THE PROTECTION AND ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN NIGERIA: AN OVERVIEW.

Overview

Intellectual property rights are a bundle of intangible property rights that are legally protected. The function of which is to serve as an incentive to inventors for their creative efforts; and their invariable contributions to the economic development of the country.?

The law functions to dissuade others from taking undue advantage of the intellectual work of another person and provides remedies where this arises.?

The term intellectual property covers a broad range of intangible assets which grants certain exclusive rights to their owners, such as words, phrases, symbols, designs, inventions, discoveries, literary and artistic works. The term ‘Intangible’ is used in describing IP because unlike physical assets, intellectual property is a collection of ideas and concepts originating from or invented by an individual.?

The World Intellectual Property Organization succinctly describes IP as “creations of the mind, such as inventions ; literary and artistic works; designs; and symbols, names and images used in commerce...IP is protected in law by, for example , Patents, Copyrights, and Trademark enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.”

Essentially, intellectual property rights are those devices which enable inventors, and owners of trademarks, copyrighted works, or patents to benefit from and take necessary actions upon the infringement of such rights.

Regulatory Laws and Institutional Frameworks

The body of rules and regulations as well as institutional frameworks governing the creation, acquisition and protection of Intellectual Property rights in Nigeria includes:

• Copyright Act (as amended), Cap. C28, Laws of the Federation of Nigeria 2004;
• Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria 2004;
• Trade Marks Act, Cap. T13, Laws of the Federation of Nigeria 2004;
• Merchandise Marks Act, Cap. M10, Laws of the Federation of Nigeria 2004;
• Trade Malpractices (Miscellaneous Offences) Act, Cap. T12, Laws of the Federation of Nigeria 2004;
• The Federal High Court (Civil Procedure) Rules;
• National Office for Technology Acquisition and Promotion Act, Cap N62, Laws of the Federation of Nigeria 2004;
• The Cybercrimes (Prohibition, Prevention, E.T.C.) Act of 2015

There also exist certain international Intellectual Property regimes (treaties) which Nigeria has ratified. They include?

• The Paris Convention for the Protection of Industrial Property (ratified in September 1963); the Berne Convention (1986);?
• The Rome Convention (Performers, Producers of Phonograms and Broadcasting Organizations – ratified in October 1993);?
• The Patent Law Treaty (ratified in April 2005) and the Patent Cooperation Treaty (ratified in May 2005).

However, like a majority of ratified treaties, some of these ratifications are yet to comply with Section 12(1) of the CFRN, 1999 (as amended). Presently, there is no singular body specifically mandated to regulate the activities of IP in Nigeria, however, the following sector specific bodies exist:

• ? The Nigerian Copyright Commission (NCC) – established under the Copyright Act to regulate creative activities such as music, publishing, artistic and literary works;
• ?? The Trademarks, Patents and Designs Registry – established pursuant to the Trade Marks Act and the Patents and Designs Act, under the Federal Ministry of Commerce to regulate the filing of trademarks, industrial designs as well as grant of patents in Nigeria;
• ?? National Office for Technology Acquisition and Promotion (NOTAP) – established under the NOTAP Act (Cap. N62, LFN 2004) to register technical service agreements, technology transfers and know-how agreements between Nigerian and non-Nigerian parties;
• The Nigerian Broadcasting Commission (NBC) – established under the National Broadcasting Commission Act (Cap. NII, LFN 2004) and vested with the responsibilities of regulating and controlling broadcasting rights, licenses and assignments in Nigeria.

We also have a number of non-governmental organizations functioning to foster the enhancement of Intellectual Property rights in Nigeria and they include:

• Intellectual Property Lawyers Association of Nigeria (IPLAN);?
• The Nigerian local chapter of the International Association for the Protection of Intellectual Property (AIPPI);?
• Anti-Counterfeiting Collaboration (ACC) of Nigeria;?
• The Performing Musicians Association of Nigeria (PMAN);?
• Copyrights' Collecting Societies;
• The Federation of Intellectual Property Owners (FIPO).

Categories of Intellectual Property Rights & Infringements?

There are broadly two categories of intellectual property rights, namely:

• Copyright; and
• Industrial Property.?

While Copyright is concerned with literary, musical and artistic creations, Industrial Property covers rights in patents, trademarks, industrial designs, utility models, plants and animal varieties etc.

Copyright

?Copyright constitutes the protection from unauthorized copying or performance given to the authors of original works of authorship. Copyrightable works are literary works; artistic creations; musical or other audiovisual works. Examples are:?

• Songs (including the musical composition, the lyrics, and a recorded performance but not their title);
• Books ( but not their titles);
• Photographs; etc.

Thus Copyright infringement occurs where any person, without the authorization of the copyright proprietor, reproduces a work that is protected by copyright. It is important to note that it is only works that have been reduced into a fixed format (expressed ideas) that can be copyrighted. Ideas on the other hand are not subject to copyright protection.?

There is no strict requirement to register copyrightable works in Nigeria. As long as the work has been reduced into a fixed format, it becomes automatically copyrightable. Notwithstanding, the Nigerian Copyright Commission offers copyright owners the option to register their? work and deposit a copy with them which will then serve as a public notice of the work.? Copyright is registered on the basis of nationality or domicile. Copyrights infringement is as good a criminal offense as it is a civil one.?

