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Intellectual Property Audit Report of Namibia

By

Mr. Getachew Mengistie, Lead International Consultant, Ms. Naana Halm, International Consultant and TK specialist, and Mr. R.A.Kaakunga, National Consultant

January 17. 2016

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TABLE OF CONTENTS

ABBREVIATIONS ......................................................................................................................... 4

ACKNOWLEDGMENT .................................................................................................................. 6

INTRODUCTION ........................................................................................................................... 7

PART I- GENERAL ....................................................................................................................... 8

OBJECTIVES OF THE MISSION AND EXPECTED DELIVERABLES ...................................................... 8 METHODOLOGIES USED IN CONDUCTING THE IP AUDIT .............................................................. 10 BACKGROUND- SOCIO- ECONOMIC CONTEXT OF THE COUNTRY ................................................. 10

PART TWO- FINDINGS AND RECOMMENDATIONS OF THE WIPO IP AUDIT OR ASSESSMENT ........................................................................................................................... 11

POLICY FRAMEWORK ................................................................................................................ 11 Development Policies and Strategies ................................................................................. 11 National IP Policy and Coordination ................................................................................... 13 Institutional IP policy and Management .............................................................................. 15 Recommendation ............................................................................................................... 16

INTELLECTUAL PROPERTY LEGAL FRAMEWORK ......................................................................... 17 Intellectual Property and Related Laws .............................................................................. 17 Membership to International IP Treaties ............................................................................. 20 Recommendation ............................................................................................................... 21

IP ADMINISTRATION .................................................................................................................. 22 Strengths and Weaknesses of the Existing IP Institutions ................................................. 22 Granted Intellectual Property Rights .................................................................................. 23 Recommendations .............................................................................................................. 25

GENERATION OF IP ASSETS AND USE OF IP ............................................................................... 25 Strengths and Weaknesses ................................................................................................ 25 Recommendations .............................................................................................................. 27

IP COMMERCIALISATION AND TECHNOLOGY TRANSFER ............................................................. 27 Strengths and weaknesses ................................................................................................ 27 Recommendations .............................................................................................................. 28

IPR ENFORCEMENT .................................................................................................................. 29 Strengths and Weaknesses of IPR Enforcement ............................................................... 29 Recommendations .............................................................................................................. 30

IP AWARENESS AND USE .......................................................................................................... 31 Strengths and Weaknesses ................................................................................................ 31 Recommendations .............................................................................................................. 32

CREATIVE INDUSTRIES .............................................................................................................. 32 Strengths, Weaknesses and Challenges ............................................................................ 32 Recommendations .............................................................................................................. 33

TRADITIONAL KNOWLEDGE (TK), TRADITIONAL CULTURAL EXPRESSIONS (TCE) AND GENETIC RESOURCES ............................................................................................................................ 33

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Strengths, Weaknesses and Challenges ............................................................................ 33 Recommendations .............................................................................................................. 37

KEY PRIORITY AREAS WHERE NAMIBIA HAS COMPARATIVE ADVANTAGE AND POTENTIAL TO BOOST TRADE AND ENHANCE ECONOMIC GROWTH USING IP .................................................... 37

Strengths, Weaknesses and Challenges ............................................................................ 37 Recommendations .............................................................................................................. 39

DEVELOPMENT PARTNERS ........................................................................................................ 39 Strengths, Weaknesses and Challenges ............................................................................ 39 Recommendations .............................................................................................................. 40

PART- III-ROAD MAP FOR STRENGTHENING THE IP SYSTEM, SUPPORT PROTECTION, GENERATION AND COOMERCIAZAYION OF IP ASSETS, IMPROVE AWARENESS AND

USE OF IP AS A TOOL FOR DEVELOPMENT IN NAMIBIA– PLANNING MATRIX ................. 41

ANNEX I- LIST OF PARTICIPANTS OF THE NATIONAL IP WORKSHOP ............................... 54

ANNEX II-LIST OF STAKEHOLDERS MET ............................................................................... 62

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Abbreviations ABS- Access and Benefit Sharing AfDB- African Development Bank AGOA- African Growth and Opportunity Act ARDI-Access to Research for Development and Innovation ARIPO- African Regional Intellectual Property Organisation AU- African Union BIPA- Business and intellectual property authority BRELLA - Business Registration and Licensing Agency CCL- Cabinet Committee on Legislation CEO- Chief Executive officer FAO-Food and Agriculture Organization GDP- gross domestic product GIZ- Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH or German Corporation for International Cooperation GNP – Gross National Product GRs- Genetic Resources GRN- Government of the Republic of Namibia HLIs- Higher Learning Institutions IBPC- Interim Bio-Prospecting Committee ICT – Information and Communication Technologies IP- Intellectual Property IP Audit- Intellectual Property Audit IPRs- Intellectual Property Rights KBE- knowledge-based economy MICT - Ministry of Information Communication Technologies MITSMED - Ministry of Industrialisation, Trade and Small and Medium Enterprises Development NAMIU- Namibian Music Industry Union NCCI- Nambia Chamber of Commerce and Industry NDP4- Fourth National Development Plan NEPAD- New Partnership for Africa’s Development NIPPS - National Intellectual Property Policy and Strategy PACRA- Patent and Company Registration Agency PCT-Patent Cooperation Treaty R&D- research and development SACU - Southern African Customs Union SADC- Southern African Development Community SAIS- Southern Africa Innovation Support programme SMEs- Small and medium sized enterprises SMME- Small, micro and medium sized enterprise SOEs- State owned enterprises TCEs- Traditional Cultural Expressions TISC-Technology and Innovation Support Centres TK-Traditional Knowledge TRIPS- Agreement on Trade Related Aspects of Intellectual Property TTO- Technology Transfer Office TVTCs- Technical and vocational training centres UNESCO- United Nations Educational, Scientific and Cultural Organization

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UNCTAD- United Nations Conference on Trade and Development UNDP- United Nations Development Program UNIDO- United Nations Industrial Development UPOV- International Convention on the Protection of New Varieties of Plants USPTO-United Sates Patent & Trademark Office VET- vocational education and training VTC- Vocational Training Centre WCT- WIPO Copyright Treaty WCO- World Customs Organization WHO-World Health Organization WIPO- World Intellectual Property Organisation WPPT - WIPO Phonogram and Performers Treaty WTO- World Trade Organisation

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Acknowledgment

We would like to express our deepest thanks and gratitude to the World Intellectual Property Organisation (WIPO) for giving us the opportunity to undertake an IP audit that will serve as a basis the task of developing a National Intellectual Property Policy and Strategy (NIPPS) for the government of Namibia and the tremendous support provided by Mrs. Loretta Asiedu, Senior Counsellor, Regional Bureau for Africa, Department for Africa and Special Projects, Development Sector, WIPO who also took part in the National Intellectual Property (IP) Policy Workshop: Elaboration of a National IP Strategy for Namibia, which took place in Windhoek , Namibia, from 15 to 16 September, 2015. Our special thanks and appreciation go to Hon Immanuel Ngatjizeko, MP, Minister of Industrialisation, Trade and SME Development , who through Hon Pieter van der Walt, MP, Deputy Minister of Industrialisation, Trade and SME Development who reiterated the Namibian Government’s support for the IP Audit and development of the IP Policy and Strategy during his official opening of the National Intellectual Property (IP) Policy Workshop: Elaboration of a National IP Strategy for Namibia. We would also like to thank Mr. Tileinge Sacharias Andima, CEO, Business and Intellectual Property Authority (BIPA), Ms Monica P.Hamunghete and Ms Ainna Kaundu , Ministry of Industrialization, Trade and SMEs Development (MITSD ) for coordinating the mission programs and facilitating contacts with relevant institutions , providing relevant information as well as the logistical support that enable the team to attain the mission objectives. We are extremely grateful to all the stakeholders who allotted time and willingly provided information and openly shared their views and needs for technical assistance. Had it not been for the generous support of all these people, the mission would not have successfully accomplished its tasks.

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Introduction

Following a request from the Government of Namibia for the elaboration of a National IP Policy and Strategy, WIPO set up a team of experts, consisting of Mr. Getachew Mengistie, Lead International Consultant, Ms. Naana Halm, International Consultant and TK specialist and Mr. R.A.Kaakunga, National Consultant, which was commissioned to undertake desk research and a field visit aiming at conducting a national IP workshop and IP audit. The Consultants, based on the WIPO terms of reference, reviewed relevant national development policies, strategies and plans; examined the intellectual property legal and administrative framework; assessed the status and challenges related to the generation and commercialisation of IP assets, awareness and use of intellectual property, IPR enforcement, creative industry, traditional knowledge and genetic resources; and identified strengths, weaknesses, challenges and needs using documents collected from online sources during the desk research and information obtained from stakeholders during the field visit. The visit, carried out from 10 to 30 September 2015, involved a two day sensitisation workshop, followed by focus group and face-to-face discussions and consultations with the stakeholders. The Consultants worked in close cooperation with the CEO of BIPA and staff assigned from MITSD- Ms Ainna Kaundu and Ms Monica P.Hamunghete. Inputs were collected from participants of the national IP workshop1 and a range of stakeholders during focus group discussions and bilateral meetings.2 This report aims to:

a. give a brief overview of the country; b. highlight the major objectives of the mission and the methodologies used; and c. outline the summary of the findings and recommendations of the consultancy

mission.

Accordingly, the report is divided into three parts. The first part which is general consists of the objectives of the mission; the methodology employed in undertaking the IP audit and provides a brief background of the country with a view of setting the national context for the study. The second part, which is the main part of the report, deals with the findings and recommendations of the mission. It attempts to:

a. Highlight the findings related to: i. national and sectoral development policies, ii. IP policy, legal and institutional framework, iii. generation and use of IP, iv. commercialisation of IP & technology transfer, v. use and awareness of intellectual property, vi. intellectual property rights enforcement, vii. creative industry, viii. TK and GRs,

1 The list of participants of the workshop is attached to the is report as Annex I. 2 The list and address of persons contacted is attached as Annex II to this report.

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ix. identified areas that the country has comparative advantage where intellectual property tools may be used in enhancing competitiveness and increasing trade income; and

x. development partners; and b. recommend measures that should be taken by the government, where appropriate,

in cooperation with WIPO and other development partners, under each of the findings.

Details of activities that should be carried out to implement the recommendations are summarised in Part three of the report, which outlines the road map in a planning matrix. The IP audit report will further be enriched using inputs of WIPO and stakeholders in Namibia. The findings and recommendations of the report will be presented at a second multi -stakeholders consultative meeting that will be organised by WIPO and the government of Namibia for validation. The validated report will serve as a basis to draft the national IP policy and strategy, which will provide a framework to enhance the country’s capacity to create, protect and make strategic use of the IP system as a tool for economic growth and development and improving the welfare of Namibians.

Part I- General

Objectives of the Mission and Expected Deliverables

The major objectives of the consultancy assignment were to: a) Assess the national socio- economic context, national and sectoral development

policies and strategies that can be supported by IP and have a bearing on IP, examine the current IP system, identify weaknesses, constraints and opportunities;

b) Review policies, laws and institutions dealing with traditional knowledge, genetic resources and the potential and opportunity of using IP in tapping benefits from these resources;

c) Examine the situation of research and innovative activities and funding; d) Examine innovation and research support services such as technology transfer

offices and incubation centres ; e) Assess the status of IP asset generation and commercialisation including

linkages between research and academic institutions and industry; f) Examine the situation of IPRs infringement and enforcement; and g) Make recommendations on the measures that should be taken in addressing

challenges and weaknesses, further strengthening strengths and reflected in the national IP policy and strategy.

The main activities of the consultancy service identified in the terms of reference were the following:

(a) Using the WIPO Methodology, conduct an IP audit by collecting and analysing information on:

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i. Existing legal, administrative and enforcement structures related to IP as well as national policies and strategies related to economic, social and cultural development, and point out any weaknesses, strengths and opportunities, and propose measures to strengthen the institutions. In line with the spirit of Development Agenda Recommendation 10, which calls for promoting “a fair balance between IP protection and the public interest”, such an assessment shall be carried out also with the view to identifying, among others, flexibilities and mechanisms to protect consumers’ interests, the existence of a vibrant public domain, and a fair balance between incentives to innovate and access knowledge;

ii. Existing business and innovation support infrastructures as well as

national policies and strategies, if any, to promote and support businesses and innovation, universities and R&D institutions within which an IP Agenda could be explored and developed as a catalyst for achieving the intended policy objectives; and

iii. The level of use of the IP system in view of the numbers of filing,

registration and granting of intellectual property rights (IPRs) by sectors, and by type of applicants.

b. Engage in consultations with various stakeholders and gauge the level of

awareness about IPRs and the role that they could play in economic, social and cultural development. Stakeholders will include, but not be limited to, relevant ministries, IP professionals, business communities, consumer representatives, creative industries such as in the field of music and dance, writing and publishing, arts and designs or film making/production, traditional knowledge holders and users, traditional cultural expressions, R&D institutions, universities, SMEs support institutions, innovation support centres such as business incubators/hubs etc.;

c. Identify key priority sectors or industries where the country may have a

comparative advantage and the potential to boost its trade and economic growth by leveraging opportunities that may be afforded by the IP system; and identify development partners/donor institutions that are being engaged in a national development strategy for the purpose of proper coordination;

d. Taking into account the data collected and the feedback gathered during the

consultations (under items 2(a), (b) and (c)); draft a national IP policy and strategy for Namibia. The policy and strategy shall address the interface between IP and key public policy areas which are relevant to the national economic, social and cultural development (e.g. science and technology, public health, environment, trade, education, competition policy, culture, agriculture, etc.). For each relevant area, the strategy will highlight key challenges, strategic objectives, recommendations for specific activities, and wherever possible, strategic partners which shall be captured in a matrix with a timeframe for implementation in the short, medium or long term.

The expected deliverables are:

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a) Preliminary desk research on the national socio-economic context and related policies with a bearing on the IP policy and strategy, the IP legislative and administrative framework or any other related information and a list of proposed interviewees based on cluster groups prior to and during the first field trip;

b) Collection and analysis of data on the national IP system using WIPO tools and focus group meetings;

c) Submission and presentation of the summary of the report on the preliminary findings and recommendations of the IP audit, including a draft road map to the Namibian Authorities and WIPO after the first field trip, by October 20, 2015;

d) Submission of the consolidated draft national IP strategy after receipt of inputs from the Namibian Authorities and WIPO by December 20, 2015;

e) Presentation of the draft national IP policy and strategy to focus group meetings and the second multi stakeholders consultative meeting in January 2016, on dates that will be mutually agreed upon by all parties for discussion and validations; and

f) Submission of the final IP policy and strategy to WIPO by March 31, 2016.

Methodologies Used in Conducting the IP Audit The WIPO Consultants undertook the intellectual property audit using the following methodologies:

a) Review of relevant literature, development policies, strategies, plans and legislation collected from online sources;

b) Collection of relevant information and documents from stakeholders through bilateral meetings and focus group discussions using WIPO questionnaires;

c) Visits to Institutions; and d) Presenting preliminary findings and recommendations to key actors and multi

stakeholders and collecting feedbacks and inputs.

