Opinion

The “Status, revenue lost and importance of intellectual property laws in South Sudan.”

 The 21st century is credited and accorded the period for innovation, technological development and advancement as result of human knowledge that’s why world economic and technological super powers inter alia U.S.A, China, Russia and developing countries Brazil, North Korea, India and South Africa are advanced in science and technology not because they have the most intelligent population on earth but the protection and enforcement of intellectual property laws It’s on record that intellectual property a lone contributes trillion or billions of United States dollars to the Gross Domestic Products (GDP) of some countries for instance U.S.A telecommunications, entertainment, pharmaceuticals, food and agricultural industries contribute over 10.5 Trillion United States Dollars, Nigeria’s entertainment industry contributes over 7.5 Billion United States Dollars, China and India’s entertainment, pharmaceuticals and chemical industries contribute over 6.8 trillion United States dollars, South Africans beverages, wine and spirits industries contributes over 20 billion United States dollars However the same countries have lost billions of United States dollars as result of intellectual property theft and infringement through cyber, piracy and counterfeit. The world is worried and scared especially the U.S.A, France, Britain, South Korea of the threats from North Korea, Russia, China, Iran, Iraq, Libya and Pakistan because these countries possess the best modern Nuclear Technology Capabilities as result of vast investment in human creation in research, innovation and technological advancement 1a) Intellectual property (IP) refers to innovations or creation of human mind, and through which the owners of such intellect receive specific protection of those rights enabling them to have recognition and financial benefits for the creation while Intellectual property Rights (IPRs) connote the entitlements guaranteed by the law to the owners of the creations or inventions to have exclusive rights to use and the permission for others to use the creation or invention

  1. b) Intellectual Property Law (IPL) is that branch of legislation that helps in safe guiding, promotion, protection and enforcement of intellectual property rights for specific period of time or indefinitely and the cardinal principles of intellectual property rights (IPRs) gives owner the;

.Exclusively right to use the creations or the inventions .Prohibit others from the use of that creations or invention without permission, .Grant 3rd parties the right to use or permission to acquire the rights thereto  .Guarantees financial reward or benefits .Owner to use that right for a specific limited period of time or indefinitely .And the moral recognition of the owner Globally, continentally and regionally there are specific bodies, treaties, protocols and conventions that set required standards or principles for the protection and enforcement of intellectual property rights, World Intellectual Property Origination (WIPO)1967, Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs)1971, the Bern Convention 1971 for the protection of Literary and Artistic Work, Paris Convention 1967 for the protection of Industrial property, Rome Convention 1961 for the protection of performers, producers of phonograms and broadcasting organization,1989 Treaty in Respect to Integrated Circuits, International Convention for the Protection of New Varieties of Plant 1991, African Intellectual Property Organization (ARIPO)1976 for English speaking Countries, Organization Africaine de la propriete interlleuelle (OAPI) for French speaking Countries, Patent Cooperation treaty (PCT), Madrid Agreement 1984 and its protocol 2010 concerning international registration of marks among others The current international bodies or treaties governing and responsible for intellectual property rights are (WIPO)1967 and 1971(TRIPs) a treaty normally referred to as “Agreement on Trade Related Aspects of Intellectual Property Rights which does not provide for specific definition of intellectual property rights but its preamble recognize intellectual property rights as private rights, categorizing them in to two (A) Copy Right and Related Rights and (B) Industrial Property envisaged under Part 11, section 1 through section 7 as concept and entails intellectual property to include;”

(A)-Copy rights and Related rights Trade Marks Geographical indications Industrial Designs                                  

