Applicability of the Law on Intellectual Property in Uganda : Challenges and Opportunities.

By Ibrahim Batambuze 
Abstract

This research paper is dealt with in 3 parts. Part 1 deals with the concept of the Intellectual Property Law in Uganda generally, including it's concept, nature and meaning generally, analysis of patents in the Ugandan perspective especially on the enforcement of intellectual property rights. Part 2 focuses on the issue of challenges faced in the enforcement of intellectual property rights in Uganda. Finally, part 3 attempts to offer some concluding observations and thoughts on the way forward.

Key words: Intellectual Property, Intellectual Property Rights, Patents, Enforcement, Challenges, Opportunities, Way forward.

Part 1

1.0 Introduction

Is it not possible to start by posing a philosophical question, what is Intellectual Property Law? This is of course bound to pop up somewhere. Once i have answered the question, i shall be in a better position to discuss what is entailed in that jurisprudence, how the main actors for example local and international legal personalities, have dealt with the subject. I will alter examine the resultant social-legal challenges in the Ugandan perspective.

1.1 The Meaning and Concept of Intellectual Property Generally

The term Intellectual Property (IP), is defined as one’s idea, invention or process that is derived from one’s mind or intellect.¹ IP therefore, is the kind of property that results from fruits of mental labour.²

It can be presented from two perspectives: industrial property on the one hand, consisting of inventions (patents), brands, industrial drawings and designs, and geographic indications; and copyright on the other hand, comprising of literary and artistic works such as novels, poems and plays, films, musical compositions and art works composed of drawings, paintings, photographs and sculptures, as well as architectural creations.³

1.2 History and Background of IP in Uganda.

The recent history on the development of the National IP legal and institutional framework in Uganda has been adventurous. In 1962 after Independence, Uganda inherited the then existing British IP system.⁴ However beginning from 1990, there has been significant changes in IP legal system due to Uganda becoming a signatory to International obligations.

In April 1994,Uganda signed the agreement establishing WTO and ratified the same in October 1994. Through trade-related aspects of intellectual property rights (TRIPS), Uganda is supposed to make sure that all her laws are in conformity with her international obligations.

1.3 What laws govern Intellectual Property in Uganda?

The laws that govern intellectual property in Uganda listed below are:

• The Industrial Properties Act, 2013.
• The Copyright and Neigbouring Rights Act No. 6 of 2006
• The Copyrights and Neighbouring Right Regulations, S.I No. 1 of 2010.
• The Trademarks Act No. 17 of 2010.
• The United Kingdom Designs (Protection) Act Cap 218.
• The Trade Secrets Protection Act, 2009.
  1.4 Administration of Intellectual Property Rights in Uganda.
  Besides the international obligations, Uganda has set up some structures to effectively see the implementation of TRIP and in Uganda,it is only the High court which has jurisdiction to hear cases on patents, copyrights and Trade Marks.⁵
  On the other hand, The Uganda Registration Services Bureau⁶, is responsible for administering Intellectual property rights, namely patents, trademarks, industrial designs and copyrights. It is also responsible for the registration of births, deaths, marriages and businesses.

Why the need for protecting and promoting Intellectual Property in Uganda?

• It is both just and appropriate that a person putting in work and effort into an intellectual property creation has some benefit as a result of his/her endeavours.
• By giving protection to intellectual property many such endeavours are encouraged and industries based on such work can grow, as people realise that such work brings financial return.
• Intellectual property rights may also help to extend protection to such things as the unwritten and unrecorded cultural expression of many developing countries, generally known as folklore. With such protection they may be exploited to the benefit of the country and cultures of origin.
• Intellectual property rights provide incentive towards various creative endeavours of the mind by offering protection.
• Intellectual property rights give such creators official recognition.
• Intellectual property rights facilitate the growth of both domestic industry or culture, and international trade, and economic development.

2.0 Patent Law in Uganda

A patent is a is a statutory monopoly granted by the Patent Office on behalf of the state which allows the proprietor of the patent to stop others from exploiting the underlying principle of an invention.⁷ In particular, a patent comprises a written patent specification document that sets out the scope of protection being claimed by a patentee with respect to an invention.⁸ In terms of the Industrial Properties Act 2013, a patent may be granted for any new invention that involves an inventive step and that is capable of being used or applied in trade or industry or agriculture.⁹

An invention on the other hand, may be defined as a new solution to a technical problem.¹⁰ The aim of a patent system is to encourage economic and technological development by rewarding intellectual creativity. Example of inventions: electric iron, safety pin, ball point pen, telephone, etc

2.1 What can be patented?

In order to be patentable, an invention must be novel, it must involve an inventive step, and it must not be prohibited subject matter.¹¹ Each of these requirements will be discussed in more detail further below.

