By Ahmed Abdel-Latif*
Last January, Egypt and Tunisia enacted new constitutions in the context of the political changes they have been witnessing since the 2011 revolutions that overthrew the Mubarak and Ben Ali regimes. While most public attention has focused on how these constitutions have addressed hotly debated issues such as the structure of government, the role of religion and fundamental freedoms, there has been relatively less attention to how they have dealt with economic and social issues. In this regard, it is noteworthy that the two constitutions contain clauses which give high priority to building a knowledge economy and which provide for the protection of intellectual property rights (IPRs), at the constitutional level, for the first time in the history of these countries.
The new Egyptian constitution was put to a referendum on 14-15 January 2014 and approved by a large majority of Egyptians who took part in the vote. It replaces the controversial 2012 constitution enacted under former President Morsi as well as the 1971 constitution. The new Tunisian constitution was adopted by an overwhelming majority of the country’s Constituent Assembly on 26 January 2014 and replaces the 1959 constitution.
The importance of the knowledge economy recognized
The Egyptian and Tunisian constitutions include clauses which recognize the importance of building a knowledge economy and emphasize the need to support scientific research, innovation and creativity.
The Egyptian constitution stipulates that the “State guarantees the freedom of scientific research and encourages its institutions as a means towards achieving national sovereignty, and building a knowledge economy” (article 23). The State also “supports researchers and inventors” and commits to “allocate a percentage of government expenditures that is no less than 1% of Gross National Product to scientific research which will gradually increase until it reaches global levels.” The commitment to allocate a specific percentage of government expenditure to scientific research is remarkable and rather unusual in constitutionals texts. Interestingly, there is also a mention in the same provision that the “State shall ensure effective means of contribution by private and non-governmental sectors and the participation of Egyptian expatriates in the progress of scientific research.” In a more conventional manner, the Tunisian Constitution envisages that “the State provides the means necessary to the development of technological and scientific research” (Article 33).
Between 2004 and 2010, governmental R&D expenditure in Egypt averaged around 0.25% of GDP below the sub-Saharan African average (excluding South Africa) and barely one-tenth the OECD average. Tunisia’s expenditure on R&D was higher at around 1,1% of GDP in 2009. Egypt ranked 108 in the 2013 Global Innovation Index (GII) while Tunisia ranked 70th.
In terms of cultural creation and creativity, the Egyptian constitution commits the State “to promote art and literature, sponsor creators and writers and protect their creations, and provide the necessary means of encouragement to achieve this end” (Article 67). The Tunisian constitution underlines that the “State encourages cultural creation” (Article 42).
The clauses on intellectual property rights: similarities and differences
The protection of IPRs is sanctioned for the first time in the constitutions of Egypt and Tunisia with similarities and differences in the way IPRs are mentioned. In both constitutions, the wording is succinct: the Egyptian constitution stipulates that the “State shall protect all types of intellectual property in all fields” (Article 69) and the Tunisian constitution indicates that “intellectual property is guaranteed” (Article 41).
It is noticeable that both clauses do not dwell on the broader public policy objectives behind the protection of intellectual property rights. Yet, for several years, developing countries have argued, particularly at the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), that the protection of IPRs is not “an end in itself” but rather should effectively contribute to innovation and be supportive of wider socio-economic development objectives. It is worth recalling that the United States Constitution considers patents and copyright as means to promote the progress of science and arts. National legislations that will implement these constitutional clauses can elaborate on the rationale for intellectual property protection in order to embed it in broader development processes.
In the case of Egypt, the clause on IPRs further mentions that the State “shall establish a competent body to uphold these rights and provide for their legal protection as regulated by law.” However, the exact mandate and powers of this body remain to be specified. Is it intended to be a single unified body that will handle IPRs administration as in the case of some countries - such as the United Kingdom Intellectual Property Office – or would it be more a coordinating entity to strengthen policy coherence and coordination in dealing with IP issues? In any case, policy makers should ensure that the mandate of this body adequately incorporates public policy objectives and the development dimension.
