Research proposal on: The role of intellectual property

rights in promoting development in the context of AfCFTA

By

Antonyos Binyam Berhane

21152209

Submitted in accordance with

the requirements for the degree

of

MASTER OF

LAWS

International Economic

Law

At the University of South Africa

Contents
Declaration of academic honesty................................................................................................................3
Keywords.....................................................................................................................................................4
Abbreviations and Acronyms.......................................................................................................................5
Introduction.................................................................................................................................................6
Problems statement....................................................................................................................................7
Research questions......................................................................................................................................7
Aims and objectives.....................................................................................................................................8
Literature review.........................................................................................................................................8
Research methodology..............................................................................................................................10
Projected time scale..................................................................................................................................11
Reference..................................................................................................................................................12
Books.....................................................................................................................................................12
Journals and Articles..............................................................................................................................12
Treaties and agreements.......................................................................................................................13
Declaration of academic honesty
1. I understand what academic dishonesty entails and am aware of UNISA’s policies in
this regard.
2. I declare that this assignment is my own, original work. Where I have used someone
else’s work, I have indicated this by using the prescribed style of referencing. Every
contribution to and quotation in, this assignment, from the work or works of other
people has been referenced according to this style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.

Name: Antonyos Binyam

Berhane Student Number:
21152209 Signature:
Keywords
International trade, intra-Africa trade, intellectual property rights, economic integration,
economic growth, sustainable development
Abbreviations and Acronyms
IEL International Economic Law
WTO World Trade Organization
AfCFTA African Continental Free Trade Area

RTAs Regional Trade Agreements.

SDGs Sustainable development goals.

IPR Intellectual property rights.

RECs Regional Economic communities.

Introduction
Global attention to African regional trade has gathered pace with the entry into force of
the agreement establishing African Continental Free Trade Area (AfCFTA) and the start
of trading on 1 January 2021.1 This is mainly taking into account the potential benefits
and impacts the continental agreement would permeate both inside and outside the
continent. The Agreement consist of protocols on Trade in goods, Trade in Services,
Investment, Intellectual Property Rights, Competition Policy, Rules and Procedures of
the Settlement of Disputes and their associated Annexes.2While the first phase of the
agreement is over, Art. 7 of the agreement dictates member states shall enter into
phase II of negotiations in areas such as: intellectual property rights.3These
negotiations, particularly in the area of intellectual property are expected to result in
agreements favorable to the continents economic growth. The aspects of an IP regime
that could be included in the AfCFTA are vast, ranging from a tailored continental
approach on traditional IP issues to coverage of issues such as protection for genetic
resources and traditional knowledge.4 The continental free trade agreement hence,
turns out to be a vital instrument for designing a viable IP regime that fosters the
economy of the continent.

From a wider perspective intellectual property rights may improve or retard economic
development when seen, especially, in light of the African continent. They can
potentially stimulate growth in two ways: by providing the right incentive structure to
encourage innovation as well as setting a framework for the dissemination of
technological knowledge.5 On the other hand they may also harm development
prospects by raising

1
Pettinotti, L. Hasham & N. Naliaka, “Intellectual property and women’s economic empowerment in Africa.
What to know in the context of the AfCFTA” (2023) ODI Brief. London: ODI
(https://odi.org/en/publications/intellectual-property-and-womenseconomic-empowerment-in-africa) )
2
Agreement establishing the African Continental Free Trade Area (AfCFTA), 21.03.2018, Art 8.
https://au.int/sites/default/files/treaties/36437-treaty-consolidated_text_on_cfta_-_en.pdf (accessed on 20
November).
3
Art 7 (1) of the AfCFTA in full length states, member states will enter into phase II negotiations in the
following areas: a, intellectual property rights; b, investment; and c, completion policy.
4
Katrin Kulman & Akinyi Lisa, “THE AFRICAN CONTINENTAL FREE TRADE AREA: TOWARD A NEW
LEGAL MODEL FOR TRADE AND DEVELOPMENT” Georgetown journal of international law, vol.51, pp
753-808.
5
UN/ECE Advisory Group for the Protection and Implementation of Intellectual Property Rights for
Investment Background paper for the workshop ‚Technology Transfer’ (2004).
costs of imitation and permitting monopolistic behavior by owners of IPRS. 6 Which in
effect several developing countries tend to have IPR systems that favor information
diffusion through low-cost imitation of foreign products and technologies. 7This research
is proposing to examine the challenges and opportunities the IP protocol is facing in
shaping a viable and working IP regime within the continental free trade area. Moreover,
it will discuss on what would be the most viable IP regime that would neither hamper
economic growth nor be a disincentive for innovation.