Background- Socio- Economic Context of the Country

Namibia is situated in southern Africa. It occupies a total area of 824 292 km² and a coastline of 1 572 km3 and shares a border with Angola, Zambia and Zimbabwe in the north, Botswana in the east, and South Africa in the south and the Atlantic ocean in the west. The country has a population of 2.2 Million and English is the official language. Namibia gained its independence from South Africa in 1990. The Republic of Namibia is established in terms of Article 1(1) of the Constitution of Namibia, as a sovereign, secular, democratic and unitary state founded upon the principles of democracy, the rule of law and justice for all. The Constitution vests the executive power of the republic in the President who is the Head of State and of Government and the Cabinet. Most interestingly, the Constitution expressly obliges the President, to exercise her/his powers, “in consultation with the Cabinet”4.

3 Namibia is the 31st largest country in the world. 4 Article 27 (3) of the Constitution of the Republic of Namibia.

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Rich alluvial diamond deposits make Namibia a primary source for gem-quality diamonds. Namibia is the world's fourth-largest producer of uranium. It also produces large quantities of zinc and is a small producer of gold and other minerals. The Namibian economy is heavily dependent on the service, manufacturing and mining sectors, which contribute to 60, 12.3 and 11.5 percent of the gross domestic product (GDP) respectively. The Agriculture and fishing sector contributes to 9% of the GDP5. The contribution of the sectors varies based on foreign exchange earnings and provision of employment opportunity. The mining sector generates more than 50% of foreign exchange earnings of the country. However, the mining and quarrying sectors employ only about 1.8% of the population6. Agriculture is the largest provider of employment, accounting for 27% of jobs, and the national government is the largest employer, employing 12% of all workers7. The informal sector and small and medium sized enterprises (SMEs) also contribute to the economic development of Namibia. However, the growth of the SME sector is constrained by a number of challenges not least access to finance and inadequate technical capacity. The SME sector contribution to GDP in Namibia in 2003 was 11% providing employment opportunity for about 20% of the labour force8. Due to sound macro-economic management, Namibia held off the global economic slowdown, and has registered annual growth rate of above 5% since 2010. GDP growth accelerated to 5.3% in 2014 from 5.1% in 2013 spurred on by a robust construction activity and high consumer demand. The Bank of Namibia’s July 2015 Economic Outlook of Namibia states that the country’s real GDP growth is projected to grow from 5.0% and 5.5% for 2015 and 2016, respectively, before rising further to 5.9% in 2017. Sustained strong performance in the secondary and tertiary industries, coupled with the projected recovery in the primary industries is expected to drive growth in 2015 and 2016. In terms of the World Bank, Namibia is classified as an upper middle-income country.9 This determination takes the country’s GDP and divides it by the country’s population. The per capita income in 2013 was $5,840 (five thousand eight hundred forty US dollars). The average income in a mineral rich Namibia paints a distorted picture as it does not take into account the endemic poverty, unemployment and inequality. Namibia’s income distribution is among the most unequal in the world. With a GINI Coefficient of close to 0.597 in the year ended 2014, Namibia is one of the most unequal societies in the world10. Speaking at the Third United Nations (UN) Conference on Financing for Development, President Geingob argued that “simply looking at Namibia’s national income level as a measure to determine its status as an upper middle-income country was misguided”11. The country inherited extreme social and economic inequalities, which have left Namibia with a highly unequal society. In addition, the country is vulnerable to short- and long-term environmental shocks as all major sources of growth depend heavily on Namibia’s fragile 5 See www.tradingeconomics.com/namibia/gdp-growth-annual 6 See Namibia Economy Profile”,2014, World Fact Book, http://www.indexmundi.com/factbook/ 7 NSA, 2013 data. 8 Small and Medium Enterprises in Namibia - A Brief Situational Analysis, Commissioned by inwent – Internationale Weiterbidung und Enywicklung gGmbH at 1, by Daniela Schöneburg and Robert Schultz, August 2006. 9 The country acquired this status in 2009. 10 See Economy Watch: Follow the money, 20 September 2015. 11 See Sibiso Tshabalala, “These charts show why Namibia doesn’t want to be called an upper middle income country”, July 16, 2015 Quartz Africa, 16 July 2015, citing the Namibian President’s address to the 3rd United Nations (UN) Conference on Financing for Development, Addis Ababa, 15 July 2015.

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ecosystem. These factors have made job creation difficult, and poverty and inequality remain unacceptably high. It is, therefore, not surprising that upon assuming power, President Hage G Geingob declared war on poverty, unemployment and inequality. To demonstrate this commitment, the President designated a Ministry of Poverty Eradication and Social Welfare to spearhead the campaign. Two deputy Ministers were appointed in the President’s office to deal with the affairs and welfare of the previously marginalised communities, and, people with disabilities.

Part Two- Findings and Recommendations of the WIPO IP Audit or Assessment

Policy Framework

Development Policies and Strategies

Namibia has clear development vision, elaborate national and sectoral development policies, strategies and plans aiming at enhancing socio-economic development, reducing poverty and improving the living standard of its people. The grand national development vision envisages a prosperous and industrialized Namibia, developed by her human resources, enjoying peace, harmony and political stability by 2030. The objectives of vision 2030 are to:

a) Ensure that Namibia is a fair, gender responsive, caring and committed nation, in which all citizens are able to fulfil their potential in a safe and decent living environment;

b) Create and consolidate a legitimate, effective and democratic political system (under the constitution), and an equitable, tolerant and free society, that is characterised by sustainable and equitable development and effective institutions, which guarantee peace and stability;

c) Develop a diversified, competent and highly productive human resources and institutions; fully utilising human potential, achieving efficient and effective delivery of customer focused services, which are competitive not only nationally, but also regionally and internationally;

d) Transform Namibia into an industrialised country of equal opportunities, which is globally competitive, realising its maximum growth potential on a sustainable basis, with improved quality of life for all Namibians;

e) Ensure a healthy, food secured and breast feeding nation, in which all preventable, infectious and parasitic disease are under secure control, and in which people enjoy a high standard of living, with access to quality education, health and other vital services, in an atmosphere of sustainable population growth and development;

f) Ensure the development of Namibia’s ‘Natural capital’ and its sustainable utilisation, for the benefits of the country’s social, economical and ecological wellbeing.

g) Accomplish the transformation of Namibia into a knowledge based, highly competitive, industrialised and eco friendly nation, with sustainable economic growth and a high quality of life; and

h) Achieve stability, full regional integration and democratised international relations, the transformation from an aid recipient country to that of provider of development assistance.

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In order to realise the grand development vision, a number of development policies, strategies and plans have been developed and are being implemented. These include the:

a) Fourth National Development Plan ((NDP4), 12 b) National policy on Research, Science and Technology13 c) Industry Policy14, d) Agricultural Policy15, e) Health Policy Framework16, f) Sector Policy on Inclusive Education,17 g) Vocational Education Training Policy18, h) Text book policy19

, i) Mineral Policy20,

12 The country has been implementing consecutive five years development plans since independence aiming at addressing development challenges, fostering socio-economic development and improving living standards of people. The national development plan 4 is the fourth five years plan that covers the period between 2012/13 to 2016/17. The plan aims at high sustained economic growth, increased income equality and employment creation; identifies logistics, ttourism, aagriculture and manufacturing as key areas of focus in order to create the necessary momentum for higher economic growth, defined desired outcomes and recommended strategies that will be implemented; and focuses on foundation issues such as development and retention of superior skills needed by both the private and public sectors, developing research and development (R&D) capacity and making Namibia the preferred investment location in Africa 13 The policy was adopted in 1999 to guide the nation on how it generates, contribute to and benefits from scientific knowledge and technology. The policy is intended not only to influence pace and quality of economic and social development but also facilitate the process of acquisition, absorption, adaptation, utilization and further development and application of science and technology for the purpose of achieving the national development objectives. 14 The policy, which was adopted in 2011, identifies innovation and R&D as one of the policy focus areas. It is supported by the Industrial Policy Implementation and Strategic Framework, which specifies Government’s approach to industrialization and its strategies; sets out the short-, medium- and long-term goals as well as action plans on industrialization during the Fourth National Development Plan. 15 The policy aims to achieve higher growth rates and stability in farm income; enhance agricultural productivity and production levels that are higher than the population growth rate; ensure food security and improve nutritional status; create and sustain viable livelihood and employment opportunities in rural areas; improve the profitability of agriculture and increase investment in agriculture; contribute towards the improvement of the balance of payments; expand vertical integration and domestic value-added for agricultural products; improve the living standards of farmers and their families as well as farm workers; promote the sustainable utilization of the nation’s land and other natural resources’ and contribute to balanced rural and regional development based on comparative advantage. 16 The policy framework, which covers the period between 2010 -2020, has a vision of “A healthy nation, which is free of disease of poverty and inequality”. 17 The policy which was adopted in 2013 has a vision of paving “the way for all children in Namibia to learn and participate fully in the education system, particularly in the schools. The main objectives of the Sector Policy on Inclusive Education are to expand access to and provision of quality education, especially for educationally marginalised learners; and to support learners with a wide range of individual abilities and needs in compulsory education at Early Childhood Development (ECD), pre-primary, primary and secondary levels 18 The policy was issued in 2005 and aims at building up technical skill and capacity needed for realisation of the country’s vision of developing a knowledge-based economy (KBE). 19 The policy was issued in March 2008 and aims to pave the way forward for learners in formal education to have equitable access to learning support materials (LSMs) to develop to their full potential in order to make a meaningful contribution to economic development 20 The policy has a vision to “achieve a high level of responsible development of national resources in which Namibia becomes a significant producer of mineral products while ensuring maximum sustainable

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j) ICT Policy21, k) Tourism Policy22.

In addition to the above there are draft policies and relevant laws that support or promote local inventive and innovative activities and stimulate the transfer, acquisition and adaptation of technology. The draft policies include:

a) National Art culture and Heritage Policy,23 b) A framework policy on innovation,24 and c) National Research Policy.25

The objectives and strategies of each of the above policy instruments can be effectively supported with intellectual property. However, little is made to integrate IP in addressing policy issues and ensure meaningful use of intellectual property as a tool in meeting policy development objectives.

National IP Policy and Coordination

Namibia has no national IP policy framework that would enable it to use IP in order to meet the development goals and objectives, ensure policy coherence and provide guidance on:

a) the integration of IP into national and sectoral development policies, b) the generation and exploitation of IP assets, and the provision of support and promotion

of local creative, inventive and innovative activities as well as the transfer of technology; c) prevention of the loss of valuable assets and absence of benefit sharing such as those

relating to the misappropriation of traditional or indigenous knowledge and biological resources;26

contribution to the socio-economic development of the country and further attract investment and enable the private sector to take the lead in exploration, mining, mineral beneficiation and marketing”. [The policy issues addressed by the policy and strategies identified to realize the vision of the Policy include research, development and technology.] 21 The policy, which was issued in 2009 aims at providing an enabling environment for the use of ICT by facilitating access and availability of information and services that will assist Namibians in their daily lives; Increase[d] competitiveness of business and commerce in the global market place ; and the development of Namibian-based ICT providers that are competitive players on international markets, and in so doing, create opportunities for employment and economic diversification. 22 The policy was issued in 2008 aiming at providing a framework for the development of the tourism sector. 23 This the first draft made in2015 that will be further enriched in the process of policy formulation and approval. 24 The policy, which was drafted in 2011, aims to transform Namibia into a knowledge base society driven by innovation. 25 The draft aims to encourage the development and where appropriate, formal designation of research centre and other groups so that they will become a focal point of the national research effort and promotion. 26 Namibia is endowed with huge traditional knowledge and related resources. The country is one of the hot spot of biological resources in the world. However, there are reports that show these resources have

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d) the revision of existing and drafting of new IP laws in compliance with the requirements of international and regional IP agreements to which the country is a party while exploiting flexibilities in meeting national needs and protecting public interest;

e) maximising benefits from membership to regional and International IP agreements and trading arrangements; and

f) negotiations at bilateral, regional and international levels involving intellectual property issues or matters that may affect the generation, protection and commercialisation of IP assets as well as transfer of technology.

Intellectual property is cross sectoral in nature. IP issues relate to health, agriculture, environment, trade, industry, culture, education, science and technology etc. Effective use of IP as a tool for development requires greater coordination amongst the key government and private bodies in the development and implementation of policies, strategies and laws. However, there is little coordination amongst the relevant players. Stakeholders pointed out the need for greater and effective coordination amongst relevant public and private bodies and exchange of information on IP issues that may affect different sectors.

Institutional IP policy and Management

There are research and academic institutions that are involved in the generation and use of intellectual property assets. However, these institutions do not have institutional IP policy and management units that may guide and support the generation, protection27 and exploitation of IP assets as well as provide awards and recognition28. There are cases that demonstrate loss of valuable research results due to earlier disclosure. These include the rejection of a patent application jointly made by University of Namibia and the inventor in USA for loss of novelty due to its earlier publication by the researcher. Stakeholders also reported that a student of University of Namibia recently disclosed a plant that might cure cancer and the discovery was reported in mass media. There are inventions that are patented and owned by the University of Namibia and researchers. However, these could not be exploited due to lack of a clear policy direction. The need for institutional IP policy and IP management units is well recognised. A number of research and academic institutions such as UNAM and the Polytechnic Institute of Namibia, which is expected to be upgraded to a science and technology university soon, have draft institutional IP policy. These are encouraging developments. Nevertheless, there may be difficulty in addressing some of the policy issues such as intellectual property ownership of been accessed and used by foreigners without bringing benefits to the traditional knowledge holders, local communities that nurtured, conserved and developed genetic resources for generations as well as the country. 27 UNAM has the practice of jointly owning patents with the researchers having a 50 -50% stake. Section 21(1) of the industrial Act provides that “Where an invention is made in the execution of a commission contract or in the course of an employment contract, the right to the patent for that invention passes to and belongs, in the absence of written contractual provisions to the contrary, to the person who commissioned the work or to the employer, as the case may be. 28 UNAM had awarded 100,000 Namibian dollars and has a practice of recognising best researchers every year. This is good. However, the practice may lack uniformity and continuity. These problems may be addressed by the institutional IP policy.