Novelty
An invention is new if it does not form part of the state of the art before the priority date of the invention.¹² The state of the art comprises all matter (whether a product, a process, information about either, or anything else) which has been made available to the public by written or oral description, by use or in any other way. However, disclosure made on a confidential basis does not destroy an invention’s novelty, but such a disclosure must be done with caution.
Inventiveness
An invention is deemed to involve an inventive step if it is not obvious to a person skilled in the art to which the invention relates, having regard (with certain exceptions) to any matter, which forms part of the state of the art immediately before the priority date of the invention.¹³
Prohibited subject matter
The Industrial Properties Act, 2013 provides that the following do not comprise inventions for the purposes of the Act: a discovery; a scientific theory; a mathematical method; a literary, dramatic, musical or artistic work or any other aesthetic creation; a scheme, rule or method for performing a mental act, playing a game, or doing business; a program for a computer; or the presentation of information. treatment of the human or animal body by surgery or therapy or of diagnosis practiced on the human or animal body.
3.0 Challenges to protection of patents in Uganda.
Uganda like many countries in Africa, protection of Intellectual Property(IP) is still patchy or undeveloped, and many innovators are put off by the onerous and expensive affair of registering their products due to a number of reasons. That explained alongside Political instability, Poor leadership, Lack of advanced technology, Low level of education and infrastructure hinder patent development in Uganda and Africa in general and are explained in detail below.
Absence of strong Intellectual Property Laws

At the moment, there is no specific/concrete national policy on intellectual property rights in Uganda.14 What could be referred to as the national policy may only be construed from the various pieces of legislation (both substantive and subsidiary legislation) that are currently in the statute books as well as from the various policy statements that have been uttered by various government officials in this regard.15 In addition, part of the policy pertaining to IP rights may be, by implication, read in international conventions and treaties to which Uganda is a signatory, like the TRIPS agreement.
Lack of awareness of the existing law

One problem facing Africa's 54 countries (or more, depending on how you count countries and which ones you recognize) is that it is difficult to obtain information as to what the law is and how it works.¹⁶ Most African countries have very small IP professions, which means that there is little or no economic incentive for any publisher to assume the financial burden of launching and selling specialist law journals, law reports, and practitioners' reference works.¹⁷ For the insider, this means an increased degree of reliance on one's own personal knowledge and experience, and of reliance on the assistance of one's closest colleagues; for the outsider it means that advice relating to the filing of a patent, cannot be found without making personal contact with an expert in the country or countries concerned. It also means that, where the same question is asked of several practitioners in the same jurisdiction, their answers are different not because they each analyse the application of the law to a set of facts in a different way but because they often seem to hold different pieces of their country's legal jigsaw in their hands.

Low interest in Intellectual Property

A further problem is that the general level of interest and excitement regarding IP rights which is found in Uganda is low. In many countries where IP is seen as an imported commodity that must be paid for, with consequences for their balance of payments, and where local need (in the case of patented health care products) or demand (in the case of branded fashion items and consumer goods) runs higher than the ability to pay for it, it is easy to see why local resentment of foreign IP runs high as well.¹⁸ Hence in a country where problems of internal security, external threats, environmental disaster, and demographic instability are so great that IP is viewed as a distraction from the immediate concern for survival.

3.2 Way forward

Effective enjoyment and management of Intellectual Property Rights stands on strong enforcement mechanisms. Without such mechanisms, there can never be any orderly IP system not only within specific local jurisdictions but also globally in terms of harmonization.¹⁹

Appreciating IP in our local perspective

The state of affairs concerning IP and Patents in Uganda and Africa in general has not been fully studied, and there is a need for more comprehensive work to identify trends, gaps, successes and challenges with a view to making informed decisions in the future. Extending the period of TRIPS implementation is just one step in addressing the unique challenges of LDCs in Africa. Above all, there is a need to address the underlying issues beyond the extension, such as helping LDCs to build their technological base and better integrate IP and development, rather than focusing exclusively on mere implementation and compliance issues under TRIPS.

Sensitization of the law.

