- 1. Issue
- 2. Background
- 3. Vision, mission and objectives
- 4. Analysis
- 5. Preferred Option
- The preferred option for this policy can be broadly split into two key areas: IPR administration and IPR enforcement. The former should be undertaken largely by RDB, while the latter will involve the use of the Customs Office, Police and the Commercial Courts. This should be overseen by the new multi-stakeholder body, the Rwanda Development and Intellectual Property Forum (RDIPF).
- 5.1 IP administration
- 5.2. IP enforcement
- 6. Stakeholders’ views
- 7. Implementation plan
- 7.1 Institutional Development and Coordination Framework
- 7.2 National Legislative Implementation and Review
- 7.3 Strategies for Participation in International IP Negotiations and Organisations
- 7.4 Needs-based and Coordinated Technical Assistance and Capacity Building
- 7.5 Impact Assessment and Periodic Policy Review
- 8. Financial implications
- 9. Legal implications
- 10. Impact on business
- 11. Impact on equality, unity and reconciliation
- 12. Handling plan (communication plan)
- Annex A: Membership of the Rwanda Development and Intellectual Property Forum
- Annex B: Implementation framework
REPUBLIC OF RWANDA
MINISTRY OF TRADE AND INDUSTRY
Rwanda Intellectual Property Policy
Kigali, November 2009
Table of Contents
In the present age of globalisation, information has become more mobile and more vital than ever before. Information is the lifeblood of development, the lifeblood of technology, of products and services, of Government, and of business. Information is value. It is therefore increasingly important that information is codified and that its value is recognised. Intellectual property defines the limits under which information in the form of creations and innovations can be owned and how it can be transferred.
For a low-income country such as Rwanda, the extent of growth in the medium and long-term will be determined by how our people access and utilise information, how technologies from abroad that suit the needs of our economy are accessed, and how we innovate and create value within Rwanda. It is therefore vital that Rwanda has a functioning intellectual property system, to allow people to realise the full value of their creations, and to allow them to access the creations of others.
In an economy based more and more on knowledge and technology, industrial and technical innovation will be fundamental to the improvement of citizens’ social and economic conditions. Industrial and technological innovation enables productivity to be strengthened, new industries and new job opportunities to be created, as well as strengthening the competitiveness of national companies on global markets. Industrial property protection also creates a framework for cooperation between universities, research institutions and industry, and promotes the transfer of technologies to productive sectors.
This Policy is intended to encourage technical innovation, and to promote the industrial and commercial use of technical inventions and innovations so as to contribute to the social, economic, industrial and technological development of the country. The grant of exclusive rights to technical inventions and innovations is a means, for the State of Rwanda to recognise the merits of individuals and companies that make a remarkable contribution to the country’s economic and technological progress.
Intellectual property rights (IPRs) are the rights given to persons over their creative ideas, usually giving the creator an exclusive right over the use of their creation for a certain period of time. They cover a broad range of legal rules that govern and regulate the ownership, use and transfer of the subject matter that is protected 1 , including: copyright and related rights (i.e. the rights of performers, producers of sound recordings, broadcasting organisations and for architectural designs); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data. As Box 1.1 shows 2 , although an abstract concept, intellectual property is more widespread than one might imagine. For example, a simple jar of coffee can contain a number of elements of intellectual property – from the contents, to the shape of the jar, to the branding and colours used on the labelling – the producer, in this case Nestle, is protected in a number of ways from the potential of other firms duplicating its designs.
1 http://www.wto.org/english/tratop_E/TRIPS_e/intel2_e.htm
2 Gowers Review of Intellectual Property, HM Treasury, United Kingdom, December 2006
3 Source: MINICOM
4 Hoekman, Maskus and Saggi (2004) “Transfer of Technology to Developing Countries: Unilateral and Multilateral Policy Options” Working Paper PEC2004-0003, Institute of Behavioral Science, University of Colorado at Boulder
5 Ibid.
6 The whole of Part III of the TRIPS Agreement, containing 21 articles out of the Agreement’s 72 articles, relates to enforcement.
7 See the Preamble to the TRIPS Agreement, para 4.
8 See para 2(c) of the Preamble to the TRIPS Agreement.
9 Article 1.1 of the TRIPS Agreement.
10 Why we study intellectual property rights and what we have learned. Carsten Fink and Keith E. Maskus. 2005.
The rationale for having rights over ideas and their use is to create and retain incentives for creation. For example for patents, firms investing substantial resources in research and development (R&D) to come up with new ideas for their products and production processes – whether drugs, computer software or machinery – expect a return on this investment. If they had no rights over these new ideas, other firms could quickly copy and exploit them for profitable advantage. Firms that come up with ideas would therefore have no incentive to have done so in the first place.
The rationale for IPRs is similar in the area of copyright. Performers, artists and broadcasters need to retain incentives to create original ideas and to benefit from them. Without these incentives, the cultural output of these individuals may be significantly lower leaving the whole of society poorer as a result.