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publicly funded research results and sharing of benefits to researchers and innovators that require policy direction at the national level. Indeed the Research, Science and Technology Act, 2004 (Act No. 23 of 2004) may help in partly addressing the problem. Section 33 (3) of the Act provides that “The rights in respect of any invention, discovery or improvement by a person in the course of studies or research in respect of which he or she received any financial support from the Commission, must be determined by agreement between the Commission and such person or his or her employer, or both such person and his or her employer”. However, research made using public resources is not limited to financial support made by the Commission. It may include government budget allotted to public higher learning and R&D institutions; use of time of a researcher and a scientist to which government pays, research and laboratory facilities, data made available in public research and development institution. The law may not also be of help in addressing issues related to collaborative research activities. There is thus need for addressing issues such as ownership of research results made using public resources and benefit sharing arising from the exploitation of the R&D result by a national IP policy that should be complemented by Institutional IP policies. Issuance of an institutional IP policy may not suffice to encourage the generation and exploitation of IP assets. There is a need to establish an institution that will implement or facilitate the implementation of the policy. This seems to be recognized by the stakeholders. UNAM is in the process of establishing a centres for innovation and development, which will have a department dealing with IP. Moreover, the Polytechnic Institute of Namibia had already established a technology transfer office (TTO) with the support of SIAS. However, the TTO is understaffed. The office has only one manager, who has not received training in the field of intellectual property and technology transfer. The office also requires additional staff to meaningfully discharge its responsibilities. Officials and staff of UNAM and the TTO of the Polytechnic Institute expressed the need for training of staff that may be assigned in the IP department of UNAM and the TTO of the Polytechnic of Namibia,, support in the development of operational manuals such as licensing guidelines and draft license agreements, non- disclosure agreements as well as equipping the offices with the facilities that will enable them to properly discharge their functions including undertaking searches on patent databases and providing relevant technological information that may support and strengthen local R&D and innovative effort. Moreover, officials of UNAM and the Polytechnic Institute requested assistance in the development and further enriching of the draft institutional IP policies, setting up and strengthening institutional units that are established or in the process of being established to facilitate the implementation of the institutional IP policies and handling of intellectual property and technology transfer matters. In addition to the above higher learning institutions, there are vocational education and training centres and public research and development institutions such as the Agricultural Research Institute and the Botanical Research Centre that may need institutional IP policies. Establishing departments such as technology transfer offices or IP departments in each of the institutions may be uneconomical. There should thus be a mechanism that will address the need while ensuring optimal use of the resources. The National Commission on Research, Science & Technology (NCRST) may host such an institutional body to meet the needs of other higher learning and public R&D institutions.

Recommendation

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The Government of Namibia may consider, with the assistance of WIPO and other development partners, the following:

a. Articulate a national IP policy involving key stakeholders both from the public and private sector, taking into account existing and draft national and sectoral development policies as well as international commitments based on international best practices etc.

b. Ensure integration of IP into the national and sectoral development policies and strategies when revising existing or issuing new policies and strategies including the draft Policies and Strategies such as the Arts and Culture Policy;

c. Set up policy coordination mechanisms to ensure policy coherence and greater coordination amongst key public and private sector bodies;

d. Support the further development of draft institutional IP policies and encourage the development of Institutional IP policies in relevant public higher learning and R&D institutions that will complement the national IP policy and strategy goals and objectives and meet the needs of the institutions, researchers and the general public;

e. Strengthen the technology transfer office of the Polytechnic of Namibia and support the establishment of the IP department under UNAM and NCSRT to cater for the needs of public research and development institutions and academic institutions; and

f. Build IP management capacity by training assigned personnel by equipping the IP management units or technology transfer office with the requisite facility and operational manuals such as draft license guidelines and agreements.

Intellectual Property Legal Framework

Intellectual Property and Related Laws

Namibia has general and specific laws that may help or deal with the protection of intellectual property assets. These include the:

a) Constitution of the Republic of Namibia as amended in 1998 , 2010 and 201429; b) Industrial Property Act , No.1 of 201230; c) Patents, Designs, Trade Marks and Copyright Act, No. 9 of 1916 as amended31; d) Patents, Designs and Trade Marks Proclamation, No. 17 of 1923; e) Patent Rules, 1917;

29 Article 140 of the constitution provides that “Subject to the provisions of this Constitution, all laws which were in force immediately before the date of Independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court. 30 The Act is comprehensive, addresses limitations of existing laws and is in line with the requirements of regional and international agreements to which the country is a party. It repealed the Patents, Designs, Trade Marks and Copyright Act, 1916 (Act No. 9 of 1916) (1917); the Patents, Designs and Trade Marks Proclamation No. 17 of 1923; the Patents, Trade Marks and Copyright Proclamation No. 33 of 1940; and the Trade Marks in South West Africa Act No. 48 of 1973. However, the industrial property law is not yet implemented and the repealed laws are still being used. 31 The Act dealt with patents, designs, copyright and trademark. Provisions dealing with copyright and trademarks will not be applicable as they were repealed by laws that specifically deal with each of them. The Act will still be valid concerning patents and industrial designs as the 2012 Industrial Property Act is not yet implemented due to absence of implementing regulation.

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f) Designs Rules, 1917; g) Copyright and Neighbouring Rights Protection Act, No. 6 of 1994; h) Trade Mark Regulation, No. R 2437 of 1973; i) Competition Act, No. 2 of 200332; j) Competition Regulation of 2003; and k) Customs and Excise Act, No. 20 of 1998.

In addition to the above there is a draft law regulating access to genetic resources and protection of associated traditional knowledge. The draft law tries to address issues and concerns related to the protection of traditional knowledge, conservation, sustainable use of genetic resources and ensuring equitable sharing of benefits in compliance with regional and international agreements, namely the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention of Biological Diversity, to which the country is a party. Stakeholders expressed the need to ensure IP laws complement and support the attainment of the objectives of the law. The existence of the aforementioned laws and the ongoing endeavour to have a law regulating access to genetic resource, protection of TK and ensuring equitable sharing of benefits is positive. However, review of the existing legal framework reveals that it is inadequate and suffers from a number of shortcomings. These include:

a) Non comprehensiveness of the IP legal framework- there are no laws that deal with the protection of intellectual property assets such as geographical indications, traditional knowledge, lay out designs and new plant varieties;

b) Continued use of outdated laws33- the 2012 Industrial Property Act is not yet implemented due to lack of implementing regulations. As a result patent, industrial design and trademark applications are made and processed, titles are granted and maintained using laws inherited from the colonial period and are considered valid by the Constitution34;

c) Inadequate laws- examples are the Copyright and Trademarks laws. The Copyright law, which dates back to 1994 is inadequate in that it does not provide an enabling legal framework for the development of creative industries in particular in the digital environment and address challenges such as those resulting from the development and widespread use

32 Article 30 (1) provides that “the Commission may, upon application, and on such conditions as the Commission may determine, grant an exemption in relation to any agreement or practice relating to the exercise of any right or interest acquired or protected in terms of any law relating to copyright, patents, designs, trademarks, plant varieties or any other intellectual property rights”. 33 The High court in Gemfarm Investments v Trans Hex Group 2009 (2) NR 477 , for example, referred to the patent [legislation] law as “probably the most neglected area of statutory regulation in Namibia”. 34 Article 140 (1) provides that “Subject to the provisions of this Constitution, all laws which were in force immediately before the date of Independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court”. Section 239 of the 2012 Industrial Property Act repealed the Patents, Designs, Trade Marks and Copyright Act, 1916 (Act No. 9 of 1916) (1917); the Patents, Designs and Trade Marks Proclamation No. 17 of 1923; the Patents, Trade Marks and Copyright Proclamation No. 33 of 1940; and the Trade Marks in South West Africa Act No. 48 of 1973. However, the industrial property law is not yet implemented due to lack of implementing regulations envisaged under section 236 of the ACT and the repealed laws are continued to be used.

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of digital technology35 and meet the needs of stakeholders such as protection of traditional cultural expressions and archive materials. The existing Trademark law is also inadequate. It does not, for example, provide for protection of collective and well known marks;

d) Lack of clarity- the Copyright and Neighbouring Rights law seem to deal with neighbouring rights. However, the law does not define ‘neighbouring rights’ or clearly specify works that will be protected by neighbouring rights;

e) Non compliance with the requirements of international IP treaties to which the country is a party- examples are the Trademark Act, which does not provide for protection of well- known marks as required under the TRIPs Agreement; the Patent, Designs and Trademark law that does not provide for priority rights in terms of the Paris Convention and recognition of patents, designs and trademarks filed with ARIPO designating Namibia under the Harare and Banjul protocols and titles granted by the organisation; and the Copyright law that does not provide for protection of collection of literary or artistic works such as anthology as required under article 2(5) of the Berne Convention on the protection of literary and artistic works. This is mainly due to the inability of updating the law in line with the requirements of international treaties to which Namibia is a member36 It should be noted here that the enactment of the Industrial Property Act, which is compliant to international and regional IP agreements and is expected to enter into force in 2016 may help in addressing the aforementioned problems related to patents, designs and trademarks;

f) Inadequate compliance of the Customs and Excise law with the TRIPS agreement. The law limits the scope of prohibited and restricted goods from being imported that may be invoked in seeking for border measures by the Customs Authority contrary to imported pirated products contrary to the TRIPS agreement, which also requires such a measure to extend to counterfeit products that may infringe trademark and patent rights and to cover both import and export of infringing goods37;

35 An example is the definition given to “ reproduction” under the law and in ability of protecting works such as computer aided architectural designs. See section 1 for the definition of reproduction and section 3(2) for architectural designs protected. [Reproduction in relation to a literary or musical work or a broadcast, includes a reproduction in the form of a record or a cinematograph film; an artistic work, includes a version produced by converting the work into a three dimensional form or, if it is in three dimensions, by converting it into a two-dimensional form; any work, includes a reproduction made from a reproduction of that work; and a performance, means a copy made of a fixation of a performance. The reason for the problem lies in the fact that there was no use of digital technology when the law was enacted. 36 In spite of this problem with the laws, the Namibian Industrial property Office is accepting the filing of applications and granting of titles made in line with regional and international agreements to which the country is party to.. 37 See Section123 (1) (b) of the Customs and Excise Act which provides that “ no unlawful reproduction of any item or article, if such reproduction is prohibited from import under any law relating to copyright unless shall be imported into Namibia, unless in terms of a permit issued by the Permanent Secretary : Trade and Industry. Article 51 of the agreement provides that “Members shall, in conformity with the provisions set out below, adopt procedures37 to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods37 may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods. Members may enable such an application to be made in respect of goods which involve other infringements of intellectual property rights, provided that the requirements of this Section are met. Members may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from their territories”.

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g) Inconsistency with the requirements of the TRIPS agreement- the Patent law, for example, provides for patent protection of 14 years unlike the 20 year period provided for under the TRIPS agreement; This problem will be addressed by the Industrial Property Act when it comes into force into 2016.

There is thus need to enact new laws, expedite the entry into force of the Industrial Property Act, and amend existing laws in compliance with the requirements of regional and international treaties to which the country belongs and address the needs of stakeholders such as traditional knowledge holders. Moreover, there is need to expedite the enactment of regulations that will help to implement the 2012 Industrial Property law in the country.

Membership to International IP Treaties

Namibia is a state party to a number of international and regional intellectual property and trade agreements, which may support the use of intellectual property as a tool for development and enhance competitiveness of local businesses. The country is a member to the:

1. Berne Convention for the Protection of Literary and Artistic Works ( March 21, 1990); 2. Paris Convention of the Protection of Industrial Property (January 1, 2004); 3. Patent Cooperation Treaty (January 1, 2004); 4. Madrid Agreement Concerning the International Registration of Marks (June 30, 2004); 5. Protocol Relating to the Madrid Agreement Concerning the International Registration of

Marks (June 30, 2004); 6. Hague Agreement concerning International registration of Industrial Designs (June 30,

2004); 7. Convention establishing WIPO (December 23, 1991); 8. Agreement establishing WTO ( January 1,1995); 9. The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) (January

1,1995); 10. Harare Protocol on Patents and Industrial Designs within the Framework of the African

Regional Industrial Property Organisation (28 March 2003); 11. Banjul Protocol on Marks within the Framework of the African Regional Industrial

Property Organisation (28 March 2003); 12. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing

of Benefits Arising from their Utilization ( October 12, 2014); 13. Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of

Folklore (February 2015); 14. Southern African Customs Union (SACU) Agreement (October 21, 2002); 15. Treaty Establishing the Southern Africa Development Community (August 17, 1992); 16. Convention on Biological Diversity (August 1997); and 17. Cartagena Protocol on Bio-safety (May 11, 2005).

Membership to the above agreements is very positive. However, the country may need to join other international Intellectual Property Agreements to which it is a signatory or not yet a signatory to complement the changes that will be made in existing legislation addressing challenges and limitations or new laws that may be enacted to meet the needs of stakeholders such as the:

a) Arusha Protocol for the Protection of New Varieties of Plants ( July 6, 2015) b) WIPO Copyright Treaty (WCT) (December 20, 1996);

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c) WIPO Phonogram and Performers Treaty (WPPT) (December 20, 1996); d) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind,

Visually Impaired, or Otherwise Print Disable (August 12, 2013); e) Beijing Treaty on Audiovisual Performances (June 26, 2012); f) International Convention for the Protection of New Varieties of Plant (UPOV

Convention);38 and g) Lisbon Agreement for the Protection of Appellations of Origin and their International

Registration.39

The benefits of linking the national IP system with the international IP system are not adequately known. Stakeholders complained that protection of IP assets is expensive. This is due to a lack of knowledge of the regional and international routes that may be used in protecting IP assets and the reduction of application fees for applicants from developing countries such as the PCT. There are a number of opportunities offered by international organisations such as the WIPO ARDI program that may be used in supporting local innovative effort. However, these are not known and used. Officials of NCRST, UNAM, Polytechnic of Namibia and Chamber of Commerce and industry and individual inventors did not know of the opportunities and requested for more information on the procedures and requirements for benefiting from the opportunities offered by WIPO through its ARDI program.

Recommendation

The Government may consider, with the assistance of WIPO and development partner organisations the following:

a) Expedite the entry into force of the Industrial Property Act b) Finalize and publish the regulations for the implementation of the Industrial Property Act; c) Amend the existing Copyright and neighbouring protection Act taking advantage of the available policy space in order to address their shortcomings, meet the need of stakeholders and the requirements of regional and international IP agreements to which the country is a party; d) Revise the existing Customs and Excise laws in compliance with the requirements of the TRIPS agreement; e) Review and enact the draft law on Access to genetic resources and associated traditional knowledge to complement the measure taken in acceding to the Nagoya protocol ; f) Enact new laws that will provide for the protection and exploitation of new plant varieties, , geographical indications, layout designs of integrated circuits, undisclosed information and facilitate the implementation of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore in line with the needs of stakeholders and the country as well as the requirements of international agreements to which the country is a party or will be a party taking maximum advantage of the flexibilities and policy spaces; and

38 Membership to this treaty may complement the national law when the country enacts a law for protection of new plant varieties. 39 Membership to this treaty as amended in Geneva may complement the law that the country may enact to protect geographical indications to capture intrinsic values associated to distinctive characteristics of products attributed to geographical origins, further build good will and reputation, improving competitiveness and enhancing trade revenue.

