THE NEED FOR IP POLICIES IN STRENGTHENING THE NIGERIAN ECONOMY
Elekwa A., Oluwadare T., Koko B. and Damissah P.
ABSTRACT
Economic growth is closely related to how well the economy encourages, stimulates and fosters creativity and innovation. A critical factor in maximizing the value of this creativity and innovation is a clear legal and regulatory system that recognizes the importance of the underlying Intellectual Property (IP) and establishes and protects the property rights of the creators, inventors and innovators. The need for an IP policy to protect these innovations cannot be overemphasized. This paper seeks to shed light on the need for these policies by highlighting the challenges which are being faced as well as present factors which should be put into consideration in the creation of an IP policy in Nigeria.
INTRODUCTION
The greatest asset of a country lies in the creativity and innovation of its citizens and hence, such innovation and creativity should be protected. The importance of Intellectual Property Rights in every country cannot be overemphasized. IPRs confer monopoly rights on the owner, thus the owner is allowed to enjoy his innovation for a certain period of time without any form of interference. IP policies refer to those policies formulated to protect the product/expression of the human intellect. They are the policies that help a person to exercise his right of ownership over his intellectual works.
In Nigeria, various laws have been formulated to protect intellectual property rights. However, these laws are outdated and they have not been amended over the years unlike other countries. For instance, the current Nigerian Copyright Act[1]was last amended in 1999. From 1999 till date Nigeria has not had any growth or improvement on its Copyright Act till date. It is trite to say that the world has become a global village and digitalization is the order of the day. The world has changed from the times where copyright only protected traditional works (I.e. works expressed in printed forms or hard copies).
The world is moving fast paced to being technologically advanced, yet Nigeria is still behind in this race and has not even met up with certain provisions for the protection of works published on the internet. For instance, the Nigerian Copyright Act does not protect adequately protect works which are digital in nature and are on the internet the way the WIPO Internet treaties envisage them to be protected. Even in relation to musical works which has now moved from the era of physical CDs to streaming on platforms like Apple music, Spotify etc., the Nigerian Copyright Act has no provisions enforcing or regulating the manner in which these creators are to receive remuneration for their creation.
Also, Nigeria has no laws regulating the protection of digital broadcast by cable and software, as well as, the protection of computer software[2]. This has led to copyright infringements in so many respects.
Also, other Acts like the Patents and Design Act[3], Trademark Act[4] haven’t experienced any significant changes since the time of their establishments, times have changed and they do no not protect the technological changes in the world. For instance, the Patents and Designs Act has been adopted in Nigeria for over 40 years and it needs to be tuned to meet the technological changes in the world. For instance, the Nigerian Patents and Designs Act does not provide for nanotechnology, biotechnology[5] etc.
In February 2018, Gambia formulated its Intellectual Property policy[6] and it has helped to facilitate integration of IP into national and sectorial development policies in Gambia among other things and this in turn gave a boost to the industries empowered by the protection of Intellectual property. Nigeria is however lacking in this as we have no IP policies set in stone which would fill the lacuna the old laws failed to provide for.
This in turn has created challenges in the Intellectual Property sphere in Nigeria.
CHALLENGES CAUSED BY LACK OF IP POLICIES IN NIGERIA
Nigeria is marketed as he ‘Giant of Africa’ due to the booming economy we had in the past. However, in recent times, a slower growth has been recorded due to lack of adaptation to recent trends such as technology and the internet. Nigeria being one of the few African countries not signatory to African Regional Intellectual Property Organization (ARIPO), is also one of the African countries to not have any IP Policies, and this is in turn detrimental to our economy.
It is quite disappointing that it has been decades since the previous IP laws were adopted, and up till most IP laws have remained outdated. These drawbacks in IP policies create a set of challenges that only the creation of fresh policies can solve. Some of the major challenges caused by lack of IP Policies include:
1. Non protection of new sub-classes of rights: Africa still lags behind in developing an indigenous law that will address basic issues on IPRs. In the area of trademarks, there have been developments of other forms of marks different from marks relating to goods. There are service marks, scent marks, sound mark and slogans. Presently in Nigeria, service mark is only now recognized and protected by an amendment to the regulation made by the Minister of Commerce in exercise of his powers under the Trade Mark Act, 1965. And there have still been questions as to whether that amendment is legal. Scent marks are still not adequately protected in Nigeria due to lack of policies covering it, and as such, a perfumer who creates a unique scent tomorrow in the country may not be protected.
