Most countries in East Africa have modelled their intellectual property laws on international conventions and agreements that are intended to promote creativity through the granting of intellectual property rights (IPRs). These include industrial property laws (covering patents, trademarks, geographic indications, etc.), copyright laws, and plant breeders' rights. Kenya has developed and enacted legal frameworks for all of these areas, while Uganda and Tanzania have copyright and trademarks laws, but use the African Regional Industrial Property Organization (ARIPO) for their industrial property laws.
Overview of IPR regimes in East Africa
These laws, which are WIPO or UPOV compliant, focus on formal innovators, who represent just one of the components of the innovation system. Private investment in R&D in East Africa is limited. In the field of agriculture much of the R&D is carried out by public institutions, which are financed by the public for the public good, so that little or no consideration has been given to IPRs. With liberalization and the call for more public-private partnerships, however, the situation is changing. IPRs are now being given greater consideration in biotechnology R&D, in view of increasing private sector involvement in collaborative partnerships with public research institutions.
East African countries have decided in principle to accept biotechnology products, and the growing number of public-private partnerships has influenced them to develop legal frameworks to govern the development and release of these products to the environment. Kenya is more advanced than other countries in this respect, and has created legal systems to evaluate applications for the development and release of genetically modified organisms (GMOs). Because of the high costs of patents and the need for technology transfer, the African Agricultural Technology Fund (AATF) has recently been established in Nairobi to act as a broker to help Africa acquire biotechnology products. The AATF will be funded by USAID, the Rockefeller Foundation and DFID. According to the project briefs, the AATF will bear liability for any possible negative impacts of GMOs in future.
Legal arrangements for the products of biotechnology R&D in Kenya
This section describes the legal arrangements underpinning a number of research partnerships in Kenya.
- The Netherlands-Kenya biotechnology programme. The funding agreement explicitly states that any invention resulting from the programme will be owned by the researchers and the implementing institution. However, the product will be made available free of royalties to small-scale farmers in Kenya or other countries where the Netherlands government believes that the product will be of use. So far, some livestock vaccines and drought-tolerant, insect pest resistant maize lines show promise for patenting. However, with the recent termination of the contract it may not be possible for the local public institutions involved to adhere to this agreement.
- The Insect Resistant Maize for Africa (IRMA) project, a partnership between the International Maize and Wheat Improvement Center (CIMMYT) and the Kenya Agricultural Research Institute (KARI), funded by the Syngenta Foundation, aims to develop a new variety of Bt maize. In the partnership agreement, Syngenta has indicated that it has no interest in co-owning the product, so that the onus is on CIMMYT and KARI who will own the product. Because of liberalization, and the Kenyan government's insistence that parastatal organizations generate their own resources, KARI is likely to patent or co-own the product with CIMMYT, and will ask for royalties on the product. KARI, together with AATF and CIMMYT, will ultimately bear liability for potential negative impacts of the GMO produced. CIMMYT does not ask for royalties on the materials it supplies to companies.
- KARI and Monsanto have formed a partnership to develop Bt cotton and Bt maize using local varieties. The partnership agreement clearly spells out that KARI and Monsanto will own the products, but the decision on how the royalties will be shared will be made when the products are ready.
- In two projects, KARI is developing a transgenic sweet potato obtained from Monsanto and transgenic cassava from the Danforth Center (USA). The genes and technologies were donated to KARI through transactions brokered by ISAAA and the AATF, respectively. In these cases KARI, ISAAA and the Danforth Center will bear liability for any eventual negative impacts of transgenic sweet potato and cassava, respectively.
In the last three cases, material transfer agreements were signed between KARI and CIMMYT, Monsanto or its appointees, and the Danforth Center and Monsanto, respectively. The final agreement spelling out details as to who owns the products will be finalized by KARI and the partners.
IPR and its impacts on agriculture
In the area of biotechnology, IPRs represent an enormous challenge for policy makers and other stakeholders in Africa. While biotechnology offers new opportunities for Africa, in particular for addressing elusive goals such as food security and health, classical IPR systems threaten to undermine efforts to seize these opportunities if they are not properly articulated. Developments in this field in Africa have been determined and shaped by factors and events at the global level rather than in Africa itself. Hence legal, policy and institutional developments are not entirely in accordance with the desires or the abilities of African society.
The legal instruments governing IPR were designed with the focus on the commercial sector, and do not take into account the situation of resource-poor farmers who produce, save, exchange, replant and sell planting materials at the local level. The 1978 UPOV Convention, upon which Kenya's seed laws are based, recognized the rights of farmers to produce, save, exchange and replant their own seed, but it did not allow them to sell the seed. Worse still, the revised 1991 UPOV Convention covers biotechnology products and does not recognize farmers' rights. This means that international agreements on which local laws are based do not fit well with the needs of the majority of small-scale local farmers.
With regard to the patents for genetically modified organisms, the royalties are reflected in the high prices of the final products, such as seeds and chemicals, resulting in increased costs for farmers. These products are therefore beyond the reach of resource-poor farmers and subsequently may actually undermine local food production.
Government plant breeding and biotechnology programmes depend largely on local genetic resources - on varieties of plants that have been bred and maintained by local farming communities over a long period. Existing laws do not recognize these efforts - the farmers' varieties are treated as common domain property, while the varieties developed in research institutions (public or private) are increasingly becoming privatized. Further, bioprospecting activities have benefited the formal sector. The lack of awareness of IPR has resulted in the outright piracy of biological resources and plagiarism of the bioknowledge of local communities.
Conclusions and recommendations
Tailoring IPR systems to suit the local situation, and particularly that of resource-poor farmers (who are the majority), is an option that has been highlighted in many forums in East Africa. It has therefore been recommended that sui generis systems of IPRs be adopted that will take into consideration farmers' rights, plant breeders' rights, the need for conservation of genetic resources, the protection and utilization of indigenous knowledge and equitable benefit sharing. Uganda, for example, has developed a draft sui generis system that includes the above issues.
The costs of the products of biotechnology are high due to IPRs. It is therefore recommended that brokers negotiate for concessions, particularly for local farming communities. The AATF has a key role to play in promoting biotechnology in Africa.
Insect Resistant Maize for Africa (IRMA) project
For further information on the Netherlands-Kenya Biotechnology Programme, see Biotechnology in Food Security and Poverty Alleviation: Experiences from Kenya , J. Wekundah, paper presented at the International Biotechnology Workshop, Harare, October 2003.
For further information on Regional Cooperation on Biotechnology and IPRs in Eastern and Southern Africa, see
Needs assessment and priority setting, workshop proceedings , Ed. J.N. Kabare and J.M. Wekundah, Biotechnology Trust Africa, March 2002.
African Agricultural Technology Foundation (AATF), Agreements for MTAs and introduction of GMOs in Kenya in AATF project briefs .
Kenya Plant Health Inspectorate Service (KEPHIS), Plant Breeders' Rights Legislation (the Seeds and Plant Varieties Act (Cap 326) of 1972, revised in 1991)