PRELIMINARY NEEDS ASSESSMENT REPORT

Report
NATIONAL INTELLECTUAL PROPERTY
STRATEGY FOR TANZANIA
Revised IP audit findings from
focus group discussions with
stakeholders
By
Prof. Francis Matambalya
WIPO Consultant
13 - 14 December 2011
1
PRESENTATION OUTLINE
BACKGROUND
METHODOLOGY
FINDINGS:
 Situation analysis
 Summary of challenges
 Summary of recommendations
2
1. BACKGROUND
3
1.1. Why IP Audit?
• Request by GOT to WIPO
• IP Audit (IPA) used to generate information for
designing a national intellectual property strategy
(NIPS)
4
1.2. Specific objectives of the IPA
• Collect data and information on diverse IP issues:
Management of the IP agenda
IP generation
IP applications and grants
IP system governance framework
IP rights administration
IP commercialisation
IP rights enforcement
5
1.2. Specific objectives of the IPA – conc.
• Sythesise data and information for the purpose
of the architecture of the NIPS for Tanzania:
Understand the status quo of the IPS
o Its strengths
o Its weaknesses
Identify opportunities for harnessing IP for
development
Identify challenges against harnessing IP for
development
Make recommendations for the NIPS
6
2. METHODOLOGY
7
2.1. Considerations in designing methodology
• IP cuts across all sectors
 Hence: need for a broad-based consultative
process, and for reaching-out to as many
stakeholder groups as possible
• The existence of different types of IP
 Hence: need to gather information and data
about all types of IP
8
2.2. Approach for collecting data & information
• Review of literature
 IP policy documents
 Other policies
 Other relevant literature
• Focus group discussions
 Creation of groups
 Instrumentation: WIPO ‘guidingʼ questionnaire
• The ‘diplomatic approach’ to gathering info:
 Careful listening and evaluation
9
3. FINDINGS: SITUATION ANALYSIS
10
3.1. Management of the IP agenda
• IP is not a union matter:
 Hence: existence of two parallel and independent
regimes for managing the IPS in the URT:
o A system for Tanzania Mainland
o A system for Tanzania Zanzibar
 Concretely, this means:
o Separate sets of institutions for IP
administration
o Separate jurisdictions for IP protection
11
3.2. Factors catalysing IP generation
• Following are important catalysts of 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 system
oIP research
oIP education and training
oTechnology transfer mechanisms
12
3.2. IP generation – contd.
• Level of IP awareness and knowledge
 The general level of IP Awareness is very low for
most people across stakeholder groups:
o
o
o
o
Policy and decision makers
Academicians
IP generators
IP right holders
o IP users
o IP law enforcers, etc.
 The situation is true for both Tanzania Mainland
and Tanzania Zanzibar
13
3.2. IP generation – contd.
• Level of IP awareness and knowledge
 Appreciation of IP as special study discipline is
very low even among key actors in the IP scene,
especially in Tanzania Mainland
 Number or people with specialized IP education
(at degree level) is very low
o 1 for BRELA
o Zero for copyright administrator & COSOTA
o RGO, and copyright administrator & COSOZA: 2
 In Tanzania Mainland, exposure to IP
knowledge is largely through training
workshops and on the job learning
14
3.2. IP generation – contd.
• 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, GIs)
15
3.2. IP generation – contd.
• Also, like in other African countries, in Tanzania there
is a rich tradition of expressions of folklore through:
 Stories
 Traditional music
 Traditional dances
16
3.2. IP generation – contd.
• 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 advocates
o International: SNR Denton
 Moreover: Foreign legal comapanies cannnot
dirrectly act as IP practioners. Tanzania’s law
them to use local agencies!)
17
3.2. IP generation – contd.
• IP information dissemination:
 Websites of IP offices in Mainland and Zanzibar
Mainland
o BRELA
o COSOTA
Zanzibar
o RGO
o COSOZA
 Tanzania Intellectual Property Advisory Services
and Information Centre (TIPASIC) at COSTECH
o Drafting patent documents
o Filing of patent applications
o Conducting searches on patents
 TIPASIC is being trsanformed to Technology
18
Innovation Support Centre (TISC)
3.2. IP generation – contd.
• Characteristics of innovation system:
 Elements of an innovation system exist
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)
19
3.2. IP generation – contd.
• IP education and training:
 A few compulsory and elective IP courses offered
by some Universities in some degree programmes
o Professional MIT programme (UDSM)
o Law (UDSM, Mzumbe, Tumaini, OUT, SAUT,
Ruaha, UDOM, Zanzibar University)
 No single IP degree programme exists
 No institutionalized IP training courses &
programmes
 None-P experts supervise IP degree programmes
at Masters and PhD levels.
20
3.2. IP generation – contd.
• 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 minimal
o Weak local business sector
o 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!
