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Book Review: 3D Printing and Intellectual Property

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3D Printing and Intellectual Property by Lucas S. Osborn

One of the subjects that IP laws have had to grapple with in the 21st century is that of 3D printing technology. 3D printers manufacture physical objects based on input from a digital file. The range of 3D printable products includes medical products, aesthetic products, plane parts, toys, buildings, guns etc. With the opportunities offered by 3D printing technology comes the worry from the IP community that the technology is susceptible to abuse and undue exploitation of IP rights. In 3D Printing and Intellectual Property, Lucas S. Osborn explains the technical aspects of 3D printing in plain language before going on to address how various aspects of IP laws (copyright, trademarks, patent and design laws) confronts the issues raised by 3D printing technology. A primer chapter on the foundations of IP law provides a much-needed context for the issues at the root of IP law concerns about 3D printing.

After an introduction that offers an overview of the book, the first two chapters of the book are devoted to ensuring that readers understand 3D printing technology and how it works. The author provides vivid descriptions of 3D printers and improvements over the years in how 3D printers operate. For instance, from 3D printers, which could only print prototypes, we now have 3D printers capable of mass-producing both simple and complex objects. These chapters also mention some of the ethical concerns raised by 3D printers (think 3D robots and 3D guns that may be printed from the comfort of private homes).

While Chapter 1 focuses on the capabilities of 3D printing technology, Chapter 2 provides an understanding of the various file formats used in the design and manufacturing process. Chapter 2 argues that referring to 3D printable files as CAD files is inexact and misleading and that there are 3 file formats that are important to 3D printing, each with different legal treatment. This sets the tone for the chapters on specific aspects of IP laws and how each of them addresses the various file formats.

For those not familiar with IP law, Chapter 3 provides a welcome introduction of the subject and its key concepts. It also explains relevant international frameworks and treaties that underpin national IP laws: the Berne Convention, the Paris Convention, and TRIPS Agreement. Concepts such as direct and indirect infringement, remedies for infringement, nationality etc. are also explained. For IP-aficionados, Chapter 3 is like preaching to the choir.

Chapters 4, 5 and 6 are devoted to patent law. According to Osborn, “patent law is less doctrinally and theoretically equipped to contend with 3D printing technology” than other areas of IP law. Chapter 4 discusses what constitutes patentable subject matter using jurisprudence from the US, Europe and Japan. It also looks at the various file formats (discussed in Chapter 2) and shows how each file format may or may not qualify as patentable subject matter.

Chapter 5 discusses the subject of patent infringement – in particular, direct patent infringement and how various conduct involving 3D printing technology may constitute direct infringement. The focus jurisdictions here are the US, Europe and Japan. The chapter also considers intermediary (e.g. 3D print shops) liability for direct infringement.

Chapter 6 focuses on indirect patent infringement, which requires knowledge of an existing patent or intention to infringe. Again, the focus is on the US, Europe and Japan. Osborn argues in this chapter that indirect infringement may assist with filling the protection gaps not addressed under direct infringement. The Chapter recommends a public interest approach to the judicial construction of indirect infringement – one that only penalises infringers who repeatedly and knowingly facilitate infringement by distributing 3D file formats.

Trademark law is known for its core function of providing a link between products and their source or origin. In Chapter 7, Osborn explores how 3D printing will disrupt this core function. Due to the separation that 3D printing makes between design and manufacturing, the trademark of the manufacturer of the physical product is actively disassociated from the manufacturing quality. In reality, the design file determines the manufacturing quality.

It is the turn of copyright law in Chapter 8. Should file formats for 3D printing receive copyright protection when they represent utilitarian objects? Chapter 8 offers strong arguments in doctrine and policy why this should not be so. It argues that the protection of utilitarian objects is the terrain of patent law instead.

In Chapter 9, Osborn discusses design law and takes the stance that file formats should only receive design law protection if the object they will print would qualify for design law protection.

Chapter 10 explores the question of the balance that must be created between the need to protect IP (especially utility patents) and the need to encourage lower cost of innovation available from the 3D technology. For its well thought-out suggestions on how the IP regime should respond to 3D printing technology, Chapter 10 may resonate with developing countries and emerging economies exploring how to balance IP protection and the public interests.

This book will be relevant to a variety of readers: lawyers, lawmakers, policymakers and judges. For its plain, easy-to-read language and its coverage of technical aspects of the 3D printing technology, this book will also be relevant to technologists and artists. Having said that, legal practitioners and scholars in the US, Europe and many countries in the Global North might find the book more relevant than practitioners from the Global South and the African continent, as it focuses on the former jurisdictions.

Hardback
ISBN 9781107150775
Price $99.99

Paperback
ISBN 9781316605349
Price $39.99

E-book
ISBN 9781108763059
Price $32
Available from Cambridge University Press

South Africa’s Constitutional Court rules on whether patent validity can be used as both a sword (revocation action) and a shield (infringement action) in patent proceedings

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...a sword or shield or both?

Late in October last year, the Constitutional Court of South Africa (the ConCourt) handed down its decision on the appropriate default position in patent proceedings in Ascendis Animal Health (Pty) Limited vs Merck Sharp Dohme Corporation and 2 Others [2019] ZACC 41. The appeal raised the question of whether a defendant who has unsuccessfully challenged the validity of a patent in revocation proceedings may be permitted to raise the issue of patent validity as a defence in infringement proceedings.

The decision is significant because it involved the appellate jurisdiction of the ConCourt and the first time it was deciding on the subject of patent prosecution. The ConCourt assumed jurisdiction on the matter because the appeal raised a “constitutional issue” (i.e. the applicant’s constitutional right to fair hearing as guaranteed by Section 167(3)(b) of the South African Constitution) and “an arguable point of law of general public importance” (i.e. interpretation of section 61 of the South African Patents Act, which not only affected the parties in the dispute but also future patent litigants). [Paragraph 32].

Background
In 2011, Ascendis Animal Health (Pty) Limited (the applicant) instituted revocation proceedings at the High Court seeking to invalidate the patent held by Merck Sharp Dohme Corporation and Merial Limited (the respondents) on grounds that the patent was not new (novelty) and lacked an inventive step (obviousness) under section 25(5), (6) and (10) of the South African Patents Act. [Paragraph 7].

While the revocation action was pending, the respondents instituted proceedings against the applicant for patent infringement.

