1. RECOMMENDATIONS BY INTELLECTUAL PROPERTY LAWYERS ON LEGAL REFORM MOSES NKOMO LL.B, MIP

2. INTRODUCTION Most of the TRIPS flexibilities have been domesticated in the Zimbabwean legislation. The main gap lies in the implementation of those flexibilities as well as the harmonisation of Government policies in order to give effect to the full realisation of the benefits to be derived under the flexibilities. The other intellectual property laws require amendment in order to align to present conditions. It is important to focus on the institutional framework that should underpin the proposed reforms.

3. GOVERNMENT SUPPORT FOR LOCAL PHARMACEUTICAL PRODUCTION The Government use licence that was granted to Varichem Pharmaceuticals was a positive step as it demonstrated that WHO-prequalified ARV medicines can be manufactured in Zimbabwe. It is noted, however, that the licence expired and was never renewed and the royalties paid the patent holders was excessive. However, there is need for the Government to render more support to local industry in order for local production to be sustainable.

4. ALIGNMENT OF TRIPS FLEXIBILITIES WITH OTHER GOVERNMENT POLICIES The issue of TRIPS flexibilities, even though it is crucial to securing cheaper but quality medicines, has not been articulated in a number of key Government policies that are related to health. These include the National Health Strategy for Zimbabwe (2009 -2013) and the Zimbabwe National HIV and AIDS Strategic Plan [ZNASP ii] (2011-2015) which are silent on how TRIPS flexibilities can be utilised to ensure access to medicines.

5. UNUTILISED TRIPS PROVISIONS Article 7 - the objective of protection and enforcement of intellectual property rights as contributing “to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”.

6. UNUTILISED TRIPS PROVISIONS Article 8 - recognizes that governments may “adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with TRIPS.” This provision can be used to adopt measures to address emerging non- communicable epidemics, such as cancers.

7. UNUTILISED TRIPS PROVISIONS Article 31bis under the TRIPS Agreement can be used to create economies of scale within the SADC region. The article allows a regional bloc made up of at least 50% least developed countries (LDCs) to issue a compulsory licence for export to other member states in order to address a common health problem. The article has not been domesticated in Zimbabwe despite its vast positive potential for the country and region.

8. OTHER INTELLECTUAL PROPERTY LEGISLATION Zimbabwe has a number of other intellectual property legislation, namely: 1.COPYRIGHT AND NEIGHBOURING RIGHTS ACT (CHAPTER 26:05) 2.INDUSTRIAL DESIGNS ACT (CHAPTER 26:02) 3.TRADE MARKS ACT (CHAPTER 26:04) 4.GEOGRAPHICAL INDICATIONS ACT (CHAPTER 26:06) 5.INTEGRATED CIRCUIT LAYOUT DESIGNS ACT (CHAPTER 26:07)

9. RECOMMENDATIONS ON WAY FORWARD There is need to ensure that TRIPS flexibilities are given their full effect so that access to medicines is achieved. There is also need to ensure that all relevant Government ministries are aligned to avoid policy conflicts. The lawyers have developed a white paper on proposed reforms to other IP legislation and these will be presented to the Ministry of Justice, Legal & Parliamentary Affairs.

10. SPECIFIC RECOMMENDATIONS Promulgation of regulations on most of the IP laws without which the legislation cannot be given effect. The promulgation of a law regulating the Internet targeted at hacking, online information theft, virus creation and dissemination and online bullying. In order to encourage innovation, there is need to create innovation centres and technology parks that will offer advice on IP, conduct product development and support potential innovators.

11. SPECIFIC RECOMMENDATIONS Strengthen the Inter-Ministerial Committee on IP for effective IP coordination among ministries and to facilitate the harmonisation of policies and legislation across ministries. Establishment of an IP Tribunal with judges specialised in IP that will handle all IP- related cases that are filed, and that can expeditiously deal with cases of infringement. R&D in universities and other institutions – there is need to include IP in the curriculum, encourage collaborative research between institutions and industry and provide researchers to support industrial development.

12. FINAL WORD Whilst national IP legislation, TRIPS and related protocols have provisions that will benefit the nation, there is also need to focus on the institutional framework that will support the full exploitation of the legislation. Lawyers with an interest in IP are committed to assisting the Government in the process of reforming the laws with technical expertise.