World Intellectual Property Organization

The Congolese Legislative Framework in relation to Intellectual Property

Prepared by the World Intellectual Property Organization © 2010 [1]
 

I. Introduction

From 1885 to 1981, intellectual property rights (hereinafter IPRs) in Congo were regulated by five legal instruments: Sovereign Belgian Royal Decree of October 29, 1886 on Patents; Sovereign Belgian Royal Decree of April 26, 1888 on trademarks; Royal Decree of April 24, 1922 on the Deposit of Industrial Designs [2]; Decree of June 21, 1948 on the Protection of Copyright [3] and Ordinance No. 41/63 of February 24, 1950 on Unfair Competition [4].

Independent since June 30, 1960, it was only in 1982 that the Democratic Republic of Congo (DRC) recognized the need to adapt its domestic legislation to comply with its international obligations [5], as it was party to, since October 2, 1963, the Berne Convention of 1886 for the Protection of Literary and Artistic Works and, since January 31, 1975, the 1883 Paris Convention for the Protection of Industrial Property [6].  As regards industrial property, the legislative reform culminated in Law No. 82-001 of January 7, 1982 on Industrial Property. With respect to the reform of the law on literary and artistic works, this led, four years later, to Ordinance-Law No. 86-033 of April 5, 1986 on the Protection of Copyright and Neighboring Rights. Both legal instruments are currently in force [7]. However, from 1982 to date (1982 for industrial property and 1986 for literary and artistic works), legislative action in the DRC concerning both areas has stopped.

The DRC has been both a Member of WIPO since January 28, 1975 [8] and WTO since January 1, 1997 [9]. In addition to the above-mentioned Paris Convention and Berne Convention and, among the 22 intellectual property treaties administered by WIPO, the DRC has acceded, since November 29, 1977, to the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva Convention, 1971). Similarly, the DRC is a party to the Singapore Treaty on the Law of Trademarks (2006) [10].

As a least-developed country (LDC) member of WTO, the DRC initially benefitted from a transition period until January 1, 2006 to comply with the TRIPS Agreement [11].  Shortly before this deadline, in 2002 precisely, the Congolese Ministry of Industry, Commerce and Small and Medium Sized Enterprises requested technical assistance from UNDP to assess, among others, the conformity of Law No. 82-001 of January 7, 1982 on industrial property with the TRIPS Agreement [12].  A team of eight experts (including six foreigners and two nationals), carried out the conformity assessment. Having encountered some difficulties, it nevertheless submitted a report containing some recommendations. Although the report was published on January 12, 2004 [13], the above Congolese Law was not, however, reformed.

It should be underlined that currently a draft law has been drafted, presented at a workshop held from April 24 - 26, 2008 in Kinshasa. The workshop was organized by the Ministry of Industry and Small and Medium-Sized Enterprises [14].  The aim of the draft law, prepared by the government, is to modernize Congolese legislation concerning intellectual property [15].  While it could seem obvious, as underlined above, that a draft law exists, there is still, however, no Congolese legislation that does justice to the DRC's international obligations. It is therefore necessary for legislation on intellectual property to be adapted quickly, even if the DRC is granted a new transition period to comply with the TRIPS Agreement on July 1, 2013 [16].

Below, a gap analysis of both the above Congolese laws compared with the TRIPS Agreement (this WTO Agreement having incorporated the Paris Convention of 1883 and the Berne Convention of 1886) will be presented.
 

II. Gaps contained in Law No. 82-001 of January 7, 1982 regulating industrial property

It can be seen that utility models are not protected by Law No. 82-001 of January 7, 1982 regulating industrial property even though the DRC is an LDC which should encourage and protect small inventions. The Congolese authorities therefore should incorporate this in the new law (currently in preparation).  Also, the current law prescribes the same criteria (novelty, inventiveness and industrial application) both for industrial designs and patents, although this is not how it should be according to industrial property law. This confusion also explains why Congolese law has placed both rights in the same category of inventive activities when industrial designs should rather be included in the category of ornamental creations. Congolese law still imposes reciprocity of application of the Paris Convention whereas the Paris Convention only imposes national treatment. Reciprocity is incompatible with national treatment. The authorities should also take this into consideration in the new law. Moreover, Congolese law does not provide for the issue of exhaustion of industrial property rights, whereas this crucial issue should clearly exist in the law as it does in several laws in developing countries (including, for instance, in the Andean Community, which chose international exhaustion; this is also the case with OAPI, which chose the restrictive regime of regional exhaustion).