The parties agreed to stay the infringement proceedings and proceed with the revocation proceedings to finality. Also, the applicant informed the respondent of its decision to argue only the novelty claim and to present oral evidence regarding the obviousness claim, should the novelty claim fail. The respondents opposed this approach as untenable in law and procedure but the applicant proceeded as it planned and there was no ruling on this during the revocation proceedings. [Paragraph 10]

The High Court revoked the respondents’ patent for lack of novelty and on appeal to the Supreme Court of Appeal, it was held that the novelty claim had no merit and that the patent was valid. [Paragraph 14]

The applicant returned to the revocation proceedings at the High Court and filed an application to amend its application thus: remove the novelty claim; retain the obviousness claim and introduce a new defence of inutility under section 61(1)(d) of the Patents Act. The respondents opposed this application and sought to amend their pleadings to plead res judicata based on the Supreme Court decision. The respondent also sought an interim order to restrain further infringement pending the outcome of the suit. [Paragraphs 15-16].

The High Court refused the applicant’s amendment application holding that it amounted to piecemeal litigation as the intention to proceed with the invalidity claim on grounds of obviousness was not raised before the Supreme Court. The High Court also granted the claim for interim order sought by the respondents. [Paragraphs 17-19].

At the High Court for the infringement proceedings, the applicant presented a similar application and argument to amend its pleadings. It argued that each ground of patent revocation is a separate cause of action and as such, the obviousness ground may be introduced by way of an amendment. See paragraph 21. The High Court rejected this argument and dismissed the amendment application. The High Court also granted the respondents’ amendment application and upheld the res judicata argument.

The applicant then sought leave to appeal against the decision refusing the amendment of its pleadings in the infringement action. The High Court refused leave to appeal and likewise, the Supreme Court refused leave.

The applicant then appealed to the ConCourt challenging the decision of the High Court refusing its application to amend its pleadings in the infringement action.

The decision
10 justices of the ConCourt sat on the appeal and unanimously granted the applicant leave to appeal. However, while 5 of the justices upheld the appeal and ordered the amendment of the applicant and respondents’ respective pleadings, the other 5 dismissed the appeal. In the absence of a majority decision, the judgment of the High Court remained valid and in place. [Paragraphs 1-2].

The ConCourt justices were split on two issues:
(a) Are the grounds for challenging patent validity single or separate causes of action?
Justice Khampepe held (with the concurrence of 4 other justices) held that the grounds on which the validity of a patent may be challenged under section 61 of the Act (novelty, obviousness and inutility) constituted separate and independent causes of action. [Paragraph 49]. Also, the facts needed to prove each ground differ. While the novelty ground requires proof that the patent is not new or different than what existed before, the obviousness ground and the inutility ground respectively require proof that the so-called inventive step is in fact obvious to anyone versed in the prior art and proof that “the blueprint of the patent itself does not lead to the claimed usefulness or result”. See paragraphs 54 and 55.

Justice Cameron (with the concurrence of 4 other justices) took the opposite view holding that the validity of the patent was the sole subject matter of the dispute both in the revocation proceedings and in the infringement action.

(b) Is the defence raised in the infringement proceedings res judicata because it borders on validity of patent?
On this issue, Justice Khampepe and 4 others held that the defence was not res judicata as the grounds of patent validity were separate causes of action. The justices considered the “scheme of the Act” and distinguished between revocation actions and infringement proceedings. See paragraphs 44-48, 85-86 of the judgment. The differences between revocation and infringement actions meant that the legislature intended the proceedings to be separate and distinct such that failure of one cannot preclude the other. A claim of res judicata on revocation proceedings could not be applied to foreclose defence on infringement proceedings. See paragraphs 47, 68, 74 and 75.

Moreover, the amendment should have been permitted under Rule 28(1) of the Uniform Rules of Court, which allow parties to amend their pleadings unless good cause is shown to the contrary. [Paragraphs 87-89]

Justice Cameron and 4 other justices were of the view that the defence was res judicata based on several considerations:
a. The dispute between the parties is based on the validity of the respondents’ patent. Once the Supreme Court rebuffed the applicant’s attempt to revoke the respondents’ patent, the applicant was estopped from bringing the same issue of patent validity (no matter the ground) in the infringement proceedings. [Paragraph 110]

b. While res judicata forbade same parties from re-litigating the same cause of action and seeking the same relief, the concept of “same cause of action” may be interpreted widely to accommodate and forbid a party from demanding the same thing on the same issue. The issue in the instant appeal being on the validity of the patent. [Paragraphs 112-113].

c. Each jurisdiction has its own method of ensuring a fair and efficient patent enforcement system. For example, Germany and Japan had a patent examination system, which acts as a safeguard for their respective strictly bifurcated systems for validity challenges and damages claims [paragraphs 125 and 127]. The US, which had a unitary system similar to South Africa, had patent examination as a safeguard to address duplication of litigation. [Paragraph 126]. The broad interpretation of the res judicata principle may be South Africa's own safeguard.

Comment
To the extent that the defence proposed for the infringement proceedings bordered on the validity of the patent, it appears to make sense that a defendant that has failed as applicant in revocation proceedings should not be allowed to re-litigate the validity of the patent as a defence to infringement. But in this Kat’s opinion, that should depend on the nature of the challenge regarding the patent validity.

While it may not be proper to allow the same applicant to bring multiple revocation proceedings against the same patent on different grounds, an applicant that unsuccessfully challenges the validity of a patent for lack of novelty should be able to rely on obviousness as a defence to an infringement claim. This is in the public interest particularly for jurisdictions that have no patent examination system. Otherwise, as Justice Khampepe pointed out, there would be no opportunity to test the strength of patents in a non-examination jurisdiction such as South Africa. [Paragraph 100]. [Even in cases where a patent licensee is sued for infringement, such licensee may defend the action by arguing that the patent was invalidly granted as happened in the Ethiopian teff patent case. It would not matter that the licensee had previously acknowledged the patent by procuring a license to use]

To this Kat’s mind, the appeal should have failed, not because the amendment sought was res judicata but because of the timing of the amendment application. The High Court had a discretion under the Rules of court to decide whether or not to grant an application for amendment of pleadings. The ConCourt may then decide whether the High Court’s discretion was exercised judiciously vis-a-vis constitutional rights. The point in time at which the defence was raised is a strategic issue that the applicant failed to explore appropriately. There appears to have been no acceptable reason why the applicant failed to plead all the defences available to it at the inception of the infringement proceedings.