(B) Industrial property Patents Layout designs (Topographies) of integrated circuits The protection of undisclosed information And Control of Anti-competitive practices in contractual license and it prescribe adequate standards, minimum safeguard, protection and enforcement of intellectual property among member states and states flexibility in the application of the provisions of the agreement. And its surface to note that under article 2VIII of WIPO (1967) provides other categories of intellectual property to include scientific discoveries as recognition of phenomena, properties or laws of the material universe not hitherto recognized and capable of verification as illustrated under Article 1(i)(i) of the Geneva Treaty on the International Recording of Scientific Discoveries 1978 South Sudan is in accession and ratification period literally referred as Transitional Period (5years) upon its disposal of a statutory instrument for accession since 2011 to the Agreement on Trade Related Aspects of intellectual Property Rights (TRIPs), others include the World Trade Organization (WTO) 1995, World Intellectual Property Organisation (WIPO) 1974, African Intellectual Property Organization (ARIPO)1978, and its being a member state of the East African Community (EAC) of which under article 43 of the Protocol on Common Market encourages partners states to co-operate in the field of intellectual property by enacting laws and accession to  other intellectual property treaties The country’s significance of being signatory to the 1971 Agreement on Trade Related Aspects of intellectual Property Rights (TRIPS) “an international accord establishing uniform guidelines for intellectual property protection and enforcement among member states would play a pivotal role to the country’s socio-economic development, technological advancement and help to streamline the promulgation of its intellectual property laws” And also membership to other intellectual property regime especially the Bern Convention 1971 for the protection of Literary and Artistic Work, Paris Convention 1967 for the protection of Industrial Property, Rome Convention 1961 for the protection of performers, producers of phonograms and broadcasting organization, 1989 Treaty in Respect to Integrated Circuits and other intellectual property bodies could lead to; .Increase in Import and Export Trade, .Foreign Direct Investment (FDI), .Boosting trade and commerce .Technology transfer and diffusion hence leading to economic growth and development In Principle the Trips Agreement applies to all World Trade Organization (WTO) members though the country is still in transition period to the WTO and Trips as there are important flexible provisions and exceptions that member countries may use in the implementation of the agreement as it guarantees minimum standards, non-discrimination polices, enforcement and dispute settlement mechanism which the country may exploit for its benefits because of being signatory WTO and Trips The Republic of South Sudan is almost clocking a decade since its birth as nation in 2011 from Sudan, it does have its own specific history about intellectual property but it may share a remote history about its intellectual property with the Republic of Sudan and is the only country in East African Community which does not have intellectual property laws. However there are existence and continuity of creations or inventions by South Sudanese in the field of intellectual property as one of the ignored sector of the economy that could contribute Billions of United States Dollars to its economy, the history may be traced back in mid-2005-2011 when it ratified the Universal Declaration of Human Rights (1948) of which under article 27 “it provides the right to benefit from the production of moral, material interest resulting from authorship of any scientific, literally or artistic production” and the enactment of its related intellectual property laws from 2007 to 2015 The country has promulgated its own constitution, legislations, policies, procedures, rules and regulatory frame work and became member to international, continental and regional bodies or treaties, conventions and protocols AND since its independence until now it does not have intellectual property laws but under article 28 (1) of the 2011 South Sudan’s Transitional Constitution provides for “the right to own and acquire property” (the property refers herein as the intellectual property which is the intangible property) however under Article 198 of its 2011 Transitional Constitution provides “for the continuity of the laws of the Republic of Sudan” The country has related intellectual property laws inter alia, the Investment promotion Act 2009 as envisaged under section 35for the protection of intellectual property for the nationals and investors including trade mark, copy right and patent” which is the only law that has highlighted provisions for intellectual property rights in the country but the Investment Promotion Act  2019 does not cover other intellectual property rights including  provisions relating to Trade Secrets, Industrial Designs, Geographical indications and Layout designs (Topographies) of integrated circuits. Others include the Drug and Food Authority Act 2012, National Bureau of Standard Act 2012, South Sudan Research Council Act 2007, Consumer Protection Act 2011 and Import and Export Act 2012 which as all meant to safe guard, promote, provide minimum standards, protect and enforce the use, sale, manufacture, productions and consumption of inter alia food and agricultural products, drugs and chemicals, textiles and non-textile products, electronic, merchandise, investment in natural resources, oil and gas The Courts of South Sudan have entertained a limited number of cases on intellectual property rights from 2011 to 2018 and in judicial adjudication for any rights, claim, damages, compensation, breach or infringement of intellectual property rights only; Apply the intellectual property laws of Sudan as per article 198 of its 2011Transitional Constitution and intellectual property judicial precedents and cases because of the complete absences of intellectual property laws which are still “Bills” under consideration in the national legislative Assembly since its independence and the reliance on article 198 of its 2011 Transitional Constitution   The country rely, apply and use the draconian intellectual property laws of the Republic of Sudan, the Copyright and Neighboring Rights Protection Act of 1996 as amended 2013, Literacy and Artistic Works Act 2001, Trade Marks Act of 1969, Patent law 1971, Industrial Design law 1974 enacted in 1999, Seeds Act 1990, Antiquities Protection Law 1999, as others have been amended or repelled but these laws were promulgated, applied and used in accordance to the Sudan’s socio-economic policies and developmental strategies that may not be applicable and compatible with South Sudan’s socio-economic developmental polices and regulatory frame work  

