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INTELLECTUAL PROPERTY & TECHNOLOGY COMMERCIALIZATION GHANA’S EXPERIENCE

ROBERT MAYFIELD YAWSON            
Research Scientist/Scientific Secretary,           
Food Research Institute,           
Accra, GHANA            

Ghana’s economy is predominantly agrarian and commodity based, with Agriculture dominating in terms of employment, revenue and export earnings.  It accounts for 50% of the labour force and 42% of GDP.  Ghana’s current level of investment in R & D is 0.3% of GDP. Ghana had now realized the impact that lack of enforcement of Intellectual property rights has had on the economy, the local Industries and the Culture.  Previously Ghana has had a very basic problem with the philosophy of Intellectual property rights, which have been enforced primarily through civil litigation.  Only recently has the Government of Ghana regarded the enforcement of Intellectual property rights as its responsibility and those persons who infringe upon these rights as engaging in acts inimical to the interest of the state.

            In Europe and the United States, the system of intellectual property rights emanated as early as the 16th century. In Ghana and like other developing countries, before the 1970’s and 1980’s most of the laws regarding the protection of intellectual property were mere replicas of existing laws of their colonizing countries. These laws had been designed specifically to protect the rights of the colonizing nationals and their businesses and firms, and no account was taken of the different conditions in the colonies and the developed countries.  Immediately after Africa's emergence from post-colonialism, African governments still did not attach much priority to the need to protect intellectual property rights. Many industries were in their infancy, and the domestic manufacturing base was virtually nonexistent. What was prevalent in Africa was a vibrant folklore tradition around which cultural industries clustered in areas such as music, textiles, jewellery, and the like.   A quick survey of the intellectual property system in Ghana up to the 1970s reveals that the Ghanaian Trade Mark Register had recorded approximately 17,000 trademarks, out of which 90 percent were owned by foreign companies and individuals. In 1996, there were 27,625 marks on the register, with Ghanaians owning 15 to 20 percent of those registered.

            In respect of patents, Cap 179, which was the colonial Patent Registration Ordinance, merely extended the validity of all patents registered in the United Kingdom to the Gold Coast colony at that time. All patents so registered belonged to foreign individuals or firms. This ordinance, due to the difficulties in setting up a patent system, remained in force in Ghana until July 1, 1994, when a new patent law was enacted.   It must be noted, however, that most of the intellectual property laws enacted after the 1970s tended to have a different bias since they had to respond to new national environments and the varied global trade requirements of emerging nations struggling to level the playing fields in international commerce and investment activities. Intellectual property-related laws cannot remain static in a world where economic development is becoming increasingly technology-based.  Intellectual property laws are going to be more stringent and stricter in the days to come, offering more opportunities and challenges.  Ghana passed a strong, modern, and vibrant copyright law, PNDCL 110, in 1985 to replace the obsolete Copyright Act of 1961 — one of the pieces of post-colonial legislation regulating the copyright industry.  A collective body for the administration of authors' rights, known as the Copyright Society of Ghana (COSGA), was set up in 1986. Ghana adhered to the Berne Convention in 1991, and COSGA embarked on a program of concluding reciprocal representation agreements with other collective societies worldwide. The government of Ghana and the Copyright Administration from 1985 to 1990 found themselves more or less helpless to fight the piracy that was rampant. Thus, Ghana lost international respect and gained a reputation for being a safe haven for pirates and pirated works. At the same time, Ghanaian music suffered a reversal since the pirated foreign imported music was able to capture the market. It became evident to the Ghanaian authorities that when one copies, one does not, in any way, encourage national authorship, national culture, or national creativity. This holds true for all the different strata of the intellectual property legal system, whether it be the copyright, patent, industrial design, or trademark system. If we in Africa pursue such a course of copying blindly all that comes from the developed countries, we would forever be trapped in a cultural negation of our own making that would undoubtedly retard both our economic and cultural progress. The government of Ghana, through the Copyright Office, was thus compelled to take the initiative in the fight against piracy. The Copyright Office, in close cooperation with the various organs of the music industry and with the technical cooperation of the International Federation of the Phonographic Industry (IFPI) in London and its national group in Ghana, the Association of Recording Industries of Ghana — ARIGh — instituted the “banderole” system. The system was modelled along the lines of the Portuguese system, because after Portugal introduced this system, it achieved a near-zero rate of piracy. The affixing of an authentication stamp known as the “banderole” on all musical works became mandatory in Ghana beginning June 1, 1992. This stamp is a security device that is sequentially numbered; individual numbers are allocated only to genuine producers of musical works, and imports of all pre-recorded musical works have to be authenticated by the Copyright Office, in cooperation with the Customs Excise and Preventive Service (CEPS). The recording industry in Ghana agreed with the Internal Revenue Service (IRS) to use the banderoles as a source of direct prepaid income tax.

            In light of the success of the banderole system, one is tempted to ask why the patents regime has not proved so effective a stimulant in the economic development of Ghana. It is, of course, well known that a patent system requires a relatively expensive infrastructure with experts in various technical fields. The patent law in Ghana is only a few years old, and the regulations to enable the law to be implemented were only recently enacted. The role the patent regime can play is only now evolving; however, with growing awareness of industrial property laws, this field is likely to be strengthened in the years to come. This situation is being repeated across most of the continent. However, it cannot be denied that the trademark and design system and, to a lesser extent, the patent system have played an influential role through the licensing, distribution, and franchising of intellectual property rights in developing countries. They have assisted in the transfer of technology and the dissemination of new forms of know-how through minimum standards of licensing and usage of these rights.

The example of Ghana gives one reason to be optimistic for the future of intellectual property rights in developing countries. We in the Third World should not see the observance and enforcement of intellectual property rights as merely protecting the interests of the developed world, but rather as a powerful tool to galvanize our domestic industry while retaining national culture, national inventiveness, and national creativity.

           

Examples of Bilateral Agreements Requiring TRIPS-plus Standards

Agreement

Date

Examples of TRIPS-plus provisions

US-Jordan Free Trade Agreement

2000

Each party must give effect to selected provisions of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty and the UPOV (1991) Convention. Parties may not exclude plants and animals from patent protection and must provide patent term extension to compensate for unreasonable regulatory approval delay.

US- Cambodia Agreement on Trade Relations and IPRs

1996

Each party must accede to the UPOV Convention, must extend term of copyright protection in certain cases to 75 yrs from publication or 100 yrs from making (TRIPS requires only a minimum of 50 years in both cases), and Parties may not allow others to rely upon data submitted for pharmaceutical regulatory purposes for a reasonable period which shall generally be not less than 5 years

US-Vietnam Agreement on Trade relations

2000

Parties may not exclude from patent protection inventions that encompass more than one variety of animal or plant

Source: "Integrating Intellectual Property Rights and Development Policy", Report of the Commission on Intellectual Property Rights, London, September, 2002

 

 
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