21
3.2. IP generation – conc.
• Technology transfer mechanisms:
 Some institutions have technology transfer mechanisms
o CoET/UDSM
o TTO/SUA
 An integrated technology transfer mechanism,
embracing all essential elements is weak:
o Scouting
o Technology cataloguing
o Technology acquisition (e.g., through technolgy
markets)
o Technology transfer
22
3.3. IP applications and grants
• Number of applications by & grants to locals:
 Research largely seen as an ‘additional activity’
 Hence: very limited number of applications
o
o
o
o
1 patent application for UDSM
5 patent applications for SUA
(CBE‘s emblem registered as a service mark)
2 patent applications in Zanzibar
 Limited applications by locals partly attributable to
o Low levels of knowledge and awareness
23
3.4. IPS governance framework
• State of IPS governance framework
 A system’s ‘governance framework’ is built by:
o (A broad development philosophy = ideology)
o Development strategies generated from the
broad development philosophy
o Development policies generated from the broad
development philosophy
o Laws
o Regulations
 The existence of all its elements qualify the
system as ‘integrated’
24
3.4. IPS governance framework – contd.
• State of IPS governance framework – contd.
 Existing laws to protect industrial properties in
Tanzania Mainland
o Patent registration act, Cap 217 re 2002
o Trade and service marks Act, Cap 326 re 2002
o Fair competition Act No. 8 of 2003
o Merchandise Marks Act of 1963, re 2002.
o United Kingdom designs (protection) ordinance?
 Existing law to protect industrial properties in
Tanzania Zanzibar
o Industrial properties Act No. 4 of 2008
25
3.4. IPS governance framework – contd.
• State of IPS governance framework – contd.
 Existing laws to protect copyrights &
neighbouring rights in Tanzania Mainland
o Copyright and Neighbouring Rights Act, Cap
218 re 2002.
o Act established also COSOTA
 Existing laws to protect copyrights & related
rights in Tanzania Zanzibar
o Copyright Act No. 14 of 2003
o Act established also COSOZA
26
3.4. IPS governance framework – contd.
• 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 (we are automatically members, by
virtue of being members of the WTO)
...
...
...
...
27
3.4. IPS governance framework – contd.
• At the global level, URT is a not yet a member of the following
 Madrid system
 WPPT
 WCT
 ...
 ...
 ...
28
3.4. IPS governance framework – contd.
• 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)
29
3.4. IP governance framework – contd.
• State of IPS governance framework – contd.
 IPS governance
framework has
following gaps:
o Lack of NIPS
o Lack of national IP
policy
o Gaps in IP laws
o Gaps in regulations
 Specifically, there is absence of
laws to protect the following:
o Genetic resources
o Technovations
o GI
o Integrated circuits & topography
o Industrial designs (using english
law; now included in patent law)
o Trade secrets (currently, law of
contract used instead!)
30
3.4. IP governance framework – contd.
• State of IPS governance framework – conc.
 Following laws are inadequate?:
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
 Ongoing initiative to amend industrial properties laws
o To have single industrial property act
o Make industrial property law TRIPS compartible
31
3.5. IP administration
• Separate institutions for Mainland & Zanzibar
 Mainland: institutions that administer different IP laws
o BRELA (in Ministry of Industry &Trade)
o Copyright administrator, and copyright management
society – which in Tanzania Mainland is COSOTA (in
Ministry of Industry &Trade)
o Registrar of Plant Breeders (in Ministry of Agriculture &
Food Security)
o FCC (in Ministry of Industry and Trade)
o COSTECH (in MCST)? (law establishing gthe centre for
the transfer of technology)
32
3.5. IP administration – contd.
• Separate institutions for Mainland & Zanzibar
 Zanzibar: institutions that administer different IP laws
o RGO (Ministry of Justice and Constitutional Affairs)
o Copyright adminstratior and copyright management
society – which in Tanzania Zanzibar is COSOZA
(Ministry of Justice and Constitutional Affairs)
33
3.5. IP administration – contd.
• Automation
 Mainland
o Industrial property application system (IPAS)
provided by WIPO
o 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
 Zanzibar:
o IPAS system is available, but not active due
to technical constraints
34
3.5. IP administration – conc.
• Capacities of IP offices
 Evidence of capacity constraints in both Tanzania
Mainland and Tanzania Zanzibar
o 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 premises
35
o Lack of sufficient equipment
3.6. IP commercialization
• Presence of collective management organization
(CMO) for copyrights
 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)
36
3.6. IP commercialization – contd.
• Financing commercialisation of IP
 Which government programmes?
 Which donor programmes?
 Financing the commercialisation of IP is not
institutionalized in Banks and NBFIs
 CARMATEC, TIRDO, SUA has been supporting the
commercialisation
• SUA attempting to commercialize IP through franchising
37
3.6. IP commercialization – contd.
• Financing commercialisation of IP
 No government programmes?
 No donor programmes?
 Financing the commercialisation of IP is not
institutionalized in:
o In Banks
o In Non-Bank Financial Institutions (NBFIs)
38
3.6. IP commercialization – contd.
• Legal instruments for commercialisation
 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)?