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g) Undertake a study and accede to relevant international IP treaties to which Namibia is signatory, namely; Arusha Protocol for the protection of new Pant Varities, WIPO Phonogram and Performers Treaty (WPPT), WIPO Copyright Treaty (WCT), Trademark law treaty, Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh VIP Treaty) and Beijing Treaty on Audiovisual Performances and agreements that it is signatory to but may complement new laws that the country may enact to meet the needs of stakeholders or the country.

IP Administration

Strengths and Weaknesses of the Existing IP Institutions

The Trade and Commerce Department, Ministry of Industrialization, Trade and SMEs Development (MITSD) and Copyright Services, Ministry of Information and Communication Technology (MICT) are responsible for administering industrial property and copyright laws respectively. The government recognized that fragmentation of IP administration may not help to effectively use IP as a policy tool for development, build the requisite capacity that will be needed to enhance quality of service and effectively address similar issues such as promotion of IP, ensuring respect of IP, advise the government and develop national positions on issues that may involve other countries such as trade and investment agreements. It set up the Business and Intellectual Property Authority (BIPA) as a non-profit State Owned Company registered under Section 21 of the Companies Act No. 28 of 2004, as amended, and functions under its Memorandum and Articles of Association. BIPA is headed by an interim Board of Directors including a Chief Executive Officer (CEO), who was appointed in February 2014 to spearhead the process of operationalising BIPA.

A draft bill was prepared in 2013 to set up BIPA as an autonomous government body, define its mandate and structure. The draft bill was finalized and submitted to the legal drafters of the Ministry of Justice for final drafting and scrutiny before tabling in Parliament. Stakeholders indicated that the process of enacting the BIPA bill is taking time and demanded that the process be expedited.

In addition to the IP office, there is the Namibian Society of Composers and Authors of Music (NASCAM), which was established in 1994 following the enactment of the Copyright and Neighbouring Right Protection Act, No. 6 of 1994.40 NASCAM has 5,520 members and administers the economic rights of copyright owners of musical works, grants licenses for the use of protected works and is responsible for the collection and distribution of royalties. In addition , there are intellectual property agents that are involved in the protection of intellectual property rights.

40 The main objectives of NASCAM are register authors, composer and publishers of music; issue music license, collect and distribute royalties to members.

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The existence of the IP institution and the measures taken to streamline IP administration are strengths. However, there are a number of weaknesses and challenges that should be addressed. These include:

a) Limitation of mandate of NASCAM- the mandate of the collective copyright management society is limited to musical works. As a result the society was forced to submit an application to the MICT to broaden its mandate to enable it to administer reprographic rights;

b) Inadequate trained human resources- staff of existing offices handling industrial property and copyright related matters in MITSD and MICT that will be transferred to BIPA when the draft bill is enacted do not have adequate training. Some of the staff has exposure to intellectual property through participation in short-term training programs offered and workshops organisedby WIPO and ARIPO. Officials and members of the IP offices indicated a need for in- depth training including at Master’s level to enable them to effectively discharge the responsibilities that will be entrusted to them by BIPA. Leaders and members of NASCAM also indicated the need for training of its officers in handling challenges and managing rights in the digital technology environment;

c) Inadequate office equipment and facilities - BIPA needs to be equipped with the necessary equipment and infrastructure to effectively discharge its responsibilities such as processing of IP applications and granting and renewing IP rights as well as offering development related services to meet the needs of intellectual property assets generators, industrial and business establishments. Use of IPAS for trademarks and the comprehensive automated business solutions offered by WIPO and the plan to use IPAS for patents and designs in 2016 will greatly contribute in addressing most of the aforementioned needs. NASCAM also indicated the need for facilities including equipment to effectively manage rights of its members;

d) Lack of financial autonomy of the IP office -the problems identified by the stakeholders include inability to make use of the revenue the IP office generates in effectively discharging its responsibilities, enhancing the quality of its services, promoting IP awareness, rendering development oriented services and ensuring the use of IP as a tool for development like similar IP offices in Africa such as Business Registration and Licensing Agency (BRELA) of Tanzania and Patents and Companies Registration Agency (PACRA) of Zambia. This problem may be addressed when the draft bill that establishes BIPA is enacted. Section 21 of the draft Bill provides that the source of funds of BIPA include “fees, tariffs, charges, administrative fines and penalties received including any interest on unpaid amount and that the Authority manage its funds in accordance with sound principles of financial management and in particular, by observing the measures implemented to protect the liquidity of BIPA”;

e) Lack of adequately trained professionals - stakeholders pointed out that there are no adequately trained IP professionals that will provide advice and support to individuals and institutions involved in the generation and commercialisation of IP assets as well as identification of infringing products and facilitating enforcement of IPR. Some of the critical services are made by foreign experts that have been found expensive and beyond the means of Namibian IP generators and enforcers;

f) Cost of license fees - The CEO of NASCAM indicated that maintaining of the member’s software that links the society to the world database is costly in that the annual license fees are not based on the amount of collection of royalty and do not take into account the situation of small copyright societies.

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Granted Intellectual Property Rights

The existing IP laws provide for receiving and processing of patent, industrial design and trade mark registration and granting and renewal of rights- patents, trademark and industrial designs registration certificates. The rights granted between 2009 and 2014 are summarized in the Table below:

Year Residents Foreigners

Patent Industrial Design

Trademark Patent Industrial Design

Trademark

2009 28 6 26 3 2 29

2010 20 9 15 8 0 14 2011 8 11 15 20 2 42 2012 11 18 5 15 1 5 2013 16 3 18 14 5 22 2014 17 1 8 17 0 0 Total 100 48 87 91 10 112

Source: Ministry of Industrialization, Trade and SMEs Development The above table shows that each of the industrial property tools has been used by both residents and foreigners. Moreover, the majority of beneficiaries of the patent and industrial design protection system are residents. This is encouraging compared to similar data in a number of African countries. However, a lot needs to be done. There were cases of loss of valuable intellectual property assets or misuse of IP assets. Examples of IP assets that are lost for lack of protection include research results generated by UNAM and TK of local communities such as the use of Devils claw for medicinal purposes. This could be due to a number of factors that include lack of awareness of the IP system. There were stakeholders that indicated that they heard or knew about IP and the existence of the IP system in Namibia for the first time. Example of misuse of IP assets is the earlier brand of TEAM NAMIBIA that was developed to promote and strengthen the marketing of local products of members that meet set requirements. The brand was misused in marketing foreign products and inferior local goods that defeat the objective of the initiative. TEAM NAMIBIA was thus forced to change its previous brand and develop a new brand. The Team has learned a lesson and took measures to protect its new brand in Namibia. This may not help to adequately serve the objective of Team Namibia of promoting local products as foreigners including from the neighbouring countries may use the brand in marketing their products and reap benefits from the reputation and goodwill represented by the TEAM NAMIBIA brand. Such a problem may be prevented by filing and securing protection of the brand in foreign countries. Stakeholders indicated that the cost of filing and protecting intellectual property assets including professional service is beyond their means. This is partly related to a lack of knowledge of regional and international routes for filing of applications and inadequate IP professionals that will provide support services. Stakeholders expressed concern for the need for protection of research results and the need for disclosure and presentation of research findings of students and researchers to meet requirements and share knowledge with peers in scientific forums such as conferences as well

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as the interest of society in promoting wider dissemination of knowledge generated by academic and research institutions. Such a concern is due to the lack of or inadequate awareness of the IP system that tries to strike the balance between the interest of right holders and the general public and the available safeguards such as limitations and exceptions. However, it will be appropriate to ensure that the concern is addressed when revising existing laws and enacting new ones.

Recommendations

The Government may, with the assistance of WIPO and development partners, consider the following:

a) Expedite the process of reviewing and enacting the draft Bill that will define the mandates and legalize the operation of BIPA;

b) Expedite the process of decision making on the request of NASCAM to broaden its mandate;

c) Design and implement a human resource capacity building program aiming at training the staff of BIPA and NASCAM at different levels - short, medium and long term, using different tools including on-the-job training, attachment, study tours, and taking part in long term training programs such as Master’s degree in intellectual property offered by WIPO in collaboration with universities ;

d) Ensure that BIPA provides advisory services such as advising IP generators on available regional and international routes that will enable them to protect their assets at lower costs;

e) Equipping BIPA and NASCAM with the necessary facilities and infrastructure including servers, software for capturing, managing and making accessible data;

f) Support process mapping, development of new procedure and operational manuals, taking into account the new Industrial Property law and laws that may be revised and new laws that may be enacted and administered by BIPA;

g) Sensitize the available regional and international routes in protecting IP assets generated by Namibians;

h) Set up an innovation fund that will support IP generators in protecting their IP assets such as covering protection related costs taking into account experiences of other countries;

i) Training of IP practitioners that will provide advisory and technical support services in protecting intellectual property rights of individuals and institutions engaged in the generation of IP assets;

j) Assist NASCAM in exploring how the issue of unreasonable annual license fees is settled such as raising the issue at appropriate forums or to the licensor of the software and seek for reasonable amount of annual fees.

k) Ensure that a proper balance is made between the interest of protecting IP assets and the need for access to and dissemination of knowledge to meet societal needs when revising existing and enacting new IP laws.

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Generation of IP assets and Use of IP

Strengths and Weaknesses

There are clear policy directions that create conducive environments for innovation and creativity in Namibia. These include Vision 2030, industrial, agricultural and mining policies; laws such as IP laws and institutions engaged in the administration of IP laws and promotion and support of research and development and innovative activities and providing funding such as BIPA and the National Commission on Research, Science & Technology (NCRST)41; and Innovation support centres such as the innovation and business incubation centre of the Polytechnic of Namibia, which encourage and support entrepreneurship and innovation including by making accessible research and innovation facilities. Moreover, there are public academic and research institutions that are involved in the generation of research results, coordination and promotion of innovation and research in the country. These include the University of Namibia42, Polytechnic of Namibia, the National Botanical Research Institute, Namibia Institute of Mining and Technology, Namibia Maritime and Fisheries Institute and Institute for Domestic Science and Agriculture. Efforts are made to use IP in protecting R&D results. Examples include patent protection of research results generated in UNAM. There are about 7 inventions that are patented and jointly owned by the researchers of UNAM and the university. There are also pending patent applications made by UNAM. There are authors, composers, NASCAM and creative industries that are engaged in the creation, value addition , dissemination of copyrightable works such as literary and artistic works, film, music etc that use copyright protection in exploiting or facilitating the exploitation of works. A number of business establishments have also developed brands and designs to add value to their products and services and protected the intellectual property assets using trademark and design registration. The aforementioned are indeed very positive. However, stakeholders reported a number of challenges. These include:

a) Inadequate capacity for generation of research results including an inadequate number of researchers;

b) Brain drain that resulted in the loss of researchers, scientists and trained professionals; c) Inadequate funding of R&D. It is estimated that Namibia spends less than .25% of its

GNP on research and development; d) Loss of valuable assets. Examples include a recent disclosure of the findings of a plant

discovered in northern Namibia that will cure cancer by a student of UNAM and the rejection of a patent application of UNAM by the United States Patent & Trade mark Office (USPTO) due to prior disclosure of the invention by the researcher, which resulted in the loss of the novelty requirement of the invention;

41 NCRST administers a fund to support R&D activities in a competitive basis. 42 The University has institutions that are entrusted to undertake research. These include the Zero Emissions and Research Initiative and the Multidisciplinary Research Center. “The centres have good links with rural agricultural communities, having provided technical assistance that resulted in some value added to rural produce, such as methodologies for the sustainable production of devil's claw (harpagophytum procumbens) or the development of a prototype for a mushroom based nutraceutical”. See axess, Southern Africa Innovation Support programme Project, Consulting and Assisting in Building Capacity in Incubation activities within the SAIS Partner Institutions and Other Incubation entities in the Partner Countries, Final Report, July 2013, Version 1.

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e) Lack of national and institutional IP policies that provide guidelines to deal with issues such as disclosure, protection and ownership of research results, and rights and privileges of researchers, students, supervisors and HLIs;

f) Inadequate awareness of the significance of technological information contained in patent documents in strengthening R&D effort, avoiding wastage of resources and efforts in reinventing the wheel and keeping abreast with new developments in the field of research. This valuable resource was not known and exploited by researchers in HLIs and R&D institutions. Researchers and officials of UNAM recognized the significance of such a valuable resource and sought for support in the establishment of TISC. The manager of the technology transfer officer of the Institute of Polytechnic expressed that he did not know of such a valuable resource and requested for training in accessing national, regional and international databases;

g) Lack of awareness and non use of opportunities offered by WIPO such as online access to scientific and technical journals and resources at low cost to researchers in developing countries under the Access to Research for Development and Innovation (ARDI) program.43 This is mainly due to a lack of awareness and information sharing. A number of stakeholders indicated that they did not know of the facility offered by WIPO, indicated the need for more and detailed information on the requirements and procedures to benefit from ARDI and requested focal institutions such as BIPA to regularly share information on ARDI and similar opportunities offered by other organisations to potential beneficiaries;

h) Inadequate involvement of the private sector in the generation of IP assets. Most of the business establishments are subsidiaries of foreign companies where research is done in the parent company abroad and there is low demand for in house R&D activity.

Recommendations

The Government of Namibia, in cooperation with WIPO and other development partners may consider the following:

a) Build capacity of public academic and research institutions involved in the generation of research results both in terms of human resource and research infrastructure;

b) Increase R&D funding taking into account the capacity of utilization of the fund; c) Provide a conducive environment including attractive salaries, incentive schemes for

researchers to deal with the problem of brain drains; d) Support the development, issuance and implementation of institutional IP policies to

prevent the loss of valuable IP assets; e) Encourage the establishment and strengthening of institutional units such as technology

transfer offices to support R&D efforts such as by making available technological information contained in patent documents;

f) Promote information exchange on and use of opportunities offered under the WIPO ARDI Program and similar initiatives that will be made to facilitate access to scientific and technological information sources by researchers from developing countries;

g) Encourage the involvement of the private sector in the generation of IP assets; h) Promote the use and awareness of IP by potential beneficiaries or users of the system

such as individual researchers, academic & R&D institutions and business establishments.

43 The program was launched in July 2009 to make scientific and technological journals and literature freely available to LDCs and at a much lower cost to developing countries such as Namibia.