Both constitutions place the protection of IPRs under a human rights framework. However, IPRs are addressed in a stand-alone provision in the Egyptian constitution under the section dealing with public rights and freedoms. In the Tunisian constitution, the reference to IPRs is part of a clause which guarantees the right to private property.
Both constitutions contain a number of clauses on culture, health, and heritage protection that can impact the manner in which the IPR clauses could be interpreted and implemented. For instance, the Egyptian and Tunisian constitutions enshrine a right to culture (respectively articles 48 and 42), a right to health (respectively articles 18 and 38) and the protection of cultural heritage (respectively articles 50 and 42).
While the constitutions of several Arab countries make reference to the protection of creators and inventors or the protection of private property, few constitutions include an explicit reference to IP,IPRs or specific categories of intellectual property rights. Apart from the new constitutions of Egypt and Tunisia, only the constitutional texts of Libya, Sudan and the United Arab Emirates (UAE) contain such explicit reference.
The challenge of implementation
The knowledge economy related clauses in the constitutions of Egypt and Tunisia reflect the growing priority given by these countries to promoting innovation and creativity within the new socio-economic policies pursued since the Arab Spring. The reference to “building a knowledge economy” in the Egyptian constitution is particularly revealing in this regard. In addition, the mention of private sector participation in the research effort shows an awareness of the weaknesses that have characterised the national innovation system in a country like Egypt and the need to address them. It remains to be seen the extent to which this priority will have a tangible impact on the ground, particularly in light of the difficult economic circumstances prevailing in both countries and the limited resources available for allocation to competing public policy objectives.
The reference to IPRs in the Egyptian and Tunisian constitutions is part of an overall trend towards the ‘constitutionalisation’ of IP protection under a human rights framework either deriving from the rights of inventors and creators or the right to private property. It also reflects the increased engagement of these countries with IP issues since the adoption of the WTO Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS).
Given the general wording of the IPR clauses in both constitutions, it is ultimately the manner in which these clauses will be implemented through national laws and judicial decisions that will be critical in ensuring that a balanced approach to IP protection is adopted which takes into account these countries’ level of development and is supportive of their public policy objectives.
* Ahmed Abdel-Latif is Senior Programme Manager for Innovation, Technology and Intellectual Property at the International Centre for Trade and Sustainable Development (ICTSD), Geneva. He is a former Egyptian intellectual property negotiator.
 It increased to 0,43% of GDP in 2011 (UNESCO Institute for Statistics).
 Article I, Section 8, Clause 8 of the United States Constitution states: “Congress shall have the power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
 Article 48 of the Egyptian constitution states: “Culture is a right of every citizen that is guaranteed by the state. The state encourages translation from and to Arabic.” Article 42 of the Tunisian constitution states: “the right to culture is guaranteed.”
 Article 18 of the Egyptian constitution states: “Every citizen has the right to health and to comprehensive health care which complies with quality standards. (…).” According to article 38 of the Tunisian constitution “each human being has a right to health.”
 Article 50 of the Egyptian constitution states: “Egypt’s material and moral civilizational and cultural heritage of all types and from all of the Pharaonic, Coptic, Islamic, and modern periods are a national and human heritage that the state commits to protect and maintain. The same applies to the modern architectural, literary and artistic cultural stock.” Article 42 of the Tunisian constitution states: “The state protects cultural heritage and guarantees the rights of future generations.”
 The Libyan interim Constitutional Declaration of 2011 refers to “intellectual and private property” in Article 8 under Rights and Public Freedoms. The Sudanese constitution contains a reference to IP among the list of issues which fall among the national competences of the government. The constitution of the UAE guarantees the protection of cultural, technical and industrial property and copyright, printing and publishing (Article 121).
 See Transforming Arab Economies: Towards Knowledge and Innovation-Driven Development Strategies, Centre for Mediterranean Integration, The World Bank (2013).