US Examining Africa’s Intellectual Property Rights Landscape: The Challenges
The U.S. International Trade Commission (ITC) announced on June 14 that it will be undertaking an examination of Sub-Saharan Africa (SSA). Among the various trade issues the ITC will examine is the intellectual property rights (IPR) “environment in key SSA markets including national and regional laws, enforcement measures, and infringement issues as well as the effects of this environment on trade and investment in these markets.” The ITC has invited interested parties to submit comments as part of its investigation.
The IPR enforcement challenge is and will continue to be significant in the SSA region because of the high levels of counterfeit and substandard goods that dominate many national markets. The multi-faceted challenges include national markets and product sectors that are overwhelmed by counterfeit goods, many posing health and safety risks, and ineffective enforcement.
Illustrating the market penetration by counterfeit and substandard goods, at the conclusion of a recent enforcement operation in Uganda, the legal and corporate affairs director for the national Anti-Counterfeit Network stated that counterfeit goods made up 70 percent of the Ugandan market; although the Ugandan National Bureau of Standards estimated the percentage of counterfeit/substandard goods at only 54 percent. In Nigeria, an official from the Standards Organization of Nigeria (SON) was quoted in May stating that, “The reason why [the local Nigerian] textile industry is no more is due to substandard products. We all allowed our country to be flooded with lots of fake products,” vowing to end the flow of such goods into Nigeria.
The threat to public health and safety also is significant. Earlier this month in Ghana, the executive director of Communications for Development and Advocacy warned that the country was becoming a safe-haven for traders marketing counterfeit electrical products that are causing fire outbreaks in the country. In South Africa, an IPR lawyer expressed concern about counterfeit auto parts as, “there are no parts that are immune, as counterfeited parts tend to be the most frequently replaced parts.” In Nigeria, the SON is committed to thwarting the influx of fake and substandard building materials such as fake re-bagged cement, fake and substandard iron rods, electrical appliances and cables, mostly imported from China. Earlier this year, police in Niger seized 10 tons of locally made fake medications and imported ingredients used to make drugs and beauty products.
These few examples reflect a continental challenge to protect and enforce IPR. It was reported in January 2019 that an audit of Kenya’s Anti-Counterfeit Agency found that the agency’s ability to combat counterfeits would be hampered for the foreseeable future because it had only 30 percent of the required staffing. The Kenya Private Sector Alliance, consisting of local companies, estimated that illicit goods accounted for 40 percent of all goods traded in Kenya. In October 2018, the head of Kenya’s Anti-Counterfeit Agency said that Kenyan manufacturers were going out of business because of the influx of counterfeit goods.
A 2016 Tanzanian study commissioned by the Confederation of Tanzania Industries concluded that 50 percent of the goods used in the country were fake. In Nigeria, it is estimated that 70 percent of all imported goods are fakes.
Last year, the Common Market for Eastern and Southern Africa was asked to help combat the trade in illicit goods as counterfeit products were flooding the markets. In Ghana, industry has asked the government to increase customs resources due to weak border measures. Kenyan officials admit that most of its land borders are porous, which facilitates movement of illicit goods across its borders.
The current state of IPR protection and enforcement as reported from these countries is important for both the U.S. government and the U.S. business community when considering future engagement in these and other countries in Africa. From an IPR perspective, the current IPR environment is, at best, extremely challenging if these countries reflect the overall continental situation.
The lack of resources to protect and enforce IPR requires both a government’s financial commitment to staff all the relevant agencies (administrative and enforcement) and to provide training to new staff who will have to carry out the functions of their new positions. This, too, requires an examination of existing staff expertise to provide training to an expanded staff in order to fulfill duties effectively. Even if additional funds were made available, would these governments be able to conduct their own IPR-related training to meet the expectations of the U.S. government and the U.S. business community? If not, what type of financial and human resource commitment would have to be made by the U.S. (government and private sector) and for how long?
The high levels of counterfeit and infringing goods in these markets signal the need for massive amounts of assistance. From the perspective of the U.S. government and IPR stakeholders, undertaking an in-depth and detailed assessment would seem to be necessary to safeguard valuable IPR assets exposed in these markets.
Anyone interested in submitting comments to the ITC regarding its investigation should review its press release in order to comply with submission requirements.
This post was written by Timothy Trainer, a co-author of Customs Enforcement of Intellectual Property Rights, published by Thomson Reuters. Follow Trainer on Twitter @TTrainerglobal.