Lawyer Mrs. Sarah Norkor Anku is a Private Legal Practitioner, Intellectual Property Attorney & Consultant, and Senior and Founding Partner at ANKU. ANKU AT-LAW, Ghana & Nigeria and PatentAssist LLC, Wyoming, USA, with over two decades of experience in IP Practice.
Her Law Firm, ANKU.ANKU AT-LAW is a registered ARIPO (African Intellectual Property Organisation) Agent as well as Agents in Ghana and Nigeria.
Together with her colleagues at ANKU.ANKU AT-LAW, Mrs. Anku provides IP registration services in Ghana, Nigeria and the ARIPO region and assists her clients to effectively enforce their IPRs in Ghana and Nigeria. She prepares IP commercialisation contracts and assists her clients in negotiating robust and effective IP contracts and related Agreements. Her law firm won the TOP 50 LEGAL/IP COMPANIES award at Singapore’s 2019 IP Gorilla conference.
As an IP Consultant, Mrs. Anku facilitates the development of IP policies and IP strategies with relevant template agreements for institutions and businesses. Her Law firm ANKU.ANKU AT-LAW, in a joint venture consortium with a development planning Consultancy firm, is currently developing a technology transfer framework for the government of Ghana under a World Bank project in Ghana.
Sarah has also provided training services and developed a case study and materials on “Doing business in Ghana: IP tips for market access” for the Africa IP SME Helpdesk of the European Commission (AFRIPI project of the EUIPO). She was a key expert on the Danish Technological Institute facilitated ACP-EU-TBT Program in the United Republic of Tanzania. Mrs. Anku worked at the Ghana IP Office for almost a decade as an Assistant Registrar and State Attorney. She was a Vice Chairperson of two sessions of the SCP of WIPO and served as Ghana’s delegate at some ARIPO committees and Administrative Council sessions.
Sarah has also provided training services and developed a case study and materials on “Doing business in Ghana: IP tips for market access” for the Africa IP SME Helpdesk of the European Commission (AFRIPI project of the EUIPO). She was a key expert on the Danish Technological Institute facilitated ACP-EU-TBT Program in the United Republic of Tanzania. Mrs. Anku worked at the Ghana IP Office for almost a decade as an Assistant Registrar and State Attorney. She was a Vice Chairperson of two sessions of the SCP of WIPO and served as Ghana’s delegate at some ARIPO committees and Administrative Council sessions.
She is a Board Member of the Ghana National Folklore Board, a member of the IP committee of the Ghana Food and Drugs Authority (FDA), a member of the International Advisory Council and an Associate Partner of the AfCFTA Policy Network (APN)
She is the founding president and a director of Intellectual Property Network, Ghana and a member of AllThingsIP Africa. She was recently appointed a member of the Global IP Matrix editorial board for the year 2023.
She is a lecturer at the MPhil Intellectual Property programme at Kwame Nkrumah University of Science and Technology, Ghana and a member of the Ghana Bar.
Sarah is an ardent IP speaker locally and internationally. In this capacity, she was the voice of IP at the recently ended prestigious 74th New Year School conference, which is an annual intellectual conference organised by the University of Ghana, which ended in a communique to guide government policy on trade as relates the African Continental Free Trade Area (AfCFTA).
Sarah publishes articles on IP and has two books on the subject to her name. Her latest book, “Monetising Your Creativity and Innovation: An Introduction to Intellectual Property,” targets the youth and seeks to guide them in monetising their creativity.
Sarah holds an LLM and LLB (Ghana), MIP (Zimbabwe), MSc. (London), QCL (Ghana) and BSc. (Ghana).
Written by Sarah Norkor Anku, Senior Partner at Anku.Anku At-Law, Ghana
Introduction
Ghana is a low-middle income country located in West Africa along the Gulf of Guinea. It has a population of over thirty (30) million people and a rising middle- income class with a high taste for luxury goods.
There is also an equally huge market for look-alike luxury brands, whether for used goods of luxury brands or fake copies of the brands. It is not surprising that there is a current trend of copieddesigns, copyrighted content, labels, trade dress and trademarks among competitors in the Ghanaian market.
The apparent increase in Intellectual Property Rights (IPRs) infringement has raised some high-profile IPR disputes in Ghana. The increased number of disputes may be attributable to increased awareness of the rights of IP owners and businesses. Consequently, the issue of IPR enforcement can no longer be ignored or treated with cursory attention.
