Exhaustion of Intellectual Property Rights in Africa

Abstract The exhaustion principle, while a well-known concept in intellectual property (IP) law, has not received much attention in the African context. Until February 2023, when the African Continental Free Trade Area Protocol on Intellectual Property was adopted, the African Union lacked a formal stance on the exhaustion of IP rights. The African Regional Intellectual Property Organization (ARIPO) does not have an exhaustion policy, whereas its counterpart, the African Intellectual Property Organization (OAPI), under the Bangui Agreement, features a somewhat mixed set of exhaustion rules. Some national laws, except those of the OAPI member states, also appear to lack explicit provisions on the matter. However, the new IP Protocol has changed this situation by providing for regional exhaustion of IP rights. This paper argues that while this development creates an opportunity for continental harmonization, promoting intra-African trade, and enhancing regional competition, a mixed set of exhaustion rules would be optimal if access to protected subject matter, such as books and health technologies, is prioritized.