.
A multinational cooperation such as Monsanto has registered their patents in
Malawi, while the local players have slumbered on their rights. Out of 258 patents
indexed under the title “human necessities in 2002, none of them were owned by
56 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

Malawians. However, the basic function and role of the patent system is to both
encourage inventions in technology and the disclosures while at the same time
securing the rights of the inventor so that he/she may reap full benefits of his
inventions.
(ii) Trade and Service Marks
Trade and Service Marks are administered by the Registrar General throughTrade Marks Act (Cap 49.01). The applications are lodged with the Registrar andare examined and if acceptable, they are gazetted and given out on a fee.
(iii) Industrial Designs
These are administered by the Registrar through Registered Designs Act (Cap49.05). These are applied for like the trade marks above and the sameprocedures are followed.
(b) Copyright Regime
The copyright regime is administered by the Copyright Society of Malawi(COSOMA) through a Copyright Act (Cap 49.03) of 1989. It makes provision for
copyright protection in literary, musical, artistic audio visual works, soundrecordings and broadcasts and the establishment of (COSOMA) for theadministration of Copyrights. The Act also defines folklore to include folktales,folk poetry, folk dances, plays, artistic forms of ritual and riddles.
Before that, Malawi Government passed the commercial advertising Act of 1978
(Cap 48.07) which was for the control of recording and reproduction forcommercial advertising purposes of Malawi traditional music and dances.
(c) Plant Breeders' Rights and Farmers Rights
There is no law on PBR; however, it is one of the emerging IP regimes in Malawi. It
is likely to fall under the Ministry of Agriculture where there is Seed Policy and
Seed Act.
(d) Protection of Traditional Knowledge and Genetic Resources
According to information from the NSC of Malawi, Traditional Knowledge is under
the Registrar General; however, protection of Genetic Resources is under the
emerging areas for IP protection in Malawi. However, there is no comprehensive
framework for the protection of Traditional Knowledge. On this front, Malawi isIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 57

currently a signatory to a SADC protocol on a sui-generis protection system of
Traditional Knowledge. Currently, the legal framework is only embedded inarticles of association and special interest NGOs. Furthermore, a Traditional
Medicine Bill under the Ministry of Health was drafted but has not been passed in
Parliament, clearly the existing regimes for protection of TK in Malawi is narrow in
scope and fragmented. This impetus has come from various international
obligations i.e. WTO, WIPO and CBD among others, now the Government is
considering adopting a National IP policy to create a framework for reexamination of the entire IP landscape with a strong desire to make IP contributeto economic, social, cultural, scientific, industrial and technologicaldevelopment. Therefore, there is need to create legal and policy framework that
protects TK and TCEs at the same time facilitate access. It is therefore importantto take advantage of this process in order to make policy input facilitate theprotection of TK and TCEs from the IPR perspective.
Conclusions
The status of IPR in Malawi has not changed however the current development islikely to change it in the next few years. The IP policy and legal framework
development currently in draft form shows that the country is moving forward.
The geographical indications legal framework is under review and Traditional
Medicine policy and legal framework is in a Bill waiting for discussions in
Parliament. The ARIPO legal framework for Traditional Knowledge and TCEs will
be depended upon, once it is formalized.
4.2.6

Current IPR Background information for Uganda(a) Intellectual Property Rights
The Intellectual Property Rights are administered by a Registrar General under
the Ministry of Justice through four pieces of legislation in 2002. These are: thepatent statute 1991; Trade Marks Act, Copyright Act and United Kingdom
Designs Protection Act.
(i) The Patent Statute of 1991
It is the only legislation that is nearer what is desirable in Uganda through a review
and repeal of the Patent Act Cap 82. It provides for the subsistence of a patentright, how to apply for it, how it is registered and enjoyed by the inventor of theproperty with which it is associated. The Registrar General's office grants patents,
58 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

