The African Continental Free Trade Agreement offers a chance for digital technologies to reduce inequality – or to exacerbate it
Despite Africa possessing incredible natural resources, global inequality rooted in colonialism and post-colonial exploitation has rendered it the world’s poorest continent. Digital technologies, heralded more than two decades ago as transforming economies across the world, have had an uneven effect in Africa. Intractable inequality and underdevelopment have severely inhibited the spread of networked digital technologies.
While the lack of access to networked digital technologies threatens to exacerbate existing inequalities, the delay in access becoming widely available for the majority of Africans may present an opportunity. There is still a chance to embed digital technologies in African economies so that the technologies benefit the most marginalised people. This chance to deploy policies on digital technologies so that they reduce rather than increase inequality is an opportunity for a digital new deal. RIA coined the term ‘digital new deal’ to refer to experimental policy intervention in the globalised processes of digitalisation and datafication required to redress the currently uneven distribution of opportunities and harms arising from them.
A key issue is control over the flow of data that is a new factor of production in digital economies. A continent-wide trade agreement provides an opportunity to ensure that data flow benefits the majority of Africans. Competition and e-commerce regulation must enable data flow so that data is used to increase efficiency. But how will the benefits of data use be more equitably distributed? An important factor in who gets to benefit are intellectual property rules. Since intellectual property rules tend to centralise control over data they must be rebalanced so that these rules do not contribute to unequal distribution of the benefits of data.
A digital new deal for Africa
For digital technologies to decrease inequality in Africa, effective government action is required. While networked digital technologies have been changing the global economy since the mid- 1990s, the COVID-19 pandemic and government responses to it have accelerated dependence on these technologies. Yet those in Africa without access, or sufficient affordable access have been unable to work or be educated online. The pandemic has rendered more stark the inequalities that already existed. As a consequence calls for widespread access to digital technologies have been revived. But the way that the technologies are structured and operate will determine whether increased access addresses inequality or exacerbates it. Intellectual property laws in particular have tended to be created and interpreted in ways that centralise control over technologies.
The African Continental Free Trade Area (AfCFTA) provides policymakers an opportunity to create a digital new deal for Africans. The AfCFTA is a treaty “to create a single market for goods and services” in the continent that came into force on 30 May 2019 with a protocol on trade in goods in place. Protocols on investment, trade in services, competition and intellectual property rights are being negotiated and will become integral parts of the agreement. The protocols being negotiated are an opportunity to alter the terms on which Africa engages in the global digital economy.
Inclusion in the digital economy is important to continental coordination – and to the AfCFTA – for multiple reasons.
The size of digital markets in Africa are relatively small even in countries with active tech sectors such as Kenya, Nigeria and South Africa. A single African digital market, as proposed in the African Union’s Digital Transformation Strategy, will create a far more viable market for new entrants. It is thus an opportunity to rethink innovation policy so that the market is open to many more entrants. As existing international legal instruments constrain the policy space for national governments, the AfCFTA protocol could either open that policy space or constrain it further.
It may seem obvious that the AfCFTA will lead to greater economic opportunity for many Africans simply through enabling cross-border trade. Yet, the results of previous trade agreements, notably the Global Agreement on Tariffs and Trade with the accompanying WTO-TRIPS agreement, as well as bi-lateral free trade agreements, have not been equally beneficial to all countries. Even as the AfCFTA intellectual property chapter is due to be negotiated, the World Trade Organisation (WTO) has failed the developing world. More than two years after the start of the global pandemic and the extraordinary measures imposed by governments worldwide, the WTO has enabled a few countries in the global North to prioritise the profits of pharmaceutical companies over human lives by refusing to agree urgently on the flexibilities required by developing countries to freely make and import vaccines.
Some commentators insist that, because the AfCFTA is being negotiated by Africans, for Africans and without (overt) trade pressures this is an opportunity to ensure a free trade agreement that benefits Africans unequivocally. But this depends on what the negotiators, and the experts advising them, believe a free trade agreement and its provisions on e-commerce, competition and intellectual property can achieve.
Digital Inclusion in Africa
Data policy and competition regulation are important factors in digital inclusion. But intellectual property law is just as important since it is the primary way that innovation, whatever the aspirations of innovation policies, is regulated. It also requires attention since competition regulations have tended to leave intellectual property untouched. For example, South African competition legislation does not include abuse of intellectual property rights as a prohibited practice but does allow holders of intellectual property rights to obtain an exemption from regulation of their practices. Since the intellectual property has been relatively neglected in discussions of digital inclusion and beneficial data flow the remainder of this analysis thus concentrates on the opportunities for inclusive inclusion in the AfCFTA intellectual property protocol.
Copyright and patent grant monopoly rights over most uses of technology. Both reflect the assumptions of manufacturing economics in which stand-alone products are protected from copying to enable the manufacturer to recoup investments in research and development required to set up manufacturing. However digital technologies are interdependent, relying on multiple layers working together to operate. Each new innovation is reliant not only on previous innovations but many other technologies.
Since data is a representation of a state of the world, a fact, rather than an intellectual creation, it has not historically been controlled by intellectual property, although in a few Anglophone jurisdictions compilations of data by human effort are granted thin protection over any creativity in the arrangement of that data. Even that is not a good fit for much larger accumulations of data by automated means that grants market power to its controller even without intellectual property rights.
The AfCFTA Intellectual Property Policy Protocol
While the protocol is under discussion there is not much publicly available information on it. An important development in the negotiation of the intellectual property protocol is the establishment of the Trade and Industrial Development Advisory Council. This includes experts on intellectual property, such as Prof Caroline Ncube, the DST/NRF SARChi Research Chair in Intellectual Property, Innovation and Development at the University of Cape Town. Ncube and her colleagues suggest a ‘principled approach’. For purposes of digital inclusion this means both that the protocol should draw on equitable and appropriate international law principles but also that it could provide flexible principles for intellectual property that grant those excluded from the digital economy opportunities to make use of the underlying technologies.
One of the important flexibilities in intellectual property law that permits this is exceptions to the monopoly rights granted to copyright and patent holders. Exceptions for experiment, research, interoperability, and to repair and secure technology are important flexibilities already found in the intellectual property laws of some developed countries. The AfCFTA should include flexibilities necessary to enable development of new technological capabilities by Africans. Most salient of these is a mandatory provision for computational analysis, a term that encompasses text and data mining, as well as machine learning and other AI techniques. It is worth noting that, although the focus of her discussion is elsewhere, Ncube regards this flexibility as so important that she explicitly refers to it.
Since data flow is so essential to the sharing of benefits the AfCFTA should explicitly reject intellectual property rights over data, thus avoiding conflict with personal data protection and emerging data stewardship governance.
If appropriate flexibilities are included in the AfCFTA protocol it would be an important step towards enabling the majority of Africans to become innovators rather than consumers in the emerging digital economy.