Transcript PRELIMINARY NEEDS ASSESSMENT REPORT
NATIONAL INTELLECTUAL PROPERTY STRATEGY FOR TANZANIA
Revised IP audit findings from focus group discussions with stakeholders
By
Prof. Francis Matambalya
WIPO Consultant 13 - 14 December 2011 1
PRESENTATION OUTLINE
BACKGROUND METHODOLOGY FINDINGS:
Situation analysis Summary of challenges Summary of recommendations
2
1. BACKGROUND
3
1.1. Why IP Audit?
• Request by GOT to WIPO • IP Audit (IPA) used to generate information for designing a national intellectual property strategy (NIPS) 4
1.2. Specific objectives of the IPA
• Collect data and information on diverse IP issues: Management of the IP agenda IP generation IP applications and grants IP system governance framework IP rights administration IP commercialisation IP rights enforcement 5
1.2. Specific objectives of the IPA – conc.
• Sythesise data and information for the purpose of the architecture of the NIPS for Tanzania: Understand the o Its strengths o
status quo
Its weaknesses of the IPS Identify
opportunities
for harnessing IP for development Identify
challenges
against harnessing IP for development Make
recommendations
for the NIPS 6
2. METHODOLOGY
7
2.1
. Considerations in designing methodology
• IP cuts across all sectors Hence: need for a broad-based consultative process, and for reaching-out to as many stakeholder groups as possible • The existence of different types of IP Hence: need to gather information and data about all types of IP 8
2.2
. Approach for collecting data & information
• Review of literature IP policy documents Other policies Other relevant literature • Focus group discussions Creation of groups Instrumentation: WIPO
‘guidingʼ
questionnaire • The ‘diplomatic approach’ to gathering info: Careful listening and evaluation 9
3. FINDINGS: SITUATION ANALYSIS
10
3.1. Management of the IP agenda
• IP is not a union matter: Hence: existence of two parallel and independent regimes for managing the IPS in the URT: 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 11
3.2. Factors catalysing IP generation
• Following are important
catalysts of IP generation
: IP
awareness
Existence of IP and
knowledge generators
(i.e ‛IP entrepreneursʼ) Existence of IP
practitioners
(essential for IP applications and grants to ‛IP entrepreneursʼ) System for
IP information dissemination
Characteritics of the
innovation system
o IP
research
o IP
education and training
o
Technology transfer
mechanisms 12
3.2. IP generation – contd.
• Level of IP awareness and knowledge The general level of IP Awareness is very low for most people across stakeholder groups: o o o o o Policy and decision makers Academicians IP generators IP right holders IP users o IP law enforcers, etc.
The situation is true for both Tanzania Mainland and Tanzania Zanzibar 13
3.2. IP generation – contd.
• Level of IP awareness and knowledge Appreciation of
IP as special study discipline
is very low even among key actors in the IP scene,
especially in Tanzania Mainland
Number or people with specialized IP education (at degree level) is very low o o 1 for BRELA Zero for copyright administrator & COSOTA o RGO, and copyright administrator & COSOZA: 2 In Tanzania Mainland, exposure to IP knowledge is largely through training workshops and on the job learning 14
•
3.2. IP generation – contd.
IP entrepreneurs
Musicians Authors (of books, plays) Film makers Script writers exist on both sides of the Union: Computer programmers Reseachers (whose research have potentials for innovations, inventions) Owners of marketing tools (trade marks, GIs) 15
3.2. IP generation – contd.
• Also, like in other African countries, in Tanzania there is a rich tradition of