39
3.6. IP commercialization – contd.
• Infrastructure for IP commercialisation
 Incubation programmes by SIDO, COSTECH (DAR ES
SALAAM TEKNOHAMA, CoET, TEMDO, CARMATEC)
 BUT: no adequate physical infrastructure in place?
 Soft-infrastructure (e.g., human resources, institutions,
policies) are also being put in place, particularly in
Zanzibar
40
3.6. IP commercialization – contd.
• Number of protected IP held by locals commercialized
 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)
41
3.6. IP commercialization – contd.
• Number of foreign-held IP commercialized locally
 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.
42
3.6. IP commercialization – contd.
• Existence of local promoters of creative arts
 Local promoters exist. Examples include:
o Msama Promotion
o FM Muta
o Benchmark
o Prime Time
o THT
o Lino Agency
• Existence of local producers of creative arts
 Local producers exist
o
o
o
o
o
Stepin entertainment
Game First Quality
Man Water
MJ Production
Motika Records
43
3.6. IP commercialization – contd.
• Existence of local
publishers
 Examples:
o Mkuki na Nyota
Publishers
o Muture Publishers
o DUP
o Nyambari Nyangwine
o KIUTA
• Existence of local distributors
 They exist
 They include both indigenous
and foreign affiliates
o Mamu Store
o Mabibo Wines.
o Umoja Audio East Africa Ltd.
o Steps Entertainment Ltd.
o Game First Quality
o MVC Hot Media
o Many unlicensed ones
(including marching
guys/Street Hawkers)
44
3.6. IP commercialization – conc.
• Existence of Internet Service Providers
 Several ISP exist in the country
 UCC
 Get data from TCRA
 Many others
• 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%
45
3.7. IP enforcement
• IP legislation
 See relevant section; institutions include:
o BRELA
o RGO
o Copyright Administrator Mainland
o Copyright Administrator Zanzibar
o Customs/TRA
o Police
o Judiciary
o FCC
o TFDA
o TBS
• IP dispute settlement panels
 Existing laws do not provide for such panels
46
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 Zanzibar
o Primary Court to Court of Appeal
• IP Tribunals
 IP matters handled by Trade Marks Tribunal (in BRELA)
 Fair Competition Tribunal (in FCC)
47
3.7. IP enforcement – contd.
• Education & training of Customs and Police officials
 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
48
3.7. IP enforcement – contd.
• 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
49
3.7. IP enforcement – contd.
• Border measures include:





..
..
…
...
...
50
3.7. IP enforcement – contd.
• Number of cases handled
 Many cases have been handled:
o
o
o
o
o
o
o
o
KIWI shoes polish
super match
Philips
Hitachi
Korie,
Elf
3M,
Phoenix bicycles
o
o
o
o
o
o
o
o
Poa (flour sembe)
Neelam
Chin Chin
Azam vs Azania
Expel vs Fly X,
Cofta v Cofex
Motox v Totox
Ndanda Spring Water
51
3.7. IP enforcement – conc.
• 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)
• Collective management organizations
 COSOTA
 COSOZA
52
4. FINDINGS: SUMMARY OF
CHALLENGES
53
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).
3. Lack of National IP Policy
• To provide guidelines on issue of IP ownership and benefit
sharing
• To provide guidelines on IP commercialization strategies
• MIT drafting one
6. Lack of NIPS
4. Limited enforcement capacities
54
5. Gaps in IP mainstreaming in other policies
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
• The flourishing of the IP economy is closely linked
with ‘industrial mode of production’
11. Weaknesses of the existing IP forum
55
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
• 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!
15. Challenge of ‘ever-greening’ of patents (example Aspirin,
Viagra, etc.)
56
16. Lack of data bases on protected IP products and IP products
in public domain
• TIPASIC being upgraded to become a TISC, and provide
pertinent services
17. Weak understanding of IP laws among stakeholders
18. Legal gap for protection of ICT
• Some protected as patents (but TZ patent act is too old
and does not protect ICT)
• Some protected as copyrights
19. Lack of IP policy at the level of most individual institutions
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)
57
5. FINDINGS: SUMMARY OF
RECOMMENDATIONS
58
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
3. Develop national NIPS
4. Develop national IP policy/policies
5. Strengthen national IP Forum
• Strengthen and transform IP Forum into Tanzania
Intellectual Property council (TIPC)
59
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
• Enhance mechanisms for raising IP awareness
• Enhance mechanisms for developing foundation IP
knowledge
• Institutionalise special outreach programme for
Journalists and media companies
60
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
61
14. Institutionalise the use of local experts to scrutinise and ascertain the
coherence of international agreements (bilateral, regional,
plurilaterla, and multilateral)
• Example: coherence of BIA , Economic Partnership
Agreement (EPA), AGOA, etc. with TRIPS agreement
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
62

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