Problems statement
Implementing a strong IP systems is evidently an incentive for foreign direct investments
and other factors that foster the economy. A strong and strict intellectual rights
protection system would bolster the continents markets openness to international trade.
However, taking into account the extensive informal nature of the continents’ economy
and its’ developmental stage this may not be recommended. Additionally, given the
fragmented IP architecture of the continent alongside the disconnection present
between overlapping often conflicting regional aspirations and sub-regional realities
there exists policy incoherence and inconsistency.8Making, the implementation of the
continental free trade agreement in general and the IP protocol in particular challenging.
Finally, it should also be noted costs of administration and enforcement could be
burdensome as developing economies implement stronger IPRS systems.9

Research questions
The research question present in this study are:

6
Keith E. Maskus, “Intellectual Property Rights and Economic Development” (2000)J. Int'l L.471 Available
at: https://scholarlycommons.law.case.edu/jil/vol32/iss3/4, (accessed on 20 November 2023) at 4.
7
ibid at 5.
8
Titilayo ADEBOLA, “Mapping Africa’s Complex Regimes: Towards an African Centered AfCFTA
Intellectual Property Protocol” (Fall 2020) African journal Of international economic law - volume 1
available at: https://ssrn.com/abstract=3920541 (accessed on 20 November 2023).
9
UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, THE TRIPS AGREEMENT AND
DEVELOPING COUNTRIES at 63-64, U.N. Doe. UNCTAD/ITE/l, U.N. Sales No. 96.11.D.10 (1996).
  How will the continental free trade area agreement in general and the IP protocol
in particular as an instrument of intellectual property strike an equilibrium? The
balance between adopting a stricter IP regime in order to spur investment,
prevent trade in counterfeited products and bolster the continents openness to
international markets in opposition to maintain the extensive informal economy
within the continent as well as its need for low cost diffusion of information.
 How will the AfCFTA IP protocol be an instrument in implementing the
sustainable development goals?
 What will be the nature and extent of protection of detailed intellectual property
rights under the AfCFTA IP protocol with particular attention to Africa’s rich
agricultural resources, traditional knowledge and traditional cultural expressions?
 Similar to the TRIPS agreement of the WTO, the IP protocol of the AfCFTA
would require implementation of the continental agreements through the
harmonization of national IP laws. Taking into account the fragmented,
overlapping and often conflicting nature of IP laws across regional, sub-regional
and national spheres. What the solution the agreement provides in overcoming
those hurdles and what lessons could it adopt from other free trade area
agreements?

Aims and objectives

The members of the AfCFTA agreements await negotiations in the area of intellectual
property rights that would be instrumental in governing the continental free trade area.
Those negotiations embrace both opportunities and challenges with regard to stipulating
an IP protocol that fit effectively to the needs of the continent. The central objective of
this study is therefore, to research based on the questions presented above on what
would be the most viable IP protocol for the continental free trade agreement. Moreover,
this study aims to deal with the research questions above in an in depth analysis.