registers license contracts, assigns the right to a patent and furthermore,
provides patent information services to the public among other functions. It also
maintains a register of patents where all patents granted are recorded. The
Registrar also issues administration instructions relating to the procedure for the
grant of patents. In 2002, the Registrar's office had ten professional staff (lawyers)
and ten administrative staff (records clerks, etc.).
According to the records available, limited numbers of applications for thepatents are received and this means that the number granted are even fewer. The
transactions in patents are mainly dominated by applications from abroad e.g. in
1998, 52 applications were received from overseas, but they were all sent to
ARIPO since the registrar has no examiners to evaluate them. They are later sent
back to be recorded since Uganda is a designated office. From 1999 to 2000, only
one patent was granted. In 2001 to 2002 four applications were submitted to
ARIPO for novelty search, a facility the Registrar General did not have.
There is a draft bill for Industrial Property which combines the law of patents andthat of industrial designs. The later law is at the moment simply for registration ofdesigns in the U.K. providing practically little attention effective to designs in
Uganda as the process is counter some. Thus, bringing the whole process homewould therefore improve the law. The patent law had weaknesses and the bill willcorrect them. These were: no provision for compulsory licensing; complicatedand protracted grant of application; patent right life is unreasonably short;
dispute resolution is cumbersome; not in line with advances in technology andnot conducive to Uganda's technological development and industry in general.
(ii) The Trade Marks Act (Cap 83)
The Act is concerned with the registration of trademarks used by owners in theirbusiness for purposes of distinguishing and protecting the product from that ofanother person. The act provides for the appointment of the registrar of
Trademarks and the keeping of a register of trade marks. It is administered under
the Ministry of Justice.
The Trade Marks system is the most active in Uganda the available statistics in1999 indicated that 805 trademarks were registered and only one third of themwere local. The Registrar General, under which Patents and Trade Marks areadministered with registrars, works closely with WIPO and ARIPO and also withIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 59

WTO (TRIPS). A new bid is prepared based on many changes experienced ininternational business management innovations in business competitions forcustomers, methods of advertising commodities all among others.
(iii) The United Kingdom Design Protection Act (Cap. 84)
It is administered under the Registrar General's office. The purpose of this law isto provide for the protection, in Uganda, of designs registered in the United
Kingdom. The draft bill of Industrial Property has combined together the law ofpatents and that of industrial designs.
(iv) The Copyright Act (Cap. 81)
This Act is administered under the Registrar General and it provides forprotection for literary, musical, artistic works, cinematography, pictures
broadcasts, which one has created. Under this law, infringement of a copyright is
not a crime and that only civil action can result from such an infringement. The law
reform is however making some attempts through the new bill to makeinfringements criminal. Because of the weaknesses in the current law, there is noenthusiasm. This Act does not recognize the Neighboring Rights. However, the
new Copyright and Neighboring Rights Bill has improved on these weaknesses.
It brings in neighboring rights which were not part of the Copyright Act (Cap 81)
and it brings the whole body of the law to an international level in content andenforcement. It introduces a moral right as an Intellectual Property Right andmakes infringement of a copyright a criminal offence.
(b) Plant Breeders' Rights
In 2002, there was no law on the Plant Breeders Rights. However, Plant Variety Billwas prepared with an aim of protecting both the breeders and farmers. The draft
was based on organization of African Model law adopted in 1998 which leans
towards the protection of Farmers' Rights. This included the right for farmers tosave, to exchange and to breed seeds on non-commercial basis. This created aninherent conflict between small farmers' rights and breeders' rights.
Because of the conflict, it took time for the Cabinet to approve the Bill until the
President intervened and corrected it to go the UPOV way. It was approved by
Cabinet in 2007. It is not clear whether Parliament has now passed the bill toenact it into law.

