Presentation on theme: "NATIONAL INTELLECTUAL PROPERTY STRATEGY FOR TANZANIA By Prof. Francis Matambalya WIPO Consultant 13 - 14 December 2011 1 Revised IP audit findings from."— Presentation transcript:
NATIONAL INTELLECTUAL PROPERTY STRATEGY FOR TANZANIA By Prof. Francis Matambalya WIPO Consultant December Revised IP audit findings from focus group discussions with stakeholders
PRESENTATION OUTLINE BACKGROUND Situation analysis Summary of challenges Summary of recommendations 2 METHODOLOGY FINDINGS:
1. BACKGROUND 3
1.1. Why IP Audit? 4 Request by GOT to WIPO IP Audit (IPA) used to generate information for designing a national intellectual property strategy (NIPS)
1.2. Specific objectives of the IPA 5 Collect data and information on diverse IP issues: IP generation IP system governance framework IP rights administration IP commercialisation IP rights enforcement Management of the IP agenda IP applications and grants
1.2. Specific objectives of the IPA – conc. 6 Sythesise data and information for the purpose of the architecture of the NIPS for Tanzania: Identify opportunities for harnessing IP for development Identify challenges against harnessing IP for development Make recommendations for the NIPS Understand the status quo of the IPS o Its strengths o Its weaknesses
2. METHODOLOGY 7
2.1. Considerations in designing methodology IP cuts across all sectors 8 Hence: need for a broad-based consultative process, and for reaching-out to as many stakeholder groups as possible Hence: need to gather information and data about all types of IP The existence of different types of IP
2.2. Approach for collecting data & information Review of literature 9 IP policy documents Other policies Other relevant literature Creation of groups Instrumentation: WIPO ‘guiding ʼ questionnaire Focus group discussions The ‘diplomatic approach’ to gathering info: Careful listening and evaluation
3. FINDINGS: SITUATION ANALYSIS 10
3.1. Management of the IP agenda Hence: existence of two parallel and independent regimes for managing the IPS in the URT: 11 IP is not a union matter: o A system for Tanzania Mainland o A system for Tanzania Zanzibar Concretely, this means: o Separate sets of institutions for IP administration o Separate jurisdictions for IP protection
3.2. Factors catalysing IP generation IP awareness and knowledge Existence of IP generators (i.e ‛IP entrepreneurs ʼ ) Existence of IP practitioners (essential for IP applications and grants to ‛IP entrepreneurs ʼ ) System for IP information dissemination Characteritics of the innovation system o IP research o IP education and training o Technology transfer mechanisms 12 Following are important catalysts of IP generation:
3.2. IP generation – contd. The general level of IP Awareness is very low for most people across stakeholder groups: 13 Level of IP awareness and knowledge o Policy and decision makers o Academicians o IP generators o IP right holders o IP users o IP law enforcers, etc. The situation is true for both Tanzania Mainland and Tanzania Zanzibar
3.2. IP generation – contd. Number or people with specialized IP education (at degree level) is very low 14 Level of IP awareness and knowledge o 1 for BRELA o Zero for copyright administrator & COSOTA o RGO, and copyright administrator & COSOZA: 2 Appreciation of IP as special study discipline is very low even among key actors in the IP scene, especially in Tanzania Mainland In Tanzania Mainland, exposure to IP knowledge is largely through training workshops and on the job learning
3.2. IP generation – contd. 15 IP entrepreneurs exist on both sides of the Union: Musicians Authors (of books, plays) Film makers Script writers Computer programmers Reseachers (whose research have potentials for innovations, inventions) Owners of marketing tools (trade marks, GIs)
3.2. IP generation – contd. 16 Stories Traditional music Traditional dances Also, like in other African countries, in Tanzania there is a rich tradition of expressions of folklore through:
3.2. IP generation – contd. 17 IP practitioners exist on both sides of the Union: Several active IP attorneys in Dar (None of the local IP attorneys?) has specialized IP education/training Examples: o Local: Mkono & Co advocates o International: SNR Denton Moreover: Foreign legal comapanies cannnot dirrectly act as IP practioners. Tanzania’s law them to use local agencies!)
