Some Simple Lesson on the Need for Knowledge of Intellectual Property in Malawi

A few days ago I asked my wife to go to town to buy the home some popcorn.

“I didn’t buy it in the market proper,” she said upon her return an hour later, “I’ve noted that corn from there does not burst 100%”

I seized the opportunity and began a talk on a subject I love so much—Intellectual Property.

“If popcorn from the market would disintegrate as well as that from crops from seed stores, Monsanto and others would no longer be in business as we speak,” I told her.

She looked unconvinced as though asking me to source her some clearer reasons.

Seed manufacturers spend time and investment in developing the improved seed for farmers to increase their yields. This can be through producing varieties that are disease-resistant, drought-resistant or varieties that yield more per unit area. This investment which usually takes years through trials, testing and registration, requires that the individual or company behind it be rewarded or else there would be no need to keep investing. In most cases, such seeds have a ‘code’ which allows it to be used either only once or a number of times, after which, it switches off and produces less or nothing at all.

Most farmers are not aware that the best seed is that from the stores stocking the genuine brand of that product. This gap in knowledge leads to low yield, for example, making farmer harvest only 25% where he or she would have harvested 90%. The battle against hunger will not be won unless there is a knowledge revolution that should trickle down even to the local farmer.

Intellectual Property allows a person to use his or her brain to create, invent or produce a product to advance human wellbeing in a sustainable way. For the investment (time, human, material and financial resources) incurred, such a person or company has to be rewarded. At the same time, what he or she has created has to benefit the people through an arrangement that allows the people to pay for that benefit.

Knowledge of IP is crucial in all other areas of life apart from farming. The following question should trigger something in you on this: What do people buy when they pay for some object? Or to be specific, what do people buy when they pay for a pair of ADIDAS shoes or NIKE trainers? Do they buy that leather or that product or something else?

Well, if they buy the product, why do some companies make a ‘similar’ product and give it a name that would make you think is was ADIDAS or NIKE when in fact it is a counterfeit? Have you ever seen a pair of shoes with what looks like the three lines of ADIDAS or the NIKE tick (Swoosh) carrying slightly misspelt names like ADEDAS (for ADIDAS) or NIEK (for NIKE)? Why do these companies do that if what people buy is just the shoes and not something in those shoes? Why do they want to be associated with such brands?

When we buy a product, we do not just buy that physical product; we buy the value of the investment in that product. That value is what is referred to as Intellectual Property.

The three-stripes logo of ADIDAS is worth over $17 billion today. That logo is a symbol of achievement, a brand made over the years, and so that symbol is attached to such huge money. So when you buy their product, all you’re doing is sharing in that $17-billion achievement. And for legally sharing in that achievement or class, you pay that much money, money you would not pay if you bought a similar pair of shoes carrying uncelebrated brand.

Whosoever is associated with ADIDAS pays it. In turn, ADIDAS pays those it associates with to increase the power of its brand or value. If any company would use their logo without their consent, ADIDAS would sue him for infringement of ADIDAS IP rights.

Apple is worth over $145 billion. If you use their gadget, you earn more respect because you’re associating yourself with that class. For that, you dig deeper in your pocket. Similarly, if you infringe on their Intellectual Property rights which is worth this much, you must prepare to dish out a fortune in damages.

It is the same with NIKE with its tick or Swoosh which is worth over $28 billion.

We have Hungry Lion and KIPS in Malawi today. These are expensive brands and when one wants to use them, one negotiates for a contract and uses everything (recipes, colour, setting et cetera as KIPS or Hungry Lion elsewhere) and pays the owner of the brand. If you violate this by using KIPS on your shop without this enfranchise arrangement you violate trademark law of Intellectual Property.

A Malawian can have a McDonalds I’m-lovin’-it food facility using everything McDonalds’ and people will be patronizing it as though they are patronizing the real McDonalds of the US. This can follow a formal arrangement in which such a business can negotiate for a contract to use this IP asset.

When people understand how Intellectual Property works, they can benefit by arrangements it offers and turn themselves into millionaires. In this way, Intellectual Property protects the invisible asset or property (value in the product) and affords others an opportunity to use that value in exchange for money.

The world is looking for cleaner technology. Suppose a Malawian today devised a new device which if fitted somewhere in motor vehicle engine could reduce carbon emission by 95%, what change in fortune can such a person experience for such an invention!

