Intellectual property (IP) laws function on the assumption that formal protections are necessary to encourage innovation. This assumption has underpinned the IP policies of developed countries for decades. The rapid proliferation of IP rights, however, can result in thickets of vague and overlapping claims, increased litigation or threats of litigation, and, ultimately, the predatory behaviour of patent trolls. We have already seen this start to happen in places like the United States, causing serious questioning of current IP laws and policies.
Meanwhile, in most of Africa, the explosion of high tech innovation is occurring in what is essentially an IP vacuum. Especially over the past five years, incubators, accelerators, maker spaces, and tech hubs have proliferated throughout Africa. While the majority are private ventures, some of these hubs are located within universities and others are government initiatives. The number of entrepreneurs and innovators seeking support from such spaces continues to outpace the available resources, providing evidence that there is a very strong culture of innovation throughout Africa.
There is also strong competition among some African nations for the title of “the next Silicon Valley”, or the Silicon Savannah. This title, however, does not take into account the numerous and drastic differences that exist between current African tech innovation spheres and California’s Silicon Valley, most especially, that African innovation and entrepreneurship is occurring in what is a near patent vacuum.
To ease the paradox between the openness that facilitates new ideas and the collaborations that characterize these hubs, with the pressure for proprietary protection of new ideas and knowledge, Open AIR will analyse to what extent formal IP rights are important to the success or failure of Africa’s burgeoning tech initiatives at and around high technology hubs.
This analysis flows form, and builds on, a significant finding from the previous iteration of Open AIR,
“while suited to working within informal frameworks, [enterprises across Africa] can also benefit from a certain degree of regulatory predictability and formality in relation to the goods and services on which their business models are based” (UCT Press, p. 391)
Additionally, the choice of subject matter comes from our past work, which developed a strong appreciation of the prevalence and importance of high tech hubs throughout the African continent. Our researchers have already begun to sketch the contours of one plausible scenario for the future, in which high tech hubs help to facilitate a kind of “wireless engagement” among entrepreneurs, innovators, venture capitalists, and business communities.
What Are Our Key Questions?
Open AIR’s new phase of research will build on our previous work and delve deeply into high tech ventures on the continent. We will answer such questions as:
- In the absence of formal IP rights, what other mechanisms do tech initiatives use to protect, share, and disseminate IP?
- How do innovations and entrepreneurs in the tech space thrive in Africa?
- Are there examples of mergers, acquisitions, or other instances of valuation of tech initiatives, and how has IP factored into such actions?
- Why are tech initiatives not making more use of existing patent systems?
- What happens when global trade pressures lead African countries to adopt and enforce global IP laws?
- And, ultimately, what can the developed world learn from African experiences?
Taken together, the answers to these questions will help to develop insights into the legal frameworks that govern, for better or for worse, emerging technologies and their innovators in Africa.
Why Look to Africa?
Although patent systems in Africa are present and, in some places, functional, they are drastically underutilised compared with patent systems in other regions of the world. Trade secret laws are also largely unavailable or unenforced. Nevertheless, innovations by African companies and entrepreneurs are occurring in this near absence of patents and patent litigation.
In general, the system being used in Africa has some of the characteristics of “open” innovation models, and the overall result is that innovations spread throughout the continent and among competing companies at a very high rate. According to the prevailing theories in developed economies, however, such a system should be highly discouraging of innovation.
The reality appears to be quite the opposite though; innovation is abundant and continues to increase. Examples such as MPesa, Ushahidi, and BRCK provide evidence that successful tech innovations can thrive even in an absence of IP protections. These open IP practices in Africa are, in fact, “assets […] that African policy-makers and practitioners can bring to national, regional, continental and global IP policy and practical discourse” (UCT Press, p. 389) So how can this be taken into account within IP and knowledge governance models? What happens when global trade pressures lead African countries to adopt and enforce global IP laws? Moreover, what can the world – especially developed economies like the US and Canada – learn from these instances of innovation and entrepreneurship?