Madagascar - Protection of Property Rights Madagascar - Property Rights
Upon independence, Madagascar continued the land tenure policies of the French colonial administration, with the presumption of state ownership of all land and the central government being the sole provider of legitimate land titles. However, due to length and cost of the procedures for registering land, together with the remoteness of the authorities, customary practices for recognition of property rights prevailed at the local level.
In 2005, with the support of a Millennium Challenge Corporation Compact, the government embarked on a land reform project to simplify the registration process and to reconcile existing formal and informal property rights. The reform reversed the presumption of state ownership of land and decentralized land registration. Occupied land lacking formal title is no longer considered part of the state domain, and the inhabitants occupying these plots now have recourse to formalize their ownership. The state domain has shrunk considerably, now consisting only of land formally titled to the state and untitled, unoccupied land. Despite the initiation of this reform, which was interrupted by the political crisis from 2009-2013, only between 5-10 percent of all land currently has formal title, though the current administration is continuing efforts to formalize property rights.
The Investment Law (2007-036) provides foreign investors authorization to acquire real estate property through leases with a maximum, renewable duration of 99 years, so long as the property is solely and continuously used to carry out commercial activity. Foreigners cannot directly own land, and the law specifically prohibits the acquisition of land by foreign investors for resale in its original state, or for resale after development. Foreigners can be leased land from the state domain, or can acquire formally titled land from private third parties.
The majority of land ownership disputes are resolved at the local level without recourse to judicial proceedings. The small percentage of disputes that rise to the court system remain bogged down due to the complexity of the cases and the lack of clear evidence of ownership, and even when determinations are made, they are often not adequately enforced.
Intellectual Property Rights
Two government offices share responsibility for the protection of intellectual property rights: the Malagasy Office for Industrial Property (OMAPI) and the Malagasy Copyright Office (OMDA). These offices are financially autonomous bodies, despite their close collaboration with the Ministry of Industry, Ministry of Commerce, and Ministry of Culture and Handicrafts, all of which lack the financial resources to contribute to their operating budgets.
Protection of intellectual property rights is uneven. Officially, authorities protect against infringement, but in reality, enforcement capacity is quite limited due to resource constraints, weakness of the judicial system, and a lack of awareness of intellectual property rights among consumers. These constraints have led some foreign companies to experience difficulties enforcing their rights.
Major brands are generally respected, but pirated copies of DVDs, CDs, software and spare parts are sold openly. Additional products subject to counterfeiting include foodstuffs, clothing items, mobile phones, cigarettes, and cosmetics, among others. Most of these products are imported. The Ministry of Commerce also notes significant imports of counterfeited TV sets and audio equipment. Though the Commerce Ministry has seized counterfeit goods found in the markets during unannounced inspections in the past, these raids are infrequent due to a lack of resources. The government does not maintain statistics on seizures.
Madagascar recently became a signatory to the WIPO Copyright and Performance and Phonogram Treaties, acceding to both in November 2014 and entering them into force in February 2015.
A draft bill to modernize intellectual property protections has been under development, and is expected to be presented to the parliament in the May-July 2016 session. The reforms would incorporate The Hague (international registration of industrial designs), and Lisbon (protection of origin appellation and international registration) agreements, as well as other international treaty classifications in the matter of patents, design and industrial models, and brands and figurative elements into the legislative framework.
For additional information about treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/.
Resources for Rights Holders
Any issue on IPs can be referred to:
Chief, Political-Economic Section
U.S. Embassy Antananarivo
Lot 207 A, Point Liberty, Andranoro, Antehiroka
105 Antananarivo, Madagascar
+261 33 443 2408
* AmCham, Madagascar: www.amcham-mada.mg
* Public list of local lawyers: http://barreau-de-madagascar.org/page/le-tableau-de-l-ordre