Regional Integration And

The African Review, Vol. 45, No. 2 (Special Issue) December, 2018:1-23 Can “The Is” and “The Ought” be Married? Creating a Sustainable Legal Framework for Intangible Property in the East African Community Anthony C.K. Kakooza Abstract The Common Market Protocol of the East African Community (EAC) serves the purpose of encouraging free movement of goods and services across the borders of the EAC Partner States. However, recent legal battles in Uganda and Rwanda highlight the fact that the territorial nature of Intellectual Property Rights is at variance with the spirit of free trade within the EAC, and the legal protection meant to go with such free trade. Coupled with this is the fact that national borders sometimes cut across ethnic groupings that share cultural traits. There is an increasing need to protect Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) from mis- appropriation and exploitation, which inevitably pit different communities and their host countries against each other within the EAC. This is primarily due to the fact that the Partner States within the EAC have responded differently to the need for policy and legal frameworks regarding the protection of TK and TCEs. This paper looks at the contrast between the general interests of the EAC Partner States as portrayed in key treaties that they have signed, and their legal obliga- tions and interests as derived from their respective policy and legal frameworks pertaining to the protection of Intellectual Property, TK and TCEs. The paper points out the underlying challenges that have enabled the situation as it is to be different from what it ought to be in terms of gener- ating enjoyment of free movement of goods and services, as well as promoting a better IP and quasi-IP (TK and TCEs) environment in the EAC. The paper goes on to argue that specific re- forms are needed within the EAC region as a whole, as well as within each Partner State, so as to generate a win-win situation. Key words: Regional Integration, EAC, Intellectual Property, Trademarks, Quasi-IP, Traditional knowledge, Traditional cultural expressions Dr. Anthony C.K. Kakooza is Dean-Emeritus, Faculty of Law, Uganda Christian University, Mukono (Email: [email protected]). 1 The African Review, Vol. 45, No. 2 (Special Issue) December, 2018:1-23 1 Introduction The effective enjoyment of Intellectual Property Rights (IPRs) by all stakeholders, that is, the rights owners, the enforcement agencies, and the consumers of the Intellectual Property (IP), is only feasible if there are enforcement mechanisms that are seen to work at the domestic level. This also includes harmonization of the IPR policy and legislative structures at the regional level, in this case, the region of the East African Community (EAC). Intellectual Property Rights, simply put, are the rights derived from creativity of the mind. Enforcement of IPRs is directly linked to economic development, because they are related to the encouragement of new ideas and honest dealing. The creation and gen- eration of IPRs out of ideologies is globally evident in a number of sectors. These are inclusive of the entertainment industry films, music and drama); the arts industry (includ- ing fine art and handicrafts); industrial innovations and designs; and branding and mar- keting of products and services. One key feature that stands out in IPRs is that regardless of the fact that they originate from specific localities, the market reach for such products and services easily transcends national boundaries. It is not the intention of the author of this paper to act as a doomsday prophet in respect of potential conflicts in trade at the EAC level. Rather, the claim raised is that if the East African Community Partner States work towards strong and well harmonized IP enforcement mechanisms, IPR holders within the Community (both foreign and local) will be encouraged to contribute more to this area of knowledge-based economies, and thus boost socio-economic development in the region. It should be noted from the onset, however, that the key focus of this paper is on trademarks as a specific type of IP that crosses borders more easily than any other type within the EAC. Another kind of intangible property that is given attention here because of its cross-border nature, is regarded as quasi-IP because, technically, some of the essential characteristics of IP are missing: the term quasi-IP is used to refer to Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs – otherwise also known as Folklore). The paper is divided into six essential parts. In the first part, I present the background of the research problem with a narrowed down focus on trademarks and quasi-IP. I then present the road-map of the research paper, its aims and objectives, its scope, the signif- icance and justification of the research, and a brief mention of the methodology em- ployed in gathering information for this paper. The early phases of the study were guided by the research objectives. In the second part of the paper, I explore the aspects of In- tellectual Property, TK and TCEs that have potential for cross-border conflict. Such potential conflict is tied to trade practices within the region, and the nature of the EAC state boundaries. The third part of the paper looks at the current legal structure within the EAC as it pertains to intangible property vis-à-vis the status quo in similar regional structures. This third part serves the purpose of bench marking and examining best practices in respect of issues relating to trademarks, TK and TCEs in other regions that are in situations similar to those of the EAC. Part four highlights the challenges relating to trademarks, TK and TCEs in the EAC region that hamper the free movement of goods and services. In part five, I make some recommendations for an effective and harmonized legal system for the protection of intangible property, particularly for the three core areas highlighted earlier; and in the final part I present my conclusions. 2 The African Review, Vol. 45, No. 2 (Special Issue) December, 2018:1-23 1.1 Background Intellectual Property Rights are territorial in nature. This implies that once a legal entity comes up with any creativity that is worthy of IP protection, such protection is granted subject to the laws pertaining to the specific country within which the creator or owner of the IP resides or engages in business related to such IP. However, such a legal entity may also seek to exploit other avenues that allow for protection in more than one country or jurisdiction. For instance, with regard to trademarks, a type of IPR, protection of the mark can be achieved through registration with the World Intellectual Property Organi- zation (WIPO), a registration system for trademarks which allows for international protection. Details of such registration systems are given below. In as far as IPRs are con- cerned, this paper has narrowed down its focus to trademark rights in goods and services. The focus on trademarks naturally follows because the exchange of goods and services in the EAC region through trade involves the movement of trademarked goods and services across the borders of the Partner States. The issue of how to resolve emerging conflicts relating to the protection of trademarked products across the region was not given consideration until recently, when such conflicts came to the fore through two cases that were determined in Uganda and Rwanda. These cases are also discussed in detail below. The other intangible property rights that have a potential for conflict are rights accru- ing from Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) in the East African region. A World Intellectual Property Organization (WIPO) handbook1 on the Policy, Law and Use of Intellectual Property defines TK and TCEs as follows: … traditional knowledge is considered as the content, substance or idea of knowledge (such as traditional know-how about the medicinal use of a plant, or traditional ecological management practices), as distinct from the form, expression or representation of traditional cultures (such as a traditional song, performance, oral narrative or graphic design), which are known as TCEs or expressions of folklore. Thus, TK and TCEs emanate from traditional ways of life of a cultural or ethnic community. In the African setting, historically, our ethic communities were split between different countries during the birth of the colonial era in the 1880s. Lord Salisbury, who was British Prime Minister at the time2, remarked cynically that: “We have been giving away mountains and rivers and lakes to each other, only hindered by the small impediment that we never knew exactly where they were.” As a result, at the end of the scramble for Africa, over 10,000 African communities had been amalgamated into forty European colonies and protec- torates3. This included communities in the East African region, as explained in section 3.2 below. The absence of a regional framework for TK and TCEs in the East African 1 WIPO Intellectual Property Handbook: Policy, Law and Use, (WIPO Publication No. 489(E), 2nd Ed., WIPO 2004) para. 7.71 at p. 446. 2 Robert Gascoyne-Cecil, 3rd Marquess of Salisbury, was three times Prime Minister of the United King- dom, from 1885 to 1886, 1886 to 1892 and 1895 to 1902. See: Marjie Bloy, ‘British Prime Ministers 1760-1901’, The Victorian Web: Literature, history & culture in the age of Victoria, <http://www.vic- torianweb.org/history/pms/pmlist.html> accessed 11 November 2017. 3 Martin Meredith, The State of Africa: A history of fifty years of Independence (Jonathan Ball Publishers 2006) 2.

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