60 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

(c) Access and Benefit Sharing
This is administered under the National Environmental Management Authority of
the Ministry of Environment. The law on Access and Benefit sharing was passed
to protect the genetic resources and ensure Access and benefit sharing of theproceeds.
(d) Protection of Traditional Knowledge and Folklore
There is a general recognition of the fact that there is a mine of knowledge
unwritten but well preserved by individuals or local communities crossing all
barriers of social activities. In order to preserve and promote this, a draft bill is inplace. Its relevance in protecting and improving the importance of cultural
heritage and national identify cannot be over-emphasized.
Under this, there is the Traditional Medicine Practice Bill which was developed
based on worldwide recognition of alternative medicine and the mere fact thatpractically all major drugs are derived from raw materials known and used by the
local members of the society to treat various diseases in some cases quite
successfully and this has necessitated to regulate practice in traditional
medicine. It is with this awareness that the Uganda Law Reform Commission
embarked as one of its current law reform activities, proposing legislation on
traditional medicine practice. It is with this measure that conservation of
medicinal plants is supported by the law.
(e) International Obligations and Membership for Uganda
Based on the information available, Uganda is a member of:> WIPO with its convention, protocols and agreements> WTO> TRIPS> ARIPO and> CBD (1996)(f) Analysis of the IPR in Uganda
The patent statute provides for the grant, registration and protection of patents
and for other purposes incidental thereto. It also provides for the registration andprotection of IP rights in patents and utility models. Aware of this, the government
through the Uganda law reform is amending or even repealing the patent statuteto bring it in line with the international obligations under industrial property. It will
however require a lot in terms of capacity building especially for patentIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 61

examiners, policy development which at the moment is lacking. It will also require
the support of all stakeholder including NGOs to ensure that there is enoughlobbying to have the Bills passed.
While the process of registering a trademark is a simple matter at the Registrar
General's office, registering of a patent is more complex. An application is lodged
at the office then it is sent to ARIPO in Harare. Secondly, some applications fromoverseas send their applications directly to ARIPO. It then searches to ascertainthat the invention is new before the patent is given. This is a disadvantage sincemost of the fees are given to ARIPO and not to Uganda.
Apart from the Registrar General, the Uganda National Council for Science andTechnology is supposed to provide technical expertise and the Uganda Law
Reform Commission is looking at the reform, however, there is no clear
coordination among them.
Conclusion
On the basis of the baseline in 2002, there has been a lot of effort put into thereview of laws, but there has been little done on IPR policies. Although reforms orreview of laws are done, it takes a long time for the Cabinet to approve andparliament to enact them into law. What has been there may have been
insufficient but there are definitely moves to rectify the situation and bring IP
regime in Uganda at par with internationally acceptable standards and in
conformity with the country's obligations under WTO and other Treaties,
conventions and protocols.
4.2.7

Current IPR Background Information for Mozambique(a) Industrial Property and CopyrightDuring the colonial period, Mozambique had an industrial Property based on
Portugal legislation and protection could only be done in Lisbon Portugal. After
independence in 1975, Mozambique could not get involved in industrial property.
After a multi-party election in 1994, the government created the Ministry ofIndustry, Trade and Tourism in which IP was identified as the dynamo of economic
development. In 1998, the Government approved the law as a code of industrial
property of Mozambique which came in force in July 1999. The code comprisesof all industrial property right: patents, utility model, industrial design,
62 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

