A Study on Intellectual Property Environmentin Eight Countries: Swaziland, Lesotho,
Mozambique, Malawi, Tanzania, Uganda,
Kenya and Ethiopia
African Technology Policy Studies Network

WORKING PAPER SERIES | No. 66
Joseph M. WekundahA study on Intellectual Property Environment inEight Countries: Swaziland, Lesotho,
Mozambique, Malawi, Tanzania, Uganda, Kenya
and Ethiopia

Joseph M. Wekundah

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: 978-9966-030-36-8

Table of Contents
Acknowledgement

4

List of Acronyms

5

1.

Introduction

62.

International Conventions, Protocols

11& Treaties/Agreements Covering IPRs
3.

IPR Background Information of Target Countries

21

4.

Analysis of the Regional IP Environment

58

References

65

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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.

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List of Acronyms
ACE
AG
BRELA
COSOMACOSOTA
CBD
CNRs
DUS
IGC
IPR
ITM
KEPHIS
KEMRI
KIPO
KIPI
KNF
MIP
NCST
NEMA
NMK
PBR
PCT
PVP
SCP
TMMP
TRIPS
OAU
SCCR
UPOV
WTO

Advisory Committee on Enforcement
Attorney General
Business Registrations and Licensing Agency
Copyright Society of Malawi
Copyright Society of Tanzania
Convention of Biological Diversity
Copyright and Neighboring Rights
Distinct Uniform and Stable
Inter-governmental CommitteeIntellectual Property Rights
Institute of Traditional Medicine
Kenya Plant Health Inspectorate Service
Kenya Medical Research InstituteKenya Intellectual Property Organization
Kenya Intellectual Property InstituteKenya Neem Foundation
Master of Intellectual Property
National Council for Science and Technology
National Environmental Management Authority
National Museums of Kenya
Plant Breeders Rights
Patent Cooperation Treaty
Plant Variety Protection
Standing Committee on Patents
Traditional Medicine and Medicinal Plants
Trade-Related Aspects of Intellectual Property
Organization of African Union
Standing Committee on Copyright and Related Rights
Union for the Protection of New Varieties of Plants
World Trade Organization

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1. Introduction
KIntellectual 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 a protection against unfair competition and it isintangible. 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 thecommercial exploitation of the creation.
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 that patent law is a specialized field of endeavor
and is a special form of the law that protects property without which the doctrineof “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. Legally, patents have attributes of personal
property; in that, its owner has exclusive rights over the rest of the world which issafe for sovereignty, for its exploitation and dominion.
Patent rights enforcement is territorial while patent granting procedures,
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although territorial has a universal effect. A patent once granted to an applicant,cannot be granted to another applicant in neither same nor different territory since
it will lack novelty that is determined worldwide and the inventive step. A territory
can reflect national, regional or international jurisdiction. Each territory has got its
own procedures for grant, exploitation and litigation of patent rights, although
there are efforts to harmonize them. These procedures are governed by patentlaws and are 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 patentlaw.
Given that patent law is vital in a society to the enhancement of social,technological and economic development, it demands fair practice. However, inpractice, various factors effectively contribute to unfairness in the grant,
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 posses challenges to fair patent practicemainly because of two of its three requirements for its validity – novelty andinventive step – whose analysis is difficult to do because they are subjective.
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 a requirementof patentability has remained a challenge to beneficiaries of the patent systemand thus highly contributes to unfair patent protection.
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 disclosurein drawings or other illustration or by oral disclosure, use, exhibition or other nonwritten means. A disclosure of the invention shall not be taken into consideration if
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it occurs not earlier than six months before the filing of the application.
An invention shall be taken to be capable of industrial application if according to
its nature, it can be made or be 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 independently,
the earliest claimed priority date and leads to the grant shall have the right to thepatent. The right to a patent of an invention made in execution of a commission orfrom an employment contract shall belong to the person having commissioned
the work or to the employer. When an employment contract does not require theemployee to exercise any inventive activity but the employee has made theinvention by using data or means available to him through employment, the rightgoes to the employer. Lastly, where the employee has made the invention byusing data or means available to him through his employment, he has the right toequitable remuneration taking into account the importance 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.
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
do not loose 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 a right would discourage information holders from sharing
their information for fear of losing it. The fear of losing exclusive rights to the
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information once shared is real because another person can use the same idea
without having re-coursed to the originator of the idea.
1.1
Evolution of IPR Laws
Historically, IPRs; particularly patents, were considered as tools that foster
economic development by promoting innovation and inventiveness. However,the national views on the merits and demerits of IPRs were breaking down along
the lines of who is developing new technologies and who needs them. In fact,
existing conventions for IPRs favour those with needy access to economic andlegal resources and this works unfairly against those who do not have suchaccess. Hence, the patent regimes were intended to foster the technological andindustrial progress of the state granting the patent. The rights of local inventors
were only the corollary of the monopoly conditions deemed appropriate for such
exploitation, while the rights of foreign inventors were disregarded. The law thus
did not protect the property rights of the original inventor, but permitted theimporter of the 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.
One of the objectives of the developing countries is to achieve rapid economic
development at minimal cost whereas the developed countries' objectives (which
focus on the international aspects of the patent regime) is to establish markets on
a global scale. These positions have become a source of tension and debate inoverall evaluation of the international patent system. The positions have createddivergent views on whether a classic intellectual property regime fosters or
hampers economic development.
1.2
(I)

