NATIONAL INTELLECTUAL PROPERTY STRATEGY FOR TANZANIA By Prof. Francis Matambalya WIPO Consultant...

NATIONAL INTELLECTUAL PROPERTY STRATEGY FOR TANZANIA

By

Prof. Francis MatambalyaWIPO Consultant

Tanzania Institute of Education (TIE)Dar es Salaam, 20 March 2012

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Integrated Findings From the Assessment of the IP Situation in the United Republic of Tanzania

PRESENTATION OUTLINE

BACKGROUND

Overall situation analysis Summary of challenges Summary of recommendations

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METHODOLOGY

FINDINGS:

1. BACKGROUND

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1.1. Why Assessment of the IP System?

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• Request by GOT to WIPO

• Assessment used to generate information for designing a National Intellectual Property Strategy (NIPS)

• Assessment composed of:

Desk research Focus group discussions

1.2. Specific objectives of the assessment

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• 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 assessment – conc.

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• 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 IPSo Its strengthso Its weaknesses

2. METHODOLOGY

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2.1. Considerations in designing methodology

• IP cuts across all sectors

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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

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IP policy documents Other policies (macro, sectoral) Diverse strategy documents (macro, sectoral) Other relevant literature (on IP)

Creation of groups Instrumentation: WIPO ‘guidingʼ questionnaire

• Focus group discussions

• The ‘diplomatic approach’ to gathering info: Careful listening and evaluation

3. FINDINGS: SITUATION ANALYSIS

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3.1. Management of the IP agenda

Hence: existence of two parallel and independent regimes for managing the IPS in the URT:

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• IP is not a union matter:

o A system for Tanzania Mainlando A system for Tanzania Zanzibar

Concretely, this means:o Separate sets of institutions for IP

administrationo Separate jurisdictions for IP protection

3.2. Factors catalysing IP generation

IP awareness and knowledge Existence of IP 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 systemo IP researcho IP education and trainingo Technology transfer mechanisms

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• 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:

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• Level of IP awareness and knowledge

o Policy and decision makerso Academicianso IP generatorso IP right holders

o IP users

o IP law enforcers, etc.

The situation is true for both Tanzania Mainland and Tanzania Zanzibar

Decision makers at various levels, in different circumstances

3.2. IP generation – contd.

Number or people with specialized IP education (at degree level) is very low

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• Level of IP awareness and knowledge

o 1 at BRELAo A few in other institutions in Tanzania Mainlando Zero for copyright administrator & COSOTAo 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.

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• 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, service

marks, GIs), etc.

3.2. IP generation – contd.

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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.

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• 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 advocateso International: SNR Denton

Moreover: Foreign legal comapanies cannnot directly act as IP practioners. Tanzania’s law requires them to use local agencies!)

3.2. IP generation – contd.

Websites of IP offices in Mainland and Zanzibar

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• IP information dissemination:

Tanzania Intellectual Property Advisory Services and Information Centre (TIPASIC) at COSTECH

o BRELAo COSOTA

o Drafting patent documents o Filing of patent applicationso Conducting searches on patents

TIPASIC has been trsanformed to Technology Innovation Support Centre (TISC)

o RGOo COSOZA

Mainland Zanzibar

3.2. IP generation – contd.

Elements of an innovation system exist

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• 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

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• 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-IP experts supervise IP degree programmes at Masters and PhD levels.

3.2. IP generation – contd.

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• 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 minimalo Weak local business sectoro 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

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• Technology transfer mechanisms:

o CoET/UDSMo TTO/SUA

An integrated technology transfer mechanism, embracing all essential elements does not exist:o Scoutingo Technology cataloguingo Technology acquisition (e.g., through technolgy

markets, ‚non-market‘ operations)o Technology transfer

3.3. IP applications and grants

Hence: very limited number of applications

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• Number of applications by & grants to locals:

o 1 patent application for UDSMo 5 patent applications for SUAo (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 too Low levels of knowledge and awareness

3.4. IPS governance framework

A system’s ‘governance framework’ is built by:

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• State of IPS governance framework

o (A broad development philosophy = ideology)o Development strategies generated from the

broad development philosophyo Development policies generated from the broad

development philosophyo Lawso Regulations

The existence of all its elements qualify the system as ‘integrated’

3.4. IPS governance framework – contd.

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• State of IPS governance framework – contd. Existing laws to protect industrial properties in

Tanzania Mainlando Patent registration act, Cap 217 re 2002o Trade and service marks Act, Cap 326 re 2002o Fair competition Act No. 8 of 2003o Merchandise Marks Act of 1963, re 2002.o United Kingdom designs (protection) ordinance?