3.2. IP generation – contd. Websites of IP offices in Mainland and Zanzibar 18 IP information dissemination: Tanzania Intellectual Property Advisory Services and Information Centre (TIPASIC) at COSTECH o BRELA o COSOTA o Drafting patent documents o Filing of patent applications o Conducting searches on patents TIPASIC is being trsanformed to Technology Innovation Support Centre (TISC) entre o RGO o COSOZA Mainland Zanzibar
3.2. IP generation – contd. Elements of an innovation system exist 19 Characteristics of innovation system: o IP information centre (e.g., TIPASIC / TISC) o Specialized research institutions (e.g., TIRDO, TEMDO, etc.) o IP reseach agenda at education and training institutions (though not institutionalised) o IP policies at individual institutions (some; not all) o Institutionalised mechanisms for technology transfer (e.g., at CoET/UDSM, TTO/SUA) Integrated innovation system does not yet exist – several elements still weak or missing (broadly spoken: FiR, diverse NFiR)
3.2. IP generation – contd. A few compulsory and elective IP courses offered by some Universities in some degree programmes 20 IP education and training: No single IP degree programme exists o Professional MIT programme (UDSM) o Law (UDSM, Mzumbe, Tumaini, OUT, SAUT, Ruaha, UDOM, Zanzibar University) No institutionalized IP training courses & programmes None-P experts supervise IP degree programmes at Masters and PhD levels.
3.2. IP generation – contd. 21 Research: Financing Scientific Research (FSR), which generate IP rely largely on donors, and to a far less extent on government Role of business sector in FSR is minimal o Weak local business sector o Efforts or strategy to leverage the potentialities of the business sector in FSR are still …. o Linkages between Universities/Research Institutions and Industries is very weak Collaborative research involving specialized research institutions and Universities not well developed Lack of effective mechanisms for transferring technologies and commercializing research findings Note: The National R&D Policy 2010 addresses the questions of collaboration among researchers and research institutions, but is not yet being implemented!
3.2. IP generation – conc. Some institutions have technology transfer mechanisms 22 Technology transfer mechanisms: o CoET/UDSM o TTO/SUA An integrated technology transfer mechanism, embracing all essential elements is weak: o Scouting o Technology cataloguing o Technology acquisition (e.g., through technolgy markets) o Technology transfer
3.3. IP applications and grants Hence: very limited number of applications 23 Number of applications by & grants to locals: o 1 patent application for UDSM o 5 patent applications for SUA o (CBE‘s emblem registered as a service mark) o 2 patent applications in Zanzibar Research largely seen as an ‘additional activity’ Limited applications by locals partly attributable to o Low levels of knowledge and awareness
3.4. IPS governance framework A system’s ‘governance framework’ is built by: 24 State of IPS governance framework o (A broad development philosophy = ideology) o Development strategies generated from the broad development philosophy o Development policies generated from the broad development philosophy o Laws o Regulations The existence of all its elements qualify the system as ‘integrated’
3.4. IPS governance framework – contd. 25 State of IPS governance framework – contd. Existing laws to protect industrial properties in Tanzania Mainland o Patent registration act, Cap 217 re 2002 o Trade and service marks Act, Cap 326 re 2002 o Fair competition Act No. 8 of 2003 o Merchandise Marks Act of 1963, re o United Kingdom designs (protection) ordinance? Existing law to protect industrial properties in Tanzania Zanzibar o Industrial properties Act No. 4 of 2008
3.4. IPS governance framework – contd. 26 State of IPS governance framework – contd. Existing laws to protect copyrights & neighbouring rights in Tanzania Mainland o Copyright and Neighbouring Rights Act, Cap 218 re o Act established also COSOTA Existing laws to protect copyrights & related rights in Tanzania Zanzibar o Copyright Act No. 14 of 2003 o Act established also COSOZA
27 At the global level, TZ (as URT) is a member of the following Paris Convention Berne Convention WIPO Convention (1983) Patent Cooperation Treaty (PCT) – is an administrative treaty Nice Agreement TRIPS Agreement (we are automatically members, by virtue of being members of the WTO) IPS governance framework – contd.
28 At the global level, URT is a not yet a member of the following Madrid system WPPT WCT IPS governance framework – contd.