Intellectual Property challenges people to use the unlimited power of the brain to solve human problems. It offers the platform for people to improve themselves through thinking and doing. At the same time, it gives those inventors a legal opportunity to benefit by their inventions or any other form of IP.

Another area where debate on IP tends to be heated is on drugs and prices.

First, this must be made clear: it takes years and years to develop a drug. And of the many drugs that a pharmaceutical company can research on, only a handful are successful, and usually this is after many years of investment. Apart from the fact that to produce a drug requires very expensive laboratories and storage facilities, a single drug also goes through stages, and if it fails at one stage no matter how much the company has spent on it, that drug can never enter the market lest it should be a danger to life and health.

For this reason, a person or company which invests in such a drug ought to recoup the investment it lost in the years of developing that drug. Intellectual Property Law affords such companies an opportunity to recover the investment through a form of protection known as patent (in this case, patent for the process or method for making that drug).

A patent thus is like an agreement in form of certificate that gives the owner the monopoly to use the innovation or process for a certain period of time in which he or she will get back what he or she invested in that new useful product or invention. When that period expires, everyone can use it as he or she wishes so long as it is within the limits accepted by law and health.

There are people who consider this view dangerous especially among African countries where the majority of the people are poor. Obviously, African countries are in need of cheap drugs, but we must understand this one fact, that drugs which bring more money to pharmaceutical companies aren’t those for ailments that top Africa’s list of diseases. The West can as well forget about Africa and still survive, and Africa can end up the sole loser. Put simply, there is no way we could completely wish that pharmaceutical companies just give away drugs for free simply because they invested in an area about life and death. Saying so would be like saying all local coffin-making businesses should give their coffins to those in mourning free since it is immoral to charge a house of mourning.

So what arrangements are there for poor countries to afford these important drugs?

First, countries can use the parallel market phenomenon, that is, an arrangement through which a country can buy from another at a cheaper price rather than import directly from the source. For example, if to buy a drug from Germany will cost K5 billion yet Germany has an arrangement with Norway whereby Norway buys the same drug at K1.5 billion, Malawi can use this arrangement to buy from Norway (if Malawi has an arrangement in place with Norway), and incur a total cost of K3 billion instead of K5 billion that she would if she were buying direct from Germany. This is just an example.

Another arrangement is that a country or region can negotiate for a licence and make the drug in their region, which could be cheaper. The problem with most countries, however, is that they have very weak Intellectual Property legislation and poor drug manufacture facilities besides weak drug enforcement standards.

Drugs produced in this way are known as generics, i.e. they contain the same formula as the actual drug sold say in Europe under a brand (expensive name) by are sold under a different name other than the brand name used to sell the same drug elsewhere. Using generic version means a drug is sold cheaper.

To help you understand the issue of generic medicines, I should use a familiar concept in copyright.

Suppose there is a mathematics book that has been prescribed for the syllabus in Malawi. The book was written by a Briton who lives in the United Kingdom. It is published there and Malawi imports it for schools here. Now, let’s say in the UK it costs K20,000 in Pounds equivalent, and in Malawi, the same book (when brought from the UK) costs K70,000. An arrangement can be made so that the author or publisher (in the UK) can authorize (on some contract) a Malawian publisher to publish and print the book right here in Malawi. It will be the same book in terms of content (but now carrying a Malawian brand). Since it is a brand that is not widely known, the cost for this book may now fall to say K5,000. Perhaps you have seen some books labelled ‘Low-priced Edition’ or ‘Africa Edition’ or ‘Not to be sold in Europe’. Such books are made specifically for particular markets to meet a particular need.

Thus, AIDS drugs can be manufactured in Africa as generics, i.e. as low-priced versions of the same drug that is expensive in Europe because it is sold under a big brand there. This is why AIDS drugs have been becoming cheaper as years go by.

Generics can also mean producing the drug after its protection period (patent life) has expired. In other words, if the patent (certificate for the owner to use it alone or licence it to others) has expired, in say 20 or in some cases 25 years, any country can make that drug for its people without infringing any patent law or rights. Unfortunately, most countries lack proper facilities and have very weak Intellectual Property laws domestically. Besides, many pharmaceutical companies play some tricks to prolong the life of their patents on particular drugs, say by using what is described as patent trolls, i.e. when they know that the certificate for that drug is about to expire, they can make another drug carrying much of the formula from the drug whose certificate was about to expire. In this case, an old drug can appear on the market as a new drug and continue the protection when it was about to expire for all to use.

Pharmaceutical companies also use the issue of safety and standards to block other companies to manufacture generic versions of their products.