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IP Commercialisation and Technology Transfer

Strengths and weaknesses

The generation or protection of IP assets is not an end in itself. The assets should be put to use and exploited. Commercialisation of IP assets will help to transform the assets into products, services and new business. There are authors and composers that exploit their work via licensing agreements concluded between their society- NASCAM and users. NASCAM administers the copyrights of over 72,000 musical works on behalf of the right holders. Most members become beneficiaries to royalty payments through NASCAM from the positive exploitation of their works by the majority of local Radio Stations and Television Stations44. NASCAM, unlike similar societies in Africa, did not receive financial assistance from the government, and keeps on registering remarkable achievements including an increase in membership, licensing and collection of royalties. Public higher learning institutes and research and development organisations generate intellectual property assets. However, research results are not commercialised. There is no tradition of commercialisation of research results by higher learning institutions and research organisations in Namibia like many other developing countries. They rather widely use the traditional means of dissemination of research results, which include presentations at research conferences attended by specialists in the particular disciplines of the research and publication in peer-reviewed research journals or disseminating the results to end users. The main reasons for non-commercialisation of research results generated by public higher learning and R&D institutions include:

a) Lack of policy direction on ownership and exploitation of research results made using public resources;

b) Absence of [institutional IP policy and] institutional mechanisms such as technology transfer offices that will direct and facilitate the commercialisation of IP assets;

c) Inappropriate law. The UNAM Act, for example, establishes UNAM as a non-profit making organisation and will not enable it to commercialise research results generated by it;

d) Lack of finance to further develop and commercialise intellectual property assets. The requirement of financial institutions such as collateral is beyond the means and capacity of IP asset generators. Moreover, there are no venture capitalists or business angels that may take the risk involved in the development and commercialisation of new inventions; and

e) Lack of or inadequate linkage between academic and research institutions on the one hand and the productive sector on the other45.

Recommendations

The Government of Namibia, in cooperation with WIPO and other development partners may consider the following:

44 For further information see Director: Head of Subdivision (Audiovisual, Copyright Services, Regional offices & Commissions) at www.mict.gov.na 45 Public higher learning and R&D organisations research activities are often criticized as not being need and market oriented.

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a) Address the issue of ownership of research results made using public resources in the national IP policy and strategy;

b) Amend laws such as the UNAM Act in line with the national IP policy and strategy; c) Support the establishment and strengthening of technology transfer offices in public

higher learning and R&D institutions; d) Set up an innovation fund or a mechanism that will provide a guarantee to innovators,

creators and entrepreneurs to access finance from lending institutions such as Banks, needed in commercializing their intellectual property assets;

e) Promote linkages between institutions that generate IP assets and the productive sectors.

IPR Enforcement

Strengths and Weaknesses of IPR Enforcement

There are laws dealing with remedies against infringement. The 1994 Copyright and Neighbouring Act provides for remedies that include fines, imprisonment and destruction of infringing goods.46 Moreover, the Customs and Excise Act provides for border measures against infringing goods.47 The institutions mandated to implement the law and fight against the infringement of intellectual property rights include the Ministry of Finance, Customs and Excise Department, the police and courts. NASCAM has been working with the enforcement agencies which resulted in the reduction of piracy in the country. Stakeholders reported that piracy was a serious problem in Namibia prior to 2003. There was a practice of widespread unlawful reproduction of copyright protected works such as music and selling pirated products openly as though the activity was lawful. This is no longer the case as a result of the measures taken by the enforcement officials in cooperation with the music copyright society (NASCAM). NASCAM has established a very effective and continued collaboration with the Namibian Police and Custom officials to combat piracy. The society has a program of information sharing and conducts a training workshop at the Police Academy every year in order to help the police handle piracy cases and identify pirated products such as unlawfully reproduced CDs and DVDs. These are indeed very positive achievements. However, a number of challenges were identified during the desk research and consultations with the stakeholders. These include:

a) Inadequate law- available legal remedies against infringement of IPRs under the existing laws are not adequate, elaborate and broad as required under the TRIPS agreement48 to which the country is a party;

b) Weak penalty- the punishment ordered by courts had been light and optional- a fee of 300 Namibian dollars or simple imprisonment of not more than 3months. Such a penalty will not deter infringers; is not commensurate with the damage that may be

46 See sections 51, 52 and 53 of the Copyright and Neighbouring Rights Protection Act 6 of 1994. 47 See Section 123 of Customs and Excise Act 20 of 1998. 48 Part III of the TRIPS agreement (articles 41, to 61) requires member states to provide for civil remedies against any act of infringement of intellectual property rights covered by the Agreement, border measure against importation of alleged counterfeit trademark or pirated copyright goods and criminal procedures and sanctions in cases of willful trademark counterfeiting or copyright piracy on a commercial scale. . Some of the remedies under the existing Namibian laws including the IP, civil , criminal and custom laws are absent or inadequate.

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caused by the infringement of IPRs on the right holder, the government and the general public and the benefit IPRs infringers derive from illicit acts;

c) Inability of the police to act on its own- officials of NASCAM reported that the police act against pirates only when issues are brought to its attention by the copyright society. NASCAM would like members of enforcement agencies to act on their own initiative whenever they come across IPR infringing acts or results of unlawful acts;

d) Delay in the disposition of court cases49- this had a negative impact in that IPRs holders are discouraged from bringing court actions;

e) Inadequate knowledge and awareness of IP and the impact of IPR infringement by magistrates and judges;

f) Inadequate capacity of members of enforcement agencies in differentiating between infringing and genuine products and dependence on costly foreign experts service;

g) Rejection of police testimony-police officers reported that their testimonies are often challenged and rejected in court on the grounds of lack or inadequate expertise;

h) Inaccessibility of information on protected intellectual property assets and their current status- such information is not readily available and is obtained only upon request to the IP office;

i) Inadequately trained manpower- currently only one of the staff members of the Customs and Excise has exposure to intellectual property. Members of the police underlined the need for training and awareness of intellectual property;

j) Lack of coordination between the police, customs and other enforcement agencies; and

k) Inadequate capacity of right holders to track infringement activities and take them to court.

Recommendations

The Government may consider, with the assistance of WIPO and other development partners, the following:

a) Adopt or amend laws in order to comply with the requirements of Part III of the TRIPS Agreement in a balanced way, taking into account the socio-economic circumstances prevailing in Namibia ;

b) Design and implement a strategy aiming at building respect for IP; c) Design and implement training programs for members of the enforcement agencies; d) Strengthen the offering of IP courses by the Faculty of Law of UNAM that generates

trained lawyers who will be involved in the enforcement of IPRs; e) Organise colloquiums and study visits for training of judges and prosecutors; f) Incorporate IP into the curriculum of the police academy to ensure having police officers

exposed to IP and IPR infringement; g) Design and implement a mechanism that would enable enforcement officers to identify

and differentiate infringing products from genuine ones including accessing of web sites of the World Customs Organisation (WCO) and IPRs holders business organisations;

49 Stakeholders indicated the reason behind the delay is inadequate knowledge of IP by magistrates and judges. Some of the stakeholders wanted the establishment of an IP court consisting of judges trained in IP. Such a proposal may not fly when seen in light of the volume of IP cases that may be brought to courts. Moreover, there is no obligation to create specific IP court under the TRIPS Agreement. Art. 41(5) states: “It is understood that […] Part [III of the TRIPS Agreement] does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this Part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general”.

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h) Establish and Promote cooperation with foreign IP enforcement bodies, regional and international organisations in fighting piracy, counterfeit and other forms of infringement of IPRs;

i) Promote and exploit information and training facility available in international organisations such as the WCO and international business alliances such as the software business alliance in building IPR enforcement capacity;

j) Set up an IP database in BIPA that will be made accessible to enforcement agencies using an ICT framework.

IP Awareness and Use

Strengths and Weaknesses

There are individuals, academic institutions and business establishments that are aware of IP and protect their IP assets using the copyright, trademark and patent laws of the country. However, stakeholders pointed out that the level of awareness of IP by right holders or potential users such as businesspersons, researchers, and academic staff of the University; politicians, government officers, and members of the IP enforcing agencies- magistrates, judges, police, and customs officers as well as the general public is inadequate. Efforts have been made by MITSD, MICT, BIPA and NASCAM to popularize intellectual property through workshops and events organised to celebrate World Intellectual Property days50. The University of Namibia offers IP by a part-time instructor as an elective course to undergraduate students of the law faculty. There had been no government body that was entrusted by law to promote awareness of intellectual property. This problem is addressed by the draft Bill that will establish BIPA. One of the core functions of BIPA is promoting awareness of IP. The aforementioned are positive. However, there are a number of challenges that should be addressed. The impact of intellectual property awareness activities have been insignificant in that they were not target oriented, limited to few promotional tools such as workshops and lacked continuity. Industries such as the media that could have played a significant role in promoting intellectual property awareness have been little used. Little was done to train journalists and exploit print and electronic media. Stakeholders indicated that lack or inadequate awareness and use of IP is a serious problem that should be addressed as a matter of priority. Officials of the Namibian Chamber of Commerce and Industry (NCCI), for example, expressed that the majority of the chamber’s members are SMEs that do not know intellectual property and how it may serve in strengthening their competitiveness and addressing various needs. The officials requested support in the establishment of an IP help desk that will be involved in educating its members on the significance of IP, render advisory and support services and development of intellectual property promotional materials. Moreover, stakeholders expressed the need to integrate IP into the curriculum of primary and secondary schools as well as higher learning institutions such as technical and vocational training centres (TVTCs) and universities. The offering of IP as an elective course by the faculty of law of UNAM will not be enough to meet the need for trained IP lawyers. There is need to strengthen the program by making it a full-fledged course and to incorporate IP into the curriculum of the post graduate study program of the faculty. The Dean of the Faculty recognizes the significance of offering the course at the 50 BIPA in cooperation with MITSD and MICT, for example, had successfully hosted the World Intellectual Property Organisation (WIPO) Day, well known as the Intellectual Property Day (IP-day), in Keetmanshoop - the administrative capital of the southern //Karas region of Namibia in April 2014.

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post graduate level and requested for assistance in curriculum development, training of staff, provision of teaching materials etc.

Recommendations

The Government may consider, with the assistance of WIPO and other development partners, the following:

a) Design and implement target oriented, coordinated and continuous IP awareness programs involving beneficiaries or potential beneficiaries of the intellectual property system;

b) Allot adequate funds to BIPA to effectively discharge its responsibilities related to the creation and strengthening of awareness of IP;

c) Strengthen the offering of IP to under graduate students of the law faculty of UNAM by making it a mandatory course and supporting the development and availability of IP teaching materials;

d) Support the incorporation of IP into the post graduate program of the faculty of law of UNAM and the integration of IP into the curriculum of primary and secondary schools, TVTCs and HLIs;

e) Train staff that is or will be engaged in offering of IP courses to students of HLIs at a post graduate level in the field of IP and make available relevant materials such as WIPO IP teaching manual, international IP treaties and other materials that may help the teaching and learning process;

f) Provide IP promotional materials such as the WIPO comic books and support their translation into local languages;

g) Train journalists and encourage the use of print and electronic media in sensitizing potential right holders, various stakeholders and the general public on the importance of intellectual property;

h) Establish an IP help desk in the Namibian Chamber of Commerce and Industry (NCCI) and train/assign staff; and

i) Organise colloquiums for parliamentarians and top officials of government.

Creative Industries

Strengths, Weaknesses and Challenges

Creative industries , which are also referred to as copyright based or cultural industries, relate to those industries that combine the creation, production and commercialisation of contents, which are typically protected by copyright and related rights and take the form of goods or services such as visual arts, dance, performing arts, crafts, music, film and video, and literature. Namibia has talented people and ethnic groups with diverse cultural resources that could be tagged in the development and strengthening of the creative industry. The country has music, publishing and film industries as well as handicrafts. There are institutions that are involved in the promotion and support of the creative industry. These include MICT, NASCAM, Namibian Music Industry Union (NAMIU), ArtNam and Okavango Artist Organisations. The measures taken to fight piracy have also contributed to strengthening the emerging creative industry.

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The creative industry is an area that Namibia has comparative and competitive advantage. The country can easily enter into the international market and be competitive. However, there are challenges that should be addressed. These include:

a) Inadequate recognition of the significance of the creative industry and lack of support of the sector by the government- this may be due to the absence of a study that demonstrates the contribution and potential contribution of the creative industry to social, cultural and economic development;

b) Inaccessibility of finance to exploit creative works and support the creative industry; c) Lack of fiscal incentives to strengthen the emerging industry; d) Weak associations of right holders, creators and entrepreneurs; e) Lack of laws that protect traditional cultural expressions such as folk music and dance,

which have been exploited with no return and recognition to local communities; f) New technological developments that made reproduction and distribution of

copyrightable works easy, cheap and fast as well as monitoring infringement and enforcement difficult; and

g) Inadequate capacity of enforcement agencies in enforcing copyright and related rights.

Recommendations

The Government may consider, with the assistance of WIPO and other development partners, the following:

a) Initiate the conducting of or undertake a study to show case the contribution of the creative industry to social, cultural and economic development;

b) Develop and implement policies and laws that may provide incentives to and support the creative industry such as fiscal incentives and advisory services;

c) Revise existing laws and provide for adequate remedies that will enable effective enforcement of rights;

d) Recognize the creative industry as an area that the country has comparative and competitive advantage and promote the use of IP as a tool for development;

e) Enact a law that provides for protection of traditional cultural expressions and ensure equitable sharing of benefits to local communities;

f) Support NASCAM in building its capacity in order to address the technological challenges faced and strengthen societies of creators and entrepreneurs by empowering them to promote creativity and support the creative industry.

Traditional Knowledge (TK), Traditional Cultural Expressions (TCE) and Genetic Resources

Strengths, Weaknesses and Challenges

There is a general lack of proper and adequate legislation to protect these areas, yet they are areas that are saturated with developmental potential and are areas to tap into for the country’s development. In the existing legislation, only section 12 of the Industrial Property Act, 2012 mentions how traditional knowledge (TK) forms part of the prior art for matters pertaining to

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patent applications. There is quite a large number of traditional communities in the country, (to date there are approximately 49 recognised traditional communities in Namibia51). The Namibian Constitution states clearly that the State plays a key part in the ownership of the country’s natural resources. Section 100 vests ownership of all natural resources which are not privately owned in the State. Section 95(1) poignantly states that the State has an obligation to ‘…adopt policies aimed at the maintenance of ecosystems, essential ecological processes and biodiversity, and the utilisation of living natural resources on a sustainable basis for the benefit of all Namibians, both at present and in the future”. With that as a back drop, it ought to be mentioned that the country has ratified the Swakopmund Protocol on the protection of traditional knowledge and expressions of folklore, which only recently came into force52.

The entry into force of the Swakopmund Protocol will have the following effect on the country and all other member states:

• It will enable the knowledge holders and local communities in the Member States to register trans-boundary traditional knowledge and expressions of folklore at ARIPO;

• The knowledge holders and local communities in Member States will be able to submit for record purposes traditional knowledge and expressions of folklore in their territories. This can be done through the national competent authority;

• The knowledge holders and local communities in Member States will be able to license their traditional knowledge and expressions of folklore lodged at ARIPO and obtain benefits arising from the commercial use of such knowledge and folklore and obtain fees from such licenses;

• The knowledge holders and local communities in the Member States will be able to use the alternative dispute settlement procedures at ARIPO to settle disputes arising from traditional knowledge and expressions of folklore shared by different communities across national boundaries as the need arise;

• It will enable ARIPO to establish databases on codified and non-codified traditional knowledge and expressions of folklore. The information in the databases will only be used upon prior informed consent from the knowledge holders. The consultation of the databases will also generate income for the member states53.

