Book review: Enforcement of Intellectual Property Rights in Africa

Africa is a continent with 54 countries. These 54 countries come with distinct and diverse legal systems and rules. As a consequence, understanding and following developments on law and practice in Africa can be an uphill task even for a field like IP law that ‘enjoys’ the benefit of various international treaties. Readers will be pleased to find out that two legal practitioners practising across various African countries, Marius Schneider (IPvocate Africa Legal Advisers) and Vanessa Ferguson (Ferguson Attorneys) have provided up-to-date study of the law and practice of intellectual property rights enforcement in all 54 African countries in one book: Enforcement of Intellectual Property Rights in Africa. 

The authors open by explaining “why this book” and it seems appropriate to reproduce the crux of the raison d’être here. According to the authors, the book was written “in order to disseminate knowledge to colleagues and rights holders, to encourage governments, judges, and law enforcement authorities to foster best practices, to give confidence to companies to grow their African mar­kets and to preserve their intellectual property (IP) rights, to further research by providing academics with an authoritative resource on IP enforcement in Africa, and to encourage public– private collaboration in developing best practices in rela­tion to protection and enforcement of IP”. 

 

So does the book succeed in its mission? In this Kat’s opinion, “yes”. To take the book’s stated missions seriatim:

To disseminate knowledge to legal practitioners and rights holders

On this mission, the book delivers by indicating in each African country, the available IPRs enforcement mechanisms and agencies. For each country, the legislative provisions regarding IPRs enforcement are identified and where relevant, discussed. The book further highlights the role and practical workings of IP institutions and the enforcement agencies such as courts and customs offices in each African country.
The book is much relevant to practising lawyers and their (potential) clients in that it quite convincingly evidences the availability of legislative provisions and institutional mechanisms for the enforcement of IPRs across Africa.

One caveat for this group: IPRs enforcement can be quite expensive especially the customs enforcement process. The book is excellent in informing legal practitioners and businesses regarding what IPRs enforcement mechanisms are available in each African country. But, the book does not say how these mechanisms may be accessed or, in the case of customs enforcement, the duration of such processes. For that, one must consult legal practitioners in the relevant jurisdiction - clients will need legal advice to make a decision regarding whether to enforce and what kind of enforcement is worth their while, and lawyers would need to be practising in a relevant jurisdiction and practice area to be of any use. That said, knowing what is available is a decent and laudable starting point.

To encourage governments and law enforcement authorities to foster best practices

In order to adopt and implement best practices in the execution of their mandate, governments and law enforcement authorities need access to information regarding what is obtainable in comparable jurisdictions. This brings us to the reason why the book delivers on its promise to encourage governments and law enforcement authorities to foster best practices. In the country chapters, Schneider and Ferguson unveils the IPRs enforcement process from the time infringement/counterfeiting/piracy is suspected/detected to the time when the offending goods are destroyed, released or sold (depending on the country). Reading between the lines, it is easier for governments and law enforcement authorities to see in practical terms, how their execution of the laws work and how/where improvements may be made. For example, the authors reveal that in Egypt, Customs Authority have the right to sell goods that were not released after two years in Customs warehouses [see p.270]. How problematic is this? In Nigeria (according to the authors), there is room for the IPRs owner to negotiate and amicably settle with infringers leading to the suspension of customs enforcement process [p.634]. Governments and law enforcement authorities can use this information to compare notes internally (and externally) on which approach works best.

To give confidence to companies to grow their African markets etc.
The book’s delivery of this promise is closely tied to its stated mission to disseminate knowledge to legal practitioners and rights holders. Companies are (usually) the rights holders and when they are aware of the availability of IPRs enforcement mechanisms and legislative provisions in Africa, it can increase their confidence to grow their African markets.

To further research

For researchers, the book’s utility lies in how it helps to inform the setting of research agenda for IPRs enforcement in Africa. The country chapters provide information regarding customs enforcement practices and laws including national approaches to storage and destruction of infringing goods, the existence or otherwise of special IP courts, and existing mechanisms for IPRs enforcement. This information leads to various questions that can benefit from research. For example, a research agenda may be set on these issues: the quasi-judicial nature of the role of customs agencies and public IP institutions; differences in customs enforcement practices and laws; different approaches to storage, sale and/or destruction of infringing goods; length of court proceedings in both general and special courts for IPRs enforcement; etc.

Reading each chapter of the book, it is easy to see how the book also contributes to comparative legal research in IPRs enforcement in Africa. Too often, comparative research in Africa involves an African country (or two) and a country from the Global North: mostly UK and US. The danger with this sort of approach being that some "lessons learned" and recommendations made are not practically adaptable to the African/specific African country environment. With books such as this and other recent/emerging books that engage in intra-African comparison, comparative legal research in this area in Africa is headed in the right direction.

To encourage public– private collaboration in developing best practices in rela­tion to protection and enforcement of IP

In most African countries, it is required that the IPRs owner applies to Customs to seize and detain goods that are counterfeit or suspected to be counterfeit before action will be taken by Customs for the detention and seizure of counter­feit goods. This approach thus involves a public– private collaboration in IPRs enforcement. In delineating the legislative provisions for this collaboration in each African country, this book delivers on its mission to encourage collaboration in developing best practices for IPRs protection and enforcement.

Chapter by chapter

The book has 57 chapters, the first three focusing on explaining the problems of counterfeiting and piracy in Africa and highlighting the role of the two regional IP organisations (ARIPO and OAPI) in the enforcement of IPRs on the African continent.

Chapters 4 to 57 focus on the 54 countries in Africa in alphabetical order from Algeria (Chapter 4) to Zimbabwe (Chapter 57). These country chapters all have the same structure and deals with enforcement of trademarks, patents, copyright and unfair competition, and closing with customs enforcement of IPRs.

An interesting follow-up on this work would be to consider the extent to which using special courts for IPRs enforcement can improve the IPRs protection and enforcement systems across Africa. This Kat wonders how the effectiveness or otherwise of IPRs enforcement agencies affect IPRs protection (and registration) in Africa.

This book will be primarily relevant to legal practitioners and persons working in public IP institutions in Africa. For its coverage of all 54 countries in Africa, this book will also be relevant to anyone interested in exploring the economics of IP, particularly IPRs enforcement in Africa.

The book: Enforcement of Intellectual Property Rights in Africa
Oxford University Press 2020
Price: $165 (Hardcover)
Published: 02 July 2020
ISBN: 9780198837336
The book is available as an eBook.