In closing, this Kat is of the opinion that the issue of whether failure of revocation proceedings (made on any ground) would foreclose a validity defence in infringement proceedings may not be conclusively settled in South Africa. The simple reason for this as far as this Kat is concerned is the fact that 10 justices (an even number) sat on the appeal. It may be advisable to ensure an odd number quorum for the Concourt when sitting in appellate capacity, as this is the only way to guarantee a majority decision and a judicial precedent.

IP and the controversial “Hate Speech Bill” in Nigeria

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Hate is such a strong emotion. And, so subjective…capable of being treated seriously or in a cavalier manner. Take these fictional examples. A parent tells a child to turn off the TV and go to bed and the child goes: “You never let me have any fun! You hate me!” The government pays salaries of soldiers involved in peacekeeping missions abroad and the army withholds it. The aggrieved soldiers protest and perhaps pen a newspaper article or blog suggesting that the looters within the army have impoverished other soldiers and deserve the hatred and contempt of the soldiers. Someone takes to social media to write how politicians ought to be disgraced for the way they have run the government. Should these persons in these fictional examples be jailed or fined for expressing hatred?

As some readers may be aware, many Nigerians are vehemently opposed to the National Commission for the Prohibition of Hate Speeches Bill, 2019 (SB. 154) (the “Hate Speech Bill”), which recently passed second reading in the Nigerian Senate. There have been complaints that the offences created under the Bill seek to silence criticism and free speech and that the establishment of a Commission to curb hate speech under the Bill is a waste of resources.

Source: The Brag

Part II of the Bill covers various offences and “discrimination to which the Act applies”. These include “ethnic discrimination” (section 3); “hate speech” (section 4); “harassment on the basis of ethnicity” (section 5); “ethnic or racial contempt” (section 6); “victimisation” (section 7) etc. “Hate speech”, in particular involves “using, publishing, presenting, producing, playing, providing, distributing and/or directing the performance of any material, written and or visual”, which may be threatening or abusive. To the extent that copyright protection may apply to written words (literary works), musical works, artistic works, cinematograph films, broadcasts etc., it is possible that some hate speech (as envisaged by the Bill) may be lurking somewhere in a copyright-protected work. It is also possible for a registered trademark or trade name or insignia to constitute hate speech on grounds of its being a visual material where it is threatening or abusive under the Bill. As opined here, it is possible to forfeit a trademark in Nigeria following criminal conviction for certain offences.

This post considers some aspects of the Hate Speech Bill that may affect holders and owners of IPRs.

Offences under the Bill
Ethnic discrimination (treating other Nigerian citizens less favourably than you treat other persons from your ethnic group or other ethnic groups, without any lawful justification; putting another person at a particular disadvantage because of his ethnicity) is not an offence. This is because section 36(12) of the Nigerian Constitution as amended stipulates that, “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law”. Section 3 of the Bill does not make ethnic discrimination an offence nor is any penalty prescribed.

However, in this Kat’s opinion, section 3 of the Bill on ethnic discrimination is superfluous. Section 42 of the Nigerian Constitution already guarantees freedom from discrimination and explicitly frowns at discrimination on grounds of “particular community” and “ethnic group”. Aggrieved persons may seek redress before the High Court as stated in section 46 of the Constitution.

IPRs holders may be imprisoned for life or punished with death by hanging where they produce (see section 3 of the Bill for all the verbs) written or visual material that is threatening, abusive or insulting and intended to stir up ethnic hatred against any person or person from an ethnic group in Nigeria. [Death by hanging only applies to where the hate speech leads to the death of another person]. The Bill offers no guidance on how a court may determine what constitutes “threatening, abusive or insulting” material and/or how intention to stir up ethnic hatred may be determined. As opined here, proving the commission of a crime requires that the prosecution show that the accused person(s) is responsible for the actus reus (physical act) and had the mens rea (guilty mind or intention). Proving the intention to stir up ethnic hatred may not be so straightforward. Nigeria has over 250 ethnic groups: would/should the court be invited to consider history of inter-ethnic relations to decide subjects that would stir up ethnic hatred?

IPRs holders and owners may be fined N10 million ($28,000 approximately) and/or sentenced to 5 years imprisonment for creating a protected work intended to or having the effect of violating another person’s dignity or creating an offensive (see section 5 of the Bill for other applicable adjectives) environment for the person harassed. Similar punishment applies to persons who knowingly utter words to incite feelings of contempt, discrimination (and other feelings mentioned in section 6 of the Bill). One of the key factors to be considered in determining that a conduct has the offending effect is the “perception” of the person harassed. See section 5(2) of the Bill.

The Federal High Court of Nigeria has the exclusive jurisdiction to try offences under the Bill. See section 55 of the Bill.

There is a lot of subjectiveness involved in the offences under the Bill and there is huge reliance on the perception of an aggrieved person. This may be acceptable when the complaint is a tort. But, relying on the perception of an aggrieved person to ground a criminal conviction and constrain another person’s freedom seems unacceptable. Where these conduct must be crimes, there should be clear, objective factors for determining their commission and matters must not be left in the hands of the person who thinks himself or herself harassed or hated. Already, issues of discrimination and other fundamental rights are covered by the Nigerian Constitution and are not treated as crimes prima facie. There is also room to instead address the offences under the Bill as torts and civil wrongs, where aggrieved persons have statutory backing to file civil claims for damages.

The role of the Independent National Commission for the Prohibition of Hate Speeches
Part III of the Bill establishes and provides for the powers and functions of the Independent National Commission for the Prohibition of Hate Speeches (the Commission). The members of the Commission are to be appointed by the President (section 11) and qualification for appointment are for Nigerian citizens and persons of “high moral character and proven integrity” who have “knowledge and experience in matters relating to race, ethnic and human relations, public affairs, and human rights” (section 12). The Bill does not indicate how the character and experience criteria may be shown. However, these criteria may not require much to satisfy.

In November 2019, the Nigerian Supreme Court considered President Buhari’s affidavit attesting to his having completed school up to the level required for presidential candidates under the Constitution. The Supreme Court took the view that given the contents of the affidavit which shows that the President possesses a primary school certificate and has worked in the public service for a period not less than 10 years, and can read, write and communicate in the English language to the satisfaction of the electoral commission, the President was “eminently qualified” to contest the presidential election.