GIZ in cooperation with BIPA is in the process of supporting the translation of the Swakopmund Protocol on the protection of traditional knowledge and expressions of folklore and sanitizing TK holders and local communities. The country has a draft Bill on Access to Genetic Resources and Protection of Associated Traditional Knowledge54 (the ABS Bill). The Bill unequivocally acknowledges that the current IP registration and protection regime is inadequate in protecting traditional knowledge (TK) and 51 “An analysis of the registration of traditional product names, terms, symbols and other cultural expressions as trademarks in Namibia”, (2014) Saima Litauleni Nghihalwa 52 The Protocol came into effect on the 11th of May, 2015 53 African Regional Intellectual Property Organisation (ARIPO) accessed from http://www.aripo.org/news-events-publications/news/item/54-entry-into-force-of-the-aripo-swakopmund-protocol-on-the-protection-of-traditional-knowledge-and-expressions-of-folklore 54 This Bill has been in development since 1998 and is a requisite to the ratification of the Nagoya Protocol. Namibia was one of the main architects behind the 2010 Protocol which secured access and benefit sharing rights for communities under the UN Convention on Biological Diversity

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thus puts forward a case to create and put in place a sui generis protection system for it. It also seeks to “prevent exploitation of indigenous resources, such as devil's claw (Harpagophytum sp.) a plant used by the San people to treat rheumatism and arthritis, and hoodia (Hoodia gordonii) which is used for suppressing hunger”55. In the preamble, it states that the Act has as its objective, “To provide for the conservation, evaluation and sustainable use of genetic resources and associated traditional knowledge and technologies in order to: maintain and improve their diversity as a means of sustaining life support systems; recognize, protect and support the inalienable rights of local communities over their genetic resources and associated traditional knowledge and technologies; provide an appropriate system of access to genetic resources and associated traditional knowledge and technologies subject to the prior informed consent of the State and the concerned local community; promote appropriate mechanisms for a fair and equitable sharing of benefits arising from the use of genetic resources and associated traditional knowledge and technologies; ensure the effective participation of concerned local communities, with a particular focus on women, in making decisions as regards the distribution of benefits which may derive from the use of their genetic resources and associated traditional knowledge and technologies; promote and encourage the building of national and grassroots scientific and technological capacity relevant to the conservation and sustainable use of genetic resources; provide appropriate institutional mechanisms for the effective implementation and enforcement of the rights of local communities and the conditions of access to genetic resources and associated traditional knowledge and technologies; promote the conservation, evaluation and sustainable utilisation of genetic resources including those of horticultural, sylvicultural and medicinal value with a particular focus on the major role women play; and to ensure that genetic resources are utilised in an effective and equitable manner in order to strengthen the food security”. Its main objectives are:

• To regulate access to genetic resources and associated traditional knowledge based upon prior informed consent;

• To protect local communities’ rights over and traditional knowledge in respect thereof; • To promote a fair and equitable mechanism for benefit sharing; • To establish the necessary administrative structures and processes to implement and

enforce such principles.

The ABS Bill takes cognisance of the importance of community customary laws and rules and places importance on the free and prior informed consent that has to be obtained before any bio-prospecting can take place. It lists certain benefit sharing possibilities that could help in the sustainable development of the communities, such as,

(a) sharing of profits; (b) payment of royalties; (c) access to and transfer of technologies; (d) licensing, without cost, of products and processes; and (e) capacity building of human resources.

The country is attracting a lot of investors who are interested in the natural and bio-rich resources of the country. It is due to this that the country’s Ministry of Environment and Tourism

55 ‘Indigenous people in Namibia help draft bio-piracy law’, accessed at http://www.scidev.net/global/indigenous/news/indigenous-people-in-namibia-help-draft-biopiracy-law.html

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has been doing its part to empower the knowledge holders by conducting workshops56. The Minister of Environment and Tourism57 stated that, “It is a well-known fact that these assets are vulnerable to overexploitation, which has the potential to uproot them with no chance to grow again. The government is thus committed to counter this threat by ensuring that biodiversity and the ecological goods and services that they provide are used for the long term benefit of Namibians, especially the rural communities”58. In the absence of policies or legislation to regulate access to genetic resources and benefit sharing, the area has been regulated by the Interim Bio-Prospecting Committee (IBPC), which was set up by Cabinet in 2007. This Committee was set up to serve its purpose of regulating access to Namibia’s genetic resources and traditional knowledge59. In the revised Bill, however, a dedicated Genetic Resources and Traditional Knowledge Unit will take the place of the IBPC. Stakeholders reported that local communities are complaining that their knowledge is being misappropriated by others with no benefit to the communities. UNAM and CSRT are currently documenting traditional knowledge and have a plan of establishing a TK database. Such an effort is positive. However, it requires addressing a number of issues and concerns. The issues include who the custodian of the database will be? How will the knowledge be accessed and used? Who should benefit from the exploitation of inventions and findings created through TK? What will the rights of local communities be? UNAM researchers are involved in the development of drugs using medicinal plants and associated knowledge as well as adding value to traditional foods that have nutritional value. They are, however, concerned about who should own the intellectual property over the research result and how the local communities should be entitled to the equitable sharing of benefits? Universities are involved in documenting indigenous knowledge that may facilitate the misuse and misappropriation without the consent and knowledge of local communities. There was a recent case where a student reported that he discovered a plant that cures cancer in Northern Namibia while doing his research. This has been reported in newspapers that will result in a loss of a valuable asset without bringing benefit to the communities that preserved and nurtured the genetic resource and the associated knowledge for generations. Stakeholders understood that the draft law regulating access to genetic resources and associated traditional knowledge may only partly address the concerns and issues associated with TK and expressed the need for a sui generis protection system for TK. The current Industrial Property law may not complement the objectives of the ABS law. There is need to revise it in that applicants of inventions made using genetic resources accessed from Namibia indicate the origin of the genetic resources to facilitate sharing of benefits. Stakeholders expressed the need in building capacity of the local communities; otherwise the objectives of having laws may not be met. Stakeholders expressed the need to involve local communities when developing policies and laws that would affect 56 The Ministry of Environment and Tourism held its latest workshop between the 13th – 15th of August, 2015 to help create public awareness on the importance of documenting and protecting intellectual property rights (IPRs), related to the use of genetic resources and associated traditional knowledge for the implementation of the Nagoya protocol. 57 Mr. Pohamba Shifeta 58 ‘Need for benefit sharing on genetic resources – Shifeta’, New Era newspaper, accessed at https://www.newera.com.na/2015/08/14/benefit-sharing-genetic-resources-shifeta/ 59 Although the ABS Bill was tabled in parliament in 2006, it had to undergo revisions and updates to ensure that it was aligned with the requirements of the Nagoya Protocol. This created a gap in the management of the country’s access to genetic resources and traditional knowledge, hence the creation of the IBPC. However, the Bill is now ready again to be tabled in parliament having been approved at the technical level

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them. Such participation will facilitate implementation and realization of the objectives that are set by the laws and policies.

Recommendations

The government may consider, with the support of WIPO and development partners, the following:

a) Expedite the process of enacting the ABS bill; b) Develop and enact a law aiming at facilitating implmentation of the Swakopmund

Protocol on the protection of traditional knowledge and expressions of folklore or draft and enact a national law that will complement and facilitate the implementation of the Protocol in order to address concerns of stakeholders such as those related to misappropriation, loss of valuable assets and sharing of benefits. The development and enactment of the law for protection of traditional knowledge should be coordinated with the finalization and enactment of the law that will regulate access to genetic resources and ensuring sharing of equitable benefits as the two are interrelated ;

c) Strengthen the ongoing initiative to educate traditional knowledge holders on their rights and legal instruments developed to address their needs and concerns;

d) Develop mechanisms to address issues related to the documentation of TK-it would be important to ensure that documentation initiatives do not take place in a legal vacuum and that the IP implications are fully taken into account. Databases are not an end in themselves; they may advance TK protection, whether positive or defensive, but only if there is a well thought through IP strategy in place before documentation begins;

e) Ensure participation of stakeholders in the development of policies and laws.

Identified Areas Where Namibia Has Comparative Advantage and Potential To Boost Trade and Enhance Economic Growth Using IP

Strengths, Weaknesses and Challenges

There are a number of areas where Namibia has comparative advantage and the potential to boost trade and enhance economic growth using IP. In its 2006 study60 on Namibia’s potential benefit under the USA African Growth and Opportunity Act (AGOA)61, the Bank of Namibia, revealed that with the exception of beer and wool which are not on the AGOA list of eligible products earmarked for export to the US, Namibia has a comparative advantage in the production of cotton seed, hides, karakul pelts, raisins, beer, grapes, fish, meat of cattle62, wool, eggs in shell (ostrich) and, processed and canned fish.. 60 See Vitalis Ndalikokule, Ben Biwa, and Esau Kaakunga, “How Can Namibia Further Benefit From Agoa”?, a BoN Occassional Paper OP-2/2006, © Copyright of the Bank of Namibia, Research Department 2006. 61 The USA African Growth and Opportunity Act (AGOA) was signed into law on May 18, 2000 as Title 1 of The Trade and Development Act of 2000. The Act offers incentives for African countries to export to the US in exchange of continued efforts to open their economies and build free markets. 62 This is a reference to beef. See Luis M. Chiriboga, Chris Kilmer, Rocky Fan, and Kishore Gawande, “Does Namibia Have A Comparative Advantage In Beef Production”?, 2008, Bush School of Government and Public Service, Texas A&M University. These scholars are of the opinion that “Namibia’s beef

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Additionally, the Bank of Namibia study (2006) identifies high value crops, wine, table grapes, leather products, processed marble products, kudu gas and semi-precious stones. To this can be added granite stones, mining and minerals processed through beneficiation. The Bank of Namibia emphasises that since the Namibian economy is mineral-based with mining playing a significant role in the economy minerals and the metal sector became the number one exporter to the U.S through AGOA with the export value amounting to US$117.9 million in 200463.Namibia produces one of the best gem diamonds in the world and the share of the country’s uranium has been increasing from 2002 to 201064. Namibia’s use of IP in its trade in beef and beef products at home and abroad, can also enhance its capacity and economic performance. Namibian beef and beef products are marketed by the Namibia Meat Corporation Company (MeatCo). MeatCo is established by statute to serve, promote and coordinate the interests of livestock producers in Namibia65. MeatCo is also public enterprise recognised as a state-owned enterprise (SOE) under the State-owned Enterprises Governance Act, 2006 (Act 2 of 2006) despite the Government having not yet acquired any shareholding or direct financial interest in the corporation66. MeatCo launched its first premium hormone free beef, in South Africa in 2014. The free range beef brand, called “Natures Reserve”, is from selected free range cattle with full traceability and certified under the Farm Assurance Namibia System (fanmeat), operated under the Meat Board of Namibia67. The corporation has four abattoirs, two of which are certified for export to the European Union. The other two abattoirs are also compliant with Namibia’s Food Safety legislation and are certified to export beef and beef products to the rest of the world. The MeatCo trade mark is an established and recognised brand representing Namibia’s beef products in South Africa and the rest of the world. Namibian beef export to the United Kingdom in the first eight months of 2013 witnessed an increase of 39% to 4,200 tonnes making Namibia the second largest non-EU supplier of UK beef after Australia68. In addition to the head of cattle exported on hooves to South Africa which decreased from 97,787 down to 48,021 during the first six months of 2012 due to high feed prices in South Africa, consumer resistance to high prices and increased competition from Botswana in South

industry is an economic paradox”, because while the traditional view of economic development suggests that Namibia has a comparative advantage in the production of beef, the country’s production and exportation of beef has enjoyed only modest growth since 2000”. These scholars are of the opinion that “Namibia’s beef industry is an economic paradox”, because while the traditional view of economic development suggests that Namibia has a comparative advantage in the production of beef, “the country’s production and exportation of beef has enjoyed only modest growth since 2000”. 63 See The Bank of Namibia Report, 2006 cited in Foot note 29 at p. 11. 64 See Iipumbu Sakaria op. cit. 65 See Meat Corporation of Namibia Act, 2001 (Act No. I of 2001), Published as GOVERNMENT NOTICE No 79 in Gazette No. 2522 of 3 May 2001, as amended by the Meat Corporation of Namibia Amendment Act, 2004 (Act No. 21 of 2004), Published as GOVERNMENT NOTICE No. 277 in Gazette No. 3353 of 21 December 2004. 66 See “Namibia-Organic Beef”, FarmingUK, 17 January 2009 00:09:10|News | Online since 2003; and Meatco Annual Report 2014/2015. 67 See “Namibia-Organic Beef”, FarmingUK, op cit. 68 See “Beef exports from Namibia to the UK rebound”, Market intelligence News, 20 November 2013, Published Online by the AHDP Beef and Lamb – the organisation for the English beef and sheep industry.

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Africa, Namibian beef and beef products exports to South Africa stand currently at 17,000 metric tonnes, to the European Union about 10 000 metric tonnes and, about 1,850 to Norway69. In August 2015, the Government of Namibia announced that the country entered into a Memorandum of Understanding (MoU) with the Chinese State General Administration for Quality Supervision and Inspection and Quarantine (AQSIQ) for the export of Namibian beef to China70. Namibian fish and fishery products also need to be sold under protected Namibian trademarks. The importance of the use of IP is once more emphasized by Namibia’s Prime Minister in her official opening of Namibia Chamber of Commerce and Industry (NCCI) International Expo which was held in Swakopmund, Namibia on 7 October 2015. In her statement, the Prime Minister urged Namibian industries to collaborate on the establishment of a national brand to “take the idea of niche marketing to a new level”71.

Recommendations

The government may consider, with the support of WIPO and development partners the following:

a) Initate and undertake detailed study on the priority areas that it has comparative advantage and where lP can be used in strengthening competetivness and enahnce trade revenue;

b) Design and implement IP and branding strategy to capture intangible asset values associated with some of its export products such as minerals, beef and fish products.

Development Partners

Strengths, Weaknesses and Challenges

There are a number of African and international institutions with programmes focusing on helping African countries to advance in the area of STI, such as the African Union (AU), the New Partnership for Africa’s Development (NEPAD) , the African Development Bank (AfDB), the World Bank and the United Nations Educational, Scientific and Cultural Organisation (UNESCO). Other (sub) regional bodies with initiatives in the area of STI are the Southern African Development Community (SADC) and Southern Africa Innovation Support (SAIS72) programme. 69 See “Namibia to export bone-in beef to China”, The Namibian, 14 August 2015. 70 Ibid. 71 See “National brand can provide competitive global advantage”, New Era Newspaper, 9 October 2015.

72 This is four-year pilot project supported by the Finnish Ministry of Foreign Affairs (MFA),which seeks to guide innovation in southern Africa by promoting and strengthening the full economic value chain in the technology transfer (TT) space. The programme supports collaboration between the innovation systems of African countries in order to create a positive impact on economic and social development in the region.

