The COVID-19 pandemic has shone a spotlight on the lack of global preparedness to address public health emergencies. The pandemic precipitated and exacerbated existing but largely unresolved tension between the role of intellectual property (IP) protection in incentivizing innovation and the need to facilitate access on equitable and affordable terms. As the disruptive force of the pandemic continues as a public health emergency, countries and international agencies are now questioning whether current global IP system and its flexibilities are effective in facilitating equitable access to vaccines and other pandemic related technologies.
The project therefore surveys IP laws of African countries to better understand the nature, scope, and depth of their patent laws with particular focus on their utilisation of TRIPS flexibilities to facilitate pharmaceutical access.
The survey finds that despite the advent of the TRIPS Agreement there have been relatively few changes to the IP legal regimes of African member states. The laws for most of these states date back to colonial-era legislation or remain based on a colonial model – for instance, South Africa's patent law dates to 1978, while others such as Malawi (1986) and Tanzania (1994) maintain pre-TRIPS legislation. The survey reveals that most African countries are not fully taking advantage of the flexibilities built into the TRIPS Agreement in that these have not yet been transposed into the domestic regimes. While the current literature contains widespread assertions on the impact and effect of TRIPS on access to medicines in African countries, the project finds that the countries lack explicit and workable provisions implementing key TRIPS flexibilities. Hence, available TRIPS flexibilities have not been well utilised and it is often the complicated and unworkable domestic framework – rather than TRIPS – which becomes the stumbling block to pharmaceutical access. Another major finding is that patents may not be a major impediment in the region given that few patents and even fewer pharmaceutical patents are filed. In conclusion, the project argues that since African countries are mainly net IP importers with similar developmental contexts and aspirations, the best approach would be to fully take advantage of existing flexibilities and more aggressively leverage policy space to engender access to cheaper medicines.
