Ruth Okediji makes an argument that we need to resist and avoid consenting and legitimising a system of command and control in IP. Okediji’s starting point is that the essence of the fourth wave of IP geopolitical change is not about harmonisation: it’s about fundamentally de-anchoring IP from the public interest. It’s about a unilateral effort to supra-design an IP system that works for some interests and regions and not others.
The justifications for IP are based on a series of paradoxes and assumptions that IP is directly linked to development. Most strikingly, the assumption that incentives are required to generate creativity and innovation:
“What we see, in many ways, is that the market has come to define the public interest. This is a paradox. Not only is it a paradox, it is inherently contradictory.”
Okediji argues that the key question about IP in Africa is not whether there is innovation and creativity on the African continent, but whether the IP system counts the innovation that exists. These IP categories are not static — they are political and social. Okediji argues that the inability of IP to deal with African innovation and creativity is not an issue of methodology, but one of systematic manipulation.
Ultimately, Okediji’s argument is that we need to directly challenge the regulatory capture of IP. The most pressing issues to challenge are not the gap between theory and practice, or the gap between politics and public interest. Fundamentally,
“we need to address the gap between where we are today and where we want to be tomorrow.”
The key actors for change that Okediji identifies are institutions. Okediji argues that while IP norms are relatively static, institutions are versatile. Most useful innovations that we have seen have not come from the texts, but from local institutions looking at a set of facts and circumstances and effecting change. Building and empowering these institutions is the key challenge for Africa.
We need to focus on the consequences of the IP regime on innovation welfare. IP rights are just one of many tools to serve the goals of access to knowledge, encouraging innovation, and development. Okediji points to four main implications:
We need transnational systems of innovation. This means seamless knowledge flows: limitations and exceptions are critical, but so is openness.
The terms of participation are fundamentally important – a move from property to contracts.
We need to understand the role of IP in ways that allow communities to share, participate, and benefit from the returns.
The public interest is about ensuring that the African peoples get to participate — and at a price that they can afford to pay.