29 At the regional level, TZ is a member of the following Lusaka Agreement (which established ARIPO; which currently has 18 members, including 4 EAC countries) Harare Protocol Banjul Protocol (1999) At the regional level, Tanzania plans to be a member of: Swakopmund Protocol on the Protetction of TK and expressions of folklore (in which case ARIPO members have made progress to recognise these as IP, while within the WIPO negotiations are still going on) 3.4. IPS governance framework – contd.
3.4. IP governance framework – contd. 30 State of IPS governance framework – contd. o Genetic resources o Technovations o GI o Integrated circuits & topography o Industrial designs (using english law; now included in patent law) o Trade secrets (currently, law of contract used instead!) Specifically, there is absence of laws to protect the following: IPS governance framework has following gaps: o Lack of NIPS o Lack of national IP policy o Gaps in IP laws o Gaps in regulations
3.4. IP governance framework – contd. 31 State of IPS governance framework – conc. o (Expressions of foklore, though included in copyrights and neighbouring rights as Part III, it does not regulations) o Industrial designs (provided UK designs – protection – ordinance; has never been used in Tanzania) o TK Following laws are inadequate?: Ongoing initiative to amend industrial properties laws o To have single industrial property act o Make industrial property law TRIPS compartible
3.5. IP administration 32 Separate institutions for Mainland & Zanzibar Mainland: institutions that administer different IP laws o BRELA (in Ministry of Industry &Trade) o Copyright administrator, and copyright management society – which in Tanzania Mainland is COSOTA (in Ministry of Industry &Trade) o Registrar of Plant Breeders (in Ministry of Agriculture & Food Security) o FCC (in Ministry of Industry and Trade) o COSTECH (in MCST)? (law establishing gthe centre for the transfer of technology)
3.5. IP administration – contd. 33 Separate institutions for Mainland & Zanzibar o RGO (Ministry of Justice and Constitutional Affairs) o Copyright adminstratior and copyright management society – which in Tanzania Zanzibar is COSOZA (Ministry of Justice and Constitutional Affairs) Zanzibar: institutions that administer different IP laws
3.5. IP administration – contd. 34 Automation o IPAS system is available, but not active due to technical constraints Zanzibar: Mainland o Industrial property application system (IPAS) provided by WIPO o IPAS covers trade and service marks registration, patents, and industrial designs (though only trade and service marks are currently active) o Operational snags: due to infrastructural limitations
3.5. IP administration – conc. 35 Capacities of IP offices Evidence of capacity constraints in both Tanzania Mainland and Tanzania Zanzibar o Small number of staff (e.g., RGO – 3; COSOZA - 5) o Even smaller number of staff with specialised IP education o Staff not diversified in different specialisations. Hence, IP services that require technical knowledge (e.g., knowledge required for ‘substantive examination’ of patent applications) cannot be handled at the IP offices o Congested premises o Lack of sufficient equipment
3.6. IP commercialization Presence of collective management organization (CMO) for copyrights 36 COSOTA for Mainland COSOZA for Zanzibar o Hence: mechanisms for collecting revenues and paying royalties to IP creators exist Contribution of IP to the economy No sector-wide study so far conducted Study on contribution of creative industry (or copyright-based industry) to the economy is in progress (supported by WIPO)
3.6. IP commercialization – contd. 37 Financing commercialisation of IP Which government programmes? Which donor programmes? Financing the commercialisation of IP is not institutionalized in Banks and NBFIs CARMATEC, TIRDO, SUA has been supporting the commercialisation SUA attempting to commercialize IP through franchising
3.6. IP commercialization – contd. 38 Financing commercialisation of IP No government programmes? No donor programmes? Financing the commercialisation of IP is not institutionalized in: o In Banks o In Non-Bank Financial Institutions (NBFIs)
3.6. IP commercialization – contd. Legal instruments for commercialisation 39 Assignment (in patents & trade marks), guided by ‘deed of assignment’ Licensing (in patents & trade marks), through ‘registered user agreement’ Material Transfer Agreements (MTA) for ‘genetic resources’ – done by individual institutions (e.g., NIMR) Memoranda of Agreement (MoA) – for initial stages, and is less binding legally Memorandum of Understanding (MoU)?
