Egypt and Tunisia Underscore the Importance of IP
By Ahmed Abdel-Latif, Senior Programme Manager for Innovation, Technology and Intellectual Property, International Centre for Trade and Sustainable Development (ICTSD), Geneva, Switzerland
Adaptation of Egypt and Tunisia’s New Constitutions Recognize Importance of the Knowledge Economy and Intellectual Property Rights by Ahmed Abdel-Latif, first published by the Centre for Mediterranean Integration, The World Bank, in March 2014
Last January, Egypt and Tunisia enacted new constitutions in the context of the political changes they have been witnessing since the 2011 revolutions that they experienced. While most public attention has focused on how these constitutions have addressed hotly debated issues such as the structure of government, the role of religion and fundamental freedoms, less attention has been given to how they have dealt with economic and social issues. However, for the first time in the history of these two countries, their new constitutions give high priority to building a knowledge economy and provide for the protection of intellectual property rights (IPRs).
The new Egyptian Constitution was put to a referendum on 14 and 15 January 2014 and approved by a large majority of Egyptians who took part in the vote. It replaces the 2012 Constitution enacted under former President Morsi as well as the 1971 Constitution. The new Tunisian Constitution was adopted by an overwhelming majority of the country’s Constituent Assembly on 26 January 2014 and replaces the 1959 Constitution.
Recognizing the importance of the knowledge economy
The constitutions of each country include clauses which recognize the importance of building a knowledge economy and emphasize the need to support scientific research, innovation and creativity.
The Egyptian Constitution stipulates that the “State guarantees the freedom of scientific research and encourages its institutions as a means towards achieving national sovereignty, and building a knowledge economy” (Article 23). The State also “supports researchers and inventors” and commits to “allocate a percentage of government expenditures that is no less than 1 per cent of Gross National Product to scientific research which will gradually increase until it reaches global levels.”
The commitment to allocate a specific percentage of government expenditure to scientific research is remarkable and unusual in constitutional texts. Interestingly, the same provision declares that the “State shall ensure effective means of contribution by private and non-governmental sectors and the participation of Egyptian expatriates in the progress of scientific research.” Adopting a more conventional approach, the Tunisian Constitution envisages that “the State provides the means necessary to the development of technological and scientific research” (Article 33).
Between 2004 and 2010, governmental R&D expenditure in Egypt averaged around 0.25 percent of gross domestic product (GDP), below the average for sub-Saharan African countries (excluding South Africa) and barely one-tenth the average for the countries of the Organisation for Economic Co-operation and Development (OECD).
Tunisia’s expenditure on R&D was higher at around 1.1 percent of GDP in 2009 Egypt ranked 99th in the 2014 Global Innovation Index (GII) while Tunisia ranked 78th. It will be interesting to see what impact these constitutional clauses have on the economic and innovation performances of each country in the coming years.
In terms of cultural creation and creativity, the Egyptian Constitution commits the State “to promote art and literature, sponsor creators and writers and protect their creations, and provide the necessary means of encouragement to achieve this end” (Article 67). The Tunisian Constitution underscores that the “State encourages cultural creation” (Article 42).
IP clauses: similarities and differences
For the first time, the constitutions of these two countries provide for the protection of IPRs although in different ways. In both constitutions, the wording is succinct: the Egyptian Constitution stipulates that the “State shall protect all types of intellectual property in all fields” (Article 69) and the Tunisian Constitution indicates that “intellectual property is guaranteed” (Article 41).
Neither constitution dwells on the broader public policy objectives underpinning the protection of IPRs. Yet, for several years, developing countries have argued, particularly at the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), that the protection of IPRs is not “an end in itself” but rather should contribute to innovation and be supportive of wider socio-economic development objectives. In a similar vein, the US Constitution (Article I, Section 8, Clause 8) considers patents and copyright as means to promote the progress of science and the arts. National legislation that implements such constitutional clauses can elaborate on the rationale for IP protection in order to ensure that it is supportive of broader development objectives.
In Egypt’s case, the IPR clause further declares that the State “shall establish a competent body to uphold these rights and provide for their legal protection as regulated by law.” The exact mandate and powers of this body, however, remain to be specified. Is it intended to be a single unified body that will handle the administration of IPRs as in the case of some countries - such as the UK IP Office – or will it serve more as a coordinating entity to strengthen policy coherence and coordination in dealing with IP issues? In either case, policy makers should ensure that its mandate adequately incorporates public policy objectives and development considerations.
Each constitution places the protection of IPRs within a human rights framework. IPRs are addressed in a stand-alone provision in the Egyptian Constitution under the section dealing with public rights and freedoms, whereas the reference to IPRs in the Tunisian Constitution is embedded within a clause that guarantees the right to private property.
Both constitutions contain a number of clauses on the protection of culture, health, and heritage which can influence both the interpretation and implementation of the IPR clauses. For instance, each constitution enshrines a right to culture (Article 48 (Egyptian Constitution) and Article 42 (Tunisian Constitution)), a right to health (Article 18 (Egyptian Constitution) and Article 38 (Tunisian Constitution) and the protection of cultural heritage (Article 50 (Egyptian Constitution) and Article 42 (Tunisian Constitution).
While the constitutions of several Arab countries make reference to the protection of creators and inventors or the protection of private property, few of them include an explicit reference to IP or IPRs. Apart from Egypt and Tunisia, only the constitutional texts of Libya, Sudan and the United Arab Emirates (UAE) make such references.
The challenge of implementation
The clauses relating to the knowledge economy in the constitutions of Egypt and Tunisia reflect the priority given to promoting innovation and creativity within the new socio-economic policies pursued since the Arab Spring. The reference to “building a knowledge economy” in the Egyptian Constitution is particularly revealing in this regard. The reference to private sector participation in research efforts reflects recognition of the weaknesses that have characterized the national innovation system and the need to address them. It remains to be seen whether and to what extent this priority will have a tangible impact on the ground, particularly in light of the difficult economic circumstances prevailing in both countries, the limited resources available, and competing public policy objectives.
The reference to IPRs in the Egyptian and Tunisian constitutions is part of a general trend towards the “constitutionalization” of IP protection within a human rights framework deriving either from the rights of inventors and creators or the right to private property. It also reflects higher levels of awareness and engagement with IP issues since the adoption of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
In light of the general wording of the IPR clauses in both constitutions, ultimately the manner in which these clauses are implemented through national laws and judicial decisions will be critical in ensuring that a balanced approach to IP protection is adopted; one which takes into account the level of development of each country and one which is supportive of their respective public policy objectives.
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