Copyright infringement and the Issue of fair dealing/use

The second schedule of the copyright Act makes provision for fair dealing. The concept of fair dealing in itself serves as an exception to what would otherwise constitute copyright infringement. It is usually regarded as a defense. Thus, where a person reproduces a copyrighted work for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast; or for parody, pastiche, or caricature; or the incidental inclusion of an artistic work in a film or broadcast; or for educational purposes ,then such can be said to fall under fair dealing and as such cannot be said to be an infringement of the said copyright.

Patents and Industrial Designs

A patent is a right to exclude others from the use, sale or reproduction of a claimed invention for a period of time. It is essentially the grant of a property right to the inventor of an invention usually for a specific period of time. I.e. 20 years from the date of registration. Accordingly, where a person other than the patentee or owner of an industrial design or his assignees or person authorized by the owner does or causes any act to be done with regards to the use of a registered patent or industrial design, such an act will constitute an infringement of such patent or industrial design. Acts concerning patents and industrial designs can only amount to infringement when they are done for commercial or industrial purposes, doing any of the acts for personal or family use or as a gift to another does not amount to infringement.

Infringement of the rights of a patentee or design owner is actionable at the instance of the patentee or design owner as the case may be and in the event of being successful at the suit, they are entitled to damages, injunction, accounts of profits or other similar orders the court may deem fit to make in such circumstance.

Trademarks

A trademark is any word, name, symbol, or design, or any combination thereof legally registered or established by use as representing a company or product; and used to identify and distinguish the goods of one manufacturer or seller from those of another.?

Under the law, a registered trademark is deemed infringed if any person not being the owner or person authorized by the owner, uses a mark identical with or nearly resembling a registered trademark that it can likely mislead or cause confusion in the market place concerning goods or services represented by the trademark.??

The Trade Marks Act provides mostly for civil remedies for infringement. The rights conferred by the registration of a trademark on the proprietor are the right to exclusive use and the right to sue for infringement. Therefore, registration is prima facie evidence of title to the particular trademark so registered and entitles the holder or owner of such mark to institute an action to protect its breach. This exclusive right conferred under section 5(1) Trademarks Act is subject to any conditions and limitations to which the registration is subjected. Sections 60 and 61 of the Trade Marks Act criminalize falsification of the register and false representation of a mark as registered.

?However, “The Cybercrimes (Prohibition, Prevention, E.T.C.) Act 2015” imposes criminal action for unauthorized usage of trademarks online.

Enforcement of Intellectual Property Rights

Intellectual Property rights can be enforced chiefly through the following mechanisms:

1. Alternative Dispute Resolution;
2. Court Action via Criminal complaint or Civil Action.?

By virtue of Section 251 (1) (f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); sections 46 and 67 of the Copyrights Act and the Trademarks Act respectively,? the jurisdiction to adjudicate on matters relating to intellectual property falls within the exclusive jurisdiction of the Federal High Court whether criminal or civil. Notwithstanding, the place of ADR in intellectual property rights dispute resolution cannot be ruled out as it is recognized by the rules of court.?

Thus where there has been an infringement of a person’s IPR, the property thing to do would be to consider settling out of court via ADR or asserting his right in court. Invariably, to assert an infringement of his IPR in court, a claimant would have to establish that:

1. He is the owner /proprietor of the work;
2. The defendant has infringed his IPR in relation to that work.

Upon establishing this to the satisfaction of the required standard of proof, the court then awards the necessary remedies.

Remedies for Infringement of IPR

The remedies available for infringement of IPR include:

• Order for inspection and seizure: an order authorizing the applicant to enter the premises at any reasonable time accompanied by a police officer, not below the rank of an Assistant Superintendent of Police; seize and detain and preserve any such infringing copy or contrivance; inspect all or any documents in the custody or under the control of the defendant relating to the action. Virtually all the laws governing intellectual property rights provide for this order.
• An order of injunction: this may include perpetual injunction, interlocutory injunction, Mareva injunction, and Anton pillar injunction. The purpose of which is to prevent or mitigate the level of damage resulting from the infringement, pending a subsequent trial on the merits.
• Award of damages: this is a pecuniary satisfaction awarded by the court to the claimant for his financial loss occasioned by the infringement of his rights.
• The account of profits: this is to prevent unjust enrichment and it is not available to a claimant who has otherwise been adequately compensated in damages for the infringement.
• Delivery up: it is an order against the defendant to hand over all infringement articles to the plaintiff.

Conclusion

From the foregoing, it is obvious that there are some fine laws regulating and protecting Intellectual Property Rights in Nigeria. It is rather unfortunate that the majority of the population do not know that these laws exist and if they do, are skeptical of putting their hope in a judicial system that is characterized by delay and a high cost of litigation. Fortunately, there is the ADR system that has proven efficient in recent times. Enforcement of intellectual property rights can also be carried out via administrative and regulatory methods, which are considered to be faster. Creators should be encouraged to take steps to protect their intellectual property.