Implementation of trips public health flexibilities in the African Intellectual Property Organisation (OAPI) region : problems and prospects

Abstract

Countries that are members of the African Intellectual Property Organisation (OAPI) are facing many problems with regard to facilitating access to medicines in their respective territories. These problems have been caused by both internal and external factors. Central to these problems have been the perceived inability and unwillingness of OAPI to put in place a regional intellectual property (IP) framework conducive to the promotion and protection of access to medicines. This has been an unwelcome development, not least because neither OAPI members that are least-developed countries (LDC)s, nor those that are developing countries, have taken full advantage of the flexibilities negotiated within the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This unfavourable development is neither justifiable nor sustainable, especially at a time when many African countries (non-OAPI members) are in the forefront of protecting access to medicines through law reforms. This thesis traces the origins of OAPI from its inception in 1962 to the present. It looks, in particular, at the successive OAPI patent regimes and discusses their impact on access to medicines. The overall conclusion drawn is that successive amendments to the initial agreement have strengthened patent rights. This in turn has stymied access to medicine initiatives in the OAPI region because it has, for instance, limited the use of compulsory licences. However, it is submitted that the current situation can be changed through a combination of policy initiatives, including using a human rights approach to access to medicines; getting non-governmental organisations (NGOs) involved and, above all, reforming the entire patent regime under the Bangui Agreement.