40

WIPO and ARIPO have been providing technical support and assistance aiming at strengthening the IP system and promoting its use. These include training of human resource, organisation of IP awareness workshops and provision of relevant information. There are countries, regional and international organisations that may support programs aiming at promoting innovation and creativity and programs aiming at strengthening the IP system and promoting the use of IP as a tool for development. These include countries such as Japan, USA and Germany, regional organisations such as the European Commission and international organisations such as FAO, WTO, WHO, WCO, UNIDO, UNCTAD and UNDP. Germany through GIZ has supported a project aiming at translating the Swakopmund Protocol into local languages, educating and building capacity of local communities. Moreover, it has been pointed out on numerous occasions by German government leaders especially from the Ministry responsible for Economic Cooperation that Germany continues to have trade relations with Namibia and should any area be identified by the Namibian authorities as a priority area, it could be supported within the existing Namibia/German Technical Cooperation Agreements.

Recommendations

The government may consider strengthening the existing relationship and establishing relationships with potential development partners in addressing challenges, meeting needs and promoting the use of IP as a tool in realizing its development objectives.

41

PART- III

ROAD MAP FOR STRENGTHENING THE IP SYSTEM, SUPPORT PROTECTION, GENERATION AND COMMERCIALIZATION OF IP ASSETS, IMPROVE AWARENESS AND USE OF IP AS A TOOL FOR DEVELOPMENT IN NAMIBIA– PLANNING MATRIX Overall goal To strengthen the IP system of Namibia, support the protection, generation and commercialisation of IP assets, improve awareness and use of IP as a tool for development

Specific Goal Identified Needs Main Activities Responsible bodies Development Partners

Timeline of implementation

Establishing IP Policy framework & integrating IP into national development policies.

Articulate a National IP Policy and Strategy.

Formulating and approving National & Institutional IP policies & strategies involving key stakeholders.

Government of the Republic of Namibia (GRN)

WIPO December- March 2016

Integrating IP into national and sectoral development policies and strategies.

Identifying and addressing IP issues when revising existing policies, strategies and plans and developing new ones.

GRN WIPO; WTO; ARIPO

During revision of existing and development of new policies and strategies

Ensure policy coherence and coordination.

-Setting up a national council consisting of key public and private sector bodies; - Define the powers and duties of the council based on the national IP policy and strategy.

GRN March – April 2016

42

Develop Institutional IP Policy.

Encourage the development and finalisation of institutional IP policy taking into account the nature and needs of the institution.

University of Namibia; Polytechnic of Namibia; Public R&D institutions

WIPO BIPA

March to September 2016

Set up IP or strengthen technology transfer offices & build IP management capacity.

-Support the establishment of IP department in UNAM; -Strengthen the TTO in PIN; -Establishing Central technology transfer office with in National Commission on Research, Science & Technology (NCRST); -Training of personnel and equipping TTOs.

GRN; University of Namibia; Polytechnic of Namibia; NCRST

WIPO

September to December 2016

Strengthening IP Legal framework.

Expedite implementation of the Industrial Property Act.

- Expedite entry into force of the industrial property Act -Finalize and Publish t the regulations based on the Industrial Property Act; - Enact the law.

GRN; BIPA; MITSD

WIPO; ARIPO

January to April 2016

Amend existing laws Revise the Copyright, , Customs and Excise laws in line with the needs of stakeholders and the requirements of regional and international IP agreements to which Namibia is a party.

GRN; BIPA; MITSD

WCO; WIPO; WTO; ARIPO

January to June 2016

Review and enact the draft law on Access to genetic resources and associated traditional

- Further enrich the draft law with the participation of stakeholders; - Enact the draft law.

GRN; Ministry of Environment & Tourism (MET); BIPA

CBD secretariat; FAO; UNEP

December 2015- February 2016

43

knowledge. Enact New laws to protect other IP assets and meet the needs of the country and stakeholders.

Draft and enact laws to protect plant varieties, traditional knowledge, geographical indications, layout designs of integrated circuits and undisclosed information in line with the requirements of international agreements to which the country is a party taking maximum advantage of the flexibilities and policy spaces.

GRN; BIPA

WIPO; UPOV; WTO; ARIPO

January 2016 to December 2017

Accede to relevant International and regional IP Agreements.

Undertake a study and accede to relevant international IP treaties to which Namibia is signatory, namely; ARIPO Arusha Protocol for the Protection of New Varieties of Plants, WIPO Phonogram and Performers Treaty (WPPT), WIPO Copyright Treaty (WCT), Trademark law treaty, Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh VIP Treaty) and Beijing Treaty on Audiovisual Performances and agreements that it is signatory but may complement new laws that the country may enact to meet the needs of stakeholders or the country.

GRN; BIPA; MITSD; NASCAM

December 2015 to December 2016

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Strengthening the IP administration & defining mandates.

Review and enact the draft BIPA Bill

- Expedite the process of reviewing and enacting the draft Bill that will define the mandates and legalize the operation of BIPA -Expedite the process of decision making on the request of NASCAM to broaden its mandate.

GRN December 2015- February 2016

Building human resource capacity of BIPA and NASCAM.

-Designing and implementing capacity building programmes; - Training staff of BIPA and NASCAM at different levels-short, medium and long, and using different tools including on the job training, attachment, study tours, and taking part in long term training programs such as masters degree in intellectual property offered by WIPO in collaboration with universities.

GRN; BIPA; NASCAM

WIPO; WTO; ARIPO

December 2015 to December 2017

Equipping BIPA & NASCAM with the necessary office facilities and infrastructure;

Procure or secure support from development partners in meeting equipment needs such as servers, software for capturing, managing and making accessible data. Eg. The WIPO comprehensive automated business solutions (Model IP Office)

GRN; BIPA; NASCAM

WIPO

February 2016 to December 2017

45

Enhancing the quality of service of BIPA.

Support process mapping, development of new procedure and operational manual taking into account the new Industrial Property law and laws that may be revised and new laws that may be enacted and administered by BIPA.

BIPA WIPO February to April 2016

Increase awareness of the significance and services of the IP office.

Designing and implementing IP outreach programmes to make the IP office more known.

BIPA

WIPO ; ARIPO

February- December 2016

Ensuring financial autonomy of the IP office.

Enact BIPA Bill. GRN

December 2015-February 2016

Train IP practitioners.

-Strengthen the offering of IP course in UNAM; - Organise short training programmes; - Facilitate participation in training program organised abroad.

BIPA; UNAM

WIPO; ARIPO

Beginning from February 2016

Strengthen innovation capacity and use of IP.

Build capacity for generation of IP assets.

-Increase R&D human resource; - Strengthen R&D infrastructure including laboratory and library facilities.

GRN January 2016 t0 December 2018

Increase R&D funding.

-Increase budget allotted for R&D purposes; - Encourage and Empower public R&D institutions to generate resources that will be used for innovative activities; - Encourage the private sector to support R&D activities.

GRN; Public R&D institutions; Private Sector

Beginning from January 2016

46

Provide a conducive environment to attract and retain researchers as well as deal with the problem of brain drains.

- Improve working conditions; -Develop and implement attractive salary and carrier development structure; - Put in place incentive schemes and award systems to encourage researchers involved in the generation of IP assets.

GRN; Public R&D institutions

Establish structures to enhance generation of IP assets & use of IP.

- Support the development and issuance and implementation of institutional IP policies to prevent loss of valuable IP assets; - Encourage the establishment and strengthening of institutional units such as technology transfer offices to support R&D effort; - Promote information exchange on and use of opportunities offered under the WIPO ARDI Program and similar initiatives; - Promote the use and awareness of IP by potential beneficiaries or users of the system such as individual researchers, academic & R&D institutions and business establishments.

GRN; BIPA; UNAM; Polytechnic Institute of Namibia

IP commercialisation & Technology Transfer.

Promote exploitation and ensure ownership of IP assets .

- Support universities and research institutions to set up and maintain TTOs; - Amend laws such as the UNAM Act in line with the national IP policy and strategy.

GRN WIPO ; SAIS

January – December 2016

47

Support commercialisation of IP assets.

- Set up an innovation fund or a mechanism that will provide guarantee to innovators, creators and entrepreneurs to access finance from lending institutions such as Banks; - Promote linkages between institutions that generate IP assets and the productive sectors.

GRN January 2016- December 2017

Strengthen IPR enforcement.

Strengthen legal framework.

- Adopt or amend laws in order to comply with the requirements of Part III of the TRIPS Agreement in a balanced way, taking into account the socio-economic circumstances prevailing in Namibia.

GRN WIPO; WTO

December 2015- December 2016

Build human resources capacity

- Design and implement training programmes for members of the enforcement agencies; - Strengthen the offering of IP course by the Faculty of Law of UNAM that generates trained lawyers who will be involved in enforcement of IPRs; -Organise colloquium and study visits for training of judges and prosecutors;

- Incorporate IP into the curriculum of the police academy to ensure having police officers exposed to IP and IPR infringement.

GRN WIPO

December 2015 – November 2017

48

Strengthening IPR enforcement capacity.

- Design and implement a strategy aiming at building respect for IP; - Design and implement a mechanism that would enable enforcement officers to identify and differentiate between infringing products and genuine ones including accessing of web sites of the World Customs Organization (WCO) and IPRs holders business organisations; - Establish and promote cooperation with foreign IP enforcement bodies, regional and international organisations in fighting piracy, counterfeit and other forms of infringement of IPRs; - Promote and exploit information and training facilities available in international organisations such as WCO and international business alliances such as the software business alliance in building IPR enforcement capacity; - Set up IP database in BIPA that will be made accessible to enforcement agencies using ICT framework.

GRN; BIPA; Courts; Police; Customs and Excise

WIPO; WTO; WCO; Interpol; Business associations of IPR dependent companies

April 2016 – March 2017

IP awareness and use. Strengthening IP awareness and use.

- Design and implement target oriented, coordinated and continuous IP awareness programmes involving beneficiaries or potential beneficiaries of the intellectual

GRN; BIPA; UNAM; HLIs; TVTCs; Public and private

WIPO; ARIPO; UNESCO

January 2016- December 2018

49

property system; - Allot adequate funds to BIPA to effectively discharge its responsibilities related to the creation and strengthening of awareness of IP; - Strengthen the offering of IP to undergraduate students of the law faculty of UNAM by making it a mandatory course and supporting the development and availability of IP teaching materials; - Support the incorporation of IP into the postgraduate programme of the faculty of law of UNAM and the integration of IP into the curriculum of primary and secondary schools, TVTCs and HLIs; - Train staff that is or will be engaged in offering of IP courses to students of HLIs at a postgraduate level in the field of IP and make available relevant materials such as WIPO IP teaching manual, international IP treaties and other materials that may help the teaching and learning process; - Provide IP promotional materials such as the WIPO comic books and support their translation into local languages; - Train journalists and encourage the use of print and electronic media in sensitising potential right

media; NCCI

50

holders, various stakeholders and the general public on the importance of intellectual property; - Establish an IP help desk in the Namibia Chamber of Commerce and Industry (NCCI) to train assigned staff; - Organise colloquiums for parliamentarians and top officials of government.

Strengthening Creative Industry.

Addressing the needs of the creative industry sector and enhancing its contribution to social, cultural and economic development.

- Initiate the conducting of or undertake a study to showcase the contribution of the creative industry to social, cultural and economic development; - Develop and implement policies and laws that may provide incentives to and support the creative industry such as fiscal incentives and advisory services; - Recognise the creative industry as an area that the country has comparative and competitive advantage and promote the use of IP as a tool for development; - Support NASCAM in building its capacity in order to address the technological challenges faced and strengthen societies of creators and entrepreneurs by empowering them to promote creativity and support the creative industry.

GRN; BIPA; NASCAM; Associations of the creative industry

WIPO; UNESCO; UNCTAD

June 2016 to may 2017

51

Traditional Knowledge (TK), Traditional Cultural Expressions (TCE) and Genetic Resources.

Facilitate the protection and exploitation of TK.

- Expedite the process of enacting the ABS Bill; - Develop and enact a law aiming at facilitating implmentation of the Swakopmund Protocol on the protection of traditional knowledge and expressions of folklore or draft and enact a national law that will complement and facilitate the implementation of the Protocol in order to address concerns of stakeholders such as those related to misappropriation, loss of valuable assets and sharing of benefits; - Strengthen the ongoing initiative to educate traditional knowledge holders on their rights and legal instruments developed to address their needs and concerns; - Develop mechanisms to address issues related to the documentation of TK; - Revise the Industrial Property Act to complement the objectives of the draft ABS agreement, CBD and Nagoya Protocol to which the country is a party; - Ensure participation of stakeholders in the development of policies and laws.

GRN; BIPA

WIPO; ARIPO

January 2016 to December 2018

52

53

Key Priority areas where Namibia has comparative advantage and potential to boost trade and enhance economic growth using IP.

Ensure the use of IP in improving competitiveness and enhancing trade revenue.

- Initate and undertake detailed study on the priority areas that it has comparative advantage and where lP can be used in strengthening competetivness and enahncing trade revenue; - Design and implement IP and branding strategies to capture intangible asset values associated with some of its export products such as minerals, beef and fish products.

