Problematic Provisions in African Anticounterfeiting Legislation
September 24, 2009
Recent Intellectual Property (IP) legislative acts in the East African Community threaten generic medicines producers with large fines and imprisonment. The Kenyan Anti-Counterfeit Law of 2009, as well as bills that Uganda and the East African Community Legislative Assembly are currently considering, define ‘counterfeit’ so broadly that it includes generic products. The bills also create penalties for counterfeits and special police powers to investigate counterfeiting that shock the conscience. These laws pose a threat to generic manufacturers in general, and specifically to the manufacturers of generic drugs on which many east Africans rely.
The Kenyan, Ugandan, and EAC bills define a counterfeit as a good that is identical or substantially similar to a good protected by any intellectual property right. This definition makes no distinction between legal generic products and counterfeits. Most countries require some sort of willful deception in order for IP infringement to rise to the level of counterfeiting, an element these east African laws do not require. Essentially, the definition equates any infringement, including unknowing infringement, with counterfeiting, and could subject any infringer to criminal punishment.
All three bills would make it a crime to manufacture, sell, possess, or display for the purposes of trade any good that meets the law’s low-bar threshold for counterfeits. Under the Uganda anti-counterfeiting bill the punishment for manufacturing generic goods could be as severe as a fine of thirty times the infringed good’s value in addition to twenty years in prison. The extraordinarily strong penalties found in the Uganda bill are particularly puzzling since they come from a ‘Least Developed Country,’ which, because of that designation, has no international treaty obligations to protect IP at all.
Despite the freedom not to enforce IP rights, all three bills would enforce IP rights through a special IP police force, with special investigative powers, formed to prosecute counterfeit/infringement investigations. These special inspectors would have the authority to, without a warrant, enter and search any place, vehicle, or container they reasonably believe to contain counterfeit goods. They may also detain and search any person found in a place suspected of housing or manufacturing counterfeit goods without a warrant. Inspectors may seize, remove, and in some cases destroy any suspected counterfeit good, as well as any tools or machines used to produce or package the suspected counterfeits.
The Kenyan law has met with resistance from people and companies concerned about access to medicines since law’s enactment on July first of this year. Several generic drug manufacturers expressed their concern that the Kenyan law will wipe out their Kenyan market entirely. Furthermore, a group of HIV positive citizens are opposing the Kenyan law on grounds that it will prevent them from obtaining HIV medicines, and thereby deprive them of their right to life under the Kenyan Constitution.
Please open the link below to view our table for a summary and comparison of the Kenyan Anti-Counterfeit Bill, The Ugandan Counterfeit Goods Bill, and the Draft East African Community Policy on Anti-Counterfeiting, Anti-Piracy and Other Intellectual Property Rights Violations.
Satelite image of Africa from NASA/U.S. Geological Survey.