2. Stagnant economic growth: While the Nollywood industry is ranked as third globally after Hollywood and Bollywood, our economy has little to nothing to show for this due to lack of adequate protection of these works on the internet. Our laws are still stuck on what traditional intellectual property used to protect and has not moved forward to the era of technology where these works can easily be pirated on the internet with no skill required. In countries like the United States which has incorporated the WIPO internet treaties into their Digital Millennium Copyright Act, there seems to be much better protection of works on the internet. For instance, using the DMCA, artistes like Beyoncé can ensure that snippets of her songs cannot be accessible on the unauthorized sites as they would be taken down by copyright bots. This cannot be said for Nigerian artistes however. This in turn reduces the sales and consequently sales tax which ought to go to our economy would be depleted. We need to come up with new policies which would curb the raging menace that the internet is becoming.
FACTORS TO BE CONSIDERED IN THE CREATION OF AN IP POLICY IN NIGERIA.
1. New Classes of IPRs: In the creation of an IP policy, note has to be taken of the new sub classes of IP rights which have emerged recently. For example, Plant Variety Rights. Plant variety rights are a new form of IPR which protect the plant breeder in creation of new crops which produce high yield, and are more tolerant to disease and pests. These rights are granted under the International Convention for the Protection of New Varieties of Plants (UPOV Convention) which Nigeria is not a signatory to despite being a power house of agriculture in Africa. This needs to change as it would help yield more economic development through the agricultural scene.
2. Technological Advancement: The world has now moved past the age of the company of stationers and printing press and has now gone digital. Many works are now being created and accessed through digital means and the internet however; the current IP laws in Nigeria do not adequately cover the digital sphere and as a result leaves works unprotected. Any policy to be created has to fill the lacuna technological advancement has created.
3. Protection of Traditional creations/ Traditional Knowledge: While we focus on the technological advancements which the world has sailed on and Nigeria is trying to catch up to, we should also not forget our traditional/local creations which are built on our heritage and culture as a nation and define who we are. Works like Folk medicine for example has no protection whatsoever in our laws even as they have been proven to be effective. There is no incentive given to those who create herbal medicine like ‘Agbo’ but rather we look up to big pharmaceuticals like AstraZeneca, Johnson and Johnson etc. when we have our local talent that we can sharpen to make more presentable in the global market. Protecting such creations would not only aid research and development of traditional medicine, it would boost our economy, and also protect the traditional knowledge of the indigenes.
RECOMMENDATIONS
IP is a key factor in creating an environment in which innovation and creativity can flourish and generate future growth and prosperity.[7] Technology and its knowledge has influenced the economic growth of developed countries like UK, USA, China and even developing countries like Brazil, South Africa, India. Thus, intellectual property with the help of globalization and technological innovation has shown “an enticing allure in corporate strategy affecting company ratings”.[8]
To strengthen the Nigerian economy, Olubanwo and Oguntase suggested:
…the development of an IP policy that recognizes the importance of a robust and virile IPR legal framework to National developmental aspiration, particularly as regards science and technology and trade and industry. This step will then have to be followed by an inclusive reform, involving the identification of the critical problems bedeviling the administration of this creative sector of the economy as well as the development of regulatory frameworks governing the sector which seek to address the identified critical problems as well as use IP as a vehicle of technical and industrial development and avenue for wealth and job creation[9]
Furthermore, for the economy of Nigeria to be strengthened by any intellectual property policy, it is pertinent for the following to occur:
1. REFORM OF OUTDATED LAWS
One of the benefits of law is its dynamism and its ability to meet the current of its society. Most of the intellectual property laws in Nigeria are archaic and do not meet the present technological need of the present day. A good example of this is the Trade Marks Act was enacted in 1967 (and even then, was a re-enactment of the UK’s 1938 Trade Marks Act) while the Patents and Designs Act was in 1971. For any policy to strengthen the economy, it is salient for our laws to be looked at and reformed to meet the current needs of our society. In developed countries, smell and taste of a product can be trademarked, this not the case in Nigeria. Scholars have reiterated the fact that in other advanced climes (like in Britain from where most of Nigerian IP legislation took their roots), reforms of the laws have been carried out severally to enhance IPR protection, eliminate onerous statutory provisions and ensure conformity with new innovations.[10]
2. MULTILATERAL EFFORT
Nigeria is not a party to some prominent multilateral organizations that provide for regional and international registration of IPRs, such as the African Regional Intellectual Property Organisation (ARIPO), the Yaoundé-based Organisation Africaine de la Proprié té Intellectuelle (OAPI), and the Geneva-based International Patent Cooperation Union (IPCU) formed based on the 1970 Washington Treaty — the Patent Cooperation Treaty (PCT). Neither has it ratified in accordance with Section 12 of the 1999 Constitution, recent intellectual property treaties and conventions to which it is signatory. Being a member of this treaty will give room for certain intellectual property policies that will strengthen the economy of the state.