Generally, the objects, functions and powers of the Commission under the Bill are neither judicial nor prosecutorial. Instead, the Commission’s functions and powers appear (in this Kat’s opinion) to be more advocacy based and advisory in nature. In stipulating the objects and functions of the Commission, Section 19 of the Bill uses words such as “promote”, “advise”, “discourage”, “investigate”, “recommend” etc.

However, the powers of the Commission in the case of receiving contravention complaints may in some sense be quasi-judicial. Persons who are directly aggrieved or who claim that the Bill has been contravened may lodge a complaint with the Commission. See sections 37 and 38 of the Bill. The Commission may decline to entertain complaints that are frivolous or lacking in substance or, that may be more appropriately dealt with by the court. See section 39. Under section 45, the Commission must ensure that it attempts conciliation regarding complaints lodged with it. After hearing the representation of the parties to a complaint, the Commission may issue a compliance notice under section 50 of the Bill. Where parties fail to comply with the compliance notice, the Commission needs an order of the Magistrate’s court or other court to compel such compliance. See section 52 of the Bill.

Given these circumstances, it may be apt to argue the establishment of the Commission is a waste of resources. By and large, the Hate Speech Bill is still going through the legislative process and nothing is cast in stone (yet).

Readers should stay tuned…

Chams Plc and another v Mastercard Asia/Pacific Pte Ltd and 5 Others – Where a contractual breach involves the misuse of IP-based confidential information

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...confidential architecture

The Nigerian Federal High Court has delivered a ruling in a suit bordering inter alia on the misuse of confidential information relating to IP. On 7th November 2019, the Federal High Court delivered a ruling in Suit No. FHC/L/CS/1440/2019 - Chams Plc & Another v Mastercard Asia/Pacific Pte Ltd and 5 Others, granting an interim injunction restraining named Nigerian banks (22 banks in all) from giving effect to MasterCard transactions in which National Identity Cards bearing the logo of the National Identity Management Commission (NIMC) are used. The interim injunction is to remain until the hearing of a pending motion on notice for similar reliefs. [For context, the national identity cards provide proof of identity and come with a prepaid payment technology provided by Mastercard and can be used to make electronic payments and deposit funds.]

As some readers (in Nigeria) will know, the suit in question relates to the concession awarded by the NIMC to a Nigerian technology firm, Chams Plc over the issuance of national identity cards. Chams Plc has claimed that after its Special Purpose Vehicle, Chams Consortium Limited was granted the concession by the NIMC to produce national identity cards on behalf of the NIMC (the national identity card project); it invited MasterCard as one of its technical partners on the project.

Chams Consortium Limited (CCL) also entered into a Customer Business Agreement (CBA) with MasterCard, which contained non-disclosure of confidential information and non-compete clauses. Pursuant to this agreement, CCL disclosed confidential information on the entire architecture of the national identity cards to MasterCard. This information as to the architecture of the national identity cards was a product of Chams Plc’s research, design and development work. CCL claims that MasterCard used the disclosed proprietary confidential information and the fact of its being formally introduced to NIMC to bypass CCL; deal directly with NIMC and commence production of national identity cards. MasterCard’s activities have been alleged to result in CCL incurring significant losses and placed MasterCard in a position to make significant revenue using Chams Plc.’s research, design and development work.

In their statement of claim, the plaintiffs have sought the sum of N84billion (approximately $231.7million) as special damages for anticipated loss of revenue from the national identity card project; N10billion (approximately $27.6million) as general damages for fraud; and N20billion (approximately $55million) for inducement of breach and termination of the concessions awarded by NIMC. The plaintiffs also filed a motion ex parte and a motion on notice and in both applications, they prayed the court to inter alia (i) restrain MasterCard from further printing National Identity Cards with the NIMC logo; (ii) restrain Nigerian banks (named as respondents to the application) from honouring MasterCard transactions with the use of the National Identity Cards; (iii) issue an Anton Piller Order for seizure and costing of machines for printing the cards and the seizure of the cards themselves; and (iv) order the police to arrest anyone who obstructs the execution of the court’s orders.

In its ruling on the motion ex parte, the court directed that the defendants be served with the originating processes and the motion on notice. Apart from the order as to service, the court granted only the second order sought i.e. the order restraining the named Nigerian banks from honouring MasterCard transactions made with the use of the National Identity Cards pending the hearing of the motion on notice. All the other prayers made in the motion ex parte are to be heard when the defendants have been put on notice.

Comment
The suit in question borders particularly on breach of contract occasioned by the misuse of confidential information. However, this Kat is interested in the question of misuse of confidential information as it relates to outputs of research and development work (i.e. knowledge-based information).

Regarding the main claims for special and general damages for anticipated revenue, fraud, and inducement of breach, it is opined that the claims are hinged on MasterCard’s alleged misuse of information as to the architecture of the national identity cards. Essentially, the alleged breach of contract lies in the misuse of confidential information. Where the plaintiffs are unable to show that MasterCard made unauthorised use of such confidential information, it may be difficult to prove the plaintiffs’ entitlement to damages especially the claim for special damages.

In Nigeria, claims of misuse of confidential information are likely to be founded in contract or tort, as there are no statutory provisions explicitly providing for such claims. However, section 15 of the Freedom of Information Act 2011 allows public institutions to deny an application to disclose information that contains “trade secrets and commercial or financial information obtained from a person or business where such trade secrets or information are proprietary, privileged or confidential, or where disclosure of such trade secrets or information may cause harm to the interests of the third party”. The section also restrains the disclosure of “information the disclosure of which could reasonably be expected to interfere with the contractual or other negotiations of a third party” and “proposal and bids for any contract, grants, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person”.

This provision suggests that Nigerian courts would frown at unauthorised disclosure or use of proprietary and/or confidential information. However, to the best of this Kat’s knowledge, there has not been a reported, decided case in Nigeria on parameters for imposing liability for misuse of proprietary and/or confidential information or for remedies in the case of such misuse. But, one can get a sense of how such cases may turn by looking at judicial treatment of non-disclosure clauses in employment contracts and/or confidentiality obligations of banks to their customers.