3.6. IP commercialization – contd. 40 Infrastructure for IP commercialisation Incubation programmes by SIDO, COSTECH (DAR ES SALAAM TEKNOHAMA, CoET, TEMDO, CARMATEC) BUT: no adequate physical infrastructure in place? Soft-infrastructure (e.g., human resources, institutions, policies) are also being put in place, particularly in Zanzibar
Number of protected IP held by locals commercialized IP commercialization – contd. Some success stories: o SU A (in patents) o Salim Bakhresa (in trade marks) o TBL (in trade marks) o Serengeti Breweries (in trade marks) o Drop of Zanzibar (in trade marks) o Bonite Bottles (in trade marks) o TAZOP (in trade marks)
Number of foreign-held IP commercialized locally IP commercialization – contd. Some success stories: o YUASA Batteries o Coca Cola o Pepsi Cola o Colgate o Heineken o Malta Guiness o National Batteries o Bavaria Beers o Products of automotive industry: Benz, Nissan, Jaefong, Tata, etc. o Phone companies: VODACOM, AIRTEL, TIGO, ZANTEL, SASATEL, TTCL o Car Distribution Franchises: Toyota, Suzuki,Mercedez Benz, Nissan, Jaefong, Tata, etc.
IP commercialization – contd. Existence of local promoters of creative arts Local promoters exist. Examples include: Existence of local producers of creative arts Local producers exist o Msama Promotion o FM Muta o Benchmark o Prime Time o THT o Lino Agency o Stepin entertainment o Game First Quality o Man Water o MJ Production o Motika Records
IP commercialization – contd. Existence of local publishers Examples: Existence of local distributors They exist They include both indigenous and foreign affiliates o Mkuki na Nyota Publishers o Muture Publishers o DUP o Nyambari Nyangwine o KIUTA o Mamu Store o Mabibo Wines. o Umoja Audio East Africa Ltd. o Steps Entertainment Ltd. o Game First Quality o MVC Hot Media o Many unlicensed ones (including marching guys/Street Hawkers)
IP commercialization – conc. Existence of Internet Service Providers Several ISP exist in the country UCC Get data from TCRA Existence of broadcasting corporations Get data from TCRA (over 15 TV stations) State TV Several Private TVs State radio Several Private radio Stations Local content for broadcasters 60% Many others
IP enforcement IP legislation See relevant section; institutions include: o BRELA o RGO o Copyright Administrator Mainland o Copyright Administrator Zanzibar o Customs/TRA o Police o Judiciary o FCC o TFDA o TBS IP dispute settlement panels Existing laws do not provide for such panels
IP enforcement – contd. IP Judiciary Courts Tribunals (as quasi judicial bodies) IP courts In Tanzania Mainland o District Court to Court of Appeal In Tanzania Zanzibar o Primary Court to Court of Appeal IP Tribunals IP matters handled by Trade Marks Tribunal (in BRELA) Fair Competition Tribunal (in FCC)
3.7. IP enforcement – contd. Education & training of Customs and Police officials 48 None has received formal IP education There are also no institutionalised training programmes for them Education & training of lawyers Very few of them has specialized IP education No bridging training measures for the group Education & training judges None of them has specialized IP education No institutionalised training measures for the group
3.7. IP enforcement – contd. 49 Border measures Are enforced by Customs/TRA and TFDA Customs/TRA does not have sufficient surveillance capacities against counterfeit products; TFDA has sufficient surveillance capacities against counterfeit products
3.7. IP enforcement – contd. 51 Number of cases handled Many cases have been handled: o KIWI shoes polish o super match o Philips o Hitachi o Korie, o Elf o 3M, o Phoenix bicycles o Poa (flour sembe) o Neelam o Chin Chin o Azam vs Azania o Expel vs Fly X, o Cofta v Cofex o Motox v Totox o Ndanda Spring Water
3.7. IP enforcement – conc. Collective management organizations 52 COSOTA COSOZA Number of cases handled Some reach settlement outside the court (Bahari Salt) Some cases are setteled at mediation by the court (e.g., ZE COMEDY)
4. FINDINGS: SUMMARY OF CHALLENGES 53