3. DEARTH OF JUDICIAL PRECEDENT IN IP:
There is also a dearth of IP cases in the country and this indicates that more effort needs to be made among the sector stakeholders (particularly IP lawyers, judges, judicial bodies, law teachers and law reform commissions, regulatory bodies and the general populace) towards developing Nigerian jurisprudence in this area. This problem is also exacerbated by the inadequate numbers of competent judges skilled in IP laws in the nation’s judiciary.[11]
4. REGULATORY CONFLICT LACUNAE
The coordination amongst members of some agencies which influence IPRs in Nigeria is not properly defined which largely make holders of registered IPRs or their licensees easily vulnerable to infringement. A ready example is the lack of common data bank or depository for regulatory alliance, among relevant government agencies and departments charged with the registration of business, commercial transactions and IPRs. For instance, while the Companies and Allied Matters Act prohibits the registration of a company or business by a name which would violate, or is similar to, any existing trade mark registered in Nigeria without the consent of the owner of the trade mark; there are no mechanisms for data synergy between the Corporate Affairs Commission and the Trade Marks Registry, to ensure efficient enforcement of the prohibition. Also, there is no similar provision in the Trade Marks Act. Another example is the Notice of Acceptance of trademark which is accepted by the National Agency for Food and Drug Administration and Control as one of the documents for registration of a regulated product. However, where such trademark has been successfully opposed pursuant to the Trade Marks Act, there is usually no communication to NAFDAC.[12]
CONCLUSION
Nigeria needs to develop a National Policy in Intellectual Property for the growth of her economy. A National Policy Framework that will clearly define the nations Intellectual Property goals with our collective national talents, cultures and technologies. This policy will serve as a yardstick to international communities to know the direction of our intellectual property industry. This National Policy for Intellectual Property should be integrated into our national consciousness through campaigns and public awareness for the growth of our economy.
[1] Copyright Act (CAP. 68, LFN, 1990)
[2] Hemen Philip Faga, ‘Limits of Copyright Protection in Contemporary Nigeria: Re-Examining the relevance of the Nigerian Copyright Act in today’s Digital and Computer age’ (2011) <https://www.ajol.info/index.php/naujilj/article/download/82405/72560> accessed January 19 2021
[3]Patents and Designs Act [1970 №60. L.N 52 of 1971]
[4] Trademark Act, Cap T 13, LFN 2004
[5] Templars Law Firm, ‘Patentability under the Nigerian Patents and Designs Act (PDA): An introductory Analysis https://www.templars-law.com/wp-content/uploads/2015/05/Patentability-Under-the-Nigerian-Patent-Act.pdf accessed January 19 2021
[6] UNCTAD,The Gambia, ‘Formulating the National Entrepreneurship Policy’ (2017) <https://unctad.org/system/files/official-document/diae2017d1_en.pdf> accessed January 16 2021
[7] Francis Gurry, ‘Intellectual Property for an Emerging Africa’ WIPO Magazine (2015) <https://www.wipo.int/wipo_magazine/en/2015/si/article_0001.html> accessed 22 January 2021
[8] Jackson Etti & Edu, ‘Intellectual Property: A Tool For Economic Growth In Nigeria’ (2009) <https://www.mondaq.com/nigeria/trademark/82368/intellectual-property-a-tool-for-economic-growth-in-nigeria> accessed 22 January 2021.
[9] Femi Olubanwo and Oluwatoba Oguntuase, ‘Nigeria: Strengthening Intellectual Property Rights And Protection In Nigeria´(2019) <https://www.mondaq.com/nigeria/trademark/788714/strengthening-intellectual-property-rights-and-protection-in-nigeria> accessed 22 January 2021.
[10] Ibid
[11] Ibid
[12] Ibid