  1. a) The constitutional body “Ministry of Justice and Constitutional Affairs” under the division of the registry of Companies, Association is the only body mandated and responsible for accepting applications, carrying out substantial examinations, registrations, licensing and issuing certificates among others to owners of intellectual property inter alia individuals either nationals or foreigners, cooperations, companies/firms or partners,
  2. However the registry stopped the procedures of filing, examinations, registrations, licensing and issuing of creators or inventors certificates because of the pending intellectual property bills but other intellectual property work for example “copy right and related rights do not need these procedures because such rights are automatic as long as the work created is original and expressed in any material form although the purpose of the procedures help in case of any claim or infringement of the owners work
  3. The division prohibits the formation of intellectual property Institutions, Societies, Associations, Agency or Centers that could provide substantial technical assistance in key government policies making, advice on strategic regulatory and procedural frame work, training and creating awareness and carrying out education about intellectual property system and expertise advice on the implications of the country’s membership to international, continental and regional intellectual property regimes
  • The argument raised by the Division of Registry of Companies, Association in regards to stopped and prohibition of activities in the field of intellectual Property may be lawful if construed in respect to the pending intellectual property bills because the bills are not laws but not legal in the sense that under article 198 of the 2011 Transitional Constitution of South Sudan provides for the continuity of the laws of the Republic of Sudan meaning that any intellectual property creator or inventor  may evoked this article in reference to the intellectual property laws of Sudan and any other similar intellectual property laws of Sudan for the procedures of filing, examinations, registrations, licensing and issuing of creators or inventors certificates and formation of intellectual property Institutions, Societies or Associations and  article 25 “the freedom of association and article 28 the right to own property” under the 2011 Transitional Constitution of South Sudan and section 35 of the South Sudan Investment and Promotion Act 2009 that provides for the protection of intellectual property for nationals and foreign investors for copy rights, trade mark and patent

 

  1. The delay of enacting intellectual property bills in to laws by the National Legislative Assembly and use, reliance on intellectual properties laws of Sudan may;

.Create legal challenges to the Judiciary of South Sudan because the Republic of Sudan has not enacted other intellectual property laws inter alia on Utility Models, Lay out Designs (topography) of integrated circuits, Scientific Discoveries or Works, Competition in Contractual Licenses, Undisclosed Competitive Information, Animal Breeders Rights Traditional Knowledge and Folklore, Geographical Indication and Appellation of Origin and is not also signatory to other intellectual property regimes inter which may include WIPO Performances and phonograms treaty(1996), Treaty on intellectual property in respect to Integrated Circuits (1989), Nice Agreement concerning the international classification of goods and services for the purpose of registration of marks 1957 among others .Affect the implementation of government policies, procedures, rules and regulatory frame work on intellectual property rights .Prevent the protection and enforcement of intellectual property rights, .Affect the country in terms of trade and commerce, . Limit Foreign Direct Investment (FDI), . Hinders Export and Import, .And hinders technological transfer and diffusion   The legal questions that are being tested ’’ Sudan is signatory to intellectual property bodies such as WIPO,1974, ARIPO, 1987, Beijing Treaty on Audiovisual Performance, Protocol relating to the Madrid Agreement concerning  International Registration of Marks 2010, Paris Convention for the protection of industrial property 1984 of which South Sudan isn’t signatory to any, Can South Sudanese intellectual creators or inventors for instance nationals, domiciled residents, national or subsidiary international companies, partners/firms evoke Article 198 of the 2011 South Sudan’s Transitional Constitution for any international, regional or national claim for protection and enforcement of their intellectual property rights? The general rule is to the effect that the country’s intellect creators or inventors shall be accorded protection and enforcement in case of any claim or infringement of their intellectual property rights at the international arena or nationally only if; -Internationally, South Sudan is signatory to any of the international or regional intellectual property bodies or treaties. However under international jurisprudenceInternational Treaties are considered to be part of laws that govern the relationship between or among member statesand since the Republic of Sudan is signatory to other international intellectual property bodies or treaties and from the liberal interpretation of article 198 of the 2011 South Sudan’s transitional constitution, and the application of international norms and customs, the creators or inventors from the country are bond by this provision because the country is bound by international intellectual property treaties signed by the Republic of Sudan Nationally, they can claim protection and infringement of their creations or inventions based  on the intellectual property laws of the Republic of Sudan as per article 198 of the 2011 South Sudan’s transitional constitution   Primary statistic have shown that since its birth as a nation the progress in the field of intellectual property regime is really wanting but there  are over 100 South Sudanese individuals and thousands of companies/firms who have continued to invest in the field of intellectual property; .Authors who have written hundreds of books, pamphlets and poems, .Artists and producers who have produced volumes of songs and movies, . Producers and presenters of broadcasting TV stations and radio channels, .Artists who have created paintings, drawing and sculpture works, .Existence of over 1,000 local and international companies or firms with unregistered trade mark or services marks .Presence of limited research institutions or universities on science, innovation and technology   The last survey from 2011-2018 indicated that South Sudan alone lost 90.5 million United States dollars due to; .The fight against counterfeiting and piracy by relevant authorities especially the police and custom authorities .Acquisition of patent right license or certificates from pharmaceutical, chemical, power  and energy, engineering, agricultural, mining, oil and gas companies or firms . Luck of donations, contribution from well-wishers and grants from international, continental and regional intellectual property organization or bodies, Trade and Commerce bodies and related companies/firms .Unregistered trade mark or service mark of companies, firms, partners, cooperations and organization .Absences of revenue from taxes and fees from enterprises, authors, artists and inventors .In the development of innovation, science and technology infrastructures .In the quest for development and promulgation of intellectual property laws, policies and regulatory frame work And 50.9 million United States dollars have been lost by the private sector inter alia by authors, artists, musicians, producers, trade mark and trade secrets owners, inventors due to intellectual property infringement through theft, piracy, counterfeiting and other forms of infringement Despite the huge challenges and absence of intellectual property laws artists, musicians, authors, producers, publishers, poetry, inventors and other owners of intellectual property have continued to create, invent intellectual property and have formed unions, societies, federation and associations to collectively work for the promotion, protection and implementation of their intellectual property rights within the country and beyond          