trademarks, commercial names, geographical indications and denomination oforigin and logo. Immediately, the code came into force, the registration process
for trademarks, trade names, service marks, and their protection from unfair
competition and false marking was started.
The code sought to encourage and stimulate research and inventions and thecountry recognized that an effective IP system is a vital tool of development. The
system promotes economic growth, because it facilitates the transfer oftechnology, improving national capacity to attract foreign investment and ensure
market access for the local products.
The system could also promote intellectual and cultural growth through theprotection of the exclusive rights of scientists, inventors and other citizens to theirIntellectual Property Rights and creation particularly when it is beneficial to the
local citizens.
Mozambique has created industrial property office run by the industrial property
institute under the current Ministry of Industry and Commerce. It is responsible forPatents, Trade and Service marks, Industrial designs, Utility Model, Geographical
Indications, Commercial Names and Denominations of origin and logo.
The Copyright and Related Rights are under the Ministry of Culture, Youth andSports and Administered by the National Institute of Book and Disc.
The authority enforcing or dealing with opposition in Intellectual Property is the
Tribunal, under the High Court of Mozambique.
Applications filed and registered since 1999 are as follows: Patents' applications
were 30 and only 3 were granted; Trade Marks had 5,500 applications and only
1,343 were granted; logo type applications were 79 and none was granted;
commercial names had 42 applications none was granted; utility model had 11
applications and none was granted; and Industrial designs had 8 but none was
granted. Applications sent to ARIPO were 303 but none was granted according to
the reports. These were for 2002, I am sure the status is now different.
(b) Analysis of IP in Mozambique
Mozambique established patent laws in 1999 and since that time it has
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 63

established Institutes responsible for the Industrial Property and Copyright. It has
also received a lot of applications as compared to other countries and yet it only
started recently. What is now needed is a strong IP Policy that can help
strengthen the Institutes to move IPR forward.
(c) International obligations and membership
Mozambique is a member of the following:> WIPO with its related conventions and protocols such as Paris Convention,
Patent Cooperation Treaty (PCT), Madrid Agreement and its protocol, Nice
Agreement Concerning the International classification.
> WTO since 1994
> TRIPS Agreement> ARIPO and its protocols – Harare and Banjui> CBD(d) Plant Breeders' Rights
The country, has drafted a Bill to enact a law for PBR, however, it is yet to beenacted. Meanwhile the seed act assists in seed distribution, exportation andimportation.
(e) Traditional Knowledge and Access to Benefit Sharing
The country has no law on Traditional Knowledge and genetic resources. The
country is waiting for an international instrument after the negotiations arecomplete under the Inter-governmental committee on IP, genetic resources,
Traditional Knowledge and Folklore in WIPO. It is also awaiting endorsement of
the ARIPO and OAPI instrument on Traditional Knowledge and Folklore to beformalized so that they could make use of it.
Conclusions
Mozambique has made some strides since 2002. The administration of IP has
been strengthened through the establishment of the Institutes to administer
Industrial Property and Copyrights. It has also gone ahead to prepare a bill on
PBR which could be made into law anytime.

64 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

4.2.8Current IPR Background Information for Lesotho(a)Industrial Property
The Industrial Property was initiated in Lesotho in 1989 and it operates underIndustrial Order No. 5 of May 1989. It covers the Patents, Trade Marks, Industrial
Designs and Utility Model. It is administered by the Registrar general in the
Ministry of Law and Constitutional Affairs.
(i) Patents
It is administered under the industrial property order No. 5 of 1989. Part II Patents
sections 3 to 16 and it was in force in May 1989. Under patents, there was also theindustrial property order commencement legal notice No. 84 of May 1989. Lateran amendment was done under Industrial Property order No. 22 of April 1993. It isfinally operating under the Industrial Property Amendment Act of 1995 and 1997.
The implementation was guided by the Industrial Property Regulation legal notice
No. 85 of May 1989 but it was in force in January 1990. The enforcement andsettling of disputes is the responsibility of the Industrial Property Tribunal underthe High Court of Lesotho.
Applications filed and/or registered in 2001 through ARIPO were: Lesotho
residents had one application and it was not granted. Non-residents had 54
applications and 11 were granted.
(ii) Trademarks
These are administered under Industrial Property Order No. 5 of 1989 Part V for
Marks, Collective Marks, and Trade Names and it is covered under sections 26 to
33. It is now operating under Industrial Property Act of 1997 sections 3 and 4 and itcame into force in April 1998. The Merchandise Marks Regulations were underthe High Commissioner's Notice No. 83 of April 1937. The enforcement andsettling of disputes is the responsibility of the Industry Property Tribunal, underthe High Court of Lesotho.
Applications filed and/or registered in 2001 for Trade Marks by ARIPO were:residents had none; while non-residents had 19 applications and all were
granted.

Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 65

(iii) Industrial Designs
The industrial designs are administered under Industrial Property Order No. 5 of1989 part III: Industrial designs sections 20 to 25 and it is currently under theamendment Act of 1997. Enforcement and disputes is the responsibility of theIndustrial Property Tribunal.
Applications filed or registered in 2001 for industrial designs by ARIPO on behalfof Lesotho were: residents had none; while non-residents had one application
but was not granted.
(v) Utility Models
The models are administered under Industrial Order No. 5 of 1989 Part III: Utility
Models certificates sections 17 to 19. It is assumed that it is now operating under
the amendment Act of 1997. Enforcement and settling of disputes is the
responsibility of the Industrial Property Tribunal. There is no information on
applications and registration of the models in Lesotho.
(v) Copyright
It is administered under the Copyright Order No. 13 of May 1989. It isadministered under the office of the Registrar General of the Ministry of Law andConstitutional Affairs as of the Industrial Property. Enforcement and disputes is
the responsibility of the Industrial Property Tribunal of the High Court of Lesotho.
There was no information on the registration.
(b) Plant Breeders' Rights
Based on the information available, the Bill on Plant Breeders' Rights wasdeveloped in 2002 but up until now, it has not been enacted into law.
(c) Traditional Knowledge and Access and Benefit Sharing
The country has no law on Traditional Knowledge and they are waiting forinternational negotiations under the Intergovernmental Committee on IP and
Genetic Resources, Traditional Knowledge and Folklore in WIPO to come up withan Instrument to protect the Traditional Knowledge and Folklore and Genetic
Resources. The country is waiting for the endorsement of the OAPI and ARIPO
instrument for Traditional Knowledge and Folklore to protect their TK and ABS.

66 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

(d) International Obligations and Membership to Regional and International
Conventions, agreements and Protocols
Lesotho has obligations and is a member of:> WIPO and WIPO treaties – Paris Convention (1986), Berne Convention (1989),
PCT (1995), Madrid Agreement (1999), Madrid Protocol (1999) and Rome
Convention (1990).
> WTO> TRIPS since May 1995
> ARIPO and its protocols – Harare and Banjul (since 1987)> CBD> IUPGR(e) Analysis of IP
The challenge that faces Lesotho and other African countries is how to create an
IP culture to encourage and promote creativity and innovation in an environment
subject to severe constraints such as limited experience, weak IP infrastructure
and policy framework.
Lesotho relies on ARIPO and WIPO for guidance and expert assistance in thedevelopment and promotion of IP. The country requires an IP infrastructure that
can allow for participation in exchange of valuable information at regional andinternational level. The capacities are still low however, the National University of
Lesotho under the Faculty of Law, is teaching Intellectual Property and this could
build on the capacities. However, a strong policy is needed to guide future
developments.
Conclusion
On the basis of the baseline of 2002, no major changes have taken place.
Therefore there is need to influence policy makers towards developing policies
and legal frameworks on IP and more especially on TK and ABS using the sui
generis system of protection instead of waiting for international instruments.
4.3

To analyze the IPR regimes, TK and Access and Benefit Sharing andprovide recommendation for the way forward

4.3.1 Patents and Industrial Designs
The evolution of IP in Eastern and Southern Africa countries was due to global
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 67

