Can 'The Is' and 'The Ought' be Married? Creating a Sustainable Legal Framework for Intangible Property in the East African Community

Abstract

The Common Market Protocol of the East African Community (EAC) serves the purpose of encouraging free movement of goods and services across the borders of the EAC Partner States. However, recent legal battles in Uganda and Rwanda highlight the fact that the territorial nature of Intellectual Property Rights is at variance with the spirit of free trade within the EAC, and the legal protection meant to go with such free trade. Coupled with this is the fact that national borders sometimes cut across ethnic groupings that share cultural traits. There is an increasing need to protect Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) from misappropriation and exploitation, which inevitably pit different communities and their host countries against each other within the EAC. This is primarily due to the fact that the Partner States within the EAC have responded differently to the need for policy and legal frameworks regarding the protection of TK and TCEs. This paper looks at the contrast between the general interests of the EAC Partner States as portrayed in key treaties that they have signed, and their legal obligations and interests as derived from their respective policy and legal frameworks pertaining to the protection of Intellectual Property, TK and TCEs. The paper points out the underlying challenges that have enabled the situation as it is to be different from what it ought to be in terms of generating enjoyment of free movement of goods and services, as well as promoting a better IP and quasi-IP (TK and TCEs) environment in the EAC. The paper goes on to argue that specific reforms are needed within the EAC region as a whole, as well as within each Partner State, so as to generate a win-win situation.