expressions of folklore
through: Stories Traditional music Traditional dances 16
•
3.2. IP generation – contd.
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!) 17
3.2. IP generation – contd.
• IP information dissemination: Websites of IP offices in Mainland and Zanzibar Mainland Zanzibar o o BRELA COSOTA o o RGO COSOZA Tanzania Intellectual Property Advisory Services and Information Centre (TIPASIC) at COSTECH o Drafting patent documents o Filing of patent applications o Conducting searches on patents TIPASIC is being trsanformed to Technology Innovation Support Centre (TISC) 18
3.2. IP generation – contd.
• Characteristics of
innovation system
: Elements of an innovation system exist o o IP information centre (e.g., TIPASIC / TISC) Specialized research institutions (e.g., TIRDO, TEMDO, etc.) o IP reseach agenda at education and training institutions ( though not institutionalised ) o o IP policies at individual institutions ( some; not all ) 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) 19
3.2. IP generation – contd.
• IP education and training: A few compulsory and elective IP courses offered by some Universities in some degree programmes o Professional MIT programme (UDSM) o Law (UDSM, Mzumbe, Tumaini, OUT, SAUT, Ruaha, UDOM, Zanzibar University) No single
IP degree programme
exists No i
nstitutionalized IP training
courses & programmes None-P experts supervise IP degree programmes at Masters and PhD levels.
20
3.2. IP generation – contd.
• Research: Financing Scientific Research (FSR), which generate IP rely largely on
donors,
and to a far less extent on
governmen
t 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!
21
3.2. IP generation – conc.
• Technology transfer mechanisms: Some institutions have 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 22
3.3. IP applications and grants
• Number of applications by & grants to locals: Research largely seen as an ‘additional activity’ Hence: very limited number of applications o 1 patent application for UDSM o o 5 patent applications for SUA (CBE‘s emblem registered as a service mark) o 2 patent applications in Zanzibar Limited applications by locals partly attributable to o Low levels of knowledge and awareness 23
3.4. IPS governance framework
• State of IPS governance framework o A system’s ‘governance framework’ is built by: (A broad
development philosophy = ideology
) o Development
strategies
generated from the broad development philosophy o Development
policies
development philosophy generated from the broad o Laws o Regulations The existence of all its elements qualify the system as ‘integrated’ 24
3.4. IPS governance framework – contd.
• 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 2002.
o United Kingdom designs (protection) ordinance?
Existing law to protect industrial properties in Tanzania Zanzibar o Industrial properties Act No. 4 of 2008 25
3.4. IPS governance framework – contd.
• 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 2002.
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 26
3.4. IPS governance framework – contd.
• 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) ...
...
...
...
27
3.4. IPS governance framework – contd.
• At the global level, URT is a not yet a member of the following Madrid system WPPT WCT ...
...
...
28
3.4. IPS governance framework – contd.
• 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) 29
3.4. IP governance framework – contd.
• State of IPS governance framework – contd.
IPS governance framework has following gaps: Specifically, there is absence of laws to protect the following: o Genetic resources o o o o Lack of NIPS Lack of national IP policy Gaps in IP laws Gaps in regulations 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!) 30
3.4. IP governance framework – contd.
• State of IPS governance framework – conc.
Following laws are inadequate?: o o (Expressions of foklore, though included in
copyrights and neighbouring rights
Tanzania) as Part III, it does not regulations) Industrial designs (provided UK designs – protection – ordinance; has never been used in o TK Ongoing initiative to amend industrial properties laws o o To have single industrial property act Make industrial property law TRIPS compartible 31
3.5. IP administration
• 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) 32
3.5. IP administration – contd.
• Separate institutions for Mainland & Zanzibar Zanzibar: institutions that administer different IP laws 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) 33
3.5. IP administration – contd.
• Automation 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 Zanzibar: o IPAS system is available, but not active due to technical constraints 34
3.5. IP administration – conc.
• 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 35
3.6. IP commercialization
• Presence of collective management organization (CMO) for copyrights 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) 36
3.6. IP commercialization – contd.
• 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 37
3.6. IP commercialization – contd.
• 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) 38
3.6. IP commercialization – contd
.
• Legal instruments for commercialisation 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)?
39
3.6. IP commercialization – contd
.