pressure to have IP in African countries to enable developed countries getmarkets for their products. Lesotho, Tanzania and Kenya initiated their IP laws in
the late eighties and have since been reviewed to be TRIPS compliant. Ethiopia
enacted their law in 1995 while Uganda had the IP law reviewed in 1991. Due to alate start, Mozambique enacted its current laws in 1998 but started functioning in
1999. Malawi enacted its law in 1958 but has since been amended. However,Swaziland still relies on the 1936 law which basically relies on the law of United
Kingdom and the Republic of South Africa.
The laws are comparable except for Uganda and Swaziland which are not TRIPS
compliant. Uganda and Swaziland have now come up with Bills that are TRIPS
compliant but are not yet enacted into law. Apart from Kenya, Tanzania andEthiopia who are examining and giving patents directly in addition to ARIPO,
other target countries rely a lot on ARIPO to give patents due to inadequacy of
capacity and infrastructure. The laws are also named differently: Swaziland refers
to it as Patent and Designs; Kenya calls it Industrial Property Act; Ethiopia uses
Proclamation; Tanzania uses Patent Act; Malawi calls it Patent Act like Tanzania;
Uganda calls it Patent Statute; Mozambique calls it a Code of Industrial Property
while Lesotho calls it Industrial Order. The differences may be due to the different
circumstances and laws in each country. In some countries, the law only covers
Patents and Designs while in others like Lesotho, the law covers all elements ofIndustrial Property – Patents, Designs, Trademarks, and Copyrights but appear
under different parts and sections. Finally in about three countries: Mozambique,
Kenya and Tanzania, IP is administered by parastatal organizations while others
are directly administered under their respective Ministries.
None of the target countries have IP policies. Most of them are planning todevelop them while Kenya, has a draft policy under discussions.
Based on this comparative analysis of the target countries, gaps exist in terms ofestablishing proper legal frameworks and offices to administer IP. In terms ofpolicy it is even worse since none of the target countries have IP policies. There isneed therefore for the NSC to review the country situation before developing
strategies as to how they can influence the development of proper legal
frameworks including institutions to administer IP and policies that are guided by
the countries future plans or visions for the benefit of the countries, communities,
etc. However most patents granted, apart from Kenya, are foreign.
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4.3.2 Trade and Service Marks
Trademarks are functional in all target countries. They are the most understoodand used in the target countries although those who apply for them areforeigners, except for Kenya. In some countries the laws were enacted either at
the same time or earlier than patents, but more trademarks are administered by
the Industrial Property offices. Just like the patents and designs, there are nopolicies developed to guide the trade marks. It is however assumed that thepolicies that will be developed for industrial property will include the issues on
Trademarks. Trade and Service Marks laws are called the same in all target
countries. There are still some gaps in terms of policy framework and the NSCs
have to bear this in mind.
4.3.3 Copyright and Neighboring Rights
Based on the assessment, some countries have both Copyright and Neighboring
Rights however, others do not. Swaziland has both Copyright and Neighboring
Rights; similarly, Kenya has both, Ethiopia has only copyrights, Tanzania has bothlike Swaziland and Kenya, Malawi has what they call copyright regime, Uganda
has a copyright act like Ethiopia, while Mozambique has a copyright and related
rights and Lesotho a copyright like Uganda and Ethiopia. Some of the countries
that have only copyright, have developed bills and they contain Neighboringrights. In terms of administration, most target countries tend to establish
copyright societies to administer the regime.
Some of the countries with societies are: Swaziland, Kenya, Tanzania and Malawi.
The other four are administered directly through their Ministry offices. The laws
vary slightly like those of Patents and Designs. Lesotho calls it Copyright Order,
while Ethiopia calls it Proclamation. Other countries refer to the Copyright Acts.
In Swaziland and Uganda, there is no enforcement on infringements of the
copyright since infringements are taken as civil rather than criminal. On the other
hand, even if the infringement is criminal, the system is still weak since theresponsibility lies with the judiciary. The benefits to owners are doubtful even withthe most advanced systems like that of Kenya. It is not clear whether thebusinesses or the authors and artists are the ones that benefit.
Hence, NSC has a task to analyze the systems and confirm whether or not thebenefits really reach those that are protected. It may also be useful to determineIntellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 69