The table (A) below shows the percentage of registered number of owners of intellectual property rights in the Republic of South Sudan from 2011-2018.  

Table A                            

The table B below shows the percentage of intellectual property rights cases entertained by the Judiciary of the Republic of South Sudan from 2011-2018.

Table B    

                                           

Table C below shows the percentage of population level of knowledge or awareness about existence intellectual property in the country Table c    

                   

The presence of strong, flexible and stable intellectual property laws (IPL) are key pillars to socio-economic growth, prosperity, innovation and investment hence the importance of the IP laws in South Sudan inter alia;  

  1. The enforcement of intellectual property rights especially Anti-counterfeiting measures in pharmaceutical, electronics, food, chemicals and agricultural products exiting in the public domain gives the owner of the trade market to inform the police and customs authority to seize, detention or destruction of the counterfeit products, imposing of fine or imprisonment hence protecting the general public from the consumption or use of these fake/harmful products
  2. Help in the promotion and dissemination of national cultural heritage of the country for instance the productions on television and recordings on radios, songs by musicians, dance by choreograph groups, books and poem written, paintings, and drawings about the customs, cultural values and traditions of the country
  3. Encourage and foster technological transfer and diffusion domestically and internationally, the signed bilateral or multilateral treaties on oil and gas development, exploitation and production, road and power constructions agreements, mineral resources exploitation, these treaties result to technological transfer into the country and encourage technical research leading to technological innovation hence economic growth
  4. Encourage and promote the dissemination of educational knowledge or information about the country’s history, geography and the progress in science and technology based on the principle of fair use and fair dealing
  5. Create and promote employment opportunities as result of the established entertainment or literary industry, companies/firms that carry out research in the field of oil and gas, agriculture and health. In South Sudan it’s estimated that over 10,000 of the population are employed in such industries
  6. Geographical indication and Appellation of origin “the indication of the origin of goods from a territory/country or a specific locality within that territory” help the South Sudanese who are the end consumers/users of assurance of quality and their distinctiveness which may relate to the fact of its origin from that territory like wines, spirits from South Africa, Italy or China, electronics, vehicles made in Japan, South Korea and gargets made in china or Japan
  7. Enable pharmaceutical manufacturers to charge prices above marginal cost of production which may make the government to monitor and protect public health however because of the aim to protect IPRs of the manufacturers may hinder government’s ability to access affordable medications being restricted or no access to medicines at affordable prices because of import or export licenses for public heath drugs such as Malaria,TB and HIV/AIDS
  8. Enforcing intellectual property law provides high standards in guaranteeing the quality and safety of products consumed by the public because the public is aware about the origin of the products and their genuineness such as health drugs like malaria or typhoid tablets from India, East Africa, processed food and agricultural products or seeds from East Africa
  9. Encourage and promote the protection of the innovations of indigenous and local farming communities of the traditional farming methods/practices including the right to save, exchange seeds and the sale of their harvests encourage and protect local innovation
  10. The protection guaranteed by IPL to inventors encourage more technical research leading to new innovations in the field of public health disease for instance the current research for malaria vaccination, Ebola virus, ARVS for HIV/AIDS treatment and cure, TB, Plant varieties and animal breeders hence more invention in such fields
  11. The protection of Trade Secret “know-how” literally referred to as undisclosed information connoting commercial value, purposely kept as trade secret by the enterprise consisting of the information it has created to make and market its products or services, the methods undertaken to build its reputation and to communicate to the market the innovations of its products, enable the company to have excellent reputation, trust, confidence and good will from the end users
  12. Intellectual property category like inventions in climate technologies help companies or firms and the government to increasing invest in climate change technologies such as climate change mitigation, climate change adoption and climate renewable energy technologies and the stimulation of green revolution