Congolese law still contains many gaps, particularly as regards the principles of international trade laid down in the TRIPS Agreement, specifically national treatment and the most-favored-nation clause. Also, Congolese law does not provide for protection to processes, but only to pharmaceutical products contrary to Articles 27 and 34 of the TRIPS Agreement. It is also worth noting that Congolese law requires (foreign) patent holders to exploit an invention in an industrial context in the territory of the DRC, contrary to Article 27(1) of the TRIPS Agreement. In addition, exceptions limited to patents are unlimited under Congolese law contrary to Article 30 of the TRIPS Agreement. Regarding compulsory licenses, several conditions laid down in Article 31 of the TRIPS Agreement, for instance, the restriction on the supply to the domestic market or the search for consent from the patent owner when granting compulsory licenses, do not exist under Congolese law. Moreover, Congolese law provides for granting exclusive licenses contrary to Article 31(d) of the TRIPS Agreement. In the same Congolese law, the duration of pharmaceutical patents is only 15 years contrary to Article 33 of the TRIPS Agreement (20 years) and five years for industrial designs contrary to Article 26(3) of the TRIPS Agreement (10 years). As regards the means mentioned in Congolese law to enforce respect for IPRs, they do not contain all those required by the TRIPS Agreement (Articles 41 to 61), in particular border measures, administrative measures and ex officio action taken by customs authorities. Congolese law provides only for civil measures (infringement proceedings, damages, preventive confiscation, injunction) (Articles 88 to 92 and 95) and criminal sanctions (Articles 93-95). The same law also creates a problem of structure since several provisions which might have been grouped under the same heading are scattered in different places (in the law).
 

III. Gaps contained in Ordinance-Law No. 82-033 of April 5, 1986 on the Protection of Copyright and Neighbouring Rights

Before highlighting its gaps, the fact can be celebrated that under the notion of neighboring rights, Congolese law does not only apply to the three categories of beneficiaries in conformity with the Rome Convention of 1961 (performers, producers of phonograms and broadcasting organizations), but also the producers of videograms. Another reason to celebrate is the fact that Congolese law also protects folklore and works inspired by folklore.

With respect to the gaps, the following should be pointed out. Whereas Ordinance-Law No. 86-033 deals with, in the same instrument, copyright and neighboring rights [17], the sanction of rights provided for under this Ordinance-Law deals exclusively with copyright infringements [18]. In so far as the DRC has not acceded to the Rome Convention (1961) and will not be bound by the TRIPS Agreement until July 1, 2013, there is a serious problem for the effective protection of performers, producers of phonograms and broadcasting organizations in the whole of the national territory. Therefore, Congolese judges should take on the role of 'legislators' when dealing with a concrete example of infringement of rights of performers, producers of phonograms and broadcasting organizations. However, as jurisprudence cannot replace the law, only the new law should include and fill this gap within its regulatory framework. It should also be stressed that SONECA (a collective rights management society for more than 30 years) has been dissolved and replaced with SOCODA (Congolese Society for Copyright and Neighboring Rights) in September 2010, but SOCODA is not yet operational.

As regards copyright, Congolese law does not contain the principles of international trade (national treatment and most-favored-nation clause), nor provisions on the protection of computer programs and databases. Also, with respect to this issue, a modern Congolese law, adapted to new technologies in the field of information and communication, is essential in order to take new protection requirements into account.

Furthermore, the duration of protection granted to phonograms and videograms is 20 years, contrary to Article 14(5) of the TRIPS Agreement (50 years). Moreover, the measures mentioned in the TRIPS Agreement to strengthen protection of IPRs (Articles 41-61) or for publishing judicial decisions are not all reproduced under Congolese law. In Congolese law, the measures stipulated to protect authors are only of two kinds: criminal sanctions (Articles 96-103) and civil actions (Articles 104-110). There are no administrative measures, nor special border measures. Congolese law also authorizes delivery of counterfeit objects to the author of the original work (Article 110) whereas the TRIPS Agreement provides for the destruction of such goods. There is also no automatic publication of judicial decisions in this law since such publication only occurs on the request of the injured party (the author). However, Article 62(1) of the TRIPS Agreement requires that States publish this type of decision, and that it is published in a national language (not only in an official language).

