On 17 March 2014, the African Group delivered the following opening statement at the Thirty-First Session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) highlighting the need for an inclusion of an article on technical assistance (with legally binding effect) in the proposed design law treaty. The African Group noted,
In this regard, the African Group regrets to note that its humble request for inclusion of an article on technical assistance to implement the proposed Design Law Treaty has not borne fruit and has been the subject of intense negotiations in the last sessions of SCT and General Assembly.
We would also like to note that while formalities/ procedural treaties do not deal with substantive subject matter of the treaties, their ultimate aim is to help in the implementation of treaties which are of substantive nature.
In this regard, formalities/ procedural treaties have a harmonizing effect, which implies that for parties to benefit from the treaties and ensure uniform application of formalities, they have to upgrade their systems and capacities to more or less the same level of other parties.
Furthermore, procedural treaties reduce the policy space for developing countries and the flexibilities available under the IP system to tailor their national IP system including the registration procedures according to their national needs and level of development.
The entire statement is reproduced in full below.
Thank you Mr. Chairman for giving me the floor.
Kenya has the honour to deliver this statement on behalf of the African Group.
The African Group would like to congratulate you on your reelection to Chair the 31st session of SCT, together with the two Vice Chairmen. The Group also wishes to thank the secretariat for preparing the documents for this session.
Mr. Chairman,
One of the important agenda items before the SCT is the draft articles and regulations on the design law registration formalities.
The African Group believes in the development of a balanced IP system that meets the needs of all its members. The Group also recognizes the critical role IP can play in meeting its developmental challenges. However for this to become a reality there is need to balance the needs of right holders and societal interests and this has to be reflected in the norm setting activities.
The African Group is therefore committed to the process and hopes that under your wise guidance we will achieve a balanced outcome. A balanced outcome is critical as it will make the treaty attractive to both developing and developed countries alike making it possible for its early entry into force.
In this regard, the African Group regrets to note that its humble request for inclusion of an article on technical assistance to implement the proposed Design Law Treaty has not borne fruit and has been the subject of intense negotiations in the last sessions of SCT and General Assembly.
We would also like to note that while formalities/ procedural treaties do not deal with substantive subject matter of the treaties, their ultimate aim is to help in the implementation of treaties which are of substantive nature.
In this regard, formalities/ procedural treaties have a harmonizing effect, which implies that for parties to benefit from the treaties and ensure uniform application of formalities, they have to upgrade their systems and capacities to more or less the same level of other parties.
Furthermore, procedural treaties reduce the policy space for developing countries and the flexibilities available under the IP system to tailor their national IP system including the registration procedures according to their national needs and level of development.
The costs therefore associated with the implementation of procedural treaties are significant and this is particularly so for member states who do not have the systems in place already or those who have to make substantial adjustments to their systems to enable the seamless implementation of the treaties.
In this regard, it is important for developing countries, particularly those in Africa to be assured of adequate and appropriate technical assistance to implement the treaties.
We note that while the proposed Design Law Treaty will enter into force for those members who accede to it, it is also true that developing countries that are planning ascension to WTO (and here we have a number of African countries including LDCs) have in the process of negotiation for accession been required to accede to some treaties in WIPO which are of interest to some WTO members as part of the concessions on their part.
In the same vein, developing countries in the process of negotiating Free Trade Agreements or Economic Partnership Agreements with developed countries are sometimes compelled to ratify WIPO treaties of interest to the developed countries involved.
Furthermore, there has been a rise in procedural treaties including the recently concluded Trade Facilitation Agreement under the WTO. These treaties when taken in totality pose a big burden, particularly on developing countries since they not only have to meet their treaty obligations under WIPO agreements but also in all other treaties that they enter into.
In order therefore to make the system manageable, it is important to ensure that there is internal balance in the treaties themselves, especially those of procedural nature as they involve substantial costs in their implementation.
There are many hidden costs some of which cannot be fully contemplated given that each country is unique and is at different level of development in their IP systems.
In short, Mr. Chairman, the adoption of this treaty will require significant changes in the national IP systems of developing countries which are likely to go beyond the capacity and ability of individual countries to implement the treaty.
This is why the African Group is of the strong opinion that an article on technical assistance which is part of the substantive provisions of the proposed treaty is more appropriate as it will introduce balance in the treaty thereby guaranteeing members who accede to it the assistance to implement it.
I thank you.