Literature review
On 21 March 2018, 44 African States signed the African Continental Free Trade
Agreement (AfCFTA) in Kigali, Rwanda, which entered into force on 30 May 2019 after
 10
the minimum threshold of ratifications was reached. The continental agreement
provides the legal framework for the largest free trade area comprising 55 African
countries. It is a flagship project of the African Union (AU) to create a liberal single trade
market for goods and services and thus improve socio-economic development of
African countries.11Its’ also part and parcel of the huge initiatives taken by the Agenda
2063 to reshape the African Continent. Agenda 2063 is a strategic framework for the
socio- economic transformation of the African continent covering the 50 years to come
since its inception.12 Economic integration is considered as a major element in realizing
the prosperous and stable Africa within the Agenda. Its states;

“The political unity of Africa will be the culmination of the intergenerational process,
which includes the free movement of people and the establishments of continental
institutions, leading to full economic integration. By 2030, there shall be consensus on
.13
the form of the continental government and institutions” (Aspiration 2, section 23,
Agenda 2063)

As a result, there has been growth in Regional integration for the past few years.
Currently, there are eight Regional Economic Communities acknowledged by the AU
which realized substantial advancement in integrating their economies like the EAC,
SADC, COMESA, and ECOWAS.14And recently culminating in attaining a Continental
Free Trade Area between the 55 nations comprising 1.2 billion people and with
collective GDP of over US$3.5 trillion.15

Conventional trade theory assumes that trade encourages economic prosperity as

countries engaging in trade tend to have a comparative advantage as they specialize in

10
African Union Assembly 21.03.2018, Ext/Assembly/AU/Dec.1(X),
https://au.int/sites/default/files/decisions/34055-ext_assembly_dec_1x_e26_march.pdf (accessed on
December 12)
11
African Union Commission, Aspiration 1 of the Agenda 2063: The Africa We Want,
https://au.int/sites/default/files/documents/36204-doc-agenda2063_popular_version_en.pdf (accessed on
December 12)
12
ibid.
13
ibid.
14
Dennis KAPYATA, “A CRITICAL REVIEW OF THE AFRICAN UNION AGENDA 2063 AND ITS
IMPLEMENTATION STRATEGIES” (May 2021) international Journal of Law Humanities and Social
Science Volume 4, Issue 6 P.P.69-80, at 5 )
15
ibid at 6.
manufacturing and exporting to their trading partners. 16 Accordingly, the agreement
targets to increase intra-Africa trade from the current level of 17 per cent to double the
figure within ten years of implementation. 17But more importantly, the perceived benefits
of intra-regional trade initiatives, such as the AfCFTA, go beyond increased intra-African
trade, leading to economic growth and development.18The protocol on intellectual
property rights is one of the seven protocols expected to realize this purpose. A viable
IPR regime can foster intra-Africa trade and international trade, improve public health
across the continent, access to education and contributing to the overall sustainable
development.19

Research methodology
In order to answer the above research questions and gain an in depth understanding of
the area a qualitative method of research will be employed in this study. The thesis
engages in an expansive discussion of IP law in the context of the AfCFTA and doesn’t
focus on any specific type of IP protections of any nation. As a desktop based research
the primary resources include; international and regional agreements, treaties and
convention. While the secondary sources are mainly journal articles, books, discussion
papers, working papers and policy papers. The study focuses on applicable
agreements, legislations in the context of the AfCFTA. Additional, certain case studies
from members of the continental free trade agreement will be done in terms of
implementation. Because there are not much published documents on this topic to
sustain the arguments, lack of materials is one of the limitation of this study.

16
Abendin, Simon; Duan, Pingfang “International trade and economic growth in Africa: The role of the digital
economy” (2021) Taylor & Francis, Vol. 9, Iss. 1, Cogent Economics & Finance, ISSN 2332-2039, pp. 1-
25, https://doi.org/10.1080/23322039.2021.1911767, (accessed on 20 November 2023).
17
Ministry of foreign affairs of the Netherland, “THE AFRICAN CONTINENTAL FREE TRADE AREA
AGREEMENT ITS IMPLICATIONS ON CROSS-BORDER ISSUES AFFECTING CHILDREN” (December
2020) Development Cooperation.
18
Mhonyera, G.; Meyer, “The Impact of AfCFTA on Welfare and Trade: Nigeria and South Africa in Light
of Core Export Competences. Sustainability” (2023) available at https:// doi.org/10.3390/su15065090
(accessed on 20 November 2023).
19
Sweta Mandal “Role of Intellectual Property Rights in International Trade” (July 2020), ISSN 2581-5504
Volume 11www.penacclaims.com (accessed on 20 November 2023).
Projected time scale
The researcher plans to make an extensive study on the subject matter and present his
findings. Therefore, the projected time scale to accomplish this research is eight months.
Reference
Books
Caroline B. Ncube, intellectual property law in Africa; harmonizing administration and
policy, (Routledge research in intellectual property,2nd ed, 2023)