(ii)

(iii)

Arguments for the grant of IPRs
IPR provides incentives for innovation and it also improves and maintains
high rate of inventiveness which accelerates the rate of technologicalchange.
It also encourages information disclosure which allows persons to makeuse of the invention that would otherwise remain secret and unavailable tothe public.
It promotes transfer of technology, from those with the technology tothose without.

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(iv)IPR has increased the role of the private sector in research anddevelopment. Without IPR, the private sector which is profit driven would
not invest in research.

1.3
(i)

Arguments against the Grant of IPRs
Knowledge and information are good for the public, therefore no need forprotection.
In theory IPRs hamper or restrict economic development due to the costs
involved.
Empirical data reveals that countries that do not produce patentable
inventions or publish literary or artistic works have the main beneficiaries
of IPR protection as foreign companies.
Encourages monopoly.
Barrier to trade.

(ii)
(iii)

(iv)
(v)

1.4
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. The standards
thus conforms to the objectives of patentees in developed countries who in mostcases are multi-nationals with global trading interests. From the view point ofdeveloping countries, an absolute novelty (attained when an invention is newworldwide and is not anticipated by the state of the art) is inappropriate to theextent that it stifles the creation of local inventive capacity.
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.

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2. International Conventions,Protocols & Treaties/
Agreements Covering IPRsIntellectual Property Rights is an area of development as indicated in 1 (previous
chapter); it has been instigated and heavily influenced by factors anddevelopments from 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 been mainly
the governments 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 of the legal andpolicy frameworks which are uncoordinated. Therefore, meeting national
obligations under such conventions and agreements remains problematic.
However, opportunities and provisions exist in some of the conventions, treaties
and agreements.
2.1
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
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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 of 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). Much of the important work at WIPO isdone through committees, including the Standing Committee on Patents (SCP),
the Standing Committee on Copyright and Related Rights (SCCR), the Advisory
Committee on Enforcement (ACE) and the Intergovernmental Committee (IGC)
on Access to Genetic Resources, Traditional Knowledge and Folklore, and theworking 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 beenworking on a draft on Access to knowledge treaty which they would like to see
introduced.

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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.
2.2

World Trade Organization (WTO) and its Agreement on
Trade-Related Aspects of Intellectual Property (TRIPS)The TRIPS agreement was a 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 orby 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 analternative system – Sui–generis to protect the plant varieties. Some countries
combine the protection of plant varieties with measures to protect farmers' rights
over genetic resources (including Traditional Knowledge). This provision further
consolidates the position with regard to granting of IPRs in the field ofbiotechnology particularly as it relates to plant varieties. However, as countries
may exempt plants and animals from patentability, it should be noted that the
subject matter of protection is to some extent left to the discretion of national
states and thus the scope of protection for products and processes, of newtechnologies is uncertain.
Secondly, different country exclude different subject matter from patentability andthus unification and harmonization of patent laws the world over is a remote goal.
But the absence of criteria for patentability is favorable because each country 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 in certain
fields such as pharmaceutical or food industries. It is however remarkable thateven with the provision of the Sui-generis system, most African countries have not
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devised 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.
2.3