Particular mention should also be made of a terminological problem in Congolese law. Congolese law employs the term "counterfeiting" for copyright infringements whilst the appropriate term is piracy (counterfeiting, rather, is used for infringements of industrial property rights, such as patents). In addition to the above, Congolese law on copyright is much more structured than the law on industrial property.
 

IV. Conclusion

Congolese legislative action as regards intellectual property ceased in 1982 (industrial property) and in 1986 (literary and artistic works). Currently, we are at the end of 2010, and it is essential for the relevant national authorities "make up" for the delay since legislation should not be static, but dynamic. With vast potential in musical, artistic and literary works, the DRC can itself contribute, by means of modern and appropriate laws, to substantially improving the social and economic conditions of its people (artists and musicians, etc.) [19].  This is also the case for modernizing laws on industrial property, even if the DRC still has to acquire sufficient technological capacity. Although, in the field of literary and artistic property, the DRC has produced thousands of works since 1960 to date (and even before), its scant production in the field of industrial property during the same period shows that this country, an LDC, has huge potential for its social, economic and technological development [20].  It is therefore necessary, on the one hand, that Congolese legislation on intellectual property is in conformity with the TRIPS Agreement and with the new WIPO treaties and, on the other hand, that the DRC accedes to all WIPO treaties, such as the WIPO Copyright Treaty, Madrid Protocol and the Patent Cooperation Treaty.


[1] The authors of this document are Mr. Léonard MULLER NKUMUSELE (Assistant Examiner) and Mr. Ituku ELANGI BOTOY (Project Coordinator), both WIPO staff members.

[2] See Title 3 - final provisions - of Congolese Law 82-001 of January 7, 1982 on Industrial Property, available at the following addresses: http://www.Droit-Afrique.com or http://www.leganet.cd/Legislation/Droit economique/loi.82001.7.01.1982.PI.htm.

[3] See Title 4 - final and repeal provisions - of Ordinance-Law No. 86-033 of April 5, 1986 on the Protection of Copyright and Neighboring Rights, available at the following address: http://www.Droit-Afrique.com.

[4]  The Ordinance is available at the following address: http://www.congolegal.cd.

[5]  Official Journal of Zaire, No. 2, January 15, 1982, page 9: In its essay on the reasons for legislative reform, the government had described former legislation as "very laconic and perfunctory on the whole, fossilized and not adapted to current technological and economic progress". The State therefore required new legislation in so far as it considered intellectual property to be "an important factor for technological development, the only guarantee of the genuine economic and social progress of a nation". For further details on the history of changes to DRC's legislation, see Alex Kabinda Ngoy, Pharmaceutical patents and access to medicines in francophone countries of sub-Saharan Africa, Thesis, Catholic University of Louvain, Law Faculty, 2008, page 50.

[6]  See WIPO, Contracting Parties or Signatories to WIPO-Administered Treaties, Members of WIPO Assemblies, Other Bodies and Committees, Members of the International Union for the Protection of New Varieties of Plants (UPOV), document no. 423, April 15, 2008.

[7]  As regards industrial property, please see the dispute settlement between two large Congolese breweries, Bralima and Brassimba, concerning ownership of a logo. In its decision of June 2, 2008, the Minister of Industry and Small and Medium-Sized Enterprises ruled on the basis of Law No. 82-001 of January 7, 1982, regulating Industrial Property and Ordinance No. 41/63 of February 24, 1950, on Unfair Competition.  A summary of the matter is available at the address: http://www.digitalcongo.net/article/51731 with the title: "Battle of the breweries over a logo with the complaint reaching the highest echelons of State: the Minister of Industry dismisses the complaint brought by Bralima". As concerns copyright, the extract of the Congolese Journal, Le Potentiel, Edition 3407 of Saturday April 23, 2005: "World Book Day and Copyright: What about the situation of the journalist? " when defending the copyright of journalists, cited Article 1 of Ordinance-Law No. 86-033 of April 5, 1986 on the Protection of Copyright and Neighboring Rights. The article, written by Jeannot Ne Nzau Diop and Martin Enyimo, is available at the following address: http://www.lepotentiel.com/afficher_article.php?id_edition=&id_article=5043.