Intellectual Property is the engine of the modern economy, and the modern economy is knowledge-driven. Any country which chooses to go otherwise is deemed to fail.

One can ask how a country the stature of Malawi can benefit from knowledge of Intellectual Property.

On Copyright, Malawi can strengthen the protection of Malawian works as well as offering protection for those from outside so that they too will be duty-bound to protect our works there. Through a proper Copyright regime, musicians, artists, etc can get organized and go by rules and benefit from many arrangements as a result of strengthened protection mechanisms against piracy.

In this way, the Copyright industry can flourish and employ people and become a formidable source of income. Already, the industry is massive though so chaotic that the benefits hardly trickle to the creators.

When users understand that it takes years and huge investment to produce a powerful album yet it can only take 30 seconds to reproduce them into multiple copies, people begin to respect creativity. It would take people understanding what it takes to write a book to appreciate you cannot just photocopy it and begin to sell it wholesale as though it was your property.

If a minibus operator was made to understand that the hell he went through for his business to work could be the same Lucius Banda went through to create the music he is using on his minibus for his passengers to enjoy. In this way, knowledge of Intellectual Property can open the people’s eyes for them to respect creativity as a business. Law enforcers can also see the need to defend such investors.

Where people have no knowledge of IP, some sectors of creators lose out. For example, apart from the musicians themselves, producers themselves are also supposed to benefit from IP arrangements. Many producers and others who play a part in adding value to creativity or invention are not aware of this.

The Copyright industry can also benefit from formal learning and their works, e.g. music, can carry international taste, and that breakthrough can mean a lot to the Malawi economy.

Currently, we have a number of Malawian fashion designers. I’m not sure how they protect their ideas of designs as IP assets? I’m sure most of them do not even know they can make a pattern and sell it, or protect it so whosoever uses it, pays them something.

Opportunities for training and sponsorship also increase once a country sets is copyright house in order.

How about Agriculture?

Among many, farmers can use what is known as geographical indications in which a produce is branded especially for health aspects as a result of where it is grown or where it comes from.

When I was young Malawi used to have Mulanje Fruits. Suppose we rejuvenate ourselves in that front, and the West learn of the pristine streams of Mulanje, of the health soils of the site, what can become of such fruits on the market? Today, the world over, people look for food that is from fresh, virgin soils free from contamination. This thing alone can force the world to cry for our products. It is as simple as that. This is what Ethiopia has done with its coffee. We can do likewise with the Mzuzu Coffee by improving the localities where it is grown and by making adverts for the same. Of course, we could start it ourselves, telling all the visitors that one can never claim to have visited Malawi if one never tasted the Mzuzu Coffee.

Currently, pharmaceutical companies are looking for trees with medicinal properties. If Malawi can learn to take care of her natural forests, Malawi can benefit from an arrangement in which the benefits from a drug made from such a forest is shared to the people around that forest or area. If the local people would be enlightened on what caring trees can produce them after a few years of dedication, their approach towards caring forests can change.

How about in football?

Do you know Messi as a person has a lot of intellectual property protection around him? When he appears on TV he is paid for the value he holds. In short, he is a brand on his own. Other companies which rely on IP have taken advantage of this and pay him to sell their merchandise. The same is the case with Ronaldo etc.

Malawi can build its own celebrities in various areas and attach value to them and make money out of them. David Beckham is an example of how Intellectual Property can brand a person and make him or her a money spinner.

Malawi can brand its sports, produce rewards and awards and produce a crop of sportsmen and women to represent the country and bring us money. We must wake up.

A few weeks ago I heard of some footballers crying foul over their appearance on billboard without being honoured to their satisfaction. If they knew Intellectual Property Law on this, they should have followed procedures and benefit by that. Unfortunately, where people go into arrangements which carry with them intellectual property implications without understanding the form of arrangement used, the result is usually chaos.

I also heard that the national broadcaster, the Malawi Broadcasting Corporation, was being accused of beaming programmes without entering into agreements with some rightful owners. If there was someone conversant with IP there, he or she should have guided them on implications and the need to find out which intellectual property rights were protected, and who should have been the right person or board to grant a licence for those rights, et cetera.

Our cities could have landmark items of art on the streets. Recreational parks would stock items of art and animal life and beauty so those who enter such places pay. Things earn respect and value from branding. We can bring life into our things and create numerous ways of making money.

How about on MSMES or simply SMEs?