  13. Industrial design referred to as aesthetic creations that determines the appearance or design of industrial products for example textiles and non- textiles, encourage and help the industry to exclude others from making, importing, selling, hiring or offering for sale in which the design is embodied and end users of such products to make informed choice in regards of the specific appearance of the products making the company or firm to improve the designs of its products in the market
  14. The Plant Varieties and Farmers Rights, sui generis system a Latin wording meaning “of its own kind “encourage and promote the development of new varieties of plants and protect the rights of farmers and breeders were the plants/animals meet the threshold of essential characteristic of (new, distinctiveness, uniformity and stability) for example grafting of trees, vines and breeding of animals
  15. The expiration period grated by the law to authors or innovators for the protection of their intellect for a specific period of time help individual and firms to vigorously continue to innovate in order to create continuity environment for their market success hence helps to control and prevent the use of the products by unauthorized users
  16. A trademark is used as a differential sign or a mark of one undertaking of an enterprise from undertaking of another enterprise which helps the enterprise to reach customers by avoiding confusion as the users are able to identify, differentiate and locate the specific products or services offered by the enterprise by looking or using the distinctive sign or mark inter alia Logotype, distinctive word, letter, shape of goods, packaging, numeral, drawing, picture, shape, color, sound, smell of the goods or services by the enterprises.
  17. Intellectual property rights like copy rights and relate rights help to encourage creativity hence is meant to safeguard, protect and reward creators of artistic and literally works in their respective creations for example an Author of a book, a Poet, musicians, designers, dramatists, architects, producers of sound recording, cinematographers, computer software developers, paintings, sculpture and as long as the creator is alive and 50 years after the death of the creator
  18. Help to encourage or stimulate domestic innovation and formation of well-functioning market system of which lead to sustainable economic growth in the country
  19. IP rights effectively operate as an exchange between society and inventors or creators, rewarding innovative and creative work while giving society the benefits of greater technological and artistic creation and diffusion for instance innovations on food and agricultural products helped to reduce food security
  20. Foster and encourage the development and continuity of Traditional Knowledge (TK) “which can be defined as a living body of knowledge passed on from generation to generation within specific community” as it constitute people’s culture and common spiritual identity such locally designed clothes and beads from animal skins, saddles made from car tyers, making traditional water pots among others
  21. The registration of the work deemed as intellectual property help the owner of the work to institute either civil or criminal suit for infringement if successful the owner may be entitled to injunction, damages, account for the profits, seizure order and delivery up the products which creates financial benefits to the owner

CONCLUSION;

The enactment of intellectual property laws and promulgations of efficient and effective policies, procedures, rules and regulatory frame work to support them would play a pivotal role in innovation, foreign direct investment, trade and commerce, employment, technological transfer and diffusion leading to socio-economic, cultural growth and development of the Republic of South Sudan   And the general recommendations to South Sudanese stakeholders inter alia; (a) Promulgation of intellectual property legislations, procedures, rules and regulations that promote, protect and enforce intellectual property rights which are in the best interest of the country and are flexible, strong and compatible with other regional, continental and international intellectual property regime that will lead to socio-economic, cultural benefits and innovation (b)Designing of specific sustainable policies and strategies that aims to strengthen, promote and encourage the use of intellectual property for Trade, Foreign Direct Investment (FDI), innovation and technology that can lead to economic growth and technological development,  (c)  Allocation of timely and sufficient funds for the sector, (d)Encouraging the formation of intellectual property associations, union or societies (e)Training of human resource (constitutional state holders and private sector) for efficient implementation of intellectual property legislations, policies, procedures and regulatory frame work, (f) More creation, development and improvement of the existing science and technology institutions or universities     Complied by Hon. Boboya Emmanuel. E Lawyer, Senior Advocate, legal Advisor and expert on intellectual property laws, At Juba Legal services. dukemms24@gmail.com, Juba, South Sudan.      

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