In the current world, knowledge and skills are key factors that enable economic and
technological growth where innovation occupies a considerable place and plays an important role in enhancing progress. And Intellectual Property Rights allow creative minds behind their innovations and works to benefit from their own work or investment in a creation. A proper and efficient Intellectual property system is nowadays an important component in a country’s social, economic and cultural development. But in order to have these benefits, a proper Intellectual Property system is required, based on an appropriate policy mix that balances the often-competing interests of the producers/creators on the one hand and consumers on the other hand. In other words, each nation must find the right mix of policies to mobilize the innate innovative and creative potential of its economy which is not the case for the African countries including Mauritius, for instance, as it seems to be still a challenge that faces the policy makers.
Why so, one would ask? Well, according to some IP jurists and lawyers, such a challenge is due to the fact that the actual IP structure of the African countries including Mauritius has been inherited by the former colonies. During the colonial period, as a general rule, the colonial powers extended the application of their IP laws to their colonies in Africa, unless otherwise prescribed. (1) There were several systems of governance of the colonies, in terms of both administration and legal structure but the extension of application of the British, the French, the Spanish and the Portuguese IP laws – that is their national copyright laws – to their colonies, were each designed to serve the interests of the colonial powers, and to facilitate commerce or trade between the metropolitan and the colony.
Consequently, the Spanish Copyright Law of 1847; the British copyright law of 1911 and 1956; the French Copyright Laws of 1791, 1797 and 1957; and the Belgian Copyright Law of 1886, were deemed unless otherwise provided, to be mutatis mutandis of the copyright laws of their colonies. After independence, the newly independent African countries were faced with new challenges to design new IP laws applicable in their territories that would correspond to their needs, priorities and interests. Former colonies had to opt either for the continued application of those treaties in their territories or its denunciation. But most of the African countries accepted the continued application by acceding to these treaties. In other words, the vestiges of the colonial influences remained in many of the African countries’ legal systems that do not really place the nation’s conditions and developmental aspirations centre stage that can advance properly the African continent’s public interest.
The same observation can be applied for Mauritius. Regarding our beloved country, the Intellectual property has long been governed by the Patent Act (R/L 4/135) of 22 May 1875; The Trademarks Act (R/L 5/476) of 1 November 1868 and the Copyright Act of 1997 (as amended).(2) Today the framework established for the protection of intellectual property rights in Mauritius consists of five pieces of legislation namely Patent, Industrial Designs and Trademark Act 2002 (PIDTA), the Protection Against Unfair Practice Act 2002 (PAUP); the Layout Designs (Topographies) of Integrated Circuit Act 2002 (Layout Designs Act); the Geographical Indications Act 2002 (GI Act); and the Copyright Act 2014 (Copyright Act).(3) These pieces of Intellectual Property laws are the mains IP legislations that were introduced and enacted by the legislature – besides the IP related laws such as the Data Protection Act (2004) and the Protection Against Unfair Practices (Industrial Property Rights) Act 2002 – in an endeavour to ensure that the Industrial property laws of Mauritius were conformable with the international norms laid down by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). But the major question that should be asked is whether our IP laws are fairly beneficial for the country and whether they have been fully developed with the national public interest at its core?
Mauritius has a great sense of innovation and creativity and has extraordinary creative resources but has often struggled to realise its full economic, social and human development potential. One relevant example is the constant debates, arguments and disagreements between the Mauritius Society of Authors (MASA) – a statutory body established under the Copyright Act – and the Ministry of Arts and Culture under which falls the responsibility of the administration of copyright and related rights. While the MASA’s objective is to look after the interests of its members that is the copyright owners or exclusive licensees, it should be reminded that until now, there hasn’t been a proper equilibrium between the interests of our local creators and the public at large – a balance which would have provided an environment in which creativity and invention could flourish for the benefit of all. Meanwhile, a Status of Artist Bill which was announced in the budget 2016 -2017 is actually in the pipeline – a legal initiative launched with the support of UNESCO which defines and professionalises the status of artists in Mauritius, as well as improving their economic and social working conditions while recognising their role in the sustainable development of Mauritius. Cross fingers, let’s just hope that this piece of legislation will, as expected, properly address the socio-economic rights of our artists while legitimising their status in society and the economic market as well as regulate the environment in which they work.
On this World Intellectual Property Day, it is essential to step back and have a look at the overall picture. We are today on the cusp of something new and exciting. And it seems that Mauritius as well as most of the African countries still has a lot to do to catch up. If we refer to the Global Innovation index of 2017 which measures and analyses the innovation performance of 127 economies, Mauritius is ranked at the 64th place after the Former Yugoslav Republic of Macedonia, Serbia and Panama. In the global knowledge economy, it is clear that innovation, creativity and Intellectual property hold far reaching promise for spurring economic growth, trade and employment in countries at all stages of development. According to Francis Gurry, Director General of the World Intellectual Property Organisation (WIPO): “Today, the intellectual component of production is far greater that in the past and IP is an indispensable mechanism for translating that knowhow into a tradable commercial asset and capturing the competitive advantage that it represents.” (4) So, let’s get cracking!
In 2018, it is critical as well for our country to consider the relevance and importance of the human development aspect as part of the intellectual property’s objectives. The concept of human development is a flexible term that has evolved over the past 25 years according to Pr. Sabina Alkire, director of the Oxford University’s Poverty and Human Development Initiative. Its approach is today as relevant as ever in analysing and formulating policies and actions to improve people’s well-being by ensuring a sustainable, equitable and stable world. “The People are the real wealth of a nation and human development is all about enlarging their choices” was the statement of the first Human Development Report which was launched on 24 May 1990 in London. This means that improving the human condition is an end goal that should be a factor in a country’s policy and obligations.(5) Since the 1990s, human development reports for instance have inspired world progress through ground-breaking research and innovative measurement. These reports are still key part of Africa’s broader contribution towards creating a world in which no one is left behind, where all have equal opportunity to prosper and a world where we show respect for our environment. It is true to say that human development matters for every nation. However, it should be a priority for Mauritius as well as for other African nations.
Innovation is like an ice cream with multiple flavours, and Intellectual property is one of those flavours that may influence the taste. A proper IP system establishing a secure legal framework for investment in – and commercialisation of – innovation and creativity, enabling firms, including innovative start-ups, to navigate the perilous process of transforming an idea into a commercially viable product and to compete with success in the global market place is necessary while safeguarding the public interest. As such, Intellectual Property is a key factor in creating an environment in which innovation and creativity can flourish and generate future growth and prosperity. It is not only desirable but essential to revamp properly and accordingly our Intellectual Property laws towards a Mauritian-centric infrastructure and truly-development oriented.
(1) Tshimanga Kongolo, “History of intellectual property in Africa” (2017) European Intellectual Property Review
(2) Mauritius Research Council, “Basics of Intellectual Property Rights” (2003) http://www.mrc.org.mu/English/Documents/Basics%20of%20Intellectual%20Propert%20Rights.pdf
(3) WIPO Lex – Mauritius Country Profile (2018) Available at: http://www.wipo.int/wipolex/en/profile.jsp?code=MU
(4) WIPO Magazine, “Intellectual Property for an emerging Africa” (October 2015) Available at: http://www.wipo.int/wipo_magazine/en/2015/si/article_0001.html
(5) JanewaOsei-Tutu, “Intellectual Property for Human Development” (2016) 105 Ky. L.J. (forthcoming)