International union for the protection of new varieties ofplants (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 a new system. The UPOV system provides
protocols for assessing and describing the unique characteristics of a new variety
ensuring that 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 where Kenya, Tanzania and South Africa
are part. An expansion of rights under the UPOV system took place in early 1990s,
in the wake of the TRIPS agreement. Plant variety protection (PVP) provides aprotection System that is rooted in the agricultural sector and has some key
differences with the patent system. Nevertheless UPOV provides important
harmonization functions. UPOV member countries may have quite different laws,
based on different conventions (1978 or 1991) and interpretations, but almost all
members use the same technical guidelines for DUS testing. Both conventions
recognize the rights of individual plant breeders who have developed or
discovered plant varieties which are new, distinct, uniform and stable. The
convention (1978 and 1991) seeks to protect new varieties of plants both in theinterest of agricultural development and of plant breeders. The rights granted ineach member state are effective only within that territory and not internationally.
Both Conventions; the 1978 and the 1991 have breeders' exemption which isreferred to as the cornerstone of plant breeders' rights. This means that every
breeder is allowed to freely use any protected varieties for further breeding. The
1978 convention emphasizes the right of farmers to save seed from their harvests
to plant the following season. In some countries like Kenya farmers are allowed to
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re-use or save and re-plant their own seeds while others, like it was in the USA,farmers were allowed to not only save but also to sell seed of protected varieties
to their neighbors as long as the sales accounted for less than half of the total
farm income (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 aspect of PVP.
2.4

International Treaty for Plant Genetic Resources for Foodand Agriculture (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.
The emphasis on the free availability of PGRs spelt out in the “International
Undertaking on PGRFA” of 1983 proved to be unacceptable in the 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
acceptance of the treaty was only achieved after interpretative resolutions werepassed at 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.

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2.5
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 indicatesthat states have sovereign rights over their natural resources. This implies thatstates should develop legislative frameworks to regulate access to genetic
resources, based on prior Informed Consent and Mutually Agreed Terms, andmake provisions for the protection of rights of indigenous and local communities
with regard to biological diversity and associated knowledge.
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 ofresources, including appropriate access to genetic resources and transfer of
relevant technologies.
Therefore, it is concerned with the development of biotechnology – regulated in
its “Cartagena Protocol', access to both biodiversity and biotechnology andinternational equity.
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.
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Article 16 regulates the access to technology and technology transfer including
biotechnology; it provides for the transfer of technology at concensional andpreferential terms to developing countries were mutually agreed. It also makes
provision for cooperation between the developed and developing countries in thearea 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.
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.
2.6
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 theOrganization of African Union.
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. 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 marks was adopted in 1993 and it empowers ARIPO to register marks
on behalf of member states.
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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, by 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 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 toregister Traditional Knowledge and expression of Folklore, that aretransboundary and multicultural in nature. It will also empower custodians andholders of Traditional Knowledge and expression of Folklore to utilize theknowledge for socio-economic development. It is likely to reduce themisappropriation, bio-piracy and prevent illicit claims of traditional knowledge.
2.7
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 of the fact that local communities are creators'
users and custodians of their biological resources and knowledge. It accepts theprinciple that traditional ways of use or exchange of biological resources andknowledge between local communities will not be affected by the law in place
and also recognizes the right of local communities to restrict access to theirresources and knowledge. It further affirms local communities' inalienable right tokeep, use, exchange and share their biological resources that sustain theirlivelihoods.

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2.8
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 ofrealizing 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, but introduces some common
heritage principles, UPOV and TRIPS have taken a more proprietary stancefavoring 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 one state to participate. The central idea is for access to a resource to beshared equally, 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 outstanding.
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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 programmeshould 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 areable to seize the opportunity to streamline their local policies and legislation
through negotiations, as a block, by sensitizing both Government and the Civil
Society in the region through its strong existing network, and interactions with
COMESA, E.A. Community and SADC.

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3. IPR Background Informationof 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.
3.1

Current IPR Background Information for the Kingdom of
Swaziland

3.1.1. 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
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have effect in the United Kingdom and Republic of South Africa. The registeredproprietor of a patent granted in the Republic of South Africa or United Kingdom
on application to the Registrar in Swaziland and on proof of the registration inSouth Africa or United Kingdom and payment of the prescribed fee, obtains acertificate of registration which subject to the requirement of renewal confers thesame rights in Swaziland as the patent in South Africa or United Kingdom.
(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 firsthave 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 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 of finalizing 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, for substantive examinations, the country might rely on
ARIPO or International arrangements which provide such assistance, once thebill is enacted.