While rights must be protected, the optimal time period for this should be finite. Since for the greater good and the improvement of public welfare, the ideas produced may need to be widely available in order for science, technology and commerce to progress and create new wealth. The finite period of patent protection is usually set somewhere between five and twenty years, while protection for copyrights such as for a novel or song can last up to fifty years.
The ideal IPR system creates incentives for firms to innovate, without limiting access for consumers and follow-on innovators. It must attain the right balance in a world that is rapidly changing so that innovators can invest in their own ideas and creations, while benefiting by “standing on the shoulders of giants” in the form of the ideas of others.
The IP Policy and Law have been developed in the context of international agreements on intellectual property – in particular, the World Intellectual Property Organization (WIPO) and the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which provide guidelines for unifying countries’ policies on IPRs and are the broad framework within which countries discuss and resolve disputes around IPRs.
Rwanda acceded to the Convention establishing the World Intellectual Property Organisation (WIPO) in 1983, as well as the Paris Convention for the Protection of Industrial Property and the Bern Convention for the Protection of Literary and Artistic Works, in the same year. These conventions were brought under the WTO’s TRIPS Agreement in the 1986-1994 Uruguay Round. In 1996, Rwanda acceded to the WTO and has therefore been subject to the TRIPS Agreement ever since.
The TRIPS Agreement was introduced to narrow the gaps in the way IPRs are protected around the world, and to bring them under common international rules. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. When there are trade disputes over IPRs, the WTO’s dispute settlement system is a means of resolving them.
The Agreement is based on the basic principles of non-discrimination: national treatment (treating one’s own nationals and foreigners equally), and most-favoured-nation treatment (equal treatment for nationals of all trading partners in the WTO). National treatment is also a key principle in other intellectual property agreements outside the WTO.
The TRIPS Agreement has an additional important principle: intellectual property protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced. Rwanda’s IP Policy must comply with the TRIPS Agreement, but should also use its exceptions intelligently.
Beyond treaty membership, Rwanda has been a participant in WIPO, and particularly, in the negotiations at Council for TRIPS at the WTO. This has included a leadership role as the coordinating country for LDCs during the negotiations for the extension of the transition period for LDCs to implement the TRIPS Agreement. At the regional level, Rwanda is an observer to the ARIPO and there are plans for the country to become a full member. Also notable at the regional level is Rwanda participation in the European Communities (EC) and the EAC economic partnership agreements (EPAs) where IP issues are being discussed.
Rwanda has had some form of IP framework since the colonial times. The policy and legal environment has continued to evolve since then, with incremental changes being introduced over time. The lead agency for policy-making and legislative development on IP in Rwanda is MINICOM except with respect to copyright where the lead agency is MINISPOC. Until mid-2008, a few staff at MINICOM were responsible for all IP policy and legislative work, as well as IP administration. At MINISPOC, which deals with copyright matters, there is also limited staff time dedicated to copyright. With the creation of the RDB and its takeover of IP administration, there will be some staff time freed at MINICOM and the MINISPOC to focus on policy-making, policy implementation and monitoring.
While there has been some use, the level of use of existing system remains quite low. For example, since independence only 114 patents have been issued. Table 1 below provides the figures with respect to patents, trademarks and industrial designs showing grants to both nationals and foreigners.
Table 1: Industrial Property Grants in Rwanda since Independence 3 Patents Trademarks Industrial Designs Nationals 2 875 14 Foreigners 112 5430 15 Total 114 6025 29
IP administration has now been moved to RDB as part of on-going legal and commercial reforms aimed at facilitating business entry and commercial activities. In addition to IP administration, RDB is also responsible for registration and administration of matters related to companies and secured transactions, among others. At the moment, the IP administration system, which all remains manual, is being set up with two new legal officers just recruited.
Currently, RDB does not have capacity for patent examination and considering the size of the country and rate of application for IP titles the office does not intend to become an examining office. Rather, the vision is for Rwanda to join ARIPO and rely on the examination capacity there.
The new IP Law includes extensive provisions on enforcement and provides a range of powers to the judiciary and special tribunals, the police and customs authorities to address IP enforcement. The law also seeks to provide safeguards for third parties in line with the TRIPS principles. The promulgation of the new policy and law also coincides with the inauguration of the Commercial Court branch of the High Court of Rwanda under whose jurisdiction IP issues fall. These are particularly important developments for Rwanda. The reason is that while there are increasing complaints regarding counterfeiting, there is very limited technical and human capacity to address claims of infringement within the police and the customs department. For example, currently the customs department has no capacity to distinguish counterfeit products and relies wholly on the World Customs Organisation (WCO) Regional Intelligence Liaison Office (RILO) based in Nairobi for detection.