In Aero Contractors v Akingbehin (NICN/LA/123/2013), the defendant, through his solicitors had written to the plaintiff threatening to disclose the plaintiff’s confidential information if he (the defendant) was not reinstated to his position in the plaintiff’s company. The plaintiff sued for breach of the confidentiality clause contained in the defendant’s contract of employment and sought damages in the sum of N25million (approximately $68,000) for the breach. The court found that the defendant did in fact breach the confidentiality clause when he disclosed the confidential information to his solicitors. However, the court awarded only the sum of N2million (approximately $5,500) as damages. In Fidelity Bank Plc v Onwuka, the Court of Appeal held that a breach of a bank’s legal duty of confidentiality not to disclose information to third parties would give rise to liability in damages.

It remains to be seen whether the plaintiffs can show that there was confidential information provided to the defendant which the latter misused in breach of the non-disclosure obligations. Even where the plaintiffs succeed in proving their claims, it also remains to be seen if the court will award the significant sums claimed as damages.

Regarding the motion on notice, especially the Anton Piller order sought, there is also the question of whether the plaintiffs can obtain a mandatory interlocutory order permitting them to seize the defendants’ card-printing/moulding machines, inspect and cost (i.e. appraise) the volume of trade on the national identity cards.

The principles governing the grant of an Anton Piller order in Nigeria have been adopted from the decision of the English Court of Appeal in Anton Piller KG v. Manufacturing Processes Ltd in several cases including Ferodo Limited v. Unibros Stores and Akuma Ind. Ltd v. Ayman Ent. Ltd. The principles are that: (1) there must be a strong prima facie cause of action; (2) the danger to the plaintiff to be avoided by the grant of an Anton Piller order must be serious; and (3) the risk of destruction or removal of evidence must be significant rather than merely possible. The general principles regarding injunctions - serious question to be tried, adequacy of damages, balance of convenience and whether the status quo should be maintained – also apply.

Anton Pillar orders are usually made ex-parte and understandably so. If the point of the exercise is to take the defendant unawares before the defendant has time to hide evidence of infringing materials and/or activities, making the orders after putting the defendant on notice will defeat the purpose. In this Kat’s experience, Nigerian courts are wont to order accelerated hearing once Anton Pillar orders are sought via a motion on notice. That said, the decision is in the hands of the court whether to grant the Anton Piller order when the defendants in this case have been put on notice.

What happens now?
The case continues. The defendants have 30 days from the date of service of the writ and statement of claim to respond by filing a defence. The defendants will also need to respond to the motion on notice, which seeks far-reaching orders against them. Given the national significance of the case (being on the issue of identity management at the national level), it is quite possible for the parties to decide to settle out of court.

Time shall tell and readers should watch this space...

The African Regional Intellectual Property Organization (ARIPO) Model Law on Copyright and Related Rights

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Last week, the African Regional Intellectual Property Organization (ARIPO) published the ARIPO Model Law on Copyright and Related Rights (the Model Law). The ARIPO member states are expected to adopt and/or adapt the Model Law for their respective national purposes.

ARIPO

Even though ARIPO ~~warns~~ states that “no part of this publication may be reproduced or distributed in any form, or by any means, or stored in database or retrieval system, without the prior written permission of the publisher” [page 4 of the Model Law], this Kat will “brave it” and quote (i.e. reproduce) portions of the Model Law, where relevant.

Some highlights of the Model Law

Recognition of the Marrakesh Treaty: The Model Law contains exceptions that address access by people with disabilities to works that are protected by copyright and related rights. However, the exceptions mirror the Treaty and so the definition of “beneficiary person” does not include other forms of disabilities beyond visual impairment and print disability. See relevant definitions in section 2. It may be advisable for member states to consider including copyright exceptions for other forms of disabilities mentioned in this Scoping Report.

AI-generated works may not be recognised: Section 2 defines “author” to mean “a natural person who created the work”. It seems that to the extent that machines create AI-generated works, such works may not be recognised as having an “author”.

Collective management organisations (CMOs): The Model Law makes very general provisions for CMOs. Under the Model Law, CMOs would include organisations whose “objectives include granting of licences covering works of more than one author/rights holder and distributing the remuneration/ royalties to the right holder”. See section 2. This appears to suggest that even having the mandate of 2 authors suffices to make an organisation a CMO. Does this mean that music aggregators for instance can act as CMOs?

No visible approach to the protection of traditional knowledge and traditional cultural expression: The definition of “performers” in Section 2 recognises persons who perform “traditional cultural expressions/expressions of folklore” but the term is not defined or otherwise mentioned again in the Model Law. However, given that the term, “traditional cultural expressions/expressions of folklore” is not mentioned in the list of protected works and copyright cannot be conferred outside the Model Law [see section 61], it appears ARIPO does not lean towards the protection of folklore within “main stream” copyright (at least).

(Other) “Public interest” provisions: One justification for the existence of limitations and exceptions to copyright protection is the public interest. Public interest considerations result in the argument that copyright limitations and exceptions should promote public access to information and activities of educational and cultural institutions. At the international and regional copyright scene, African countries (and developing countries generally) work to find ways in which limitations and exceptions can best be configured to advance their development and unique socio-economic context. So, does the Model Law make the public interest agenda feasible? To some extent…

Part III of the Model Law deals with general limitation and exceptions. The “most general” of the exceptions would be the fair dealing exception. According to section 18, “the exercise of exclusive rights shall not include the right to control the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events, subject to the acknowledgement of source.”

Like the fair use exceptions in Uganda, US, Israel and South Africa’s Copyright Amendment Bill and the fair dealing exceptions in Canada, the Model Law stipulates factors that are to be considered in determining whether the use made of a work in any particular case is fair. These factors include the purpose and character of the use; the nature of the protected work; the amount used in relation to the protected work as a whole; and the market effect of the use vis-à-vis the potential market for the protected work.

As stated here in respect of South Africa’s fair use provision, it is for the courts to consider these factors and in each case determine whether the use constitutes fair dealing with the work. The beauty of leaving such determination in the hands of the court is that the individual circumstances of each case will be put into consideration. Also, the courts’ decisions will set judicial precedent that may hopefully guide future everyday action as litigants learn from their triumphs and failures.

The Model Law also contains copyright exceptions regarding reproduction by publicly accessible libraries, archives, museums and educational institutions. See section 23. The exception permit these institutions to make a single copy of a work they have lawfully acquired; to make a copy of works for a natural person for the purposes of study, scholarship or private research, where there is no CMO from which licence may be obtained to make such copies; and to make a copy of works in its collection for purposes of backup and preservation.