[8]  See WIPO, Contracting Parties or Signatories to WIPO-Administered Treaties, Members of WIPO Assemblies, Other Bodies and Committees, Members of the International Union for the Protection of New Varieties of Plants (UPOV), document no. 423, April 15, 2008.

[9]  See WTO, List of Members and Observers, 152 Members on May 16, 2008 (with dates of accession), available on the site of the Organization: http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (retrieved on July 2, 2008).

[10]  See WIPO, document cited in footnote 11.

[11]  Article 66(1) of the TRIPS Agreement. This provision stipulates that "In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period".

[12]  See the proposals on the reform of trade and investment legislation in the Democratic Republic of Congo (in French), January 2004, available at the following address: http://www.unctad.org/templates/download.asp?docid=4670&lang=1&intItemID=2068.

[13]  Ibid.

[14]  See allAfrica.com: Congo-Kinshasa: Revised Draft Law on Industrial Property - Simon Mboso is pleased with the work of the experts, La Prosperité, available at the following address: http://fr.allafrica.com/stories/printable/200804281366.html (published on April 28, 2008).

[15]  Ibid. We do not have the text of this new draft law.

[16] By its decision of November 29, 2005, WTO extended the transition period for LDCs until July 1, 2013 to comply with the TRIPS Agreement. For further details, please see the TRIPS Council's decision of November 29, 2005: Extension of the transition period under Article 66.1 for Least-Developed Country Members, Press/424. However, Paragraph 2 of the above decision stipulates that all LDCs will provide the Council for TRIPS, preferably by January 1, 2008, with as much information as possible on their individual priority needs for technical and financial cooperation in order to assist LDCs taking steps necessary to implement the TRIPS Agreement. Regarding this issue, the Intellectual Property Division of WTO has informed us that the DRC has not yet provided such information to the Council for TRIPS. It therefore requires an appraisal to carry out a thorough evaluation particularly on preparing legislation on intellectual property.  Lastly, according to the Doha Declaration, adopted on November 14, 2001, LDCs still have until January 1, 2016 to comply with the provisions of the TRIPS Agreement on pharmaceutical products. For further details, please see paragraph 7 of the Doha Declaration on the TRIPS Agreement and Public Health, Ministerial Conference, Fourth Session, Doha, November 9-14, 2001, WT/MIN(01)/DEC/W/2/, of November 14, 2001.

[17]  Titles 1 and 2 of the Ordinance-Law.

[18]  See Title 3 of the Ordinance-Law.

[19]  In the field of the arts, music and literature, the DRC has a wealth of resources, among the world's most fertile. Its vast artistic and musical, and therefore intellectual, wealth contrasts with the wealth lying in the ground and underground, that is, its material wealth. However, strangely, similar to the situation of other African countries, the DRC has still neither harnessed its intellectual resources nor its material resources. This is understandable as no country in the world has ever harnessed its material resources without having first harnessed its intellectual property! And, in a State, harnessing (intellectual or material) wealth necessarily goes hand in hand with drafting suitable legislation (the law, first phase), which will then be explained or taught to the population (the doctrine, second phase) and, lastly, implementation, which takes the form or occurs in practice (by the Judge and by the Administration, third phase). This is why knowledge and dissemination of intellectual property are vital the world over, particularly in Africa! Suitable legislation on copyright will therefore be an essential instrument to teach the Congolese, and to manage, protect and promote their musical, artistic and literary works. Otherwise, such vast "wealth" of the Congolese will be pirated in their own country and around the world. Modern and substantive legislation on this matter will especially be of benefit to the Congolese themselves, whose social and economic standard of living will gradually increase thanks to their musical, artistic and literary output. Legislation in the field of industrial property will have the same aim as the promotion of Congolese inventiveness.

[20]  With respect to industrial property, of 141 patent applications filed by nationals between 1961 and 1996 in the DRC, 136 patents were granted. For further details, see WIPO, Industrial Property Statistics, Patent applications by patent office (1985-2004) and Patents granted by patent office (1985-2004), available at the following address: http://www.wipo.int/ipstats/en/statistics/patents/.

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