Within industry, while counterfeiting was cited as a problem, it did not appear to be an extreme case. So far, there have been very few cases relating to IP infringement. Since the creation of the Commercial High Court in May 2008 no IP cases have been brought before them. The situation may soon change, however, especially with the new IP law. During the interviews for the needs assessment exercise, the low level of IP cases previously was attributed to the level of damages payable for infringement and lack of awareness. In criminal cases, the lack of testing and detection ability meant that it was difficult to surmount the requirements of proof in court. Beyond the national concerns, another key concern highlighted in the interviews was the impact of Rwanda’s entry into the EAC market. Anecdotal evidence suggests that the country is facing increasingly complex cases and that Rwanda exporters have to deal with issues of infringement, particularly with respect to trademarks in other EAC countries.
Rwanda, with its low human development and per capita income has, as a corollary, a weak foundation of science, technology and innovation (STI). This is a challenge that is faced by many other countries in a similar economic situation. The country faces significant economic and structural limitations arising from heavy reliance on certain commodities, limited physical and communications infrastructure as well as institutional limitations.
From an innovation perspective, there are also a number of specific characteristics of the system in Rwanda. These characteristics include: A weak innovation system with few resources devoted to innovative activities both in the public and private sector. A system dominated by minor and/or incremental innovations. The government having a major role in research and development (R&D) execution and funding. Significant levels of instability because firms are micro or small with macro-economic uncertainty limiting long-term innovative activity. Heavy reliance on informal practice that may be favourable for innovation but does not lead to systemic application. Government science and technology policies and programmes having a larger impact on innovation than activities and strategies in the private sector. The dominance of externally controlled firms in high value sectors meaning that local enterprises have less decision-making powers related to innovation. Rwanda’s National STI Policy, which takes into account this context, has the principal objective of ‘Integrating science, technology, scientific research and innovation in a framework that shall include capability building, technical transfer initiatives and the promotion of innovation, in the context of issues facing Rwanda.’ The specific objectives and strategies consist of: Knowledge acquisition – reinforce science and technology teaching and resources at all levels of education. Knowledge creation – invest in training and development of international partnerships and equipping research institutions. Knowledge transfer – linking research and technology development to industry, economy and community. Innovation culture – establishing business enterprises centres and district innovation centres. Efforts are already underway to implement this policy. In particular, the Centre for Innovation and Technology Transfer (CITT) has been established, public expenditure for science laboratories increased, and programmes on ICT introduced in universities. The government is also introducing and restructuring technical and vocational education and training, and increasing enrolment and graduation from primary to higher levels of education. The number of agricultural research centres are also planned to increase from five to eight by 2012 supported by increasing numbers of researchers and technicians.
In order to alleviate the infrastructural challenges and support private sector development, the government has prioritised transport, energy, habitat, ICT and meteorology. Finally, in collaboration with the World Bank, the country has adopted a two-stage programme for knowledge transfer: needs assessments and action plans followed by financing and implementing the action plan outlined in the needs assessments. The programme focuses on priority areas, including agricultural productivity, geothermal energy and geosciences, appropriate technology, food processing and food technology, clean drinking water and sanitation, and bio-fuels.
The vision of Rwanda’s Intellectual Property (IP) Policy is:
“An environment in which the Rwandan sectors of business, Government and culture, create ideas and innovations that are protected in a way that ensures the greater prosperity of the Rwandan people, while making optimal use of international technologies to promote growth and productivity for the whole Rwandan nation.”
The mission of Rwanda’s Intellectual Property (IP) Policy is:
“To ensure that national IP laws, institutional practices and strategies in public research institutions and industry are developed and implemented in a manner that contributes to building Rwanda’s technological base and cultural industries and that advancements in science and technology benefit society.”
In the context of the existing low educational, institutional and technological base, the focus should be on how to promote technological learning, adaptation and diffusion as well as recognising the contribution of traditional knowledge to the socio-economic wellbeing of the country’s population.
An effective IP Policy is one which recognises the differences in the rationale and need for different categories of IPRs and the sectoral impacts of the various rights and which seeks to strike the correct balance between: providing incentives/inducement for innovation and creativity and availability and access to the fruits of science, technology and innovation (STI); protection and enforcement of IPRs and the need for technological diffusion to support further innovation; and national development interests and the interests of foreign trading, development and strategic partners and investors. This IP Policy is an instrument to direct the country’s efforts to facilitate absorption, adaptation, and assimilation of existing scientific and technological advances while ensuring that the technological, economic and social structures in the country incorporate built-in inducement and capacity to generate new knowledge, technologies and cultural creativity in accordance with the country’s developmental needs.
The IP Policy is aimed at providing guidance and a road map to ensure that the IP laws, practices and strategies in Rwanda support and facilitate the achievement of the country’s high-level vision and targets. For Rwanda, the key is to facilitate technological learning. To do this requires a conducive national and international environment. Consequently, this IP Policy is predicated on six interrelated objectives. These are: 1. Issue
2. Background
2.1 Rationale for intellectual property
2.2 The international context: WIPO & TRIPS Agreement
2.3 The Rwandan context: IP administration
2.4 The Rwandan context: IP enforcement
2.5 Science, technology and innovation: context and indicators
3. Vision, mission and objectives
3.1 Vision and mission of the Intellectual Property Policy
3.2 Objectives of the Intellectual Property Policy