the best institutions to administer copyrights and neighboring rights and finally
the issue of enforcement.
4.3.4 Plant Breeders' Rights
Only two target countries have Plant Breeders' Rights Laws under UPOV
Convention 1978. These are Kenya and Tanzania. Uganda has a bill approved by
Cabinet awaiting enactment and implementation. It will be under UPOV 1978.
Lesotho also has a bill awaiting discussions for approval and enactment. The rest
have no laws on PBR. They rely on seed acts for phytosanitary processes,
importation and exportation of seeds.
The three countries decided on the UPOV 1978 because of the farmers' privilege
where they can keep and plant their own saved seed in the next season.
The 1991 UPOV only allows selected crops to be saved. Because of theadvancement in biotechnology and the fact that UPOV 1978 may be weak onprotection of local varieties that may be slightly changed leading to loss ofownership, Kenya has been contemplating of advancing to UPOV 1991. This may
not necessarily be useful to the local communities. Concerning the benefits forprotecting the varieties, foreign breeders are the major beneficiaries of the law
especially in Kenya. Very few local breeders have benefited from protecting theirvarieties. The maintenance fees are high and the sales are low, and also theemployers have no incentives for the breeders who have developed newvarieties.
Apart from the above arguments, Ethiopia has the notion that breeders are notthe owners of those varieties since they were developed from the communities'
seeds or materials. As a result they have been arguing for community's rights andprotection as opposed to breeders' rights. This argument is what led to theAfrican Model law on protection of genetic resources.
Based on this analysis and comparative assessment, gaps exists in developmentof laws to protect new plant varieties whether through UPOV or through suigeneris system. Only three target countries are with UPOV and one has a bill but
not sure under which system. The rest have no laws on PBR. NSCs have a big
mandate to advice policy makers to develop laws that would protect plantvarieties in general.
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Just like Intellectual Property, there are no clear policies that guide thedevelopment of the seed sector and protection of varieties in the target countries.
Countries yield to pressure to develop legal framework based on international
obligations but they forget policies that will help the countries to focus more on
their own development through such laws. NSCs should influence the policy
makers on the need or importance of the policies before legal frameworks areenacted.
4.3.5 Traditional Knowledge
The target countries have no legal framework or policy for Traditional Knowledge
in general. However, Ethiopia uses the environmental policy to address theprotection of communities' TK, while Kenya has a draft policy to protect traditional
knowledge, genetic resources and folklore, but the rest have none.
On Traditional Medicine, Tanzania has a legal framework under the Ministry ofhealth, however it has no policy. Malawi and Uganda have draft Bills on Traditional
Medicine and Practice under their Ministries of Health, and once again they haveno policies for the same. Kenya on the other hand has no legal framework or
pending bill but it has a draft policy on Traditional Medicine and Medicinal Plants.
The other four have no policies or legal framework on Traditional Medicine(Ethiopia, Swaziland, Lesotho and Mozambique).
The global recognition of Traditional Medicine and Knowledge and the link topharmaceutical companies provided pressure for Tanzania, Uganda, Malawi and
Kenya to develop policies or legal frameworks. Their main aim was to regulate
herbal medicine and associated knowledge. Secondly, they aimed at controllingthe exploitation of medicinal plants. These have encouraged various
Foundations and NGOs to come up with various organic medicines especially in
Kenya. Limited documentation and encouragement of growing medicinal plants
has been noticed in countries like Kenya, Tanzania etc.
Based on the comparative analysis, there exist a lot of gaps in terms of developing
policies and legal frameworks on Traditional Knowledge. The NSC has a hugetask of first influencing the policy makers towards developing a sui-generis
system that will help protect TK. The Regional or International instruments might
not be good enough to address the individual country needs.
Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 71

4.3.6 Access and Benefit Sharing
All Target countries have Environmental Management offices which were
established to conserve and manage genetic resources. Some of these offices
have pieces of legislations that address the access to genetic resources but
limited on the Benefit Sharing. Kenya and Uganda have legal frameworks under
the National Environmental Management Authorities however, it is not known
whether there are clear structures for Access and Benefit Sharing. The othertarget countries except for Ethiopia which uses the Environmental Policy and Act
to address the issues of Access and Benefit Sharing, do not have legal
frameworks or policies for Access and Benefit Sharing.
The NSC has a task to work closely with the Environmental Management offices
to influence the development of policies and legal frameworks for Access andBenefit Sharing.

