Innovation, Intellectual Property and Development Narratives in Africa
Jeremy de Beer, Chidi Oguamanam and Tobias Schonwetter
Human development, including not just economic growth but also the capability for longer, healthier and more fulfilling lives, depends on innovation and creativity. While various economic, technological, social and other factors influence innovative and creative activity, intellectual property (IP) rights – copyrights, patents, trademarks, trade secrets and other appropriation mechanisms – play an increasingly important role. How IP rights help or hinder innovation and creativity in different contexts in Africa is the subject of this book.
The chapters that follow canvass aspects of the current reality of IP in nine different countries from the four main regions of the African continent. The chapters contain contextual analyses as well as on-the-ground case studies based on empirical, qualitative and quantitative research – and cut across diverse socio-economic contexts and legal systems, and a spectrum of formal, informal and traditional sectors. Examined as a whole, the evidence in this book helps build understanding of the ways in which the dual goals of protecting IP and preserving access to knowledge can be balanced. The book also provides indications of the roles that are being, and can be, played by collaborative and openness-oriented dynamics in relation to innovation, creativity and IP. A better understanding of the nuances and dynamics of IP is essential to creating policy frameworks and management practices that balance IP protection and access in such a way that African regions, nations and communities can harness IP as a tool to facilitate collaborative networking within diverse systems of innovation and creativity.
The proliferation and polarisation of opinion
Influential actors – multinational companies, developed-country governments, international organisations, academics, civil society groups – promote opposing views on how IP protection interacts with innovation and creativity. One view is that IP protection is inevitably and necessarily an incentive for innovation and creativity. The opposing view is that IP protection is not required to facilitate innovation and creativity and, rather, is an impediment to the free and open exchanges of technology, culture and knowledge that form the core of innovative and creative modalities. These polarised views persist because, in fact, little is really known about how IP environments do or could influence innovation and creativity as a means to development. A recent, wide-ranging review (Hassan et al., 2010) of the growing but still “surprisingly scarce” literature on IP and developing countries uncovered little consensus and even less clear evidence on the key questions facing IP policy-makers (2010, p. xiv). It follows that policy-makers who seek to encourage creators and innovators tend to struggle to develop appropriate IP systems. Bottlenecks and systemic inefficiencies occur as law-makers and policy-makers make hazy efforts, based on insufficient information, to calibrate national IP environments in support of innovation and creativity.
Overzealous IP protection regimes may indeed raise the costs of future innovations and may, therefore, discourage potential innovators and creators who cannot afford high up-front investments. Also, over-protection of IP may result in innovators and creators being unable to organise collaborative relationships in strategically optimal ways. On the other hand, under-protection of outputs may indeed be an investment disincentive for a significant proportion of potential innovators and creators, and may therefore be a threat to development.
Despite the lack of consensus about the influence of IP on innovation and creativity for development, some new narratives seem to be emerging. For most of the 20th century, the orthodox assumption was that IP protection is good for development. The wisdom was that if some protection is good, more is even better. The origins and spread of such narratives are explained especially clearly in the literature on the history of the World Trade Organisation’s (WTO’s) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and in the leading work on the international political economy of IP more generally (e.g. Drahos and Braithwaite, 2002; May, 2010; May and Sell, 2005; Sell, 2003).