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3.1.2 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
directly to 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 andtransmissions are published in the Trade Marks Gazette. The Gazette is
published once every month. With implementation of the Trade Marks Act,
registration fees have increased income tremendously. The term of the trade
mark is 10 years subject to a renewal period of another 10 years.
Although the Trade Marks Act does not provide for criminal procedures andpenalties for willful Trade marks counterfeiting as per TRIPS section 5 article 61.
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.
3.1.3 Copyrights and Neighboring Rights Legislation
The copyrights and neighboring works are protected by the Act of 1912.
Copyrights in Swaziland have literary, dramatic and artistic works, performancesand sound recording first published in any part of the British Commonwealth.
Nevertheless, a copyright bill of 2009 has been drafted which 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.

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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 the government's 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 2009 isenacted and a full-fledged copyright office is established.
3.1.4 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, is 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
the same Ministry. It provides for the control of sale, importation and exportationof seeds by requiring inter alia registration of new varieties of seeds.
3.1.5 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 developing a sui generis type of legislation in
respect of 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 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 of
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indigenous 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.
3.1.6

Swaziland international obligations and membership tointernational 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)
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 ofCommerce, 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 IPR and protection of the genetic resources and Traditional
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
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influence, working with or incorporating key Government representatives fromkey Ministries like Agriculture and Cooperatives for Plant Breeders' Rights,
Ministry 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. 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 creation of awareness.
3.2

Current IPR Background Information for Kenya

3.2.1 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 Act Cap 506. Trade Marks can be protected in Kenya but notofficial variety names. KIPI is also responsible for Geographical indications andtrade 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 the 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 and with some holders of Masters of Intellectual Property (MIP). It isthe best 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
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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.
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.
3.2.2 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 so as to buy or use the product again in the future. It enables companies
to differentiate themselves and their products from those of the competitors.
Trademarks play an important role in the advertising and marketing strategies ofcompanies contributing to define the image, goodwill and reputation of thecompanies' products in the eyes of consumers. The image and reputation of acompany built on the basis of the performance of its products in terms of meetingthe needs of the consumers, creates trust. Such trust is the basis for establishinga loyal clientele. Consumers often have an emotional attachment to certain
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trademarks as they are associated with a set of desired qualities of features
embodied in the products bearing such trademarks. Although businesses realize
the importance of trademarks, but they do not realize how important it is toprotect them through registration. Protection gives exclusive right to prevent
others from marketing identical or similar products under the same orconfusingly similar mark. A registered trademark may be licensed to othercompanies 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
pending registration. It may also be rejected due to having generic terms,
descriptive terms, descriptive trade marks, 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.
3.2.3 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.

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Copyrights law is to benefit authors and artists and provides rationale for giving
incentives. Major incentives include the right to make copies and sell them. It also
includes derivates 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 androyalty.
Copyright establishes revenue stream, royalty from books, music, andperformance in public-offer opportunity for people to come together. Copyrightmay not reside in one person to sing, compose, produce, sell, copyright to lyrics
and sound recordings.
The law is fairly new and it is based on international standards. It is evolving firstwith various institutions and boards being set up. It has a copyright board andmusic 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 awareness to the public
and finally whether money reaches the authors or artists or remains with thebusiness is 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 theculture of entertainment and publishing.
3.2.4 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 throughthe 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 of
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Agriculture. Applications for ornamentals and horticultural crops came mostly
from foreign entities and the DUS testing is usually done abroad and it is acceptedby 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 toprovide their own descriptors as part of the application process. KEPHIS thenconfirms these descriptors in two years of testing in at least two sites (Note that
DUS testing is also part of the variety release process in Kenya). There are anumber of instances where breeders and KEPHIS dispute the nature or quality ofthe data provided and this undoubtedly slows the registration process in somecases. The majority of foreign applications are handled by local agents, either law
firms or members of local flower growers. KEPHIS proposed to make the use of
local agents for foreign applications mandatory since the exercise is demandingin terms of human resources and infrastructure.
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
in the 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 thatwere allowed 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 low number of PVP grants issued. One of the concerns was the ownershipof the released 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 for
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other 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 haven't 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 maintains 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 underthe 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.
3.2.5 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 as if 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.