• 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 40
3.6. IP commercialization – contd.
• Number of protected IP held by locals commercialized 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) 41
3.6. IP commercialization – contd.
• Number of foreign-held IP commercialized locally Some success stories: o o YUASA Batteries Coca Cola o
Products of automotive industry
: Benz, Nissan, Jaefong, Tata, etc. o Pepsi Cola o o Colgate Heineken o
Phone companies
: VODACOM, AIRTEL, TIGO, ZANTEL, SASATEL, TTCL o o o Malta Guiness National Batteries Bavaria Beers o
Car Distribution Franchises
: Toyota, Suzuki,Mercedez Benz, Nissan, Jaefong, Tata, etc. 42
3.6. IP commercialization – contd.
• Existence of local promoters of creative arts Local promoters exist. Examples include: o Msama Promotion o Prime Time o FM Muta o THT o Benchmark o Lino Agency • Existence of local producers of creative arts Local producers exist o o o o o Stepin entertainment Game First Quality Man Water MJ Production Motika Records 43
3.6. IP commercialization – contd.
• Existence of local publishers Examples: o Mkuki na Nyota Publishers o Muture Publishers o DUP o Nyambari Nyangwine o KIUTA • Existence of local distributors They exist They include both indigenous and foreign affiliates 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) 44
3.6. IP commercialization – conc.
• Existence of Internet Service Providers Several ISP exist in the country UCC Many others 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% 45
3.7. 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 46
3.7. 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) 47
3.7. IP enforcement – contd.
• Education & training of Customs and Police officials 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 48
3.7. IP enforcement – contd.
• 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 49
3.7. IP enforcement – contd.
• Border measures include: ..
..
… ...
...
50
3.7. IP enforcement – contd.
• Number of cases handled Many cases have been handled: o o o o o o o o KIWI shoes polish super match Philips Hitachi Korie, Elf 3M, Phoenix bicycles o o o o o o o o Poa (flour sembe) Neelam Chin Chin Azam vs Azania Expel vs Fly X, Cofta v Cofex Motox v Totox Ndanda Spring Water 51
3.7. IP enforcement – conc.
• 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) • Collective management organizations COSOTA COSOZA 52
4. FINDINGS: SUMMARY OF CHALLENGES
53
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).
3. Lack of National IP Policy • To provide guidelines on issue of IP ownership and benefit sharing • To provide guidelines on IP commercialization strategies • MIT drafting one 6. Lack of NIPS 4. Limited enforcement capacities 5. Gaps in IP mainstreaming in other policies 54
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 • The flourishing of the IP economy is closely linked with ‘industrial mode of production’ 11. Weaknesses of the existing IP forum 55
12. 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 • 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!
15. Challenge of ‘ever-greening’ of patents (example Aspirin, Viagra, etc.) 56
16.
Lack of data bases on protected IP products and IP products in public domain • TIPASIC being upgraded to become a TISC, and provide pertinent services 17. Weak understanding of IP laws among stakeholders 18. Legal gap for protection of ICT • Some protected as patents (but TZ patent act is too old and does not protect ICT) • Some protected as copyrights 19. Lack of IP policy at the level of most individual institutions 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) 57
5. FINDINGS: SUMMARY OF RECOMMENDATIONS
58
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 3. Develop national NIPS 4. Develop national IP policy/policies 5. Strengthen national IP Forum • Strengthen and transform IP Forum into Tanzania Intellectual Property council (TIPC) 59
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 • Enhance mechanisms for raising IP awareness • Enhance mechanisms for developing foundation IP knowledge • Institutionalise special outreach programme for Journalists and media companies 60
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 61
14. Institutionalise the use of local experts to scrutinise and ascertain the coherence of international agreements (bilateral, regional, plurilaterla, and multilateral) • Example: coherence of BIA , Economic Partnership Agreement (EPA), AGOA, etc. with TRIPS agreement 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 62