Ghana is TRIPs compliant as relates to IPR enforcement measures. The various IP laws provide for administrative, border measures, and criminal and civil enforcement measures. Apart from the Copyright laws of Ghana, which make provisions for ADR, the IP laws do not specifically mention Alternative Dispute Resolution as an IP enforcement measure. Nonetheless, the ADR laws of Ghana have provisions that allow some IPR disputes to be resolved by ADR.
What is ADR?
Alternative Dispute Resolution (ADR) is an out of court dispute resolution mechanism. ADR methods may vary from one Jurisdiction to the other. However, some widely used methods are arbitration, mediation, and negotiation. Other forms of ADR methods include Expedited Arbitration and Expert Determination. ADR processes are generally faster, more efficient and cost-effective than court litigation processes.
ADR methods are increasingly being used as preferred dispute resolution mechanisms in cases where litigation was the norm, such as in land disputes, property settlement distribution, custody issues, personal claims, and, quite recently, intellectual property infringement matters.
Primarily, ADR is a preferred dispute resolution mechanism because it fosters collaboration and amicable settlement and allows parties to tailor practical solutions to resolve their
differences. Moreover, unlike in court litigation cases that are held in public, most ADR methods are private in nature, ensuring the preservation of the parties’ reputations and relationships.
History of ADR Practice and Relevant Laws of Ghana
ADR practice in Ghana dates as far back as pre-colonial times. The practice has persisted in various traditional norms and values in Ghanaian societies and communities, with disputes being resolved customarily by chiefs, elders and heads of families and clans in various traditional communities in accordance with the customary laws of the communities. Such customary laws have been given recognition in the current Constitution of Ghana and thus form part of the laws of Ghana.
The 1992 Constitution of the Republic of Ghana is the supreme law of the land, and it provides in Article 11 as follows:
“Article 11(1) the laws of Ghana shall comprise: (a) this Constitution;
(b) Enactments made by or under the authority of the Parliament established by this Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution. (d) the existing law; and (e) the common law.
(2) The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law, including those determined by the Superior Court of Judicature.
(3) For the purposes of this article, “customary law” means the rules of law, which by custom are applicable to particular communities in Ghana.”
The customary law, as defined by the Constitution of Ghana, includes rules existing within the various communities of Ghana. In origin, these were ethnic- based rules and norms passed on from one generation to the other and developed to constitute an essential part of community laws. It now finds expression in Ghanaian law. One of such norms and usage is the customary law alternative dispute resolution system.
The main Act of Parliament which governs ADR is the Alternative Dispute Resolution Act, 2010 (Act 798). It provides for the settlement of disputes by arbitration, mediation, and customary arbitration. It establishes an alternative dispute resolution centre and provides for related matters. The Act also encourages disputing parties to use established national ADR centre(s) to resolve disputes. It excludes from ADR matters that relate to (a) the national or public interest; (b) the environment; (c) the enforcement and interpretation of the Constitution; (d) any other matter that by law cannot be settled by an alternative dispute resolution method.1 In effect, so long as Intellectual Property Rights disputes are not specifically excluded from ADR, matters of IPRs infringement may be resolved through ADR.
The Copyright Act, 2005 (Act 690) categorically provides for negotiations, and Copyright Administrator facilitated mediation of Copyright disputes in section 48 of the Act, which states that:
(1) “Where any dispute arises between any parties under this Act or in relation to any copyright or claim under this Act, the parties involved in the dispute may seek to negotiate a settlement of the dispute.
(2) Where negotiation under subsection (1) fails, a report may
be made by either or both parties to the Copyright Administrator, who shall mediate for
settlement.
(3) A party dissatisfied with a decision to submit to mediation made under subsection
(2) May seek redress from a court of competent Jurisdiction.”