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3.2.6 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 be formalized
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 country.
However, based on the global recognition of the herbal medicine, several healthgroups have initiated production of various plants e.g. the Kenya NeemFoundation for neem products and others related to health foods from various
indigenous plants in Kenya. These have not in any way been properly regulated
or supervised.
3.2.7 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 orexporting genetic resources. Fees are paid 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
experienced. It is now being reviewed to ensure that access and Benefit Sharing
is ensured.
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3.2.8 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)> 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.
3.3

Current IPR Background Information for Ethiopia

3.3.1 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
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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 provide for and reflect 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, it must have an inventive step and it must
be industrially applicable as stated in article 3 of the proclamation.
These requirements are commonly known as the criteria of patentability. Meetingthese requirements 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 isinvention related to plants or animals or essential biological processes for the
production of plants or animals. Such exclusions are common in patent laws ofdifferent countries.
The Ethiopian law does not exclude all inventions involving life forms from being
patented. Micro-organisms are not excluded but a biological invention product 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; plant or 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 fortreatment of the human or animal body by surgery or therapy as well as
diagnostic methods practiced on the human or animal body.

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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 in to 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.
(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 and those 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.
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3.3.2 Trade Marks
A trademark is any visible sign capable of distinguishing goods and services of
one person from those of other persons. It may include words, designs, letters,
numerals, colours or the shape of goods or their packaging.
The law for the 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 used by local and foreign enterprises to distinguish their goods and services;to distinguish their goods or services; of one enterprise from other enterprises
and prevent 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 negotiatedagreements on this basis with 96 foreign coffee companies and 50 local
companies and this has improved income to coffee farmers.
3.3.3 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 ofdrawings, paintings, sculpture, engraving, lithography, tapestry and other worksof fine arts; photographic and cinematographic works; illustrations, maps, plans,
sketches, and three dimensional works related to geography, to topography,

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architecture or science; derivative works; and collection of works, collection ofmere data whether legible 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.
3.3.4 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.
3.3.5. 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 that the government 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
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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.
3.3.6 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
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 for community achievements that are not considered as commodity andare freely 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 therequirement 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.
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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 people.
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 that the
governments of member states "initiate a process of negotiation among Africancountries to formulate and adopt an African convention on biological diversity
with emphasis on conditions for access to biological resources and protection ofcommunity rights".
3.3.7

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 party to theConvention on Biological Diversity (CBD). It has been a very active participant in
the negotiations and implementation of the convention.

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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 in 2002, the level of awareness and knowledge ofIP among the users is low and there is lack of institutional 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 of WTO and TRIPS. However,coordination of the Industrial Property is not an issue since the different IP
regimes are under the same office.
3.4

IPR Background Information for Tanzania

3.4.1 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 centre for the purpose of dissemination of
information on patents; collaborate with other bodies whether local orinternational whose functions are related to patent matters; provide information
on patented technologies so as to facilitate transfer, and acquisition oftechnology by the United Republic of Tanzania; and perform such other functions
as are necessary for the furtherance of the objects of the Act. The patents
registrar: maintains a register in which he/she records all matters required to be
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registered under the act; provides patents' register on request and may takeextracts from it on payment of a fee; and the details of the register are clearlyprescribed 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.
3.4.2 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.
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 on 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 is contained in the act.
The application for registration could be rejected based on the following: Tradeand Service Marks; the use of which would be contrary to law or morality; if theTrade and Service Marks consists solely of the shape, configuration or colour ofthe goods 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
which constitute reproductions in whole or part limitations, translations ortranscriptions liable to create confusion of trade or services with business orcompany names.

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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; applicant's address
within Tanzania and a declaration that the applicant uses the trade and service
marks in Tanzania.
Finally, the registration of Trade or Service Marks is for a period of seven years
from the date of registration, and may be renewed from time to time.
3.4.3 Copyrights and Neighboring Rights
The copyrights and neighboring rights are administered under CopyrightSociety through the Copyright and Neighboring Rights Act Cap 218 RE 2002.
This was reviewed 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 andNeighboring Rights, under the Act.
3.4.4. 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 centre 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
of Plant Breeders' Rights and each person to whom such right has beentransferred or assigned; the date of inception of the Plant Breeders' Rights; andall other matters which are required and validity of the ownership of Plant
Breeders' Rights.
The Plant Breeders Advisory committee is established comprising of the Ministry
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of Agriculture representative – Chair; one representative from Plant 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 legally qualified person
representing the AG and the Registrar who is the Secretary. The functions of thecommittee are to: advise the Minister on the efficient enforcement; receive
reports of PBR applications from the Registrar; make expert 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 of 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 isdeemed 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 in 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.