Existing law to protect industrial properties in Tanzania Zanzibaro Industrial properties Act No. 4 of 2008

3.4. IPS governance framework – contd.

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• State of IPS governance framework – contd. Existing laws to protect copyrights &

neighbouring rights in Tanzania Mainlando Copyright and Neighbouring Rights Act, Cap

218 re 2002.o Act established also COSOTA

Existing laws to protect copyrights & related rights in Tanzania Zanzibaro Copyright Act No. 14 of 2003o Act established also COSOZA

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• 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 (URT is automaticallya member, by

virtue of being members of the WTO)

3.4. IPS governance framework – contd.

• At the global level, URT is a not yet a member of the following Madrid system WPPT WCT

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• 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.

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• State of IPS governance framework – contd.

oGenetic resourcesoTechnovationsoGI o Integrated circuits & topographyo Industrial designs (using english

law; now included in patent law)oTrade 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 NIPSo Lack of national IP

policyo Gaps in IP lawso Gaps in regulations

3.4. IP governance framework – contd.

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• 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 lawso To have single industrial property acto Make industrial property law TRIPS compartible

3.5. IP administration

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• Separate institutions for Mainland & Zanzibar Mainland: institutions that administer different IP laws

oBRELA (in Ministry of Industry &Trade)oCopyright Administrator, and copyright management

society – which in Tanzania Mainland is COSOTA (in Ministry of Industry &Trade)

oRegistrar of Plant Breeders (in Ministry of Agriculture & Food Security)

oFCC (in Ministry of Industry and Trade)oCOSTECH (in MCST)? (law establishing the centre for

the transfer of technology)

3.5. IP administration – contd.

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• Separate institutions for Mainland & Zanzibar

oRGO (Ministry of Justice and Constitutional Affairs)oCopyright adminstratior and copyright management

society – which in Tanzania Zanzibar is COSOZA (Ministry of Justice and Constitutional Affairs)

Zanzibar: institutions that administer different IP laws

• Differences in institutional frameworkoBRELA (Mainland) is an agencyoRGO (Zanzibar) is a unit within a Ministry

3.5. IP administration – contd.

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• Automation

o IPAS system is available, but not active due to technical constraints

Zanzibar:

Mainlando Industrial property application system (IPAS)

provided by WIPOo 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.

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• Capacities of IP offices Evidence of capacity constraints in both Tanzania

Mainland and Tanzania Zanzibaro 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 premiseso Lack of sufficient equipment

3.6. IP commercialization• Presence of collective management organization (CMO) for copyrights

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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.

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• Financing commercialisation of IP Which government programmes? Which donor programmes? Financing the commercialisation of IP is not

institutionalized in Banks and NBFIs CARMATEC, TIRDO, SIDO, SUA have been supporting

the commercialisation

• SUA’s ingenuity: attempting to commercialize IP through franchising

3.6. IP commercialization – contd.• Legal instruments for commercialisation

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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)? – more binding

3.6. IP commercialization – contd.

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• Infrastructure for IP commercialisation Incubation programmes by:

BUT: no adequate physical infrastructure in place? Soft-infrastructure (e.g., human resources, institutions,

policies) are also being put in place, particularly in Zanzibar

o SIDOo COSTECH (DAR ES SALAAM TEKNOHAMA) o CoETo TEMDOo CARMATEC

• Number of protected IP held by locals commercialized

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3.6. 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)

Only marketing tools!

• Number of foreign-held IP commercialized locally

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3.6. 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.

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3.6. 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 Promotiono FM Mutao Benchmark

o Prime Timeo THTo Lino Agency

o Stepin entertainmento Game First Qualityo Man Watero MJ Productiono Motika Records

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3.6. IP commercialization – contd.• Existence of local

publishers

Examples:

• Existence of local distributors They exist They include both indigenous

and foreign affiliateso Mamu Storeo Mabibo Wines.o Umoja Audio East Africa Ltd.o Steps Entertainment Ltd.o Game First Qualityo MVC Hot Mediao Many unlicensed ones

(including marching guys/Street Hawkers)

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3.6. 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

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3.7. IP enforcement• IP legislation

See relevant section; institutions include:o BRELAo RGOo Copyright Administrator Mainlando Copyright Administrator Zanzibaro Customs/TRAo Policeo Judiciaryo FCCo TFDAo TBS

• IP dispute settlement panels Existing laws do not provide for such panels

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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 Zanzibaro 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

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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.

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• 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.

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• Border measures include: .. .. … ... ...

3.7. IP enforcement – contd.

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• Number of cases handled Many cases have been handled:

o KIWI shoes polish o super matcho Philips o Hitachio Korie,o Elfo 3M, o Phoenix bicycles

o Poa (flour sembe)o Neelamo Chin Chino Azam vs Azaniao Expel vs Fly X, o Cofta v Cofexo Motox v Totoxo Ndanda Spring Water

3.7. IP enforcement – conc.

• Collective management organizations

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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

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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 capacities6. Lack of NIPS

5. Gaps in IP mainstreaming in other policies

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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’

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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

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!

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17. Weak understanding of IP laws among stakeholders18. 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

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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

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• 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

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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

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14. 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