Constitutional Review and Intellectual Property Rights: Zambia’s Bold Step Forward

IPKenya recently found time to peruse the First Draft Constitution of the Republic of Zambia, published on 30th April 2012 by the Technical Committee on Drafting the Zambian Constitution.

Read the full draft Constitution here.

News reports indicate that Zambia is in the process of reviewing its Constitution and that Zambians have been given a deadline of 20 July 2012 to engage with this 272-paged draft Constitution and submit comments to Technical Committee.

IPKenya has come across the following provision in the draft Constitution:

Language and Culture.

Art. 63

4) The State shall-
(…)
(b) recognise the role of science, technology and indigenous technology in the development of the Nation; and
(c) support, promote and protect the intellectual property rights of the owner, or the people of Zambia.

5) Parliament shall enact legislation to-

(a) ensure that communities receive compensation or royalties for the use of their biological knowledge, medicinal plants and cultural heritage; and
(b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics. (…)

Comment

“To promote the progress of science and the useful arts, by securing for limited times and authors and inventors the exclusive right to their respective writings and discoveries.” – Article 1, Section 8 of the American Constitution.

IPKenya strongly believes the current process of constitutional review in Zambia affords our Southern neighbours a unique opportunity to examine in what ways socio-economic development may be constitutionally facilitated. Intellectual Property (IP) protection has achieved increasing recognition as a necessary pre-requisite to innovation-led economic growth.

Today, land, as real property, plays less significant role in development and global competitiveness. Therefore, ICT like software, the internet and e-commerce; new materials like fibre optics and super conductors and biotechnology and environmentally sound technologies are the key contributors to development.

It was this realisation that led Kenya in its new Constitution promulgated in August 2010 to recognise and expressly protect IP, innovation and technology transfer. For the first time in Kenya’s history, IP norms have been constitutionalised. Zambia seems to be heading in this very direction and in fact some of the above provisions appear to have been lifted almost verbatim from Articles 11(2), 40 (4), 69(1) (c) and (e) of the Kenyan Constitution.

IPKenya recalls when the draft Kenyan Constitution was being debated, a site called Techdirt published an article: “Why Kenya’s Attempt To Put Intellectual Property Rights In Its Constitution Is A Mistake”. Fortunately, most Kenyans did not buy into Techdirt’s outlandish arguments that entrenching IP rights into the Constitution amounted to protectionism. In contrast, IPKenya would encourage Zambia to ensure that intellectual property rights remain in its constitutional drafts until their new supreme law is finally promulgated.

In particular, IPKenya believes that the wording of the Article 63(4)(c) of the draft Constitution is significant in that it recognises that IP can be owned either by an individual or jointly by the people of Zambia:

“The State shall support, promote and protect the intellectual property rights of the owner, or the people of Zambia.” (my emphasis)

This provision, if passed into law, will be the basis upon which local creators and inventors can ensure their IP rights are respected and protected.

It will also assist Zambians in dealing with misappropriation and misuse of traditional knowledge and associated genetic resources, particularly in agricultural, environmental and pharmaceutical biotechnology.

Will the mere recognition of intellectual property rights in Zambia’s Final Constitution be an end in itself? IPKenya says no! There will be need for the government, the private sector and all interested parties to do more towards the realisation of the full economic potential in intellectual property. In this connection, IPKenya recalls sharing his thoughts on the controversial article: “You Lazy (Intellectual) African Scum!” which was focussed on Zambia but could easily be related to many other African countries. Throughout Africa, works of intellectual property are constantly created and invented but what is lacking is a robust legal and institutional framework to provide awareness, protection and enforcement IP rights.

Recently, Afro Leo highlighted a disturbing judgment by the Zambian Supreme Court in the case of DH Brothers Industries (Pty) Limited v Olivine Industries (Pty) Limited, which purported to deny trademark owners rights to unregistered marks contrary to the Zambian Trade Marks Act.

If Article 63 of the draft Zambia Constitution were to be passed, IPKenya argues that such a court decision could be successfully challenged as being unconstitutional.

In the months ahead, the long road to legal and institutional reforms for Zambia hang in the balance as Zambians craft a new constitutional dispensation which will hopefully usher in a new dawn for intellectual property rights in the Southern African country.

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