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3.4.5 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 Applied 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.
3.4.6 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 fromcommercial 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.
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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.
3.4.7

International obligation and membership to International andRegional 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)> CBD
Conclusions
In comparison to the 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 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.

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3.5

Current IPR Background information for Malawi

3.5.1 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 Patents Act 1958 (Cap 58.02). This
was legislation for nationally independent system of patent protection. The
legislation has since been reviewed to patents Act (Cap 49.02). Under the Act,
invention will be patented if its 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 of 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.
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
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 therights 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 at a fee.
(iii)
Industrial Designs
These are administered by the Registrar through Registered Designs Act (Cap46 | A Study on Intellectual Property Environment in Eight Countries: Swaziland, Lesotho, Mozambique, Malawi, Tanzania, Uganda, Kenya and Ethiopia

49.05). These are applied for like the trade marks above and the sameprocedures are followed.
3.5.2 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.
3.5.3 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.
3.5.4 Protection of Traditional Knowledge and Genetic Resources
According to information from NSC of Malawi, the 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 iscurrently 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
protect TK and TCEs at the same time facilitate access. It is therefore important to
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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.
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.
3.6

Current IPR Background information for Uganda

3.6.1 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,
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 ofpatents. 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
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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 of 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 effectively to designs in
Uganda as the process is countersome. Thus bringing the whole process homewould therefore improve the law. The patent law had weakness 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 and notconducive 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 theirbusinesses 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 with
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 is toprovide 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 for protection
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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 make infringements criminal.
Because of the weaknesses in the current law, there is no enthusiasm.
This Act does not recognize the Neighboring Rights. However, the new Copyrightand Neighboring Rights Bill has improved on these weaknesses. It brings inneighboring 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 and enforcement. It
introduces a moral right as an Intellectual Property Right and makes infringementof a copyright a criminal offence.
3.6.2 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 the Organization of African Model law adopted in 1998 which leans
towards the protection of Farmers' Rights. This included the right for farmers tosave exchange and 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 in2007. It is not clear whether Parliament has now passed the bill to enact it into law.
3.6.3 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.
3.6.4 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 identity cannot be over-emphasized.

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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.
3.6.5 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)
3.6.6. 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 patentexaminers, policy development, which at the moment is lacking. It will also
require the support of all stakeholder including NGOs to ensure that there isenough lobbying 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.

A Study on Intellectual Property Environment in Eight Countries: Swaziland, Lesotho, Mozambique, Malawi, Tanzania, Uganda, Kenya and Ethiopia | 51

Apart from the Registrar General, the Uganda National Council for Science andTechnology is supposed to provide technical expertise and the Uganda Law
Reform Commission 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.
3.7

Current IPR Background Information for Mozambique

3.7.1 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 Ministryof Industry, Trade and Tourism in which the IP was identified as the dynamo of
economic development. In 1998, the Government approved the law as a code ofindustrial property of Mozambique which came in force in July 1999. The code
comprises of all industrial property right patents, utility model, industrial design,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.

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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 an industrial property office run by the industrial
property institute under the current Ministry of Industry and Commerce. It is
responsible for Patents, Trade and Service marks, Industrial designs, Utility
Model, Geographical Indications, Commercial Names and Denominations oforigin 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 the 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.
3.7.2 Analysis of IP in Mozambique
Mozambique established patent laws in 1999 and since that time it hasestablished 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.
3.7.3 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.
A Study on Intellectual Property Environment in Eight Countries: Swaziland, Lesotho, Mozambique, Malawi, Tanzania, Uganda, Kenya and Ethiopia | 53

> WTO since 1994
> TRIPS Agreement> ARIPO and its protocols – Harare and Banjui> CBD
3.7.4 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.
3.7.5 Traditional Knowledge and Access to Benefit Sharing
The country has no law on Traditional Knowledge and genetic resources. The
country is waiting for international instrument after the negotiations are complete
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 be formalized sothat they could make use of it.
Conclusions
Mozambique has made some strides since 2002. The administration of the 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.
3.8