It appears that outside these purposes and of course outside the fair dealing exception, libraries, archives, museums and educational institutions may be unable to lawfully reproduce copyright-protected works. Also, the criterion of being “publicly accessible” is not defined. The Model Law lumps libraries, archives, museums and educational institutions without recognising that while these institutions may serve similar goals of preserving culture and promoting access to information, there are fundamental differences in other goals, nature of protected materials handled as well as profit models. These differences are worth considering in crafting appropriate copyright exceptions.

Caricature, Parody and Pastiche: Under Section 30 of the Model Law, using a work for parody, caricature or pastiche will not amount to an infringement of the author or right owner’s moral rights. By expressly excluding moral rights, it appears that barring a successful fair dealing defence, parody, caricature or pastiche may infringe on economic rights.

Authors in employment or commissioned authors: By section 31(3) of the Model Law, the original owner of a commissioned work or work made in the course of employment is the employer or the commissioner of the work, unless provided otherwise in a contract.

No safe harbour for ISPs where content availability promotes platform attractiveness: Section 49 of the Model Law provides for the general conditions an Internet service provider (ISP) must meet in order to benefit from limitations on remedies that may be obtained against them for copyright infringement. One of these conditions is that the ISP “does not receive any financial benefit attributable to the infringing activity”. The footnote in respect of this condition stipulate that “in deciding whether a financial benefit is attributable to infringing activity, it is relevant whether the availability of the infringing content enhances the attractiveness of the service.” The availability of content uploaded by users is what enhances the attractiveness of most digital platforms. Accordingly, authors and copyright owners may find it easier to prove this condition when they argue that the safe harbour is inapplicable to a given ISP.

Public domain by renunciation: Just as one can relinquish shares, authors can now renounce copyright in their works. The renunciation must be in writing and made public and such works shall belong to the public domain. See section 35 of the Model Law. The Model Law indicates in the footnote to this section that works which belong to the public domain by virtue of renunciation are different from Creative Common works “as authors in creative commons still retain their rights and grant different licences for the use of their works”. The footnote does not mention the retired Creative Commons Public Domain Dedication tool. One can only hope that countries adopting this provision would stipulate guidelines for making renunciation public.

ARIPO has been in existence since 1973 and its activities represent significant success in sub-regional cooperation in Africa. No doubt, it will play and is already playing a significant role in the drafting of the African Continental Free Trade Area (AfCFTA) Protocol on IP rights. By extension, it is likely that ARIPO’s position as reflected in the Model Law will find its way to the AfCFTA Protocol on IP rights. For this reason (amongst others), it is imperative for ARIPO Member States (and proponents of the Model Law) to be mindful of AfCFTA’s objectives in arguing for the adoption and/or in adapting the provisions of the Model Law.

Kenya amends its Copyright Act to ratify the Marrakesh Treaty and address a myriad of other issues

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In September, Kenya’s President signed the Copyright (Amendment) Act 2019. The Copyright (Amendment) Act 2019 amends Kenya’s Copyright Act of 2001 (the Principal Act) and is aimed at addressing inter alia, concerns about the collection and disbursement of royalties to authors and copyright owners.

Kenyan flag

The Amendment Act does not repeal the entirety of the Principal Act. It only repeals certain sections of the Principal Act such as section 21 (appeals against the decision of the Copyright Board to now lie to the Copyright Tribunal); section 26 (nature of copyright now separated from provisions on limitations and exceptions); section 48 (jurisdiction previously held by a “competent authority appointed by the Minister” now held by the Copyright Tribunal appointed by the Chief Justice); etc.

Some highlights of the Amendment Act include:
Sui-generis approach to the protection of traditional knowledge and traditional cultural expression: Section 2(e) deletes the definition of “folklore”. With this, it appears the protection of folklore has been removed from “main stream” IP (the copyright bit, at least). The terms “traditional knowledge” and “cultural expressions” are broadly defined under the Act for the Protection of Traditional Knowledge and Cultural Expressions and would include “folklore”.

Wider range of protected subject matter: “Works” are defined under the Amendment Act to include translations, adaptations, new versions, or arrangements of pre-existing works, and anthologies or collections of works, once they are original by reason of the selection and arrangement of their content. See section 2(g). This clarification is notable particularly with respect to the question of whether musical arrangements are protectable in the same manner as primary works. For instance, in South Africa, there have been issues with Southern Africa Music Rights Organisation (SAMRO)’s Distribution Rules, in which arrangements of folk music are treated as non-original works and partly in the public domain. See discussion on The IPKat here.

Ratification and domestication of the Marrakesh Treaty: The Amendment Act contains exceptions that address access by people with disabilities to works that are protected by copyright and related rights. The exceptions go beyond the Treaty to include other forms of disabilities beyond visual impairment and print disability. See the definition of “beneficiary person” in section 2(m).

AI-generated artworks are recognised: Section 2(m) defines “artwork” to include original work of visual art produced under the authority of an artist. It seems that AI-generated artworks may be deemed as produced under the authority of an artist. By extension, it may be possible to recognise the “authorising” artist as the author of the artwork.

Register of copyright works: Section 10 of the Amendment Act requires the Copyright Board to keep a register of copyright works. Extracts from the register, where certified by the Board, may be admissible in evidence. The use of certified extracts in evidence would be quite helpful to authors and copyright owners seeking to prove the existence of their creative outputs. However, there is the question of the feasibility of maintaining such register physically as opposed to a digital or electronic register. Also significant is the question of whether the collation and recording of relevant information into the register will include retrospective information.

Digital advertising may remove safe harbour for ISPs: Section 24 of the Amendment Act provides safe harbour for internet service providers which exempts them from liability for copyright infringement subject to specified conditions. One of these conditions is that such ISP does not “in any way promote the content or material being transmitted”. This raises the question of whether ISPs like YouTube that create automatic playlists may be considered as “promoting” the contents of such playlists.

Takedown notice requirements may be too onerous: A new section 35B requires persons filing a takedown notice to inter alia “identify the rights being infringed”. See section 35B(2)(e). Further, a malicious takedown notice is a crime and attracts a fine and/or imprisonment. See section 35B(8). In the case of the former, filing a takedown notice may be cumbersome for less savvy authors who may not be able to identify the rights being infringed under the Copyright Act. Criminalising the filing of a malicious takedown notice appears too severe especially given that the filing of a takedown notice does not guarantee a takedown nor does it necessarily remedy the (previous) act of infringement.