There are other Acts of Parliament, Regulations and Policies that provide ADR as a dispute resolution mechanism which indirectly impact IPR dispute resolution. These include:
• (1) The High Court Civil Procedure Rules (C.I. 47): Under the Rules of Court, the High Court (Commercial Division) of Ghana has original Jurisdiction over all IP cases. The procedure at the Commercial Court includes a mandatory pre-trial settlement which involves a court- mediated settlement attempt. 2
(2) The Courts Act 1993 (Act 459) encourages the use of ADR to resolve disputes pending before the courts. 3
(3) The Ghana Investment Promotion Centre Act, 2013 (Act 865): The Ghana Investment Promotion Centre (GIPC), established by the Act, is tasked with facilitating and regulating national and international investment for economic growth and development. The Act provides for ADR mechanisms under section 33 and states as follows:
(1) “where a dispute arises between a foreign investor and the Government in respect of an enterprise, an effort shall be made through mutual discussion to reach an amicable settlement;
(2) A dispute between a foreign investor and the Government in respect of an enterprise to which this Act applies which is not amicably settled through mutual discussions within six months may be submitted at the option of the aggrieved party to arbitration unless there is
an arbitration agreement to the contrary, the method of dispute settlement shall be mediation under the Alternative Dispute Resolution Act, 2010 (Act, 798).”
Taking into account the number of legislations and policies with provisions on ADR, one may conclude that ADR is a preferred dispute resolution mechanism. Unfortunately, ADR, as relates to IP infringement disputes, is not a common practice.
IP Enforcement Challenges and ADR
In Ghana, enforcement of IPRs through the courts and recently through ADR faces challenges leading to continuous flagrant and brazen infringement of IPRs by individuals, companies and, in some cases, international organisations. The challenges include:
a. High cost of litigation that may be too expensive for the IP owner;
b. Ignorance of IP owners about the availability of ADR option
c. Lack of confidence in the ADR option due to preconceived misconceptions
d. Lack of IP awareness and express ADR provisions in most major IP laws
e. Many uninformed and untrained persons handling IP enforcement matters
f. Lack of or deficiency in the training and remuneration of ADR practitioners in the area of IP
Curiously, recent awareness creation activities by some IP Practitioners are yielding positive results, with IP owners being empowered and more conscious of their rights, thus taking bold steps to enforce the rights. Examples of some ADR IP enforcement cases include the Kirani Ayat case, copyright contract cases handled by the Copyright Administrator and facilitated mediation of business trademark and industrial design infringement cases by some statutory regulatory bodies.
The Kirani Ayat’s Copyright Infringement Case
On September 27th, 2022, a video shared on Ghana’s President Akufo- Addo’s social media handles with the intention of promoting tourism used footage from Ghanaian musician Kirani Ayat’s ‘Guda’ music video. Kirani Ayat accused the Ministry of Tourism and the Ghana Tourism Authority of infringing the copyright on his music. Other creatives in the entertainment industry joined Kirani Ayat in speaking up, maintaining that Kirani ought to receive compensation from the Ghana Tourism Authority (GTA) for using his intellectual property. The GTA’s argument that it obtained the right to use the copyrighted work from a creative agency was refuted by the agency.
Seeing that Kirani Ayat was conversant with his IP rights, GTA called for settlement. The copyright infringement dispute was resolved by ADR, and the settlement reached included an agreed future collaboration between Kirani Ayat and the GTA.
Probable Effect of the Ayat Case on IP Infringement and ADR in Ghana
The Kirani Ayat case led to conversations around IPRs on social media; however, it was short-lived, as the news of the settlement saw a gradual decline in IP rights conversations. Notwithstanding, the said case has birthed something that must be
built on by implementing sustainable measures to facilitate the growth of ADR as a fundamental means of settling IP disputes in Ghana.
Conclusion and Way Forward
ADR has been an effective IP enforcement mechanism in many jurisdictions, with the World Intellectual Property Organisation Arbitration and Mediation Center promoting such IP dispute resolution mechanisms. In the circumstances, it is highly recommended that:
1. Adequate and intense ADR and IP rights advocacy and public sensitisation programmes should be implemented in order to further develop ADR as an effective IP enforcement mechanism in Ghana.
2. IPRs awareness creation among right holders to enhance understanding of their rights and to empower them to enforce their rights.
3. Collaboration with WIPO: About fifty-four countries currently collaborate with WIPO in the promotion of the use of ADR options for IP dispute resolution; consequently, most of these countries are opening up to the idea, thereby reaping the reward in the speedy and cordial resolution of IP disputes.
In conclusion, pragmatism is required of the IP administrative institutions, practitioners, and creatives alike to promote ADR as an effective IP enforcement measure.