54 1. Low level of IP awareness and knowledge Limits understanding of the economic importance of IP, affects number of IP applications, enhances infringement by the public, is manifested by the failure to see the connection between IP and economic development. 2. Insufficient capacities to manage IP for national development FiR capacities (e.g., funding research, IP commercialisation, promotion of creativity, etc.), and NFiR capacities (e.g., Human resource capacities, equipment). To provide guidelines on issue of IP ownership and benefit sharing To provide guidelines on IP commercialization strategies MIT drafting one 3. Lack of National IP Policy 4. Limited enforcement capacities 6. Lack of NIPS 5. Gaps in IP mainstreaming in other policies
55 6. Lack of institutional co-ordination mechanism to link and harmonize the activities of institutions dealing with IP matters 7. Fragmentation of IP administration Largely into separate administrations for industrial property and copyrights & neighbouring/related rights There is also a separate law on the administration of plant varieties, which is under the Ministry of responsible for Agriculture; and intellectual property and access to essential medicines is under MoHSW 8. Limited capacities of IP administration offices 9. Poor quality of IP products (particularly of the creative industry) This hampers their marketability 10. Inadequate industrial entrepreneurs 11. Weaknesses of the existing IP forum The flourishing of the IP economy is closely linked with ‘industrial mode of production’
Infancy of businesses Among other things, this limits advocacy capacity of stakeholders. 13. Gaps in the legislative framework 14. Lack of understanding of the impact of other international agreements (e.g., BIA, regional, AGOA) on the TRIPS agreement 15. Challenge of ‘ever-greening’ of patents (example Aspirin, Viagra, etc.) Some studies have looked into the matter, though their findings have not been widely shared/disseminated A comprehensive study on this matter made or anticipated!
Weak understanding of IP laws among stakeholders 18. Legal gap for protection of ICT 19. Lack of IP policy at the level of most individual institutions 16. Lack of data bases on protected IP products and IP products in public domain 20. Inadequate integration IP in the curricula of domestic education and training institutions 21. Limited innovativeness of staff in research institutions (e.g., specialized research institutions, Universities, non-University institutions). This is exacerbated by lack of policy to guide research. 22. Absence of national branding strategy (in progress) 23. Lack of harmonisation of procedures to facilitate country- wide designation (i.e., in both Mainland & Zanzibar) TIPASIC being upgraded to become a TISC, and provide pertinent services Some protected as patents (but TZ patent act is too old and does not protect ICT) Some protected as copyrights
5. FINDINGS: SUMMARY OF RECOMMENDATIONS 58
59 4. Develop national IP policy/policies Strengthen and transform IP Forum into Tanzania Intellectual Property council (TIPC) 5. Strengthen national IP Forum 3. Develop national NIPS 1. Establish means to ensure effective participation of IP institutions in Tanzania Mainland and Tanzania Zanzibar in international organizations (multilateral, regional) 2. Establish means to ensure that designations of Tanzania in industrial property rights cover both parts of the Union
60 Enhance mechanisms for raising IP awareness Enhance mechanisms for developing foundation IP knowledge Institutionalise special outreach programme for Journalists and media companies 6. Develop FiR capacities & NFIR capacities for IP management (including diversifying sources of FiR) 7. Raise IP awareness and develop IP knowledge at all levels
61 8. Strenghthen IP administration institutions 9. Strengthen IP enforcement across the board (including local content enforcement) 10. Develop local industrial entrepreneurs 11. Establish special government aided programme to buy technologies 12. Mainstream IP issues in all sectoral policies 13. Develop/strengthen capacity of the judiciary on IP issues AND establish special IP division at high court 14. Strengthen existing and establish new IP information points
Institutionalise the use of local experts to scrutinise and ascertain the coherence of international agreements (bilateral, regional, plurilaterla, and multilateral) 15. Undertake needs assessment of IP administration Identify capacity limitations Recommend how IP administration should be rationalized in Tanzania Mainland, and Zanzibar 16. Strengthen IP agenda at all Ministries by ensuring that each has an IP unit Example: coherence of BIA, Economic Partnership Agreement (EPA), AGOA, etc. with TRIPS agreement