World Bank Group, The African Continental Free Trade Area; Economic and
Distributional effects, (International Bank for Reconstruction and Development, 2020).

Journals and Articles

Pettinotti, L. Hasham & N. Naliaka, “Intellectual property and women’s economic

empowerment in Africa. What to know in the context of the AfCFTA” (2023) ODI Brief.
London: ODI (https://odi.org/en/publications/intellectual-property-and-womenseconomic-
empowerment-in-africa)
UN/ECE Advisory Group for the Protection and Implementation of Intellectual Property
Rights for Investment Background paper for the workshop ‚Technology Transfer’ (2004).

Keith E. Maskus, “Intellectual Property Rights and Economic Development” (2000)J. Int'l
L.471 Available at: https://scholarlycommons.law.case.edu/jil/vol32/iss3/4, (accessed on
20 November 2023).

Titilayo ADEBOLA, “Mapping Africa’s Complex Regimes: Towards an African Centered

AfCFTA Intellectual Property Protocol” (Fall 2020) African journal Of international
economic law - volume 1 available at: https://ssrn.com/abstract=3920541 (accessed on
20 November 2023).
Dennis KAPYATA, “A CRITICAL REVIEW OF THE AFRICAN UNION AGENDA 2063
AND ITS IMPLEMENTATION STRATEGIES” (May 2021) international Journal of Law
Humanities and Social Science Volume 4, Issue 6 P.P.69-80, at 5 )

Abendin, Simon; Duan, Pingfang “International trade and economic growth in Africa:
The role of the digital economy” (2021) Taylor & Francis, Vol. 9, Iss. 1, Cogent
Economics & Finance, ISSN 2332-2039, pp. 1-25,
https://doi.org/10.1080/23322039.2021.1911767,
(accessed on 20 November 2023).
Ministry of foreign affairs of the Netherland, “THE AFRICAN CONTINENTAL FREE
TRADE AREA AGREEMENT ITS IMPLICATIONS ON CROSS-BORDER ISSUES
AFFECTING CHILDREN” (December 2020) Development Cooperation.
Mhonyera, G.; Meyer, “The Impact of AfCFTA on Welfare and Trade: Nigeria and South
Africa in Light of Core Export Competences. Sustainability” (2023) available at https://
doi.org/10.3390/su15065090 (accessed on 20 November 2023).
Sweta Mandal “Role of Intellectual Property Rights in International Trade” (July 2020),
ISSN 2581-5504 Volume 11www.penacclaims.com (accessed on 20 November 2023).

Treaties and agreements

Agreement establishing the African Continental Free Trade Area (AfCFTA), 21.03.2018,
Art 8. https://au.int/sites/default/files/treaties/36437-treaty-consolidated_text_on_cfta_-
_en.pdf (accessed on 20 November).
UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, THE TRIPS
AGREEMENT AND DEVELOPING COUNTRIES at 63-64, U.N. Doe. UNCTAD/ITE/l,
U.N. Sales No. 96.11.D.10 (1996).

African Union Assembly 21.03.2018, Ext/Assembly/AU/Dec.1(X),

https://au.int/sites/default/files/decisions/34055-ext_assembly_dec_1x_e26_march.pdf
(accessed on December 12).
African Union Commission, Aspiration 1 of the Agenda 2063: The Africa We Want,
https://au.int/sites/default/files/documents/36204-doc-
agenda2063_popular_version_en.pdf (accessed on December 12).