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5. Conclusions & Recommendations
5.1

Conclusions

5.1.1 International treaties, agreements, etc.
Although some treaties and agreements appear to favor proprietary stance, they
do provide opportunities for the developing countries to develop policies andlegal framework based on the desires and needs of the local communities.
However, the capacity to analyze the treaties for such opportunities is lacking inmajority of the African countries. Hence the legal frameworks and/or policies
developed are influenced by outside forces leading to making them for theinternational community rather than the desires and needs of the local
communities.
5.1.2 Awareness on the importance of IP, TK and ABS
Awareness on the importance of IP, TK and ABS in food security and economic
development in the African countries at all levels is limited. That is why biopiracy ishigh and bioprospecting is limited even at the policy level.
5.1.3 Legal Frameworks and policies in target countries in IP, TK and ABS
Most legal frameworks are revised to comply with International treaties or
Agreements rather than focusing on the benefits of the local communities. Somelegal frameworks are still colonial and have not been changed up to now and nopolicies have been put in place to guide the development of the legal framework.
This puts the countries in a losing position.

Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 73

5.1.4 Genetic resources and Traditional Knowledge
Most countries have no data on the existing genetic resources and Traditional
Knowledge and Access and Benefit Sharing. This has enabled outsiders to
exploit our rich resources without any benefits to the local communities. In almost
all countries biopiracy has been high.
5.2

Recommendations

5.2.1 International Treaties, Agreements, etc.
The African countries have to build capacities in IP, policy analysts andpolicy/legal framework drafters, to enable the countries to develop legal
frameworks and policies in line with the international obligations but focused on
the desires and needs of the local communities. This will balance between
proprietary IP, Traditional Knowledge and Access and Benefit Sharing. The
Nagoya protocol for implementation of Access and Benefit Sharing and ARIPO
protocol on the protection of Traditional Knowledge and Folklore will provide
good information on the development of the policies and legal frameworks. The
team should ensure policy coherence in translating the International agreements
at national level and should match them with local needs.
5.2.2 Awareness on the importance of IP, TK and ABS
Programmes like ATPS/BTA IP Programme should trigger dialogue or outreachactivities at all levels to sensitize all stakeholders to know the importance of IP, TK
and ABS in food security and social economic development. Examples of thelosses due to biopiracy should be provided during the dialogue to enable thepolicy makers and other stakeholders to take preventive action. This activity
should be institutionalized to sustain the discussions over time.
5.2.3 Legal frameworks, policies in target countries in IP, TK and ABS
With the development of adequate capacities in IP, policy analysts and drafters
and the necessary awareness on the importance of IP, TK and ABS, the various
governments should establish intergovernmental committees including NGOs,
the private sector and community leaders to develop appropriate policies andlegal frameworks focusing on the desires and needs of the local societies. The
committee should merge concepts of TK and IPR, balance TK and IPRs withnational sovereignty and balancing of breeders' rights and farmers' rights and thedefinition of ABS for development purposes.
74 | Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa

5.2.4 Genetic Resources and Traditional Knowledge
To conserve and protect the genetic resources and our Traditional Knowledge,
documentation is critical as is the case in China and other countries; that will lead
into establishing viable industries in areas of Traditional Medicine and theimplementation of the Nagoya protocol.

Intellectual Property, Traditional Knowledge, Access Benefit Sharing Policy Environment in Eight Countries in Eastern and Southern Africa | 75

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The African Technology Policy Studies Network (ATPS) is a multidisciplinary network of researchers, private sector actors andpolicy makers promoting the generation, dissemination, use andmastery of science, technology and innovation (ST&I) for African
development, environmental sustainability and global inclusion.
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building and training, science communication/dissemination andsensitization, participatory multi-stakeholder dialogue,knowledge brokerage, and policy advocacy.

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