From the 1994 passage of TRIPS onwards, political and economic pressures to increase IP protection succeeded in raising both IP protection standards and awareness of IP in developing countries. But the protectionist pressures led to backlashes against IP systems that were seen as insensitive to local contexts. This was especially true where IP protection impacted other public policy priorities, especially on matters of health, education and cultural participation. The work of scholars such as Barbosa et al. (2007), Boyle (1997, 2003, 2004), Chon (2006), Okediji (1996, 2000) and others was influential in that context. Such scholarship contributed indirectly to reform initiatives undertaken by international organisations including the WTO, the World Health Organisation (WHO) and the World Intellectual Property Organisation (WIPO). A “development agenda”, or indeed a suite of related agendas, emerged as a new paradigm focused on recalibrating international IP law and policy (De Beer, 2009; Deere, 2009; Gervais, 2007; May, 2007; Meléndez-Ortiz and Roffe, 2009; Netanel, 2008; Yu, 2009). Moreover, an ad hoc movement of civil society advocates and scholarly researchers came together under the framework of “A2K” (access to knowledge), a civil society coalescence which fundamentally reframed the terms of global IP debates (De Beer and Bannerman, 2013; Kapczynski, 2008; Kapczynski and Krikorian, 2010). An illustration (as this book was being finalised in mid-2013) of the continuing momentum of the A2K movement was the outcome of the WIPO Diplomatic Conference of June 2013 in Marrakesh, at which more than 50 countries signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty, 2013).
A number of important recent works demonstrate the integration of development principles and A2K perspectives into mainstream analyses of IP (e.g. Wong and Dutfield, 2011). Several scholars emphasise the complex, dynamic and multi-level nature not just of IP rules, but also of the broader governance of knowledge (e.g. Burlamaqui et al., 2012; Chon, 2011; Oguamanam, 2011). The complexity of the scholarly endeavour has led to contrasting disciplinary perspectives and subtly different framings of IP issues. For example, some works characterise the basic problem as protecting “poor people’s knowledge” (Finger and Schuler, 2004); others promote the recognition of “indigenous people’s innovation” (Drahos and Frankel, 2012). A particularly important theme is the human impact of IP policy, i.e. the impact on individual fulfillment and well-being (Sunder, 2012).
Despite this rapidly growing global body of work, there is still little research examining systemic IP governance or knowledge governance in Africa. More than two decades ago, Juma and Ojwang (1989) urged African countries to examine their IP policies and “introduce laws that reflect the imperatives of national sovereignty” (1989, p. 3). Since then, there have been valuable in-depth examinations of particular issues, such as textiles and traditional knowledge (Boateng, 2011), or access to learning materials (Armstrong et al., 2010; De Beer, 2013). In addition, some researchers have conducted regional analyses of A2K – in North Africa, for example (Shaver and Rizk, 2010) – and sub-Saharan African perspectives on IP and economic development have been put forward (e.g. Blackeney and Megistie, 2011), along with analyses of topics such as neo-colonialism and IP (e.g. Rahmatian, 2009) and African IP organisations (Kongolo, 2000). Africanbased researchers Pistorius, Harms and Visser have done strong work on the intersections among development and aspects of IP such as copyright (Pistorius, 2007) and international legal and political IP paradigms (Harms, 2012; Visser, 2007). But many gaps in our understanding of IP and development, especially development in African settings, remain.
Particular blind spots relate to the dynamic and contextual roles of IP in different kinds of African innovation and creation modalities, particularly collaborative and openness-oriented modalities. The researchers who contributed to this book responded to an open public call to investigate matters that would help answer the following question: How can existing or potential IP systems be harnessed to appropriately value and facilitate innovation and creativity for open development in Africa? This framing provoked a range of connected questions. Practically, how do African innovators or creators exploit, adapt to, or work around, IP environments? Conceptually, are exclusive IP rights compatible with collaborative, openness-oriented innovation and creativity in Africa, and with inclusive development more generally? What are the on-the-ground interplays between openness and protection in relation to IP in African innovative and creative settings? At a more systemic level, to what extent, and how, have policy-makers in Africa attempted to calibrate IP frameworks in such a way that they can maximise innovative and creative potential? Current research addressing these important questions, as presented in the available literature and translated into practice, remains scarce and often appears to reflect rhetorical polarisation more than objective investigation. This volume seeks to begin to fill that research gap, by presenting findings from studies which explored the role of IP in innovation and creativity within collaboration- and openness-based conceptions of development in the African context. In other words, the book is not about innovation systems or creative industries in general; it is about the roles that IP rights do, and could, play within such systems and industries, specifically in Africa, specifically in relation to collaborative, openness-oriented dynamics.