Micro small and medium enterprises or small-scale to medium enterprises can benefit from IP by using knowledge to improve input and to add value to their products. People talk of value addition but I wonder whether they really understand what they mean by that because value addition should not stop at creating value; it should discuss what happens after one has created value. Put simply, how is one rewarded for that value and how does one protect the rights arising from this creation.

Value addition can happen when IP encourages farmers to use their brains to make a handful of produce earn them a granary of money. A farmer, for example, can devise a best means of making a corn delicacy in the village so 1 kg quantity of maize (which costs K500) earns him or her K3,000 after processing right there in the village. In this way, the farmer can turn a millionaire instantly. However, there is a need to train such farmers to think, innovate and after that, seek legal channels of protection of such expressed ideas. If such ideas are proven workable, there should be a mechanism to help such a farmer make huge investments through bank loans using ideas (intangible assets) as collateral or to sell the idea to a well-established company for millions.

Intellectual Property can also challenge workers to produce the best for their workers in terms of ideas and inventions so that one whose idea brings value to the company is celebrated. I know one former secondary school teacher of chemistry who mixed chemicals to produce a type of insect pesticide also sold in Malawi. Out of the ideas from university he has products Malawi import from Zimbabwe and the guy making money.

Intellectual Property is thus necessary both for promoting the spirit of innovation and for protection of the innovation so that the person who spent time, energy and resources on it reaps the benefits while benefitting the society with his or her invention, creativity or business idea.

Malawi needs to work on Intellectual Property legislation (on Copyright, Trademark, Patent, Industrial Design, Merchandise, Consumer Protection, Geographical Indications, etc) to make it robust, forward-looking and up-to-date. Currently, the country is talking more about trade and investment, we need to talk more about Intellectual Property otherwise how will people come to invest where they know their IP rights will not be respected? Moreover, some companies survive on what is known as trade secret (confidential information) which is vital for them to operate; how will they trust Malawi to handle facilities housing such information when they know Malawi has little knowledge of IP and implications when such rules are broken?

Have you ever wondered why some machines are installed by the owner, and when they got broken down we have to invite that owner all the way from England to do the repairs? What do you think is the reason? That we’re not advanced in engineering? If so, why not train local engineers and let them do the work for us?

The reason hinges on confidential information or trade secret. What our local engineers are taught when these companies are installing these machines is simply surface information; the deep secret of the machine is left with the owner.

We must work on our IP laws so we can make the inner circle of technology.

Malawi also needs more people educated in IP Law. And please, do not confuse IP Law with Commercial Law. You can learn some Commercial Law courses in IP (e.g. Law of World Trade Organisation, Competition Law, Commercial Contracts, Internet Law, Information Security or Confidential Information, etc), but IP is generally about Patent, Copyright, Trademark, Industrial Design, Geographical Indications, Indigenous Knowledge, Confidential Information, and New Varieties of Plants.

If you want to learn more about IP, you can visit WIPO or ARIPO websites. There are lots of courses on the former’s website, some free. When you do such courses and show interest, WIPO is always eager to support. I got my scholarship the same way.

The Coca Cola isn’t rich because it is a Western company; it is rich because it has an asset you cannot see with your eyes which it protects through a form of Intellectual Property. No one knows the formula for making Coca Cola, that formula is their property. They have been using it over the years to make money and support other IP assets.

The West no longer relies on huge farms; they rely on knowledge (a form of Intellectual Property) to make money. Today, one can attend a UK University while in Malawi. They are selling us their knowledge (protected knowledge or Intellectual Property) using technology (another form of IP) and we pay for that without knowing we are paying for the copyright or IP therein.

Malawi and Zambia, like the rest of the countries in the world, were hard hit by the failure of the US Dollar exchange regime in the mid-1970s and the rise in oil prices in the same period and late 1970s. To address the problem, Malawi and Zambia resorted to borrowing, but Japan resorted to Intellectual Property (i.e. more innovation, e.g. in energy). Today, Japan sponsors IP courses with WIPO for us to learn yet we still cannot learn and take our destiny in our own hands.

China has become what it is today because it exploited intellectual property to improve upon the lives of its people. Today, they are so advanced, we have to wait upon them to feed us and give us ‘aid’.

Mind you we cannot engage in a thorough discussion on issues of trade, drugs, technology, investment, et cetera, without understanding Intellectual Property. So, as we implement the Public Sector Reform programme for this country (and Malawi is Africa’s most blessed land), let us add some Intellectual Property in the cauldron and see where this will take us.