GRN; BIPA

WIPO

September to August 2017

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Annex I- List of Participants of the National IP Workshop

Nr. Name Company/ Organization

1 Heiko Wallner Shoemans

2 Ms. Helena Lilovu Centre for Enterprise Development

3 Tileinge Andima BIPA

4 Mr. Edwin Kavihuha Centre for Enterprise Development

Delegate

5 Mr. Mc David Meroro Ongaka Inverstment Pty Ltd.

6 Ms. Nguza Siyambango University of Namibia

7 Mrs. Luiza Shekupe National Comission on Research Science & Tech

8 Mrs. Alushe Nditya National Comission on Research Science & Tech

9 Mr. Robert Shipanga Blend Mobile

10 Mr. Michel F.L Mallet CRIAA SA-DC

11 Ms. Lineekela Usebiu University of Namibia

12 Mr. Johannes Shalipo Haludilu Namibia Music Industry Union

13 Dr. Anna Matros-Goreses Polytechnic of Namibia

55

14 Mr. Chongo Kasanda Fablab Namibia

15 Silas Nyundu OPM

16 Ms. Lovisa H Kambonde National Commission on Research Sciens & Tech

17 Comrade Elwin Gaoseb Protocol Investment

18 Mrs. Sylvia Hengari Ministry of Education

19 Immanuel Joslyn Owoseb Namibian Standerds Institution

20 PAPA Ndasuunye Shikongeni John Mwafangenyo Arts Centre

21 Mr. Othy Kaakunga BIPA

22 Mr. Peter Reiner Wordweaver Publishing House

23 Mr. Frank Sauerbach BIPA/GIZ

24 Liina N S Akamba Ministry of Information and Communication Tech

25 Mr. Frederick Brian Philander Committed Artists of NAM

26 Mr. Milton Martin Ronald Low Nambizdotcom

27 Mr. Leonard Da Silva NamBiz

28 Nicholas Chaka MICT Copyright Services

56

29 Ms. Senga Brockerhoff National Theatre of Namibia

30 Ms. Frieda Karipi National Theatre of Namibia

31 Mr. Tobias Mureko TNT Office Supplies

32 Ms. Desiree Mentor National Theatre of Namibia

33 Mr. Eino - John Max NASCAM

34 Mr Pierre Du Plessis MET - GIZ BMCC Projec

35 Mrs. Hendrina Peingombili Gideon Erongo MED

36 Mr. Gabriel Amugongo Office of the Prime Minister

37 Ms. Monica Hamughete Ministry of Industrialisation, Trade & SME

38 Kuume Nghipandulwa Ministry of Information & Tech

39 Peter Louis Nutt ARC

40 Pieter Hoakhaob Nascam

41 Ms. Luness Mpunwa Innovative Curatorship

42 Mrs. Lelly Teri Tulikemanya Nelumbu NASCAM

43 Mr. Gabriel Amugongo NASCAM

44 Ms. Rosalia Ndafuda Fotolela Thikameni Agencies

57

45 Mr. John Walenga Omalaeti Music Production

46 Mr. Henny Seibeb The Ideas Centre

47 Ms. Maria Pogisho Min Of Industrialisation Trade & SME Development

48 Ms. Anna Husselman Min Of Industrialisation Trade & SME Development

49 Mr. Johannes Christiaan Cronje Cronje & Co

50 Ms. Aina Naambo Vilho Ministry of Defense

51 Mr. Dartago Liswaniso Liswaniso University of Namibia

52 Ms. Helena Lilovu Centre for Enterprise Development

53 Mr. Dartago Liswaniso University of Namibia

54 Mrs. Gretta Gaspar National Arts Council of Namibia

55 Mr. Stanley Awarab Ministry of Safety & Security (NAMPOL)

56 Mr. Gebhardt Mavenjono Ministry of Safety & Security(NAMPOL)

57 Ms. Selma Ndeyapo Alweendo Ministry of Safety & Security(NAMPOL)

58 Mr. Benestus Kandundu Tjitjazorera Investment

59 Mr. Suhel Al-Janab ABC Capacity Development Initiative

58

60 Mrs. Selma Ambunda BIPA

61 Mr. Vladimir Nogueira Ministry of Safety & Security (NAMPOL)

62 Mrs. Isabella Nowases University of Namibia

63 Heinrich Schroeder Kavango Block Brick

64 Mr. Vladimir Nogueira Ministry of Safety & Security (NAMPOL)

65 Mr. Charles Uugwanga Ministry of Defense

66 Kasume Jeremy Ovaherero T/A

67 Mrs. Isabella Nowases University of Namibia

68 Ms. Ainna Vilengi Kaundu Ministry of Industrialisation, Trade & SME Development

69 Mr. Jeremia Peterson Tjienda Crystal Vault Trading

70 Mr. Libolly Haufiku Mindset Investment

71 Mr. Hasekiel Ndaikemona Johannes Namibia Business Innovation Institute (NBII)

72 Mr. Joseph Ailonga Energy 100 FM/Tuhafeni Production

73 Mr. Devon Jansen Red Investment Holdings

74 Mr. Benestus Kandundu Tjitjazorera Investment

59

75 Mr. Steven Alvin Naruseb Welwitschia Music Production

76 Mrs. Deidre Carballo Polytechnic of Namibia

77 Comrade Elwin Gaoseb Protocol Investment

78 Mr. Werner Ngashikuao The Ideas Centre

79 Mr. Vinomaandero Murirua Ovambanderu Traditional Authority

80 Mr. Vasco Mario Vocal Motion Six Record

81 Dominic Mauyando Lunenge COTA

82 Mr. Ben Kandukira Okinikini Record/ Big Ben Music

83 Ms. Selma Juanitha Shimbulu Ministry of Safety & Security (NAMPOL)

84 Mrs. Adella Mapanga Polytechnic of Namibia

85 Mr. Vasco Mario Vocal Motion Six Record

86 Mr. Emmanuel Paulus SWAPO Party Youth League

87 Peter Naftali Ministry of Industrialisation Trade & SME Development

88 Eveline Kalume F.S. Transport and Investmend CC

89

90 Miss Allessandra Van Wyk Nouvelle

60

91 Maijano De Wet Nouvelle

92 Mitiri Uwe Tjazamo Ondjou Investments CC

93 Ms. Helena Ilovu Centre for Enterprise Development

94 Ms. Selma Alfeus University of Namibia

95 Mr. Moses Molatendi Moses TTT IP Consulting Services

96 Mr. Ramanus Kawana Deputy Director :Economic

97 Japhet //Hoabeb JLH INvestments (Pty) Ltd

98 Mickal Tjituka Dauremas Mineral Development (PTY)

99 Loide Uahengo NCRST

100 Mr. Michael Barth Erongo Med

101 Mr. Baby Doeseb Baeldo Publishers Ltd

102 Lenice Husselman NPPC

103 King Ipumbu Shinyongo The Ideas Centre

104 Mr. Emmanuel Pamwenase Hangulah Namibia National Employers Organisation (NaNEO)

105 Michael Gaweseb Namibia Consumer Trust

106 Dr Nelson Mlambo UNAM

61

107 Selma N Ashiruti UNAM

108 Dr. Benedict Malima Min of Agric, Water & Forestry

109 Mr. Knowledge Ipinge Mshasho Music Label

110 Nelauma Frans MITSD

111 Kandeshi Shipepe KHV-S Translation Services

112 Michaella Kalyanga SMES Consultant

113 Mr. Josia Jossy Efraim Ministry of ICT

114 Kasume Jeremy Ovaherero T/A

115 Rodney Hoaeb NTFER

116 Maria Immanuel NTF

117 Jackie Van Wyk Paradim Shift

118 Mickal Tjituka Dauremas Mineral Development

119 Donavan Tjikuaza Mahepisa Investment.CC

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Annex II-List of Stakeholders Met

NAME ORGANISATION CONTACT NUMBER/E-MAIL

1. Tileinge Sacharias Andima

REGISTRAR, BUISNESS AND INTELLECTUAL PROPERTY AUTHORITY (bipa) ,

0811277784 andima@bipa.na

2. Selma Ambunda Executive: Human Resources, bipa, +264811273627 selma@bipa.na

3. Ainna Vilengi Kaundu

Ministry of Industrialization, Trade and Development kaundu@mti.gov.na

4. Monica P.Hamunghete

Principal Economist, Commerce. Franchise, Licensing & E-commerce, MITSMED.

0811415650 hamunghete@mti.gov.na

5. Eino John Max Chief Executive Officer, Namibian Society of composers and Authors of Music

jomax@iway.na namsoc@iafrica.com.na

6. Sauerbach, Frank Technical Advisor, GIZ Office Namibia +264816534237 frank.sauerbach@giz.de

7. André Gariseb Journalist +264 85 256 4059 garisebmanagement@gmail.com

8. Desiree Mentor Public Relations Officer National Theatre of Namibia

+264 811 600 580 desireementor@gmail.com

9. John Max CEO NASCAM

jamax@iway.na

10. Luness Mpunwa Consultant Chief Curator 24014lunm@gmail.com

11. Suhel al-Janabi Director, Geo Media Environment Communication Development, Bonn, Germany

s.aljanabi@geo-media.de +492289096620

63

12. Ewin Unomasa Inventor Investment protocol@gmail.com 0813652860

13. Hon. Benestus Kandundu

Former City of Windhoek Councilor 0811225325

14. Deputy Inspector General

15. Maj. Gen. Des SHILUNGA

Deputy Inspector – General: Administration, National Police force

061 209 3298 0811 272 488 dshilunga@nampol.gov.na dshilunga@gmail.com

16. Deputy Commissioner Elina N. Mafwila

National Police force Human Resources Elina.hainana@napol.gov.na +264612093234/+264811285968

17. Deputy Commissioner M.N.NARUSEB

Deputy Commissioner, Prevention of organized Crime, national Police force

nmorza@gmail.com +264813052897

18. Detective chief Inspector I.F.SAM

Head, Interpol national Central Bureau isam@nampol.gov.na +264812148428

19. Martha AMUKOTO

Customs and Excise Officer ,Customs and Excise 061 209 2556 martha.amukoto@gov.mof.na

20. Rauha ZIMBA Customs and Excise Officer ,Customs and Excise Rauha.zimba@gov.mof.na

21. Hilja HEITA Customs and Excise Officer, Customs and Excise Hilja.heita@gov.mof.na

22. Matias S SHILONGO

Customs and Excise State Warehouse Matias.shilongo@gov.mof.na

23. John Max Namibian Society of Composer and Authors of Music (NASCM)

namsoc@iafrica.com.na

64

24. Lelly T.Nelumba NASCAM members@nascam.org

25. J.Namwey Atushe

Musician athshen@gmail.com

26. Dominic Lunenge COTA dlunenge@gmail.com

27. Knodlodge Ipingo PAKam=sh? Ceo.mshasho@live.com

28. Pieter Hoakhaob NASCAM phoakhaol@gmail.com

29. Chantel Uiras NAMA

30. Glen-Nora Tjipura glennoratiipura@gmail.com

31. Joseph Kaseke NAMA Joechael26@gmail.com

32. Regional Isaaks 24regclose corp 24regcc@gmail.com

33. Babay Doeseb Baelao Publishers babydoesb@yahoo.com

34. Peter Rainer wordwenver preiner@iwag.na

35. Nichals Chaka MICT-copyright nchake@mict.gov

36. Jackie Vanwyh Paradigm Shift movement Jackie7vanwyle@gmail.com

37. Lina Akamba Ministry of Information and Communication technology Liina.akamba@mict.gov.na/ liinaze@yahoo.com

38. John Walenga NASCAM/ Omalaeti walenga@Qomalaeti.com

39. Sukeiman Kyababa

Ogopa butterfly ogopbutterfly@gmail.com

40. Faith Arnat Team Namibia faith@teamnamibia.com

65

41. Roberta da Costa Team Namibia roberta@teamnamibia.com

42. Detective Warant Officer Shimbulu

Crime Investigation Division

43. Detective Boois, Crime Investigation Division

44. Detective Haluweendo ((Ms

Crime Investigation Division

45. Detective Warrant Officer Kaura

Crime Investigation Division

46. Detective van Wyk

Crime Investigation Division

47. Dr.Eino Mvula Chief Executive Officer, National Commission on Research, Science & Technology (NCRST)

emvula@ncrst.na +264811470243

48. Gernot Piepmeyer

Manger, Policies, Program Development and Council Services, NCRST

gpiepmeyer@ncrst.na +26481289787

49. Ms Louisa H Kambonde

Head, Innovation and Industrial Research, NCRST LKambonde@ncrst.na

50. Moses M Moses Chair, Indigenous Knowledge Systems Council (IKSC) ttt.lconsult@gmail.com

51. Ms Enid Anne Keramen,

Head, Legal Advice and Company Secretary (LACS) NCRST

ekeramen@ncrst.na

52. Prof. Samuel K.Amoo

Acting Director, Department of justice training Center, Faculty of Law, University of Namibia

skamoo@unam.na +264813371752

53. Prof. John Baloro Dean, Faculty of Law, University of Namibia jbaloro@unam.edu.na +264814274925

66

54. Lineekela Usebiu Lecturer, Faculty of Law, University of Namibia lusebiu@unam.na +264811473848

55. Shilumbe Chivuno-Kuria

Computer Science department , Polytechnic of Namibia

0812718391

56. Leonard kamwi Head, Advocacy and research, National Chamber of Commerce and Industry (NCCI)

ikamwi@ncci.org.na +2648127887

57. Roald Koch Technical Advisor, National Chamber of Commerce and Industry

rkoch@ncci.org.na +264816636167

58. Prof. Osmund D.Mwandemele

Pro-Vice Chancellor: Academic Affairs ad Research, Office of the Vice Chancellor, University of Namibia(UNAM)

odmwandemele@unam.na +264811246861

59. Prof. Isac Mapaure

UNAM Research Coordinator, Research and Publications Office

imapaure@unam.na +264812778590

60. Prof Frednard Gideon

Dean, Faculty of Science, UNAM

61. Ms. Selma Alfeus Administrative Officer,

Quality Assurance Unit

UNAM

salfeus@unam.na +264812839833

62. Ms. Kauna Schroeder

Principal Project Coordinator and Advisor to the Environmental Commissioners Office, Department of Environmental Affairs, Ministry of Environment and Tourism

Bks7904@gmail.com +264814444024

63. Petrus Muteyauli Deputy Director, Ministry of Environment and Tourism pmuteyauli@yahoo.co.uk;

64. Henry Ndengejeho

IBPC/Biotrade Coordinator, Ministry of Environment and Tourism

hndengejeho@gmail.com

67

65. Nambili T K Shipena

Legal Practitioner, Attorney general’s office nambili.shipena@ag.gov.na

66. Jolanda S van der Byl

Legal Practitioner, Attorney general’s office jolanda.vanderByl@ag.gov.na

67. Mr. Uazapi Maendo

Deputy Director, Customs & Excise, Ministry of Finance

Uazapi.maendo@govt.mof.na +264811494623

68. Ms Susan Beukes

Head of Training & Pro & IPR Expert, Customs & Excise, Ministry of Finance

susan.beukes@gov.mof.na +264812429246

69. Prof. Percy Chinwamurombe

Deputy Director, Interactomes & genetics, School of Postgraduate Studies, UNAM

pchimwa@unam.na/pchimwa@gmail.com +264812744678

70. Dr. Davis R.Mumbengegwi

Deputy Director & HOD, Science, technology & innovation Division, Multi disciplinary Research Center, UNAM

dmumbengegwi@unam.na +264814053702

71. Dr Hileni M Kapenda

UNAM Deputy Research Coordinator & senior lecturer: Mathematics and Science Education, research & publications Office

hkapenda@unam.na +264812505510

72. Lumba Masule

Legal Advisor, UNAM masule@unam.na

73. Dr Komeine Natanga,

Faculty of Agriculture and Animal Resources , UNAM knatanga@unam.na;

74. Ms Jane Katjaviv Publisher, UNAM Press jkatjavivi@unam.na;

75. Dr Petrina Kapewangolo

Lecturer pkapewangolo@unam.na

76. Silas Newaka Country Coordinator Namibia, Sais Program silas@saisprogram.com +264812442784

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77. Juha Miettinen Chief Technical Advisor, team leader, Sais Program juha@saisprogram.com +264851242848

78. Phillip Muinjo Manger, Technology transfer office, polytechnic Institute

pmuinjo@polytechnic.edu.na +264812512228

79.

80. Ronnie Varkevisser

CEO, Namibian Manufacturers Association ronniev@nmanambia.com +264812489626

81. Theo G.Llein Managing Director ( Acting) kleintg@telecom.na +264851241747

82. Honourable Pieter Van Der Walt

Deputy Minister, Ministry of Industrialization and SME Development

83. Annascy Mwanyangapo

Deputy Permanent Secretary, Department trade & commerce, Ministry of Industrialization and SME Development

mwanyangapo@mti.gov.na +264811245460