Fair dealing v fair use: The Second Schedule to the Amendment Act contains the exception to copyright protection. According to paragraph 1, “the exclusive rights under section 26 shall not include the right to control— (a) the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events”. The expression, “fair dealing” is not defined in the Act. However, Kenya’s Supreme Court has had the opportunity in 2014 to consider whether the purposes considered as fair dealing (scientific research, private use, criticism or review, or the reporting of current events) were closed. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, the court held that the “must-carry” rule in Kenya’s Broadcasting Regulations fell under the fair dealing provisions of the Copyright Act despite not being enumerated within the list of purposes. See In the public interest: how Kenya quietly shifted from far dealing to fair use for some in-depth discussion.

In the opinion of this Africa Correspondent, one of the positive things about the Copyright Amendment Act 2019 is the extensive provision regarding the corporate governance of collective management organisations (CMOs). See section 31 of the Amendment Act generally. The Amendment Act (section 46B(2) stipulates a requirement that I have advocated here as a panacea to the corporate governance woes of collecting societies in Nigeria – provide a tenure for directors and chairpersons of CMOs. The Amendment Act also touches on a matter that forms part of this Africa Correspondent’s current research for the Open AIR project: gender representation in the corporate governance of collecting societies. Section 34 of the Amendment Act requires the Cabinet Secretary to make regulations that may prescribe “guidelines on the gender representation and participation of persons with disability and other marginalized groups on the boards of collective management organizations”. While recognition of gender “blindness” on the boards of CMOs is laudable, there are concerns around the frequent lumping of gender issues with disability issues and unique concerns and interests of “marginalized groups”. How to address the question of representation without conflating the obvious unique needs of each “marginalised group”?

There are several other interesting provisions of the Amendment Act. However, as I always say, the taste of any statute is in the application and/or enforcement. We wait to see how Kenya’s Copyright (Amendment) Act will be applied and/or enforced.

Who owns copyright in Uganda’s National Anthem?

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Between the Ugandan government, which organised a contest for the composition of the national anthem and the late Professor Goerge Kokoma who composed the winning entry adopted as the national anthem, who owns copyright in the Ugandan national anthem?

This is the principal question that the Ugandan Court of Appeal answered in the case of Elizabeth Kokoma vs Attorney General, Civil case no. 50 of 2011 decided in July 2019.

Background
Professor George Kokoma (now deceased) had instituted an action at the High Court of Uganda (the lower court) against the Attorney General (of Uganda) for copyright infringement and royalties over the span of 40 years. Professor Kokoma claimed that as the composer of the national anthem of Uganda, he owned copyright in the said national anthem and that the Ugandan Government owed him royalties for the use of the national anthem since 1962 when it was composed.

The Ugandan flag

In 1962, the Ugandan government advertised an open competition for the composition of the national anthem. Aside from indicating that the winning entry would be adopted as the national anthem and that Shs.2000 would be paid to the composer of the winning entry, no conditions (particularly, no copyright conditions) were indicated on the advertisement. Subsequently, the government selected Professor Kokoma’s composition and adopted it with some amendments. Professor Kokoma was paid Shs2,000 for winning the competition. Professor Kokoma subsequently sought compensation or payment in order to assign copyright in his composition to the Ugandan Government but was unsuccessful. He then instituted an action for copyright infringement, and claimed inter alia, royalties for use of copyright and damages for infringement at the lower court.

The lower court held that Professor Kokoma was not entitled to the reliefs sought. However, the court awarded the sum of Shs. 50million ($13,000 approximately) to Professor Kokoma as a remedy it deemed “just and fitting in the circumstances” given the value of the composition and the time and effort Professor Kokoma expended in creating the composition. Dissatisfied with the court's finding that he did not own copyright and with the sum of awarded, Professor Kokoma’s wife, as representative of his estate appealed to the Court of Appeal. The Court of Appeal reversed the judgment of the lower court and held that Professor Kokoma did not own copyright in the national anthem, rather the Ugandan Government owned copyright because it organised the contest and managed the process of submissions up to the selection and adoption of George Kokoma’s entry as the national anthem. According to the Court of Appeal, such activities meant that the composition was undertaken under the government’s direction or control.

Issues raised on appeal

In her lead judgment, Justice Elizabeth Musoke identified a sole issue for the resolution of the appeal viz: Who owns the intangible property right in the national anthem with the attendant privilege to reproduce same? See page 12. She held that the other issues relating to commissioning of the composition and/or assignment of copyright in the composition would amount to an academic exercise given that the Ugandan Government owned copyright in the composition. [Pages 14 and 15 of the judgment.]

To resolve this issue, the court considered section 2 (definition of author to include a person who commissioned the creation of a work), section 4 (originality, fixability and absence of formality for protection), section 5 (categories of protected works including musical works) and section 8 (ownership of copyright in a work made under employment, commissioned by another or made under the direction or control of the Government) of the Copyright and Neighbouring Rights Act 2006. See page 12-13

The Court noted that the subject of the appeal involved the government and therefore particularly considered section 8(2) of the Ugandan Copyright Act. The Court observed that the Act did not define what it meant to create a work under the “direction or control” of government. However, using the dictionary definition, it held that control and direction respectively meant restricting/limiting/managing something and the art of managing or guiding something or someone. See page 14. The Court went on to hold that by initiating the idea of the contest for the composition of the national anthem; managing the entire process and making amendments to the appellant’s submission and having the power to decide whether or not to adopt the appellant’s composition as the national anthem, the Government “directed” and “controlled” the composition of the work. [Page 14]. And, by virtue of section 8(2) of the Act, the Government owned copyright in the work.

The court further held that by virtue of section 13 of the Copyright Act, the copyright in the work (i.e. national anthem) expired in 2012 having belonged to the government for 50 years since 1962, when it was published. Section 13 of the Copyright Act stipulates that the duration of copyright held by the government is 50 years. The court also held that the award of Shs50million made by the court of first instance had no legal basis and therefore, set it aside. [See pages 15 and 16].

Comments
The Court of Appeal rightly identified that the resolution of the appeal hinged on the determination of the person who owned copyright in the composition. Further, given that section 8 of the Copyright Act deals with copyright involving the government, the court rightly relied on that section as a basis for its judgment. However, in holding that copyright vested in the Government because the composition was made under the direction and control of the government under section 8(2), the Court of Appeal did not consider the purport of section 8(3) of the Act.

