Africa’s evolving IP landscape

By Marco Vatta and Megan Dinnie 

The world of intellectual property (IP) is undergoing a rapid transformation throughout Africa, and 2023 is gearing up to be an eventful year. There are numerous exciting trends to watch, ranging from the continued ascent of personalisation and individualisation, using data collection and the responses thereto in the digital age, to the expanding use of artificial intelligence.

With this in mind, we review some of the high-impact intellectual property activities in Africa over the past year, especially those aimed at policy change and improving the protection of intellectual property rights across the continent.

SA Copyright Act Challenged

The constitutionality of South Africa’s Copyright Act was called into question in Blind SA v Minister of Trade, Industry, and Competition and Others, as it does not permit organisations representing blind and visually impaired people to produce accessible copies without the copyright owner’s consent.

The apex court of South Africa unanimously acknowledged the unequal access to literature for those with impairments and ruled that the legislation be amended within 24 months of the judgement to remedy this unfair discrimination; at the same time, eyes are still on the highly controversial Copyright Amendment Bill, about which The National Chamber of Provinces is currently conducting a consultation.

Mozambique copyright legislation

Mozambique is one step ahead of South Africa regarding access to copyrighted works for disabled people. This is because Mozambique’s Copyright Law 9/2022, which became effective on 26 September 2022, grants disabled individuals the right to access, to create accessible forms of, and to freely reproduce and distribute literary works (non-commercially) without the copyright owner’s permission.

The law is based on the principles of the Berne Convention for the Protection of Literary and Artistic Works. It provides an exclusive right for authors and copyright holders to reproduce and distribute their works, adapt or transform them, and publicly perform and communicate them to the public. It also grants authors and copyright holders the ability to license their works to third parties and to obtain fair compensation for their use. The law also provides a collective management system of copyright, neighbouring rights and collective rights management.

Kenya Anti-counterfeiting developments

Kenya’s Anti-Counterfeiting Authority (ACA) ordered that all intellectual property rights for imported goods (but not services) be registered with the ACA by 1 January 2023. Now, in addition to registering IP rights with the local trade mark office, IP rights must also be registered with the ACA. Not following the ACA’s registration 

Zambian Trademark Law

Zambia is on track to radically change its laws on trade marks. The Trade Marks Bill 2022 aims to ensure the protection of geographical indications, service marks, collective marks, certification marks and well-known marks. It will also include laws that give effect to the Madrid Protocol on the international registration of trade marks, the Paris Convention for the Protection of Industrial Property, and the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights. If they are passed, the new trade mark laws in Zambia will quickly change how brands are protected and how rights are enforced.

Protection of Geographical indications

There is a growing focus on the protection of geographical indications, allowing producers of products that meet the requirements for certification to gain international recognition and protection. In addition to the European Commission approving the registration in 2021 of the designation “Rooibos/Red Bush” as the first protected geographical indication from Africa, two critical matters in Burkina Faso and Cameroon are also worthwhile mentioning.

Early this year, the Saponé community in Burkina Faso was able to get the Saponé straw hat recognised as a protected geographical indicator – the first registration of its kind in the country. The Saponé hat represents Burkinabè national pride and is a cultural icon.

The European Commission registered Poivre de Penja in the European Union as a protected geographical indicator in March 2022, acknowledging the connection between the Poivre de Penja pepper and the Penja region of Cameroon. The soil specific to the Penja Valley is responsible for giving the pepper its distinctive flavour. Trade related to the highly sought-after Poivre de Penja peppers will boost the central African country’s economy if it is protected internationally.

Patent Law

In 2022, Africa saw extensive developments in patent law and practice, with some advances signalling further changes for 2023 and beyond. Projects continue to create awareness of patent law, such as the World Intellectual Property Organization (WIPO) Summer School, to improve the quality of administration systems and substantive examination, and to make better use of regional bodies.

In South Africa, the number of patent cases that went to court remained steady throughout 2022, with several unreported judgements being issued. This is reassuring for patentees with valid patents who are able to enforce their rights through the South African courts.

Even though South Africa still has a non-examining patent system, its courts have made it clear that patent applicants have the onus of ensuring that their patent applications are in a valid form when they proceed to grant. Applicants are able to delay acceptance of the South African application, pending the outcomes of prosecution of corresponding applications in examining jurisdictions and then file voluntary pre-grant amendments to the claims of the South African application in light of any prior art
known to them.

The South African Patent Office is still in preparation for the introduction of substantive search and examination (SSE). The formal aspect of the patent examiners’ training was completed in June 2021 and the next stage of training is ongoing. This is known as the experiential learning component, which is a practical, non-binding, voluntary and informal trial period for SSE.

SSE can be officially implemented only once the current South African Patents Act and its regulations are amended to allow for the legislative framework required to regulate SSE. A draft of the legislative amendments has not yet been published for public comment, and there is no indication yet as to when the draft will be published. Furthermore, the process of passing a Bill, and it being signed into law by the South African president, is usually a lengthy process, meaning that the implementation of SSE may still be a few years away.

Trips waiver

The WTO’s trade-related aspects of intellectual property rights (TRIPS) waiver for Covid-19 vaccines proposed by India and South Africa remained a significant issue in 2022. On 17 June 2022, the WTO announced a relaxation of intellectual property restrictions on making and selling these vaccines for the next five years, subject to payment of adequate remuneration to the rights holders. The waiver does not yet cover diagnostics or treatments, but talks are ongoing in this area. Still, how the waiver will be applicable in the long run requires clarification, and patent owners’ concerns about the partial enforceability of their patent rights remain.

Overall, those seeking to protect their intellectual property rights in Africa can be confident that reliable and effective systems are in place in key countries to ensure that valid and enforceable rights can be obtained. The future of intellectual property in Africa is alive and well, and 2023 will undoubtedly bring additional developments.  ( 

—  Marco Vatta is a senior associate in the Johannesburg office of Spoor & Fisher. Megan Dinnie is an associate at the firm, based on Jersey in the Channel Islands.