Many innovators in Uganda, think that the existing laws are not favorable and some are not aware of them. Despite a wave of technological innovation washing over the continent, many inventors are working in secret, doing without peer feedback for fear of having their ideas pinched by copycats. For this reason, some are waiting for the revised laws to assert their rights.²⁰ Consequently, the responsible bodies should carry out a robust sensitization job to make IP right owners aware of the opportunities arising out of innovation especially Uganda which is still a developing country.

Getting enough IP experts

A number of provisions in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) encourage the establishment of such a technological base and commitment of developed countries to provide incentive to institution, firms to promote transfer of technology to Low Developed Countries (LDCs).

However, the discussions on LDCs in general and their conformity with TRIPS has several gaps, one of which is the lack of information on the practical situation on the ground, as well as the precise legal status of countries concerning TRIPS.

Therefore, Financing of university education on Intellectual property and technology and provision of IT facilities to aid learning culture, research and application of technical know-how. This Intensive and regular training of these IP personnel and practitioners, will work to keep abreast of current developments in contemporary IPRs.

Further more, There is still an inadequate number of specialized lawyers to teach Intellectual Property law, as a result of which, it is a hardly appreciated field of law in practice. Neither has it brought out enough fully knowledgeable persons to join the requisite institutions where such manpower is needed. Poor funding of LP related institutions has also slowed down the process of updating the IP- related legislation and general operation of such institutions, thus slowing down further the road map to full implementation of the TRIPS Agreement in Uganda and more significantly, the establishment of an LP Policy framework in Uganda.²¹

CONCLUSION

The research above, has looked at Uganda's current position as far as IP is concerned. With the coming into force of the Vision 2040,it shows that Uganda is soon joining the global village of innovation and technological break through. Therefore, the challenges addressed above, need to be addressed urgently so as to be ready to curb IP related legal issues most likely to hit Uganda in the next Ten years to come.

BIBLIOGRAPHY

• The Industrial Properties Act, 2013
• The Uganda Registration Services Bureau Act Cap. 210
• D. Bainbridge (2010), Intellectual Property, 8^th Ed.
• W.R.Cornish, Cases & Materials on Intellectual Property, 5^th Ed.
• F. Abbott, T. Cottier and F. Gurry (1999) The Intellectual Property System: Commentary and Materials (Kluwer, London)
• Firkremarkos Merso IP Trends In African LDCs and The LDC TRIPS Transition (2013)
• Paul Ncheji Nkwi Intellectual Property in Africa
• Matt Richter: Sourring Innovation In Uganda: Strategies To assist Developing Countries in Drafting TRIPS-Compliant Patent Legislation That Fosters University Research and Innovation (2012)
• Uche Nwokocha Sub-Saharan Africa: Intellectual Property Rights Development (2009)
• Anthony C.K. Kakooza : The Civil, Administrative and Criminal Law Standards in Intellectual Property Enforcement In Uganda: The Good, The Bad AND The Hoped-For.

1 D Bainbridge (2010), Intellectual Property, 8^th Ed.

2 W.R Cornish, Cases & Materials on Intellectual Property, 5^th Ed.

3 P.N Nkwi Intellectual Property in Africa

4 We still use The United Kingdom Designs (Protection) Act Cap 218

5 Section 21, The Industrial Properties Act, 2013

6 Governed byCap. 210, Laws of Uganda.

7 Section 2, The Industrial Properties Act, 2013

8 D Bainbridge, Supra

9 Section 21, supra

10 D. Bainbridge, supra

11 F. Abbott, T. Cottier and F. Gurry (1999) The International Intellectual Property System: Commentary and Materials (Kluwer, London)

12 D Bainbridge, Supra

13 D Bainbridge, supra

14 A.C.K. Kakooza,The Civil, Administrative and Criminal Law Standards In Intellectual Property Enforcement in Uganda: The Good, The Bad and The Hoped-For

15 A.C.K. Kakooza, Supra

16 S. Adegoke, Intellectual Property Rights in Sub-Saharan Africa (2011)

17 F. Merso IP Trends In Africa's LDCs and the LDC TRIPS Transition Extension (2013)

18 M. Richter Spurring Innovation in Uganda: Strategies to Assist Developing Countries in Drafting TRIPS- Compliant Patent Legislation that Fosters University Research and Innovation.

19

20 A.C.K. Kakooza, Supra

21 A.C.K. Kakooza,Supra