The vesting of copyright in the employer under section 8(1)(a), the commissioner of a work under section 8(1)(b) or the government under section 8(2) is dependent on the condition in section 8(3). Section 8(3) provides that:

“Vesting of copyright referred to in (1) and (2) above shall apply only to work created within the stipulated schedule of work of an employee.”

It is opined that even where a work is made under the direction and control of the government, vesting of copyright in such work upon the government requires the establishment of some employment nexus between the government and the creator of such work. Such employment nexus does not exist in this case. In the view of this Africa Correspondent, the government need not own copyright in the national anthem in order to use it in this instance and serve the interests of Ugandan citizens. Given that the advert for the contest clearly stated that the winning entry will be adopted and used as the national anthem and the winner would be given the prize of Shs.2000, it is argued that there was an implied (express licence, even) license to use the work as the national anthem with the attendant activities inherent in such use. Otherwise, it may mean that based on this decision, copyright in “contest-created” works would be construed as made under the direction and control of the person who organised the contest. In this era of artists and fan engagement through social media contests, the judgement herein may provide a basis for arguing that copyright in the submissions of entrants would vest in the artist or organiser of the contest (in the absence of an agreement to the contrary). That would be tough.

What do readers think?

P.S. - Africa Correspondent is grateful to Phillip Karugaba for obliging me with a copy of the judgment of the (Ugandan) Court of Appeal discussed here.

Can Africa’s trade agreements handle regional integration?

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On 31st May 2019, the Commission of the Economic Community of West African States (ECOWAS) launched its Regional Competition Authority – the ECOWAS Regional Competition Authority (ERCA). The ERCA was established to implement the Regional Competition Rules adopted by the ECOWAS Authority in 2008 to promote inter alia regional competition and regional integration.

While the ECOWAS Regional Competition Rules covers West African States, the Common Market for Eastern and Southern Africa (COMESA) also has competition rules that cover Eastern and Southern African countries. These regional blocs within Africa have somewhat coalesced into the drive leading to the African Continental Free Trade Area (AfCFTA). [Other recognised Regional Economic Communities under AfCFTA include the Arab Maghreb Union (UMA); the Community of Sahel-Saharan States (CEN-SAD); the East African Community (EAC); the Economic Community of Central African States (ECCAS); and the Southern African Development Community (SADC)]. As earlier discussed here on The IPKat, the goal of regional integration and its benefits continues to be at the forefront of the drive for AfCFTA. Indeed, one of the objectives of AfCFTA as stated in Article 3 is to “create a single market for goods, services, facilitated by movement of persons in order to deepen the economic integration of the African continent…”

Regional Katintegration?

The AfCFTA currently has Protocols on Trade in Goods, Trade in Services, Rules and Procedures on the Settlement of Disputes, while the Protocols on Investment, Intellectual Property Rights, Competition Policy, are currently under negotiation. These Protocols are interconnected: ratification of the AfCFTA means ratification of all the Protocols, once adopted by the General Assembly. See Article 8. The Protocol on IP, which is likely to attract significant interest for readers of this blog, has the potential to advance a continental approach to a balanced IP rights for Africa. See here and here. However, as this Africa Correspondent has opined here, the success of the Protocol on IP is hinged on various factors including the success of the Dispute Settlement Mechanisms established under Article 20 of AfCFTA. Also, as noted here, competition rules and polices may not only complement IP regimes but may also protect competition in IP-related markets.

It is no longer news that despite these moves (and aspirations) towards regional integration, the past few days have seen increased xenophobic attacks against Africans living in South Africa. See reports here and here. The attacks have been in various forms but for the purposes of the current discourse, the attacks have involved people looting third party business premises owned by other Africans, burning and destroying of African-owned business premises and properties. “Retaliatory” attacks have been carried out Nigeria and Zambia against South African owned businesses.

This is not the first time Africans and African businesses have been targeted and attacked in other African countries. Between 2015 and 2019 alone, there were several attacks against African non-South African immigrants (a mouthful there) and non-South African businesses (including Nigerians and Nigerian businesses) in South Africa and many lost their lives in the process. In this year (2019) as well, Nigerian businesses have complained of xenophobic treatment and deportation from their Ghanaian hosts. Several decades ago in 1983, Nigeria deported over 2 million West Africans (especially Ghanaians) accusing them of being illegal immigrants, being criminals and taking over local jobs etc.

In the circumstances, it seems that the goals of economic efficiency and regional integration may continue to elude Africa and regional trade in and within Africa. If the point of AfCFTA (and ECRA, COMESA and other regional economic communities) is to promote regional trade and integration, what will happen to businesses who leverage on such trade agreements to advance their businesses only to find themselves subject of xenophobic attacks? How can businesses take advantage of AfCFTA to trade in other African countries when they may not feel safe enough to succeed, enjoy their success and have African consumers enjoy the benefits of healthy competition?

With respect to the recent xenophobic attacks against Nigerians and Nigerian businesses in South Africa, Nigeria (and other African countries such as Rwanda, Congo and Malawi) have condemned the attacks and are rumoured to have boycotted the World Economic Forum for Africa meeting holding in Cape Town because of the latest xenophobic attacks. Nigeria has also recalled its ambassador to South Africa. South Africa has condemned the attacks and have promised to bring perpetrators to book, with several persons arrested.

For this Africa Correspondent, the pertinent question for regional trade and regional integration goals presently is: what is or should be the role of the African Member States. Is it only to negotiate and adopt trade agreements? Is it possible to formulate Africa’s Dispute Settlement Mechanisms to recognise and address the threat that xenophobia poses to regional integration and free trade? Should Dispute Settlement Mechanisms within the African context lie only in formal procedures and institution of actions interpreting rights and obligations under AfCFTA? When or under what circumstances may it be said that a dispute has arisen? Who would be beneficiaries of the outcome of such disputes? How should disputes be formulated? For instance, would the current xenophobic attacks targeted at Nigerian businesses in South Africa and the actions/inactions of the South African government amount to a “dispute”? Or, would such “dispute” be formulated and/or resolved outside the trade agreements and perhaps, within political statements/actions?

These are questions that would help determine whether or not Africa’s regional trade agreements would be effective. Beyond formulating the terms of trade agreements, African States must be prepared to do their part in providing an enabling environment for implementation and enforcement. That way, Africa can handle regional integration if when it comes.