Current IPR Background Information for Lesotho

3.8.3 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. Later,
an amendment was done under Industrial Property order No. 22 of April 1993. It is
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finally 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 under the responsibility of the Industry Property Tribunal,
under the High Court of Lesotho.
Applications filed and/or registered in 2001 for Trade Marks by ARIPO were:residence had none; while non residence had 19 applications and all were
granted.
(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 underamendment 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: residence had none; while non residence had one application
but was not granted.
(iv)
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
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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 for 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.
3.8.2 Plant Breeders' Rights
Based on the information available, the Bill on Plant Breeders' Rights wasdeveloped in 2002 but upto now, it has not been enacted into law.
3.8.3 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.
3.8.4

International Obligations and Membership to Regional andInternational 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
3.8.5 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
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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.

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4. Analysis of the Regional IP
Environment
4.1
Patents and Industrial Designs
The evolution of IP in Eastern and Southern Africa countries was due to globalpressure 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 laws of theUnited 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 thedifference in circumstances and laws in each country. In some countries, the law
only covers Patents and Designs while in others like Lesotho, the law covers allelements of Industrial Property – Patents, Designs, Trademarks, and Copyrights
but appear under different parts and sections. Finally in about three countries:
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Mozambique, Kenya and Tanzania, IP is administered by parastatalorganizations 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.
4.2
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 are foreigners
except for Kenya. In some countries the laws were enacted either at the sametime or earlier than patents, but more trademarks are administered by theIndustrial Property offices. Just like the patents and designs there are no policies
developed to guide the trade marks. It is however assumed that the policies thatwill 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 NSCs have to bear this in
mind.
4.3
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
both like Swaziland and Kenya, Malawi has what they call copyright regime,
Uganda has a copyright act like Ethiopia, while Mozambique has a copyright andrelated rights and Lesotho a copyright like Uganda and Ethiopia. Some of thecountries that have only copyright, have developed bills and they contain
Neighboring rights. In terms of administration, most target countries tend to
A Study on Intellectual Property Environment in Eight Countries: Swaziland, Lesotho, Mozambique, Malawi, Tanzania, Uganda, Kenya and Ethiopia | 59establish copyright societies to administer the regime. Some of the countries withsocieties are Swaziland, Kenya, Tanzania and Malawi. The other four areadministered directly through their Ministry offices. The laws vary slightly like
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 doubted even withthe most advanced systems like that of Kenya. It is not clear whether the businessor 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 determine
the best institutions to administer copyrights and neighboring rights and finally,
the issue of enforcement.
4.4
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 the advancement inbiotechnology and the fact that UPOV 1978 may be weak on protection of local
varieties that may be slightly changed leading to loss of ownership, Kenya has
been contemplating of advancing to UPOV 1991. This may not necessarily be
useful to the local communities. Concerning the benefits for protecting thevarieties, foreign breeders are the major beneficiaries of the law especially in
Kenya. Very few local breeders have benefited for protecting their varieties. The
maintenance fees are high and the sales are low, and also the employers have no
incentives for the breeders who have developed new varieties.
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Apart from the above arguments, Ethiopia has the notion that breeders are not theowners 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 the African
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.
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.
4.5
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 the 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
A Study on Intellectual Property Environment in Eight Countries: Swaziland, Lesotho, Mozambique, Malawi, Tanzania, Uganda, Kenya and Ethiopia | 61

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 ofdeveloping policies and legal frameworks on Traditional Knowledge. NSC has ahuge task of first influencing the policy makers towards developing sui-generis
system that will help protect TK. The Regional or International instruments might
not be good enough to address the individual country needs.
4.6
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 of 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.
NSC has a task to work closely with the Environmental Management offices toinfluence the development of policies and legal frameworks for Access andBenefit Sharing.

62 | A Study on Intellectual Property Environment in Eight Countries: Swaziland, Lesotho, Mozambique, Malawi, Tanzania, Uganda, Kenya and Ethiopia

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64 | A Study on Intellectual Property Environment in Eight Countries: Swaziland, Lesotho, Mozambique, Malawi, Tanzania, Uganda, Kenya and Ethiopia

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